Skip to content

We must resist the cunning of judicial reform: Pratiksha Baxi

December 29, 2012

Guest Post by PRATIKSHA BAXI

The death of the 23 year old woman following the brutal gangrape rape and assault on a moving bus on 16 December 2012 at a hospital in Singapore early this morning leaves all of us in states of deep mourning. This is a political death. Rape and murder of women is political violence against all women, whether or not, the political class recognises and accepts this. In the course of the last two weeks, many body blows have been endured. We felt a body blow after the political death of the 17-year-old gangrape victim in Patiala who took her life after she was humiliated and pressurised to compromise. The numbing list of such political violence continues.

We have seen the emergence of many kinds of publics. There have been many speeches and writing against the emergence of a retributive public, where the cry for death penalty or castration became a vocabulary of protest, also especially since the media initially focussed largely on this demand. Yet in the last few days there has been a perceptible shift from the focus on forming a retributive public moving towards a passionately reasoned and informed public on what the government needs to do to be accountable to rape survivors, and indeed, to all of us who reject the rape cultures in India.

There has been the emergence of a public in solidarity, which has inspired, provoked and supported each one of us in our determined fight against sexual violence anywhere in the country. We have experienced Delhi differently perhaps for the first time in our lives. We have made affective connections with each other, grown from collective strength and learnt from each other.

There have been other darker responses. One standard response to any protest against sexual violence, historically speaking, is to trivialise it. The lack of initial response from the state, which seems to puzzle TV anchors so profoundly, is fairly straightforward: rape is not an issue which has ever been taken seriously by any government since the Partition violence. Protests, research and writing against rape typically have been seen as a “women’s issue” producing nervous laughter at best, if not outright, sexist remarks and jokes, even on the floor of the parliament.

The pornographic public salivating at such public “rape talk” or titillated by the anti-rape protests (or those who protested) has also found reporting. Be it women speaking out against being groped at protests or sexist commentaries about protestors or rape survivors. The political class, irrespective of party affiliations, has brought this to light, ironically enough. Abhijit Mukherjee’s sexist remark, which trivialised the protestors and the protest as the passing fad of “painted and dented women”, found inelegant retraction. Yet it signalled that those who protest against sexual violence, like the survivors of rape, will not be taken seriously, blamed for fictionalising their hurt and more significantly, judged by their makeup or clothes. Or the horrendous remarks of senior West Bengal state CPI (M) leader, Anisur Rahman, who demanded from Mamata Bannerjee, how much compensation she would demand were she to be raped.

Such remarks on the issue of compensation for rape have been made earlier in a similar exchange between Mayawati and Rita Bahaguna over compensating dalit women who by law are legitimate recipients of compensation. Underlying the sexism of these mocking comments lies the intent to trivialize women who are compensated to enable them to access the legal system (especially dalit and adivasi women), especially since many women do not have economic means to bring such cases to courts of law. Compensation when seen through patriarchal frameworks, such as by Rehman, is constructed as blood money rather than seen as a legitimate torts claim, as in many jurisdictions. Afterall, it is the failure of governance, planning and policing, which exposes women to greater risk of sexual violence. Not wanting to be outdone, a member of parliament from West Bengal, Kakoli Ghosh Dastidar, dismissed the charge of rape by the Park Street survivor. The sorrow expressed by the Park street survivor is heartbreaking since her voice has given tremendous courage to all of us to continue our determined fight against sexual violence. And of course, the BJP spokespersons shamelessly go on denying that Muslim women were brutally gangraped and violated in 2002. Is this not political pornography? The normalization of sexual violence in political discourse surely is pornography?

Such remarks produce the effect of immunity and impunity. Some sections of the political class seem to find pleasure in rape talk, even those voices protesting rape. There are some men who witness the protests and think they can get away with it. There are some men who will mimic what happened and possibly get away with it.  Further, what is astounding is that the state does not recognise that by enforcing curfew, barricading the city and stopping the metro to regulate the protest, if not stifle it, the city has produced greater lack of safety for women.

