Pani jhadi thi kya? (Did you ejaculate?)” the sneering defence
lawyer asks the prosecutrix.
Paani nahin, Vakeel Saab, khoon jhadi thi, khoon! (I bled, sir, I bled!)” she cries in reply.
This exchange is a
part of the courtroom scene in Bawandar, Jagmohan Mundhra’s film on
the Bhanwari Devi gang rape case. Based on a true story, the film is also a
reflection of a typical rape trial. In that case, the judge acquitted the
rapists, refusing to believe Bhanwari Devi.
The Rajasthan high court’s 2008 judgment in Yad Ram v. State of Rajasthan castigates the trial court judge for being a mute witness to the abject humiliation and traumatisation of the victim during her cross-examination. To challenge her veracity, the defence—among other things—made her lie down on a bench and demonstrate the posture she had while being raped.
Justice Jaspal Singh of the Delhi high court, writing the judgment in Sudesh Jhaku (1996), expressed strong disapprobation of the magistrate’s (in)actions in allowing the trial—of a father accused of repeatedly raping and sodomising his daughter—to be reduced to a pornographic spectacle. Mincing no words, he said that although the accused’s lawyers were fully entitled to defend their client, it was paramount, an inalienable part of justice, that the child victim is not severely traumatised while testifying and being cross-examined.
Most rape trials in India follow a familiar and similar trajectory: the defence lawyers going for broke, ruthlessly maligning and hectoring the victim; boasting how courtroom speech routinely converts the testimony of rape into a confession of consensual sex; medical experts nitpicking on whether the injuries (or the lack thereof) could establish consent or otherwise; and the judge usually remaining a mute spectator, sometimes even contributing to the injustice by asking questions which essentially amount to casting doubts and aspersions.
Mary Beard, feminist and scholar of classics, wrote a diary entry in the London Review of Books in 2000. Narrating her own experience of being raped, she highlighted the crucial importance of rape narratives, at both cultural and personal levels. “For rape is always a (contested) story, as well as an event; and it is in the telling of rape-as-story, in its different versions, its shifting nuances, that cultures have always debated most intensely some of the unfathomable conflicts of sexual relations and sexual identity.”
Sue Lees’ book Carnal Knowledge: Rape on Trial (1996) shook the British legal system. A detailed, four months’ empirical research on rape trials at The Old Bailey—analysis of 31 cases and interviews with 21 women (prosecutors, defence counsel, victims and witnesses)—revealed that the way the treatment of rape victims in the courts was nothing short of a scandal. The revelations prompted a Home Office investigation, which subsequently led to significant, structural changes in both substantive and procedural law.
In India, most of feminist legal scholarship on rape has focused on the pernicious inequities in the law, mainly the substantive law: the Indian Penal Code. There are many cases where the very trial process has epitomised travesty, with everyone—the prosecution, defence and judge—being complicit. However, all studies and criticism have focused only on the outcomes of the trials and appeals, not the processes which led to those results in the first place.
For instance, Ratna Kapur and Brenda Cossman’s Subversive Sites: Feminist Engagements with the Law in India (1996) examines the steady rise of the Hindu Right and its overbearing effects on women’s rights, while Flavia Agnes questioned the patriarchy entrenched and manifested in legislations and judgments. But critical socio-legal scholarship that engaged with and challenged the procedural aspect of justice delivery, something on the lines of Monroe Freedman’s seminal work on ethics and the lawyering process, has remained conspicuous by its absence.
Sorely missing was something like Catharine MacKinnon’s Feminism Unmodified: Discourses on Life and Law (1987), which documented the degrading treatment women received from institutional actors: the police, courts, the medical fraternity whose members were called in to test and testify to evidence, and the resultant despair and fears.
As anybody conversant with and sensitive enough to observe the shadows and crevices in the trial process would vouchsafe, such a dread isn’t a figment of imagination but the excruciating reality.
Pratiksha Baxi’s Public Secrets of Law: Rape Trials in India seeks
to fill this gaping void. Assistant professor in the Centre for Law and
Governance at JNU, Baxi, for her doctoral dissertation, decided on an
ethnographic study of rape trials in the Mirzapur Court at Ahmedabad. Conducted
over a period of 15 months, this voluminous work comprises both her
observations and analysis of the trials as well as scholarly exposition and
critique of landmark judgments. It cogently articulates the phallocentricism
inherent in the “justice” delivery system.
