Pratiksha Baxi

Legacies of common law: ‘crimes of honour’ in India and Pakistan

Abstract Through a comparative analysis of crimes of ‘honour’ in India and Pakistan and an examination of appellate judgments from the two countries, we reflect upon how a rights-based discourse of modern nation-states forms a complex terrain where citizenship of the state and membership of communities are negotiated and contested through the unfolding of complex legal rituals in both sites. We identify two axes to explore the complex nature of the interaction between modernity and tradition. The first is that of governance of polities (state statutory governance bodies) and the second is the governance of communities (caste panchayats and jirgahs). We conclude that the diverse legacies of common law in India and Pakistan frame an anxious relationship with the categories of tradition and modernity, which inhabit spaces in between the governance of polities and the governance of communities, and constantly reconstitute the relationship between the local, national and the global.

Justice is a secret Compromise in rape trials

This article draws attention to the culture of compromise that underwrites rape prosecutions. This aspect of rape prosecutions has not been sufficiently discussed either within the women’s movement, the judiciary or the contemporary discourse on judicial reform in India. I argue that the socio-legal process encapsulated in the word ‘compromise’ (or samadhan, the coexisting Gujarati usage) is an exposition of how secrecy may be thought of as ‘indispensable to the operation of power rather than as an abuse of power’ (Taussig 1999: 57). Unlike other forms of out-of-court settlements described as mechanisms of alternate dispute resolution, plea-bargaining or mediation in courts of law, compromise is not legal in rape cases in India. The term ‘culture of compromise’ emphasises how a criminal trial becomes a site for contestation between the accused, the complainant and the prosecuting agencies over how to monopolise the framing of an out-of-court settlement.

Public secrets of law: rape trials in India

List of Cases Introduction 1. Doctrinal Pictures of Rape Trials: How to Do Things with Feminism 2. Medicalization of Consent and Falsity 3. The Child Witness on Trial 4. Justice is a Secret: Compromise in Rape Trials 5. Love Affairs and Rape Trials in India 6. On Interpreting Rape as/and Atrocity Conclusion Appendices: Appendix 1, Appendix 2, Appendix 3 Bibliography Index

Justice is a secret

This article draws attention to the culture of compromise that underwrites rape prosecutions. This aspect of rape prosecutions has not been sufficiently discussed either within the women’s movement, the judiciary or the contemporary discourse on judicial reform in India. I argue that the socio-legal process encapsulated in the word ‘compromise’ (or samadhan, the coexisting Gujarati usage) is an exposition of how secrecy may be thought of as ‘indispensable to the operation of power rather than as an abuse of power’ (Taussig 1999: 57). Unlike other forms of out-of-court settlements described as mechanisms of alternate dispute resolution, plea-bargaining or mediation in courts of law, compromise is not legal in rape cases in India. The term ‘culture of compromise’ emphasises how a criminal trial becomes a site for contestation between the accused, the complainant and the prosecuting agencies over how to monopolise the framing of an out-of-court settlement.

Access to Justice and Rule-of (Good) Law: The Cunning of Judicial Reform in India

This article is not an exhaustive review of judicial reform in India, nor does it contrast the different programmes for judicial reform over time. This article retains the distinction between ‘access’ to justice and access to ‘justice’ as an important framework to understand how the politics of judicial reform when aligned to access to justice expands state power. It engages with those perspectives that do not sufficiently interrogate judicial reform in relation to how substantive law excludes the poor by relating access of justice with, what has been called, the rule-of[good] law. I argue that the cartographies of the discourses on access to justice rest on the everyday context as the condition of legal redress. Yet, the everyday remains a given category wherein the contingency and instability that mark poverty and violence are not adequately theorized. Access to justice discourses assume a certain stability of politico-jural regimes wherein displacement, violence and refuge do not become central issues in the crafting of judicial reform.

Habeas Corpus in the realm of love: litigating marriages of choice in India

The discussion on habeas corpus, a legal term that literally means produce the body or the person detained in court, has ordinarily been evoked in discussions on political prisoners and illegal detention of subjects in state institutions in India. This discussion has eclipsed the routine use of the writ in the domestic realm. Yet procedural legality is a site where issues of substantive justice are regularly adjudicated. In this paper, I wish to point to the way people use the writ of habeas corpus in a domain of everyday life considered to be private, intimate and opaque to law. The paper illustrates how narratives of love are entangled in procedural law, how sovereignty is defined in relation to love and how love labours in the punitive corridors of law. The picture of heterosexual love presented herein underscores how love is a contested category that unfolds in the juridical field of force. The recent literature on the right of women to choose marriage, if and when they want to, has inaugurated feminist critiques of the techniques by which a range of laws are used to criminalise love in plural legal contexts in South Asia2. While the criminalisation of love has found documentation3, the use of the writ of habeas corpus in the realm of love needs foregrounding since it allows us to highlight the nature of custodial power over women by their natal families in alliance with state and non-state bodies of law and governance.