Understanding Rape Adjudication in Delhi Trial Courts

Understanding Rape Adjudication in Delhi Trial Courts
Arushi Garg

Summary

This thesis undertakes a socio-legal analysis of rape prosecutions in Delhi. It explores the hypothesis that rape adjudication is best understood by examining the implementation of law in its postcolonial context, rather than by reference solely to its formal scope. Specifically, this thesis deploys a postcolonial feminist framework. Postcolonial feminism highlights that the scope and operation of law assumes fixed gendered, racial and other social hierarchies. It critiques these assumptions.

The key question addressed in this thesis is what are the factors associated with acquittal and conviction in rape prosecutions in Delhi? The data sources used to respond to this question include judgments (n=254); observation in six courtrooms and interviews with victims, victim-support personnel, lawyers and judges (n=61). A thematic analysis is used to identify the factors influencing adjudication in four categories of cases: where the victim’s testimony supports the defendant; where her consent is vitiated by deception (‘deceptive sex’); where elopement is prosecuted as rape; and other contested cases. This thesis concludes that the criminal justice system is entrenched in its historical and socio-economic context. This context includes intersecting power structures such as those of gender, caste and class. Women’s experiences within and outside the legal system are shaped by these structures. Finally, the operation of the criminal justice system is influenced by multiple constitutive agencies with distinctive institutional cultures.

Key contributions:

This thesis is the first detailed academic study about rape prosecutions in India, following the introduction of extensive reforms in 2013. It carries out a meticulous analysis not just of the judgments in rape cases, but also the processes that inform them. In this way, it shows the inextricable link between legal outcomes and processes. For example, this thesis distils out reasons for why victims often refuse to support the prosecution, despite the recent introduction of victim-support measures – ultimately leading to acquittals. In understanding this phenomenon, the thesis focusses attention on the varied experiences of women navigating through the criminal justice system. It complicates notions of victimhood and agency while examining these experiences. Taken together, this analysis reveals the importance of broadening the focus of legal scholarship beyond appellate court judgments, which have been the traditional preserve of legal academics.

Secondly, this thesis provides a detailed analysis of ‘promise to marry’ cases, in which the victim is deceived into having sex based on a dishonest promise of marriage. These cases are over-reported in popular media but neglected in legal research. This thesis thus addresses an important gap in the literature. It draws attention to the unique issues influencing victim-witness testimony in these cases, teases out the distinctive stereotypes used in their adjudication, and provides a critical discussion about the complexity of consent in these cases. It connects these prosecutions to the need to preserve ‘respectability’ by legitimating premarital sex through marriage. Finally, it discusses the appropriateness of criminalising the defendant’s conduct in such cases.

Thirdly, this thesis illustrates how postcolonial feminist frameworks can be deployed in legal scholarship. Postcolonial feminists often adopt a critical approach to legal doctrine and seldom centre formal categories in their analyses. This thesis maintains a critical approach to the operation of law. However, it engages substantially with the minutiae of formal substantive, procedural and evidentiary laws. Consequently, it is able to signal concrete legal changes that can mitigate the worst discriminatory effects of the trial process. This thesis thus demonstrates the synergetic possibilities of using postcolonial feminist frameworks in legal scholarship.

Finally, this thesis provides a detailed, reflexive analysis of access-related difficulties encountered by empirical researchers in highly bureaucratised, opaque, non-automated, postcolonial environments, and strategies for overcoming such difficulties. It emphasises the need for more concerted efforts by the state to collect and publish data relating to crime commission and prosecution.

This thesis is a measured intervention in an environment that is increasingly characterised by polarisation, moral panic and penal populism. While it is based in Delhi, the findings of this thesis will valuable in understanding the nature of legal decision-making in adversarial criminal justice systems more generally, especially those in postcolonial societies.

Author

Arushi Garg

Defended in

2019

PhD defended at

University of Oxford

Specialisation

Social Sciences

Region

South Asia
India

Theme

Law
Gender and Identity