Quoting anthropologist Michael Taussig, she defines a public secret as something known to all of us, but which cannot be articulated, thus enhancing its power. It is not an exposé, she clarifies, for “rape trials, instead of destroying secrets, are privileged sites for the production, negotiation and management of public secrets”. This statement is laden with meanings—male privilege, and the machinations which go on behind the courtroom scenes—and Baxi pulls off the veneers.
What are these aspects that remain, or are kept clandestine, and some of which are almost verboten? The book’s gamut is wide: how a child victim is put on trial; secret and patently illegal “compromises” willy-nilly allowed by courts, all the way to the Supreme Court; love affairs sought to be passed off as rape for the sake of maintaining the honour and dignity of the family and community.
First and foremost, the construction of rape as an offence against society hides the grievous injuries inscribed and inflicted on the victim’s body by the trial process. These wounds, Baxi contends, are regarded as the “cost of administration of criminal justice” and which need to be problematised, from the perspectives of women who have been violated, and whom the law’s institutions and mechanisms violate again. Second, critiques and criticism are besotted with precedents—the rulings of the higher judiciary, namely, the high courts and the Supreme Court—but these final judgements never fully mirror or capture all the violence suffered by the victims at various stages.
The thickness of this shroud of secrecy can perhaps only be somewhat gauged by the hostility, curiosity and disapproval Baxi encountered even before she could properly embark upon her endeavour. A clique of male lawyers, who snigger at a 10-year-old victim—“this is the one, look at her, so small and she has been raped”—nicknamed her 376, after the provision of the provision of the Indian Penal Code (IPC) mandating punishment for rape, and also vehemently contested the validity of her research. A journalist even wanted to do a story on her “courageous” step!
But once these initial hurdles were overcome, Hirabhai, an assistant public prosecutor, and his junior Beenaben take her under their wings, and like teachers, instruct her in the ways of the court.
Katju and Gyan Sudha Mishra’s benevolence in Baldev Singh v. State
of Punjab (2011) drew opprobrium from all quarters, and rightfully so.
In that case, hearing the appeal against conviction and sentence regarding a
15-year-old incident of rape, the judges, while approving of the “mutual
compromise” arrived between the parties—the woman and her rapist—reduced the
latter’s term of imprisonment from 10 to three years. The judges were also
pleased to award the victim—who was poor, married, and had two children to look
after—a princely sum of Rs.50,000 as compensation. Justice Katju went so
far as to defend this decision in a blog, contending that further imprisonment
of the convict won’t help the victim in any way, let alone mitigate her
poverty. The term “justice” didn’t feature even once.
Rape is a non-compoundable offence, meaning that any settlement or compromise between the parties, even if arrived at with full and proper mutual consent, would be patently illegal. Section 320 of the Code of Criminal Procedure doesn’t include rape in the list of compoundable offences. But statutory restrictions are no impediment for judicial proclivities, all “committed” in the “interest of justice”, drawing strength from the inherent powers vested in the high courts and the Supreme Court. Thank goodness for Justice Sathasivam, who in Shimbu & Another v. Haryana (2013), not only castigated the judges in Baldev Singh but also made it clear that such gross injustice shall not be allowed as a precedent.
Baxi narrates and analyses a bewildering array of cases where such “compromise documents”—nothing more than statements of a subservient victim and a jubilant victor—are routinely used to plead for bail (rape is a non-bailable offence, and enlarging the accused on bail allows for ample scope to destroy evidence, and coerce victims and witnesses), reduce sentences, and even quash charges. She asks an interesting question: does the Indian Evidence Act allow such statements, executed on bond paper, to be proffered as defence evidence? The answer, of course, is a clear “no”. Often, even lip-service isn’t paid to ascertaining their genuineness; handwriting experts verifying the contents are virtually unheard of.
