Book Review: Pratiksha Baxi,Public Secrets of Law: Rape Trials in India

Scholarly works on legal ethnographies from India are too limited to analyse the character of judicial structures, processes and the contribution of social structures to the process of judicial decision making. Pratiksha Baxi’s topical book Public Secrets of Law: Rape Trials in India offers a new model for a perfect blending of ethnographic experiences of different role makers in a judicial process of rape trials. This work uses inter-sectionality framework to comprehend class–caste–gender (to some extent, inclusive of queer) formulations in court room experiences. The multi-faceted and comprehensive analyses of how certain cases of sexual violence act as a caste crime or a combination of multiple identities constitute the crime makes this work move beyond the boundaries of a range of disciplines like social anthropology, legal ethnography, gender studies. Not only has this book discussed some rape trials in details to but also offered a substantial discussion of different case laws that helps the reader in contextualising the cases in the judicial history.

This work is an outcome of an ethnographic project in the rural district and sessions court in Ahmedabad over a period of 18 months between 1996 and 1998 and focused on the relationship between law and public secrecy. Pratiksha argues in this book that public secrecy finds specific revelation in rape trials in India which reinforces deeply entrenched phallo-centric notions of justice and ultimately does not bring any justice to the rape survivor. Contrary to the commonsensical understanding that rape trials destroys secrets, she vividly elaborates how it becomes privileged sites of the production, negotiation and management of public secrets and a cultural performance. Baxi explains public secret as ‘that we all know about it, but find it is difficult to articulate’ and she explains it by exploring how do ethnographers talk about rape in the field. The focus of the work is to understand the implementation of The Criminal Law (Amendment) Act, 1983, in trial courts by analysing the everyday socio-legal process that underlie the conduct of rape trials. One of her major observations is that law reforms have not addressed the existing power relationships deployed through language in the court rooms when the survivors testify.

The ethnographic notes from different trials revealed in this book that there is no singular or linear or homogenous framework that brings out the ‘truth’ of the case. Instead, each ethnographic narration of the rape trials reflects multiple perspectives. This will definitely help the future research works of other scholars to explore how to bring multiple perspectives to understand the production of expert knowledge in respect of different institutional sites like police station, forensic science laboratory, the hospital and the court. This approach imparts soundness to an ethnographic project.

In the present day discussions on the rape cases, there is correlation between crime and punishment, limiting the scope of understanding of rape as a preferred form of violence; whereas the author comprehends it as ‘an intentional, pre-mediated and political violence against women’. The discussion of verity of cases clearly communicates to the readers that how rape is a crime against female monogamy rather than against women’s sexual dignity and autonomy.

How sexual objectification (what Veena Das [1996] calls ‘judicial pornography’) happening in the court rooms is explained in detail. When the judiciary categorises women as ‘good’ and ‘bad’ by looking at them through a judicial lens of past sexual experiences and affirms the findings by corroborating them with the forensic examination results, it is trying to reinforce morality of a feudal, conservative, reactionary and patriarchal society.

In the first chapter, ‘Doctrinal Pictures of Rape Trials: How to Do Things with Feminism’, Pratiksha clearly exposes how the survivor’s caste, class, nationality inflect judicial treatment of rape cases, how judges rape constitute of bureaucratic cultures of courts and how publicity matters in the process of courtrooms becoming laboratories of judicial reforms, by comparing Bhanwari Devi’s case with Suo Moto v. State of Rajasthan. This is a theoretically rich chapter and discusses different categories of rape in depth.

The second chapter, ‘Medicalisation of Consent and Falsity: The Figure of Habitue in Indian Rape Law’ illustrates the critical role of medical jurisprudence text books (Baxi has rigorously done an analysis of major text books over nine decades) as medium of both pedagogy and prescription and also as a factor that determines the structure of questions posed in rape trials. Pratiksha claims that Indian rape trials medicalise consent and falsity (by creating medico-legal categories of habituated to sex, partial penetration and technical rape) causing additional harm to the rape victim.

