Protesters hold vigil at India Gate to condemn the brutal gang-rape of a woman in 2012. Photo: Ramesh Lalwani / Flickr
Protesters hold vigil at India Gate to condemn the brutal gang-rape of a woman in 2012. Photo: Ramesh Lalwani / Flickr

Rape under trial

What rape trials demonstrate about the failures of Indian law enforcement and criminal justice.
On 14 September 2020, a Dalit woman was gang-raped in Hathras district, India. While the victim named four alleged perpetrators, her brother claimed that no arrests were made in the first ten days after the incident took place. Fifteen days after the incident, the victim succumbed to her injuries in a Delhi hospital. While sexual violence against women (and, in particular, Dalits) is not unusual, justice for survivors often is.
 In this interview we speak to Pratiksha Baxi, Associate Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University. Her book Public Secrets of Law is an sociological account of how the criminal-justice system responds to rape. An ethnography of rape trials in Gujarat, it provides multiple incident descriptions, accompanied by transcripts of rape trials in courtrooms. Public Secrets of Law is a testament to the widespread tolerance of sexual violence and provides shocking insight into trial-court mechanisms and attitudes. In this interview, we ask Pratiksha Baxi about the law enforcement attitudes and judicial norms that enable such sexual violence, the influence of colonial medical jurisprudence, the construct of consent, and the impact of practices like compromise in rape trials.
'Public Secrets of Law: Rape Trials in India' by Pratiksha Baxi. Oxford University Press (2014)
'Public Secrets of Law: Rape Trials in India' by Pratiksha Baxi. Oxford University Press (2014)
Himal Southasian: In your book Public Secrets of Law, you note that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) was enacted to infuse criminal law with constitutional ideals of substantive equality. Some argue that this special law increases access to courts. Has that been the case? What is the impact on the Dalit community when statutory rape trials are staged as special atrocity trials?
Pratiksha Baxi: In the book, I have attempted to demonstrate that the naming of rape as atrocity is met with institutionalised backlash at every stage of the criminal trial. The law was enacted to abolish the intolerable toleration of rape of Dalit women and children that are founded in practices of untouchability. However, I found during my fieldwork in Gujarat that there were a number of strategies used to avoid naming rape as a caste atrocity.

In many cases – such as those of lynching, encounter killings, riots, and now police brutality – the practice is to coerce the families to bury or cremate the victims.

Not registering a police complaint or weakening a police complaint was one strategy. Medico-legal evidence, when not destroyed, is not collected in time or with proper care. In social and legal discourse, Dalit women are routinely blamed and characterised as liars. Compensation was not seen as repatriation, rather it was seen as the motive for lying. Truth technologies such as narco analysis, which had no evidentiary value, were used in the 1990s to dissuade women from testifying. Courts insist on caste certificates to prove that the rape was on the grounds of caste violence. Although the law to prevent atrocities was amended subsequently, we do not see much change. On the contrary, the backlash against Dalit women and children has intensified.
These are urgent questions that have been highlighted in the aftermath of the much publicised Hathras atrocity of which the Allahabad High Court heard suo moto cognisance. The inhuman, cruel and degrading treatment directed at Dalits is no longer a public secret. Caste impunity was made a public spectacle in the Hathras atrocity where the police in full view of TV cameras burnt the dead body of the rape victim without the consent of her family and the customary mourning rituals. Not only did this amount to 'destruction of evidence' and obstruction of justice but the victim was denied dignity in death and her family was not allowed to mourn her death.
In many cases – such as those of lynching, encounter killings, riots, and now police brutality – the practice is to coerce the families to bury or cremate the victims. This time this practice was not a secret but a media-spectacle. The form of custodial violence that was enacted on her dead body has raised another urgent question of command responsibility and police accountability. However, the criminalisation of protests against the Hathras atrocity in September 2020 also marks a break from the 2013 protests against the brutal gang-rape of a 23-year-old woman student in a moving bus in Delhi. In other words, peaceful protests against rape and atrocity, and such calls for equal sexual citizenship, are barely tolerated. Substantive equality is a broken promise that has been amplified as the COVID-19 pandemic creates greater vulnerability to a police state that has little tolerance for everyday protests against violence and institutional bias.
HSA: You argue that although appellate courts have ruled that individuals cannot compromise in rape cases, there is a growing tendency towards the acceptability of compromise in rape cases especially in bail applications. Can you elaborate further on this? What are the attitudes and practices within trial courts towards the use of compromise in rape cases? Do such practices differ based on the class and caste of the victim?
PB: Yes, this has been the standard socio-legal practice in most rape trials. It is noticed at all stages of the trial, not just bail. In 2019, the Supreme Court reiterated that compromise between the victim and the accused is not of relevance to determining the judicial outcome. Although the illegality of compromise has been reiterated over and over again in many judgments, the practice continues and encodes complex social realities.
However, after the amendment of the rape law for adults and children in 2013, it is worrying that more women and minors are being prosecuted for perjury, if they become hostile to the prosecution's case. In 2017, a case was reported wherein a minor who had been raped by her father turned hostile during the cross-examination. The court issued a perjury notice to her. Although research on how many women have been prosecuted for perjury for changing their statements has yet to be done, my own observation is that the rising cases of perjury indicate a worrying trend.