We also see the emergence of a public intimately engaged in the project of judicial reform. While we are called upon to respond to how best we may reform the criminal legal system and recommendations to a judicial commission by the fifth of January are elicited, there are other responses from within the state, which go past unnoticed. Note the orders passed by Additional Sessions Judge 01, Savita Rao in the Tiz Hazari Courts in Delhi on 20 December 2012, in the midst of protests in Delhi.

In State Vs. Tarkeshwar Yadav & Ors. (S.C. No: 75/2012, dated 18.12.2012 FIR No: 115/2011, P.S.: Sarai Rohilla), the court considered an application for the withdrawal of an attempt to rape and outraging modesty complaint lodged by a landlady against her tenant. In court, despite evidence of injury, the prosecution recommended that the case be withdrawn. Upon discovering a protest petition authored by the Additional Public Prosecutor to the Director of Prosecution, where the APP argued that the prosecution should not withdraw the case since the ‘allegations are serious in nature’ and it was ‘against the interest of society’ to withdraw the case. The Directorate of Prosecution (DOP) ignored this protest petition by the APP. Ordering the Chief Secretary of Delhi to make ‘discreet enquiries’ to figure who recommended the withdrawal of the case and take action against such a person, the court noted that while

‘… our responsible government mulls over and declares the establishment of special courts/fast track courts to try crimes against women on the one end and on the other end in its discharge of sovereign functions accords nod to withdraw prosecution against the accused who are booked by its own law enforcement agency for the horrendous crime attempt’ (at para 1).

Slamming the prosecution’s attempt to withdraw the case, Justice Rao rightly held that:

‘Everyday while we wake up and read the newspaper, we find the same flooded with reports of rape having been committed upon the women in Delhi. So much so, that Delhi has been declared rape capital of the country only because of the reason of schizophrenic attitude of those who do not give importance to the human values and the human rights of the females in the society. In the instant case, the court is yet to examine the truthfulness of the case of complainant or the pleas of defence, whereas this application has been moved in utter disregard of the sacrosanct duty towards the society that no injustice is done’ (at para 6).

Salute, Justice Rao!

The trial courts of Delhi have rightly critiqued the judicial reform measure of fast track courts without attending to other procedural horror stories. If the DOP is not free from political interference, rape survivors are unlikely to get justice.

Since rape is a crime against society, rape survivors are more often than not dependent on the prosecutor’s office. They often do not even know that they have the right to hire a lawyer, if they can afford to do so, who can work with a prosecutor. But judicial reform will not focus on the problems faced or created by Additional and Assistant public prosecutors.

If rape survivors are sent for lie-detection tests, which are not even permissible under law, as a method of deterring them from pursuing their complaints, no fast track court will help.

If rape survivors are subjected to the two-finger test and characterized as habitués, then each trial will remain a kafkaesque experience.

If defence lawyers insist during a cross-examination that a rape survivor must lie down on a bench in a court to demonstrate the posture in which she was raped, as happened in a Rajasthan trial court, a few years back, the experience of testifying will be mimetic of rape (see Yad Ram v. State of Rajasthan RLW 2008 (2) Raj 1659).

If judges insist on traces of semen, as judgments in 2011 indicate, to prove rape, then rape can never be proved in our courts of law.

If women are routinely raped without redress in state run shelter homes designed to ostensibly protect them from violence, we should simply shut them down.

The police, CBI, prosecutors, defence lawyers and other agencies of the state continue to terrorize rape survivors to “compromise” rape cases, leading to suicides, murders and acquittals (see Sajina T. v. State of Kerala and Ors. MANU/KE/0041/2008, Vijay Sood v. State of Himachal Pradesh MANU/HP/0132/2009). It is a public secret that an acquittal can be purchased—there is a market out there for forcing rape survivors to shut up, and turn hostile. Will any law reform ever address this?

Trial judges are often helpless, when survivors are forced to turn hostile—no fast track court can fix this. The suicide of the 17 year old in Patiala is an outcome of the terror of compromise—yet there is no attempt to investigate why women are forced to compromise rape cases, when the law books clearly state that this is illegal.