The central contestation in rape trials revolves around the expression of consent, or the determination of whether coercive act of sex is rape or not. The judiciary interprets ‘consent’ on the basis of marks of ‘resistance’ on female body to decide whether rape has happened or whether it was consensual sex. This has always been ratified by the medical opinion. The existing patriarchal values influence the judicial understanding of what, in a woman’s actions or words, imply consent to sex. The background circumstances undermine the legitimacy of consent and are influenced by the male fantasies. The discussion on misuse of rape laws should be understood in the context of the debate on different types of resistance. This book highlights how the forensic investigation and the notorious two fingers test violate the concept of autonomy in case of a rape victim/ survivor with authority. The entire medico-juridical process (Pratiksha calls it as ‘medicalisation of consent’) in the rape trial and the court room examination of the victim/survivor is loaded against the basic principles of autonomy. Thus, in the rape trials, multiple levels of violation of autonomy happens, beginning from the act of crime to the medico-legal examination, and it further continues in the court room examination as part of the judicial process to the verdict, which makes character remarks about the victim/survivor to probe in to the past sexual history (Arathi, 2012). Though the Indian Council for Medical Research and the concerned ministry have banned the ‘two finger test’, we have yet to watch how this colonial tendency to characterise rape victim is going to stop in the courtrooms. As Pratiksha rightly observes:

Therapeutic jurisprudence is broadly defined as those approaches to law which attempt to institute policies and procedures that do not re-victimise the victim. In India courts, however, the moment expert opinion leans towards therapeutic jurisprudence … we find that expert opinion is belittled and treated as if it were not relevant to the purpose of law. The adversarial trial represses any therapeutic potential by disallowing the creation of safer conditions of testimony. (p. 98)

In the third chapter, ‘The Child Witness on Trial’, author explores the effects of failure to identify child sex abuse as a different category of rape by discussing the case of Noornissa. The discussion reveals how the domestic violence experience of the child survivor acts as counter to discredit her and how the experience of a child witness limits the procedure till she verifies the sexualisation of her body. The detail description of trials exceptionally brings out how examination and cross-examination does a metamorphosis of child into a child adult.

The fourth chapter, ‘Justice is a Secret: Compromise in Rape Trials’ underscores how compromises in rape trials are used as a tool in the hands of defense lawyers and in cases of love and elopement. This chapter explains the blurry fields of legal categories of rape, kidnapping and abduction. She argues,

The court maintains the patriarchal authority of the father by reintroducing the practices fashioned outside the court and it is through these clandestine routes that the authority of law is maintained. (p. 222)

Chapter five, ‘Love Affairs and Rape Trials in India’, gives an idea how family and kinship defines and re-defines the legal categories of violence and crime; and categorises ‘bad’ and ‘good’ love. Pratiksha makes this observation at the end of the chapter,

When love and law are pitted in such a radical opposition, public secrecy is not the socio-legal route to imagine a future. Rather, ethnographies of rape trials in India reveal how law fears love, how love finds justice, and how love mourns its loss. (p. 275)

The final chapter, ‘On Interpreting Rape as/and Atrocity’, discusses rape as category of caste violence and the author argues that ‘in making a classification between lust and atrocity, for such forms of sexual violence are seen as isolated crimes against individual women, irrespective of their caste or class’ (p. 284). The elaborate discussion on case laws brings out the historical understanding of violence and how Dalit and tribal women are perceived as inherently incapable of embodying honour and hence fail to attribute social meaning of rape to describe the humiliation. The narratives from Kavita’s case pose the questions what determines the political economy of trust by police and judicial processes and how political subjectivity and assurance of justice is correlative?

In the conclusion, Pratiksha Baxi argues vehemently that the portrayal of rape trials as an offence against society in law books and, in the appellate judgments, hides the process by which law’s injury to rape survivors is manifested; hence, ‘judicial horror’ is not given but achieved within law.

Here, Pratiksha consciously discusses Bilkis Bano case to posit the work in the contemporary political context and gives the reader an experience of comprehensiveness. This discussion clearly testifies why within the judicial process rape is not seen as political violence which explicitly targeted Muslim women in 2002 Gujarat genocide. The unfolding of Bilkis Bano case evidently communicates how courts do not recognise that the purpose of rape is not merely satisfying men’s sexual lust, rather ‘rape is preferred tool of sexually humiliating the “other”’ (p. 359).

This work is going to be the pioneering one in socio-legal ethnography in India to understand the nuances of judicial processes in a caste-driven, communally segregated, class-divided and patriarchal society.