Prosecutions against police officers who refuse to file rape complaints are rare.

Compromise encodes several things. Elopements are often criminalised by the family in connivance with the police where rape, abduction, kidnapping and theft charges are brought against the couple. These cases may result in compromise. As could 'aggravated' rape such as gang-rape, for example, a woman or her family may be put in fear of death and terrorised to change their testimony. Although the law changed in 2013, we still do not have means to protect the victim or her family from such threats from the accused or his family or community. This is particularly egregious where the woman is from a poorer background or when she may not have social or political capital depending on her caste or community.
Now consider a situation where a rape survivor is forced to change her testimony and then is put on trial for perjury. The law does not create safe conditions for testimony and when a rape survivor refuses to testify under adverse conditions of testimony by turning hostile, she may face imprisonment. The promise of the 2013 amendment cannot be actualised if women are punished at every stage of the trial. There is a need to understand the social complexity of rape trials and develop serious and sensitive practices to ensure that women are assured of safe conditions of testimony. Merely notifying fast-track trials or transferring trials from one state to the other is not the solution. It is the culture of compromise that needs radical review and that must be supplanted with practices of prosecution which recognise that rape survivors testify to rape at great risks to their lives and well-being.
HSA: When conducting your fieldwork in Gujarat, did you notice any trends in how law enforcement authorities such as the police dealt with perpetrators of rape? Was there a recognisable trend in their orientations towards complaints of rape? How do the 'norms of the court' together with the prevailing hierarchy in judicial mechanisms, affect the manner in which rape trials are conducted?
PB: My research was in a trial court in Ahmedabad between 1996 to 1998. The law has subsequently changed, but since the practices of policing resist change to conserve impunity, the ethnography continues to point to techniques of policing that weaken or defeat prosecution. During my fieldwork, I found that it was commonplace for the rape victim to be disbelieved and it was a struggle to get a complaint registered. After the 2013 amendment, if the police do not register a rape complaint, such a police officer can be prosecuted for committing a criminal offence. Yet prosecutions against police officers who refuse to file rape complaints are rare.

After the amendment of the rape law for adults and children in 2013, it is worrying that more women and minors are being prosecuted for perjury.

