Review of Pratiksha Baxi’s essay on “Justice is a Secret: ‘Compromise’ in Rape Trials,” in Negotiating Spaces: Legal Domains, Gender Concerns and Community Constructs; Edited by Flavia Agnes and Shoba Venkatesh Ghosh (original) (raw)
Related papers
Journal of Indian Law and Society, 2020
Rape in Indian law is a crime that cannot be quashed on the basis of a settlement between the parties. And yet, instances of such settlements, known as 'compromise' are frequent and commonplace in rape cases.High Courts across the country have been using their inherent powers under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') to quash criminal proceedings in rape cases where there has been an out-of-court compromise between the two parties. In this essay, we analyse all orders delivered by the Punjab and Haryana High Court between 2009-2018 in which it decided to either allow or dismiss petitions under s. 482 CrPC where there was a compromise between parties in a rape case. A reading of these seventy-five orders reveals that there are three broad categories where s. 482 CrPC is invoked. The first category is where the petitioner and complainant were in a relationship at the time of commission of the offence. The second is where the petitioner offers to marry the victim, and the third is where the FIR was filed as a result of a matrimonial dispute. We understand these categories through the lens of three main patriarchal constructs: the marital bond, chastity, and the public-private divide. Drawing on the gendered narratives structuring the High Court's decision-making in these orders, in this paper we argue that the courtdeploys s. 482 in an effort to maintain hetero-patriarchy. Drawing on orders that are especially illustrative of these issues, we aim at exploring the tussle between agency and coercion, as well as the tension between the domestic sphere and the public sphere. * Malavika Parthasarathy is an independent researcher based in Bangalore, and an incoming LLM candidate at the University of Chicago Law School. RupalOza is Associate Professor in the Department of Women and Gender Studies, Hunter College and The Program in Earth and Environmental Sciences and the Program in Women and Gender Studies at the CUNY Graduate Center. We thank Sumit Gupta, student at NUJS for his timely and valuable research assistance. We are grateful to Pratiksha Baxi for her comments on an earlier draft and to the editorial board and the anonymous reviewer for their suggestions for change. COMPROMISE IN RAPE CASES IN PUNJAB AND HARYANA 73
2021
The inhuman practices of honour crimes have constantly been rattling multicultural fabric of the Indian society for ages. These practices have often sparked an ongoing debate between the gender theorists and the cultural theorists, especially in the field of academia. This debate not only concerns the analytical supremacy of either of the two theoretical frameworks, but also raises some important issues which often remain under-explored, particularly in the court of law. The question of gender is one such crucial area of analysis as far as the honour crimes are concerned. Gender, as a concept has also evolved since the 19th century, largely because of the different waves of the feminist movement worldwide. The development of the notion of gender has been significant, from primarily being affixed to an individual’s biological characteristics, as touted by the theorists such as Talcott Parsons and Emile Durkheim, to being perceived as a social construction, largely by the ethnomethodo...
Sexual violence in armed conflict situation is mostly unreported though widespread. 'Sexual violence' refers to many different crimes including rape, sexual mutilation, sexual humiliation, forced prostitution, forced pregnancy and forced abortion. The culture of impunity and social notion of women as the bearer of the honour of the family and society results in culture of silence over the crimes of sexual violence during armed conflict situation. North East India has witnessed active internal armed conflict for decades and several 'special security' laws have breaded into culture of impunity. Legal procedural aspects together with the social notion of 'honor' have denied women justice for sexual violence. In such a situation, rethinking and analyzing the current scenario over the justice for sexual crimes may be worked out both at the policy level and also at the community level to ensure justice to women who survived sexual violence in north east India.
Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory
Because prerogative power appears to its subjects as not just the power to violate but also the power to protect-quintessentially the power of the police-it is quite difficult to challenge from a feminist perspective. The prerogative of the state, whether expressed as the intervention of the police or as incessantly changing criteria for welfare benefits, is often all that stands between women and rape, women and starvation, women and dependence upon brutal mates, in short, women and unattenuated male prerogative.
