PUBLIC SECRETS OF LAW PPrreelliimmss-- PPrraattiikksshhaa BBaaxxii..iinndddd ii 2277//1122//1133 44::2233 PPMM PPrreelliimmss-- PPrraattiikksshhaa BBaaxxii..iinndddd iiii 2277//1122//1133 44::2233 PPMM PUBLIC SECRETS OF LAW RAPE TRIALS IN INDIA pratiksha baxi 1 PPrreelliimmss-- PPrraattiikksshhaa BBaaxxii..iinndddd iiiiii 2277//1122//1133 44::2233 PPMM 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press YMCA Library Building, 1 Jai Singh Road, New Delhi 110 001, India © Oxford University Press 2014 Th e moral rights of the author have been asserted First Edition published in 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer ISBN-13: 978-0-19-808956-8 ISBN-10: 0-19-808956-2 Typeset in Adobe Garamond Pro 11/13 by Th e Graphics Solution, New Delhi 110 092 Printed in India by Sapra Brothers, New Delhi 110 092 For Upen and Prema Acknowledgements  Io we the first enunciations of my desire to explore the world of law to my inspiring father, Upendra Baxi, whose life and work has been constitutive of my academic journey. Together, my parents, Upen and Prema, created a home always open to friends and colleagues who brought work and politics to our living room more oft than not cluttered with piles of cyclostyled petitions, books, and reports. I remember snippets of conversations amongst an entire generation of spirited and dedicated legal academics committed to inventing new meanings of what it meant to research, teach, and practice law. I especially wish to pay tribute to Professors Lotika Sarkar, B.B. Sivaramayya, S.P. Sathe, Gyan Sharma, Chhatrapati Singh, Damodar Wadegaonkar, Rani Jethmalani, and Justice D. A. Desai—all sadly no more—who were extraordinary people, whose life and work remains inimitable. My earliest memories hark back to the now iconic Mathura Open Letter when Upen and Lotika Sarkar worked furiously on the reform of the rape law in the 1980s. Inheriting the legacy of the Open Letter has not been easy, yet I must acknowledge the debt I owe to my father in choosing to research the rape law. The decision to locate my research project in a trial court was entirely inspired by my mother, Prema, whose struggle to train as a lawyer and ability to negotiate the male dominated courts in Delhi was truly salutary. At the Delhi School of Economics (D-School), Veena Das supported and defended my decision to research rape trials, which was a project not without its sceptics at the time. She helped me think through terribly difficult ethical questions during my fieldwork. After she joined Johns Hopkins University, where she invited me for a year, she continued to engage with my writing, and has remained since one of the most important presences in my life and my work. x ACKNOWLEDGEMENTS Deepak Mehta has witnessed this work grow from its inception, read countless drafts, and shared exciting readings. He has an incredible nurturing engagement with a student’s writing and profound sensitivity towards what it takes to research violence. His friendship remains an invaluable gift of a past life at D-School. Although it was unusual for a sociologist to seek permission to research criminal trials, Hon’ble Justice R.A. Mehta, Gujarat High Court, graciously granted me permission to access court records. I especially wish to thank Hon’ble Justice Chetan Bhuch, presiding Judge of the District and Sessions Court (Rural) Ahmedabad, for permitting me to sit at in camera trials. He provided me immense support and encouragement. Late Justice N.J. Pandya’s help was immeasurable in accessing the field. I remain in the debt of the Addi- tional Session Judges, who made me feel very welcome in their courtrooms facilitating the research infinitely. Several sitting judges spoke to me at length and generously gave me their invaluable time, for which I remain extremely grateful. I am equally indebted to the Additional Public Prosecutor, and his colleagues for believing that this research was legitimate and for helping me in every possible way. I thank all the lawyers, police officers, medico-legal experts, and witnesses who shared their views with me. The names of these judges, prosecutors, experts, and lawyers cannot be mentioned owing to restraints of confidentiality. I especially wish to thank R.M. Bihola and Bhavnaben Jadeja for walking me through every step of my research and helping me finish this project. Conversations with Girishbhai Patel, Achyut Yagnik, Kajalben Patua, Amiben Yagnik, Gagan Sethi, and Swaroopben were infinitely helpful. Razia Khan helped me transcribe court proceedings during fieldwork. Without Anand Yagnik’s help, I would not have been able to find my way around the city and its courts. I appreciate the help and support I received from Hinaben, Nupur, Joy, Tanushree, Wilfred, Megha, Bhakti, and Viraj. Sophia and Razia Khan made my last memories of Ahmedabad very special. I remain extremely grateful for these memories—the city remains tragically transfigured after 2002. Lajja Gandhi who helped me translate