Laxmi Murthy
PUBLIC SECRETS OF LAW: RAPE TRIALS IN INDIA by Pratiksha Baxi Oxford University Press, Delhi, 2014, 433 pp., 1150
June 2014, volume 38, No 6

The gang-rape and murder of a 23-year old physiotherapy student on December 2012 has been a watershed of sorts, galvanizing discussion around sexual assault, a hitherto taboo subject, like never before. Of course, the ‘Mathura’ case of 1979, in which the Supreme Court acquitting two policemen accused of raping a minor tribal girl in custody on grounds that she was ‘habituated to sex’, triggered a nation-wide campaign and subsequent law reform. However, the churning this time has been more widespread, thanks to the unprecedented coverage.

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So, it might come as somewhat of a surprise to encounter an ethnographic treatise by feminist sociologist Pratiksha Baxi that delves into the ‘public secret’ of rape. She plays the spoiler by revealing that she is not about to ‘stage an expose’ or uncover hidden truths. Instead, she provocatively states, ‘Rape trials far from destroying secrets, are privileged sites of the production, negotiation, and management of public secrets.’ In excavating with meticulous precision the minutiae of rape trials—simultaneously banal and brutal—Baxi deftly leads the way on an important journey of discovery of law in action, or ‘spoken law’ and how it inflects legal doctrines.

In ‘Doctrinal Pictures of Rape Trials, How to do things with Feminism’, Baxi traces the paradigmatic shifts in societal thinking about rape which brought about the women’s liberation movement in India, from the late 1970s around the ‘Mathura case’. The Supreme Court disregarded the judicial precedent in the Rao Harnarain Singh case of 1958 when the Court held, ‘Every consent involves a submission, but the converse does not involve consent.’ Through her incisive analysis of landmark cases, going back to the Phulmoni Dasee case of 1890 where a 35 year old man raped and caused the death of his 11-year old wife, Baxi demonstrates that the shift in jurisprudence to viewing rape as violative of fundamental rights has not translated into the manner in which trials are conducted.

The feminist challenge to viewing rape as an aberration by perverts to understanding it as an outcome of patriarchal power, was sought to be embodied in the rape law, in the landmark amendments of 1983, the first since the colonial era Indian Penal Code was formulated in 1860. Through the law reform in the 1990s and 2000s pushed by feminist and child rights groups, LGBTI groups and civil rights groups, the citadel of the family remained intact: rape continued to be seen as disturbing patrilineal descent, rather than a violation of women’s bodies, and through all the reform, marital rape of adult wives was not criminalized. This despite the Indian Evidence (Amendment) Act, 2002 which no longer allows the past sexual history of the survivor to be admissible in court.

In ‘Medicalization of Consent and Falsity’, Baxi shines the spot light on the ‘figure of the Habitué in Indian Rape Law’, and shows how medical jurisprudence is tilted towards proving the complainant to be a ‘habitual liar’, since women’s bodies are expected to show signs of marked resistance to what is considered a ‘fate worse than death’. Contemporary developments in forensics are merely overlaid on archaic colonial, racist and casteist notions, she argues. Jaising Modi, whose textbook since 1922 is the Bible of medical jurisprudence, proclaims, ‘…in majority of rape cases of an adult woman the charge is made with the object of blackmail…’ he goes on to call such charges a ‘concoction’, often with the motive of revenge. Unfortunately, his textbook, with very little substantive change, holds sway even 90 years on.

Since, as Modi laments, the hymen alone is not conclusive evidence to distinguish a ‘false virgin’ from a ‘true virgin’, another test is deployed. Baxi shows up the invasive ‘two finger test’ (which has been banned since this March), which actually mimics the act of sexual violence, for both adult women and children, as not only traumatizing, but also unscientific and unreliable. Yet, a finding that a woman is ‘habituated to sex’ normalizes moral categories into clinical categories and successfully shifts focus from the crucial issue of the lack of consent. This unexamined assumption of the neutrality of forensic evidence should make feminists alert to the over-reliance on so-called scientific evidence in establishing sexual assault.

Baxi’s conversations with practising trial lawyers are cringe inducing. Questioned why a woman’s past sexual history is relevant, and why it is that a woman must be established as a ‘habitué’ Mr Rajput, a defence lawyer responds, ‘…with married women rape is not possible, and in our society sex before marriage is not allowed’. Baxi calls these lessons in ‘alterity’—of how men experience pleasure in talking about rape and the rape trial is not a means of communicating the violence of rape, but an occasion to sexualize the female body: ‘The prosecutorial body itself becomes a desiring body, inserting in talk about rape, male passions to possess and objectify. During a trial, a survivor knows that her testimony gives men pleasure and experiences the questions put to her as unbearable humiliation, yet since such talk is staged in a court of law, the process is imbued with the values of objectivity and such talk is classified as evidence.’