The rape and abduction laws were used by families to control women who chose their partners against the wishes of their family. This practice continues. The police's approach to rape accused is varied, depending on the nature of case. I documented a case study where a young man was tortured by the police and then falsely accused of rape and abduction by his partner's family. His partner was also imprisoned on the charge of abetting her own rape, abduction and kidnapping. She was released after nine months, when the police recorded that they were mistaken in fact. Such 'mistakes' are products of practices of policing that govern women's sexuality as per the dictates of a caste social order.
In recent years, there has been more reporting on cases where rape accused have been 'encountered' by the police or even lynched.
HSA: The book claims that perceptions of Gujarat as safer for women relative to other regions in India causes a minimisation of incidents of sexual violence. Can you explain why? How are such perceptions linked to the consideration of select rape cases as 'real rape cases'? What are the implications of the phrase 'real rape case'?
PB: During my interviews with police officers, lawyers and judges in Gujarat between 1996 to 1998, I was repeatedly told that Ahmedabad is safer than Delhi for women, and that rape was a problem only during riots. This division between a normal and pathological time and space does two things.
It ignores many forms of sexual assault within the family, in the workplace, in state institutions, targeted caste or communal violence or sexual assault by state officials.
It also normalises the aggravated and targeted forms of rape against women, especially minorities in the state. It is commonly assumed that 'real rape' is by strangers with evidence of violence and a certain kind of excess. However, not all forms of stranger rapes in public spaces with evidence of brutal violence result in convictions. For instance, the brutal and mass rapes of Muslim women in Gujarat 2002 mass violence did not result in convictions, or even compensation. Similarly rape of Dalit women often does not result in prosecution or conviction.
HSA: In response to a recent incident of sexual violence in Pakistan, Prime Minister Imran Khan stated that rapists should be hanged or chemically castrated. How would you approach this proposition for offenders of rape?
PB: Prime Minister Imran Khan, by advocating death penalty or chemical castration, joins other heads of state in the region in assuming that putting rapists to death will generate fear and deter rape. In India too, our government is deeply invested in death penalty and its jurisdiction in rape cases has expanded.
In both countries, the process of prosecuting rape is dismal. And in India, there is growing evidence that more rape victims are being murdered. Feminists have argued against death penalty and physical/chemical castration for a number of reasons. It does not deter rape. Rather, it provides motive for killing victims, and therefore destroying 'evidence' of rape. In Uttar Pradesh a number of rape victims have been set on fire. Rape and murders of disabled women and children is on the rise.

State courts work like caste panchayats when the police and the family bring false rape charges to uphold the law of caste social order.

In India, state after state has adopted the death penalty for rape, while withdrawing services to rape survivors to ensure safe conditions of testimony. The Nirbhaya Fund, created after the 2013 protests, remains under-utilised. No information was put out about how many helplines or shelters were provided and how much legal aid was given to rape survivors. The safety of women got linked to the government intervention of building toilets to prevent stranger rape in rural settings.
In 2020, during the national lockdown announced to control the pandemic, there were many brutal rapes of women and children that did not elicit much institutional response. In India, the lockdown began with the hanging of rapists in the Delhi gang-rape case of 2012. In the three-month national lockdown that followed, there were many cases of rape reported, which did not generate outrage and protest. There have been cases of rapes of women in quarantine centers and hospitals during this period. Medical and legal services were difficult to access. Women who had survived rape have to follow COVID-19 protocols by being quarantined for 14 days after the rape. However, there are no guidelines on trauma counselling and other kind of support to the rape survivor during a quarantine that follows rape. Guidelines on rape kits and collection of evidence during the pandemic have been issued in other jurisdictions, however the discussion on how these may be enacted in India remain nascent.
Instead, during the lockdown, a young woman was thrown in jail on contempt charges in Bihar by the court that recorded her statement. The support persons with her were also imprisoned in COVID-19 vulnerable overcrowded prisons. While the local court gave bail to the survivor subsequently, it took a petition in the Supreme Court by lawyers to get bail for the support persons and the charges were not dropped. With online courts and the suspension of trials, access to courts has become a daunting task. And there has been little attempt to ascertain women undertrials' fundamental rights in male and transphobic overpopulated prisons.
HSA: It is argued that the panchayats often attempt to appropriate the court's monopoly to adjudicate crime by treating rape as a social dispute to be settled within a community. What are the pros and cons of resolving rape in this way? How have law enforcement authorities responded to such attempts? You use the trial court as an example of how law can become so localised that it bears little resemblance to the rule. Can you provide some examples?  
PB: Non-statutory panchayats such as the caste panchayats usurp the law's monopoly over violence by treating rape as a social dispute rather than a crime against social order, depending on the class and caste of the perpetrator and the victim. The relationship between the police and panchayats is complex. Zoé Headley's work on katta panchayats illustrate how such caste panchayats are even held in the premises of police stations in Tamil Nadu.

