The legalisation of the illegal

This book is possibly one of the most damning indictments of the Indian legal system in recent times. Popular media has helped shape the story of an India on the verge of dystopia but always saved by an activist and visionary Supreme Court; but the truth is that despite a few milestone judgments, the judiciary is possibly among the institutions that have betrayed their remit the most. Although Pratiksha Baxi deals only with rape trials, with Gujarat as her sample state, the policing and judicial procedures described here could be Everyman’s trial for any crime anywhere in India.

We already know that the most elevated notions of justice exist in our books but are transmuted so totally in their localisation within a police station or courtroom that they bear little resemblance to the original law. As Baxi says, quoting Nordstrom, “that which is formally illegitimate is sufficiently legitimated in practice”. What we fondly like to imagine as the rule of law in India is actually a Kafkaesque nightmare of brutality.

Baxi presents ethnographic accounts of real rape trials to systematically reveal the series of illegalities that they hide. Let’s start with how language regularly subsumes the legal. First, official transcripts of a trial are not verbatim accounts but contain what is dictated by the presiding judge. Thus, the violence of what is actually spoken and practised in the courtroom is sanitised from the official record. This also explains how and why precedents of injustice are allowed to live on. Second, policemen on duty paraphrase FIRs or dictate what must be written in them. Thus, in the guise of using correct legal language and form, complaints are often diluted or falsified. The conventions of ‘courtroom talk’ insist that victims — even child victims — use prescribed narratives to make their testimony ‘valid’ regardless of what their experienced trauma is. To the court, says Baxi, ‘wrong’ seems to weigh in only when it can be proved or disproved in language of evidentiary value. In the process, we find a legal system that is more faithful to linguistics than to justice!

Outdated text Baxi points also to the hostility towards the rape plaintiff built into the legal architecture. Lawyers still use medical jurisprudence texts dating from colonial times, where the construct of the ‘lying native woman’ is very much alive. The first instinct of the police and courts is to disbelieve the survivor — motives of revenge or compensation are taken as normative — forcing the plaintiff to act as defendant. In rape trials, victims regularly experience the effects of what Taslitz has called ‘semantic contagion’. Facts are inverted to sustain pet tropes — the drunken-abusive husband as proof of the wife’s revenge motive to lie about the rape rather than as proof of the man’s abusive behaviour; divorce used to label the woman as immoral; sexual history introduced to suggest that only monogamous women are worthy of justice.

The writer highlights another legal right that’s routinely denied. Rape is a non-compoundable offence, that is, it is illegal to compromise or settle a rape trial. But Baxi presents trial after trial where the courts either dismiss cases or reduce sentences because the defence produces a stamp paper saying the victim has reached a compromise. Far from rejecting the compromise, there is no cognisance even of how it was reached, what threats or coercion used. False medico-legal certificates (commonly produced in custodial rapes/rape-deaths during riots) are not treated by courts as state forgery. Compromise exists because our courts don’t uphold the written law; they uphold unwritten social norms. The police and the judiciary are complicit in dispensing social justice rather than legal justice — and the woman’s lived experience of violence always loses out against the politics of male honour. Baxi quotes a Kerala High Court judge who said of the CBI in one case: “The investigators appear more interested in persuading the petitioner to settle the dispute than to bring the offenders to book.”

Use of sexual history Baxi’s book shows how significant shifts in jurisprudence that campaigners have fought to introduce over the years are still not reflected in the way rape trials are conducted. Look at just two instances: In 2002, the past sexual history clause was disallowed as evidence to disprove rape. Yet, it continues to be introduced into trials repeatedly, with full judicial cognisance. In fact, if the victim is a child, the mother’s marital or sexual history is introduced to prove fraud.

Second, consent is immaterial in statutory rape, yet the question of consent is constantly dragged in. In a 1996 case, the Gujarat High Court (while reducing a sentence from seven to two years) says of the 13-year-old victim, “perhaps she was a consenting party though undoubtedly the consent will not make any difference”.

Socio-legal anxiety to protect the patriarchal status quo regularly produces absurd legal realities where the rape of a 12-year-old is defended as consensual sex while the elopement of an 18-year-old woman is prosecuted as abduction and rape. Or take the case in Gujarat where a woman was jailed for abetting in her own rape and abduction. The tragedy is not that such cases are filed but that our judges regularly hear them.

Baxi’s book is a hard-hitting expose of how the various projects of law reform have had limited on-ground impact. Of how Supreme Court guidelines on the conduct of rape trials are routinely flouted. Of how courtroom culture reinforces phallocentric power politics rather than individual rights to life and justice. Of India’s easy socio-legal tolerance of sexual violence.

As the world moves increasingly towards therapeutic jurisprudence — defined as an approach to law that does not re-victimise the victim (whether of road accidents, theft or violence) — Baxi’s book shows how very little Indian courts are touched by judicial humanitarianism or sensitivity. Surely this is a major failure of the legal education system. Everyone talks of sensitising the police force but nobody is talking of sensitising our lawyers and future judges. Baxi’s book ought to be on every law student’s mandatory reading list.

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Printable version | Mar 5, 2022 6:49:14 pm |