police documents passed away so young leaving her friends bereft. So did my friend Bina Srinivasan who I know would have been happy to read this book had she lived. ACKNOWLEDGEMENTS xi Above all, I am deeply indebted to all those who shared with me their experiences lived in the aftermath of sexual violence. I had scarcely hoped to receive such trust, rapport, and generosity. I hope I have been able to translate their trust into responsible writing. Alongside this research, I found my voice working with friends in the Gender Study Group and later the Forum against Sexual Harassment in the University of Delhi. I am grateful to friends who forged our campaigns against sexual violence in the university and elsewhere in the 1990s and for etching their presence into the deepening conversations about the politics of protesting sexual violence during the recent protests in Delhi. I also wish to acknowledge the learning I gained from my association with activists and academics at the Alternative Law Forum, Centre for Enquiry into Health and Allied Themes (CEHAT), Centre for Women’s Development Studies (CWDS), Forum against Oppression of Women, Jagori, Lawyers Collective, M ajlis , Nyayagrah , Sahiyar , and Saheli . Many friendships flourished at the University of Delhi making way into life that found me after I left the neighbourhoods of Chhatra Marg. Janaki Abraham, Jinee Lokaneeta, Jyotsna Sivaramayya, Renu Addlakha, and Yasmeen Arif gifted me a wholly undeserved lifetime of intellectual, political, and emotional companionship. Jinee and Sangay Mishra left me with no option but to feel totally showered with care. Lester Coutinho, Ishita Ghosh, and young Ishan have inspired like none other. At different points of time, Ashley Tellis, Bharati Mohan, Mahuya Bandyopadhyay, Navin Vasudev, Shoma Choudhury, Savithri Subramanium, and Vasudeva Rao sought me out to reminiscence, encourage, and share. At D-School, late Sujata Ghosh taught some of us how our institutions need to learn how to care. Mani Shekhar Singh, Suman Bisht, and Sushma Gupta enlivened my life with so much laughter, meaning, care, and affection, marking extraordinary friendships for which I feel blessed. I am grateful to Mira and Varun for simply enchanting me. The two years spent in Surat introduced me to the generosity of late Professors S.P. Punalekar and Devyani Punalekar—whose stories of fieldwork captivated me. Their daughter Mitali Joshi has maintained the bonds of friendship since. Never allowing scepticism to find me, Uma Chakravarti read and commented upon everything I wrote, contributing to the xii ACKNOWLEDGEMENTS making of this book foundationally. Niraja Gopal Jayal and Shirin Rai have engaged with my work and life with stunning generosity and honesty. In England, I found camaraderie in Brenna Bhandar, Dwijen Rangenkar, Gauri Raje, Shraddha Chitageri, Stewart Motha, and Sukhwant Dhaliwal. Srila Roy, whom I first met at Warwick, has enriched this work infinitely by sharing her work, engaging with everything I wrote and sustaining a deep friendship. I must also thank Abdul Paliwala, Anupama Roy, Ann Stewart, G. Arunima, Farah Naqvi, Flavia Agnes, Indira Jaising, Justice Dr S. Muralidhar, Madhu Mehra, Nivedita Menon, Patricia Uberoi, Pradeep Jeganathan, Radhika Chopra, Rajni Palriwala, Roma Chatterji, Srimati Basu, Ujjwal Kumar Singh, Usha Ramananthan, Ved Kumari, and Vrinda Grover for being such important interlocutors. Professors Kamala Sankaran, Kalpana Kannabiran, Mary E. John, Pradeep Jeganathan, Peter Fitzpatrick, Sally E. Merry, Shaheen Sardar Ali, and Shalini Randeria gave their feedback on various chapters, hugely enriching this book. I am deeply grateful to a number of friends, some of whom also helped forge the Law and Social Sciences Research Network (LASS net ), for leading me to texts, ideas, and conversations, which otherwise would not have been mine to contemplate. Conversations with Aaron Goodfellow, Anitha Abraham, Anuj Bhuwania, Arudra Burra, Arvind Narrain, Bikram Jeet Batra, Chandan Gowda, Jawahar Raja, Lawrence Liang, Mayur Suresh, Mathew John, Prita Jha, Priya Thangaraj, Rinku Lamba, Roger Begrich, Shylashri Shankar, Siddharth Narrain, and Shrimoyee Nandini Ghosh have been formative to the making of this book. I remain extremely grateful to Shrimoyee and Mayur for their insightful reading of the manuscript; Dwij for scanning chapters of Modi 1922 from the British library; Anusha and Moi for helping compile case law for Chapter 6; Anuj and Lawrence for finding exciting readings and arguments for me; Priya, Anita, and Prita for looking after me most emphatically. In Jawaharlal Nehru University (JNU), Jaivir Singh, Amit Prakash, Navroz Dubash, Jayati Srivastava, and Parnal Chirmuley have been most wonderful colleagues and friends. I truly do not know what I would have done without the warm support extended by my generous and lovely colleagues and students at the Centre for the Study of Law and Governance (CSLG) in JNU. They also allowed