The idea that jurisprudence is only developed through precedents of appellate courts is fallacious. Jurisprudence cannot exist without briefs or petitioners.

A sociological reading of state law suggests that the practices of state law are both plural and localised, sometimes to the extent that these bear little resemblance to the rule. For instance, in chapter five of my book where I describe how the rape and abduction laws are used to criminalise love, I show how state courts work like caste panchayats when the police and the family bring false rape charges to uphold the law of caste social order, even though such practices bear no resemblance to a constitutional social order which permits marriages of choice.
HSA: How does the Supreme Court treat the idea that 'appellate law is real law' in providing justice to rape victims, given it only has the power to adjudicate on questions of law?
PB: I argue that judicial hierarchy is such that trial judgments and court practices are not seen as worthy of research, since law students are taught to study precedents and ratios as worthy of research. Everything else is considered 'garbage' or not so important. Trial courts are pejoratively referred to as 'lower' courts and magistrates or district court judges are not accorded the same respect as appellate judges. But it is their orders that often make a difference of life and death to rape victims.

Rape and murders of disabled women and children is on the rise.

Judicial hierarchy is reflected in the writing of appellate judgments where many times the names of the judges of a subordinate court are not even mentioned in an appellate judgment. Trial court judges have also been pulled up for issuing guidelines, for by judicial convention and decree they are not supposed to make law or even issue guidelines. Yet trial judges are sometimes far more sociological than appellate judges.
There is also an unspoken presumption that trial courts might not be as unbiased as appellate judges, which is not true. The idea that jurisprudence is only developed through precedents of appellate courts is fallacious. Jurisprudence cannot exist without briefs or petitioners. Each constitutional interpretation of rights is etched on paper from the suffering, hurt and violence that is inscribed on the body of the petitioner. There was no jurisprudence on fundamental rights of prisoners, for example, without the letters written by those incarcerated or those tortured.
The fiction of real law is erected on the pain, suffering and violence of countless people whose stories are not even recalled as co-authors of precedents. Are judicial decisions not co-authored with petitioners and their lawyers? Surely legal writing must do justice to the stories and biographies of the people who repose trust in courts to understand their pain and trauma? Judges may wish to ask themselves how the writing commitments of law could be more ethical or just.
HSA: The Criminal Law (Amendment) Act, 1983 held that in aggravated rape cases such as gang-rape, when sexual intercourse is proven and a woman states in court that she did not consent, it would be presumed that the victim did not consent. Has this amendment helped trial courts believe victims?
PB: I have argued that the reversal of burden of proof in aggravated rape cases tried under the 1983 amendment, which are still being heard, did not have the imagined impact. Consent was medicalised through the two-finger test. This test requires a doctor to insert two or more fingers in a vagina to check the distensibility of the hymen and whether there are old or fresh tears in the membrane. A colonial vestige, it legalised a medical practice that had no forensic value. It was indifferent to the fact that raped women experienced such a test as a re-rape. The test converted the experience of violence into a testimony of consent by pitting the body against a woman's speech. No test can ascertain whether a woman consented to sex or not, or whether the absence of the hymen signifies rape or consensual sex. This test was used to introduce past sexual history, and characterise the victim as a habitue, and therefore, a liar. The amendment to the law in 2013 outlawed the two-finger test, although it persists in practice.
HSA: Has the decriminalisation of homosexuality changed attitudes in courts of law or helped to recognise sexual violence in the LGBTQ community?
PB: Unfortunately, no. In 2013, the Justice Verma Committee had recommended that a gender-neutral definition be adopted for victims, while a gender specificity be retained for the accused confining rape accused to men. This was to prevent the misuse of the law by men against women or sexual minorities. There has also been a rise in sexual torture of men of politically marginalised communities, castes and classes in recent years. This still remains to be addressed.
HSA: You claim that courtrooms inscribe on the bodies of female children the same conditions of testimony that apply to adult women? Can you elaborate?
PB: Since the enactment of the The Protection of Children from Sexual Offences (POCSO) Act, 2012, and its subsequent amendment, rape of children was recognised in law, and a gender-neutral law was enacted for cases to be heard in special courts. There are many problems in the implementation of this law too. My argument was that spoken law, or the way questions are asked of children in courtroom are framed around adult standards of how rape is understood. At the level of courtroom speech and judicial writing, far greater understanding of the life world of children is required. More and more children are being raped and even killed. It is a very serious social problem that requires far greater sociological and feminist work.
HSA: How does the characterisation of statutory rape as 'technical rape' in legal discourse lead to the sexualisation of children's body?
PB: The idea that a child is not really a child is a colonial construct. Within this construct, a child is in nature capable of seduction or consent although she is legally or technically a minor and thus unable to consent by law. This construct underlies the frequent use of 'technical rape' by lawyers in district courts.
HSA: How does medical jurisprudence and the use of jargon in legal and pedagogical discourse result in victim-blaming?
PB: Medical jurisprudence is an important aspect of my work. I speak to the medicalisation of consent through the deployment of the two-finger test, which is used to determine whether women are habituated to sex. Recently, Pakistan's Ministry of Human Rights publicly disapproved of the two-finger test. It was found illegal in Bangladesh a couple of years ago. In India, it was found unconstitutional and without any forensic value after the 2013 protests and hard work by activists, lawyers and academics. Yet in practice, this 'test' has not been discontinued, although now it can be prosecuted as rape, under the new definitions of consent in India.