From Mathura to Farooqui Rape Case: The Regressive Patriarchy Found its Way Back
countercurrents, 2017
Way back in 1972, a tribal girl was raped in custody by two constables in Desai Ganj Police Station in Maharashtra. The Supreme Court in Tuka Ram v State of Maharashtra 1 (also known as Mathura's rape case) acquitted the two accused policemen on the ground that the victim has raised no alarm, there was no visible injury mark on her person thereby it could be assumed that she has consented and not protested, she is habituated to sex, `she might have incited the two drunk policemen' and therefore no rape is committed. Immediately after this verdict is pronounced, four legal luminaries, wrote an open letter to the Chief Justice of India protesting against the manner in which the accused have been acquitted and the concept of consent has been defined by the Court. Subsequently, the Criminal Law (Second Amendment) Act, No. 46 was introduced in the year 1983 and the provisions relating to rape law were amended. During the process, attempts were made to elaborate on the concept of consent, to put the onus of proving the guilt on accused rather than the victim, believing the victim's version, emphasis on not taking into account the past sexual history of the victim during the trial and similar such reforms were made. Recently, the Supreme Court, while pronouncing its verdict in the Nirbhaya's rape case 2 too has upheld that the victim's version alone is sufficient for the conviction of the accused. The progressive reforms, therefore, have been made in the rape laws until now, till the judgement delivered by the Punjab and Haryana High Court 3 in the Jindal University rape case on 13 th September 2017 as well as the one pronounced by the Delhi High Court in Mohd Faroouqi versus State (Govt of NCT of Delhi) 4 on 27 th September 2017, while neglecting the Nirbhaya's case decision pronounced on 5 th May 2017 and overlooking the reforms in the rape law, once again reopened the debate on consent in such cases and redefined what constitutes rape. Appalling attempts were made to dilute the provisions of the rape law. These two callous decisions by two different High Courts, one after the other, dismantled the concept of consent, ripped apart the framework of justice as well as dignity of women and made a dent on the concept of autonomy of a woman. These verdicts show that patriarchy still prevails and that the sexist misogynist mindset within the court rooms has not changed. The law embedded in patriarchal socio-cultural and sexual norms fails to see the rational logic and objectivity and negates to see the concept of consent in its wider perspective thus pushing down the regressive reasoning against which the women's movement has painfully struggled for
Rape, Retribution, State: On Whose Bodies?
Economic and Political Weekly, 2000
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Crimes in the name of 'honour' are on a rise in our country. Both rural as well as urban areas are gripped with instances of horrific crimes where young citizens of our country are being killed for exercising their democratic right of choosing their life partners. The democratic minded people of our country are both shocked and distressed by these incidents. During last three decades, women's movement in India has provided institutional support to young lovers and newly married couples faced with life-threatening consequences. The murders of young women and men, who have married by choice or across caste barriers, often go unnoticed. There are no statistics on loss of lives due to honour related crimes. Many are not investigated because the community closes ranks, apparently making it impossible to find out what really happened.
The Trouble with Marriage: Feminists Confront Law and Violence in India by Srimati Basu
Canadian Journal of Women and the Law, 2016
Marriage is more than one site of structural vulnerability captured in law; it is at the core of gender trouble. 1 This book, the first in a new series on ''Gender and Justice,'' edited by Claire M. Renzetti, offers a profoundly feminist analysis of the laws in India that surround and frame marriage and, especially, marital strife and violence, against women, including rape. It focuses on law and gives an account of law reforms in India, intelligently informed by debates within and about feminist jurisprudence, but author Srimati Basu adopts a mainly anthropological approach to her subject. 2 Over several years, she conducted an ethnography of the family court (particularly the family court in Kolkata, formerly known as Calcutta) as well as the Women's Grievance Cells, managed by the police and mediation agencies. For instance, she ''lurked'' in family court in order to see law at work and to see how people looked and behaved in this legal setting and as they negotiated. 3 For Basu, law is a complex phenomenon, one that is a preferred venue of cultural negotiation because of its regulatory power. As she says, ''people narrate their lives through the logic of laws even though they rarely encounter formal cases.'' 4 As a result, law has the capacity to constitute new subjectivities. People's speech or performances in court or in mediation are not simply ''truths'' or ''desires'' but, rather, are framed by legal strategy. 5 Moreover, in a multilingual context, judges may ''translate'' the words of litigants in problematic ways; even their silences can be misinterpreted. 6