Even bail hearings are based on admitting proof of compromise, which often means a statement (we have no way of determining whether these are genuine) on a stamp paper stating that a compromise between the accused and the survivor (or her family) has been reached. Shockingly, defence lawyers also bring “witnesses” who claim that the rape survivor has on a previous occasion compromised a rape case, and such a woman is a habitual liar. It is unbelievable that the evidence of such defence witnesses, on whom no reliance ought to be placed, is admitted as evidence in rape trials (see Papuria @ Rajesh v. State of Rajasthan MANU/RH/0447/1995, Virender alias Bittu and Naresh v. State of Haryana MANU/PH/0688/2010). If we would bother to read appellate judgments, we come across numerous records of such illegalities, yet these are tolerated since terrorizing women not to speak is an essential requirement of a rape culture.

Nor does the demand not to award bail really help. It cannot help since a number of elopement cases are registered as rape, kidnapping and abduction cases. The police by classifying love as rape effectively use the law on rape to regulate sexual relationships of choice. Raising the age of consent to 18, as suggested in the proposed Criminal Amendment Bill, is ridiculous since it will only criminalize adolescent sexuality without really addressing sexual violence on young people.

We need to ask ourselves whether we can de-link the issue of ensuring the right to self-determination in marriages or relationships of choice from such abuse of the rape law. The complicity between the family and the police ensures that rape survivors are shamed, censored and terrorized into silence; while women who exercise their sexual choices are forced to break up with their partners, forcibly married to men they do not love, or even sent to a jail or asylum. Rape is framed as seduction or love; and love is framed as rape and force. The issue of bail must therefore be approached cautiously.

Yet there is a need to institute measures to ensure that women who complain are not terrorized. In one case, a rape survivor was murdered since she refused to compromise the case. The man who murdered her was convicted, while his friend, the rapist, who had requested him to terrorize the victim, now dead, awaited trial (see Satyanarayan @ Chhinga v. State of Rajasthan MANU/RH/0668/2005). In another case, a young woman student was gangraped in Agra and then pursued by the men (out on bail) who raped her who threatened to rape her again or kill her family members, if she did not compromise the case (see Sachin Verma S/o Cheetar Mal Verma Sachin Verma S/o Cheetar Mal Verma (in Jail) v. State of UP MANU/UP/1487/2005). Rather than compromise, she preferred to kill herself. This political death did not raise any protest. No judicial reformer talks about the terrifying culture of compromise that is constitutive of rape trials in India.

The memory of these young women who have died to bring substantial transformation in the rape cultures that proliferate in our polity, society and judiciary must be kept alive by a consistent refusal to submit to the cunning of judicial reform. We must continue to protest also against the cunning rhetoric of judicial reform, which accommodates critique into the structure of the rape trial, without displacing its nature as a sexualized spectacle.

(Pratiksha Baxi is Assistant Professor at the Centre for the Study of Law and Governance, JNU.)

15 Comments leave one →
  1. shreya giri permalink
    December 29, 2012 11:47 PM

    Now is the high time that our government should take some steps should make some changes in law. May be a law against rape. Enough is enough. No more false promises are to be tolerated. We want justice. That’s it.

  2. 4thaugust1932 permalink
    December 29, 2012 11:53 PM

    Don’t go to Police/Courts in India. You’ll not get justice. Contact your local Caste leader/politician/MLA/MP for justice.
    To promote Forward Caste hegemony, Indian regime is delaying Reservations for BC/SC/ST/MC people in Supreme Court.

  3. Ammu Abraham permalink
    December 30, 2012 1:01 AM

    Thanks for relating the instance of Justice Rao. It should be more widely known, so that people understand just how far the rot has gone.
    And the Agra case was treated as routine by all. Puzzling.

  4. K.S.parthasarathy permalink
    December 30, 2012 7:02 AM

    such developments in Judiciary or elsewhere are just ignored by main stream media. But for this post I wouldnt be knowing this judicial observation.. There must be an inquiry who prompted the withdrawal and what was the price paid , to whom etc..that could be both financial bait and political pressure.

    K.S.Parthasarathy

  5. janashakthikannda permalink
    December 30, 2012 7:06 AM

    In that comment by Kokila of Calcutta, there is a suggestion that a prostitute by profession could be raped and she should not complain. That is not the way a profession is defined by Bourgeosie ?