Surely legal writing must do justice to the stories and biographies of the people who repose trust in courts to understand their pain and trauma?

I have also argued that falsity is medicalised in a number of ways, such as the use of truth technology on rape survivors. This technology deters survivors from testifying and does not even make it to court records. I recorded an interview with a clinical psychologist Dr V. at the Forensic Science Laboratory in Ahmedabad who told me that the laboratory began to use lie-detection tests on raped women after pressure from the police to solve cases. She was convinced that lie detection tests on rape survivors was what forensic psychiatry must be put to use for. Forensic psychiatry then began with the assumption that most women lie about rape and that its techniques can prove such lies scientifically. Such humiliating, harmful and fraudulent tests continue to be used on the rape victim or her relatives, with or without informed consent. Commenting on the Hathras case, Jinee Lokaneeta, author of The Truth Machines: Policing, Violence, and Scientific Interrogations in India, argues that pseudo-scientific techniques such as narcoanalysis re-victimises rape victims and/or their families. Lokaneeta has shown how the use of such truth techniques is proliferate and amounts to torture.
HSA: What are the most pressing areas that require legal reform with regard to rape trials?
PB: There are many pressing areas that require legal reform. The nature of policing is one of the most urgent areas of radical and critical reform. Without professional, trained and resourced police personnel who respect the human rights of rape survivors, there is no hope for transformation. Similarly, medico-legal experts in hospitals and forensic experts in laboratories have to find higher standards of care, diagnosis and analysis.
India has under-developed sexual assault nursing and rarely treats sexual violence as a medical emergency that needs therapeutic interventions. Support services, counselling and awareness is supplanted by masculine outrage and demands for the death penalty. Gender budgets need to be allocated to NGOs who specialise in working on sexual violence.
Even today, a set of clothes is not provided to all rape survivors when the police confiscate their clothes for forensic analysis. Many a time, women have had to borrow clothes from their relatives or borrow a blanket from the police, as happened in a case where a foreigner was raped. The state literally strips them of their clothes as evidence of the crime, without giving them a spare pair of clothes, let alone compensating them for this indignity.
At every stage of the complaint and the trial, dignity must be accorded to the rape survivor in ordinary gestures. Instead we have a public discourse that focuses only on dramatic and grand pronouncements that do not actually enable rape survivors to live life with dignity after the violence. We need serious institutional reform at all levels of the legal system to ensure that rape survivors are treated with dignity and not punished for speaking out against the injustice of rape.
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Himal Southasian