If women’s bodies are the sites of re-writing violence during the prosecutorial process, Baxi also offers a glimpse into stranger-than-fiction exposition of the male body. Under the sub-head ‘Funny Referrals’ thus named by a doctor on the psychiatry ward of the Civil Hospital in Ahmedabad, we see the bizarre interplay of psychiatry, forensics and distorted sexual desire. Men accused of rape are often sent around midnight because police find it difficult to extract semen samples for analysis. Psychiatrists are then called upon to ‘make him feel relaxed’. They then provide space and ‘suggestions’ for sexual fantasy to make it easier for the suspect to become sexually aroused and then ejaculate, thus providing evidence to be used in the rape trial.

‘The Child Witness of Trial’ is a poignant story of a 10-year old girl’s legal struggle following rape by her stepfather. The com-plainant’s mother zig zags between the minefields of honour in the community; ensuring that the abuse is not repeated; justice for her daughter; maintaining bonds with close family and wider kin networks. Since it is mothers who stand testimony for their minor daughters, it is yet again her credibility that is called into question. The process of extracting the ‘truth’ from child witnesses involves public prosecutors ‘tutoring’ the child in specific medico-legal language. With detailed transcripts, she adroitly demonstrates how courtroom speech not only aims to confuse and discredit the child, but also enacts domination by converting the rape trial into a pornographic spectacle, replete with humiliation, ridicule and mockery. Despite precedents such as the Bharward Bhoginbhai Harjibhai vs the State of Gujarat case in 2003 which held that corroboration is not necessary in rape trials, this chapter dispels any illusions that trial courts are kinder on child survivors. Small glimmers of hope are offered in some enlightened judges taking proactive steps to prevent harassment of child witnesses. A 2003 judgement of the Delhi High Court stated that the defence lawyers should list the questions to be asked of the child and the judge would ask these questions.

The chapter ‘Justice is a Secret’ sets out to analyse the process of ‘compromise’ which essentially amounts to a plea bargain, which is not permissible in the Indian system. The central point once more being the opportunistic ways in which defence lawyers use, with equal felicity, ‘compromise’ and conversely, the lack of it, to cast aspersions on the character of the complainant, or her family. Caste politics, the dynamics of honour crimes and parallel judicial systems in the shape of panchayats come under scrutiny. When popular culture as well as the law both blur the distinction between rape and seduction, there is ample room for the control of female sexuality by both the natal family, the lover, as well as by law.

In ‘Love Affairs and Rape Trials in India’, Baxi examines the blurring between love and rape, consent and the lack of it, and goes on to argue that ‘the analytic of heterosexual love and heterosexual marriage in the field of violence assumes critical centrality to understand the social and juridical frameworks of rape in India.’ The use of habeas corpus petitions to ‘recover’ daughters defying family, caste and community strictures to choose their partners is a grim reminder of the reality of the majority of young women in India. Curiously, in cases of elopement, where charges are filed under rape and kidnap the law offers the possibility of a woman being simultaneously positioned as victim, abettor, accused and also her body as the scene of the crime itself. Baxi illustrates this conundrum through the story of Chetna, a minor girl who ran away with her lover from a lower caste. Chetna’s story has a happy ending—one of the few in the book. ‘On Interpreting Rape as/and Atrocity’ dwells on sexual violence in the context of systemic oppression of dalits and tribals. The category of ‘atrocity’ in the Prevention of Atrocities Act is analysed through cases where courts introduced a distinction between ‘mere lust’ and ‘atrocity’. Even in the face of public, collective and dramatized spectacles of violence as in the Khairlanji case in 2006, where four members of the Bhotmange family, who were dalits, were beaten and kicked to death. Charges of rape were not even brought, even though it was public knowledge that the mother and daughter had been gang-raped. What resulted in the High Court was the complete erasure of sexual violence, as well as caste.

Baxi has contextualized her field work carried out from 1996 to ‘98, in the light of recent amendments of law and procedures. Unfortunately, an important facet, that of mass sexual violence during communal or caste conflagrations is tucked away in the conclusion. One is left wishing that the author had brought her considerable intellectual prowess to analysing the Bilkis Banu Judgement in greater depth.

Pratiksha Baxi, a long-time activist in the women’s movement, calls her book an ‘entreaty to research, theorize, and protest the formations of rape cultures.’ She sets out to ‘bear witness’ to the struggle against the widespread tolerance of the intolerable harm of sexual violence. No one who completes reading this book—albeit dense and jargon-filled in parts—can continue to assume that filing a legal case is the equivalent of seeking justice for victims and survivors of sexual violence. Baxi forcefully establishes that there are many lessons that have yet to be learnt, about ‘transforming social, juridical and political discourses on rape in everyday and extraordinary contexts.’ The need for what Baxi terms ‘therapeutic jurisprudence’, or an approach to law that institutes polices and procedures that do not re-victimize the victim has been backed by irrefutable evidence.

Laxmi Murthy is a journalist based in Bangalore.

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