Probing deeper, Baxi shows how these parchments (instruments of coercion surely cannot be recognised as “legal documents”, even if blessed by courts’ patriarchal magnanimity) are sneaked in as evidence of the complainant or victim’s falsehood and to question her character. For instance, there are cases where an FIR is lodged after a prolonged delay because the “community was trying to negotiate a compromise.” And a delayed FIR is usually the first step towards a downward spiral because the complaint is always attacked either as an afterthought or some vindictive ploy.
What role does “the community” play, and what is its significance? Most of these compromise cases come from the villages, with the panchayats calling the shots. The notoriety of khap panchayats doesn’t require any special mention, but of late, other types of panchayats and their prototypes are also jumping into the fray. In January this year, a tribal council in West Bengal’s Birbhum district ordered the gang rape of a woman who had apparently violated the moral code of conduct by having an affair.
Ostensibly, these collective groups claim to represent, or usually arrogate to themselves, the right to represent the “community’s views”, but in reality, as Baxi correctly lashes out against the purchase of immunity (and in all probability, consequent impunity), their idea of compromise is “predatory on claims to justice, and shadowed by violence or its threat. The normalising function of the socio-legal category of compromise makes terror look like a social bargain.”
“Is ‘habituated to sex’ a clinical category?” When this question is posed to
a reputed forensic expert and his colleagues at Ahmedabad’s V. S. Hospital,
they answer in the negative, but make it clear that “habitual” usually refers
to women having sex in marriage.
Rape shield laws mandate that a complainant’s character or past sexual history and conduct shall not be called into question in a rape trial, but what happens when forensic medicine and medico-legal texts indulge in what Baxi terms as “the politics of penistration” and play arbiters of the victim’s veracity? Baxi traces the history of the “habitué” (one habituated to sexual intercourse) in India’s jurisprudence and texts like Modi’s Medical Jurisprudence and Toxicology (which enjoys an almost Biblical status among judges, experts, and lawyers) to colonial-era notions of “native women” being capricious, sometimes mendacious, and often promiscuous by nature.
Reliance on the medical report—elasticity of the vagina, absence or presence of injuries, the types of injuries—is placed to determine whether there was consent, and in the absence of witnesses (which is most often the case), the forensic evidence and testimony remain the only bases of either a conviction or acquittal. A catena of judgements is cited, where courts have disbelieved, even maligned, the complainant-victim on the basis of a negative medical report. One cannot help being startled by the Andhra Pradesh high court’s judgement in Public Prosecutor v. Yejjala Ramaswamy (2004). The medico-legal certificate showed no injuries on the complainant’s body, while confirming the presence of sperm in her vagina and stating she was “habituated to sexual intercourse and there was evidence of intercourse”.
In such circumstances, the court reasoned, considering the fact that the complainant was a midwife and five months pregnant at that time, she would definitely have resisted if it was rape, since chances of suffering an abortion are high if one is raped. But since the lack of injuries proves she never resisted, her consent is necessarily implied.
ten-year-old Noorunnissa was raped by her father, and Hasinaben, her mother,
went to the police to get her daughter justice. The cross-examination of Noor
(that’s Baxi’s term of endearment and affectionate solidarity) reveals more
tawdry defence strategies beyond the bullying and humiliation which has become
endemic by now, despite guidelines being set by repeated rulings of the Supreme
Court. Noor’s father’s lawyer brings in everything—her mother’s record of
marital discord, communalism (Muslim females are “like that”)—to discredit her
The judge, far from taking the child into confidence and reassuring her, repeatedly admonishes her when she is perplexed by questions like “how long was he on top of you?” This is besides his questioning the public prosecutor why Noor should be provided with a stool to sit and testify (even though she was trembling after being hectored and harangued for almost four hours) since the rules of court only provide for water to be given to aged and infirm witnesses.
Legal philosopher Robert Cover coined the term “jurispathic governance” to denote “attempts to eradicate the possibility of a sensitive and responsive jurisprudence to redress sexual violence.” By bringing to the fore rape trials’ public secrets, Baxi makes a case for the entire process to be justifiably criticised as being jurispathic.
It will be premature to expect that this book will bring in the kind of paradigm shift Sue Lees achieved. Nevertheless, reading Baxi’s work should be a chastening experience which would perhaps allow for more of such secrets to be dug out, eviscerated, and hopefully, rendered into oblivion.
Public Secrets of
Law: Rape Trials in India
Oxford University Press