  6. Vandana permalink
    December 30, 2012 10:50 AM

    Thanks for the write-up. An inter-disciplinary committe must be formed to study the socio-political scenario, legal options/implications, and rehab support for victims. Reformative action is needed urgently.
    A strong law must be made against rape even if it is done in a war/conflict zone.
    It is extremely sad that in a progressing country, we cannot handle our social issues and can trivialise them to find humour in it.

  7. December 30, 2012 12:15 PM

    What a superb piece. I am really keen to put some of these Kafila pieces into a pamphlet-publication by YODA PRESS and make it available in Hindi as well. Shivam, can we talk about this?

  8. filminista permalink
    December 30, 2012 12:50 PM

    IMHO Gang Rape needs to be treated as a separate kind of crime, with different laws framed. Gang Rape w/ intent to humiliate, maim, or kill – a severe crime handled w/ greatest degree of sensitivity & punished severely.

  9. Shrikant permalink
    December 31, 2012 12:20 AM

    These days, I haven’t come across better blog post than this one. Kudos!

    IMO, the “rape culture” is far more disorganized for controlling it through policies, law, families, adult education etc. It is impossible to cure, accept this or not.

    There is something additional we can do. As a child, I used to get scared about people from particular religion because of their attire, history of violence and stories I heard from elderly people. Somehow, I still fear them, whether weak of strong. In fact, the religion really has got that image among masses. This can be done in rape cases. Spread life threatening fear among potential rapists!

    If the woman becomes strong, smart and determined to kill/ terribly harm at least one of the attackers and if this becomes tradition, there will be fear for sure. I am sorry for being insane, barbarous in this “suggestion”… but this is one of the ways. Moral fear is far from reach, but violence can help. Attack, kill, harm the rapists… you’re anyway going to suffer… laws, court, culture all come afterwards. Kill the rapists as soon as the crime happens, spread the fear! This is not permanent remedy, but will help at first stage + no side effects (you’re anyway going to suffer, kill or not)!

    It is better to be violent, if there is violence in our hearts, than to put on the cloak of nonviolence to cover impotence.
    Mahatma Gandhi

  10. Mohan Rao permalink
    January 1, 2013 9:38 AM

    Is there some way of involving the medical profession in this debate? They need to be involved and sensitised – they perform the two-finger test, they collect the swabs and other evidence (such as injury on the body and skin under the raped woman’s nails (to see if she has adequately resisted rape!), they expose raped women to public glare, they have the most out-moded forensic textbooks. This needs to be done urgently.

  11. January 1, 2013 2:18 PM

    Thank you for your post. One question: could you provide an example of when research or writing against rape produced laughter or sexist remarks on the floor of Parliament, as you allege? Thanks.

    • Pratiksha permalink
      January 2, 2013 3:23 AM

      Thanks for your comment. Women MPs who raised the issue of rape law amendments witnessed considerable sexist humour during the 1983 rape law amendment. These LS debates have been analysed in Nivedita Menon’s Recovering Subversion and Geetanjali Gangoli’s Indian Feminisms. Also I wrote an essay for EPW on death penalty and rape cases in 200 where some of these debates are analysed. I should clarify that the reference to the LS debates was specifically in terms of the way the women’s movements’ protest or the speeches of some of the women MPs was constructed during the 1983 amendments. Ved Kumari has written about how law teachers could not teach the sections on rape in law schools since it attarcted the charge of indecency, and after a great deal of struggle women law professors managed to change this scenario.

  12. Poonam Kanwal permalink
    January 1, 2013 6:40 PM

    A brilliant piece! Very well written and theorized. Throws light on the politics of rape. Its not only the patriarchal structure but also ‘the failure of governance, planning and policing which exposes women to greater risk of sexual violence.’

Trackbacks

  1. We must resist the cunning of judicial reform | Critical Legal Thinking

We look forward to your comments. Comments are subject to moderation as per our comments policy. They may take some time to appear.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 56,618 other followers

%d bloggers like this: