You’re in a courtroom. The room is crawling with people. The defence counsel has just requested another date. The judge lifts his pen, and before he can write, you interrupt him. In a state of extreme frustration, waving your hands frantically, you say, “Tarik pe tarik, tarik pe tarik, tarik pe tarik, tarik pe tarik melti rahe hai, lekin insaff nahi mila my lord, insaff nahi mila, mile hai toh sirf yeh tarik!”
That was Sunny Deol in the 1993 film ‘Damini’. The scene earned him a National Film Award. The thing with films is, the actor can take infinite retakes until they’re satisfied with their work. Real-life courtrooms, unlike ‘reel’ courtrooms, don’t work that way. Think of it as a play you’ve only ever rehearsed alone, playing every role yourself. In court, you have to be meticulous; you only have one take in front of the judge presiding before you in that particular court. One take to put your point across. One take to convince the judge. One take to get your client justice.
Well, no one is stopping you from playing a little bit of background music in your mind when you walk into court, like violins play when Shah Rukh Khan spreads his arms wide. After all, what is the legal profession without a little bit of theatrics?
Yet, these courts, judges, lawyers, and police forces - the entire Criminal Justice System - hold in their hands the power to set course to the remaining lives of the accused and victim. This, however, is only the aftermath, a microcosm of everything from the second your client walked into court, their body language, how they were dressed, how they looked, and how you presented them.
The woman who was raped, isn’t covered from head-to-toe in ‘decent’ clothes; it must be ‘her’ fault. The man has muscles; he must have killed his boss. She shot her husband, look at that attitude. Our society thrives on these notions. How can we expect our courtrooms not to? If the face value of a victim is highlighted, how can we be certain that it wouldn’t sway our court’s final decision?
Section 48 of the Bharatiya Sakshya Adhiniyam, 2023, prevents the introduction of evidence that points towards a victim’s character or previous sexual experience when ‘consent’ is being questioned, however that does not prevent her being revictimized on the witness stand. To prove that the accused has not sexually violated a woman, her past is used as shield to protect him. What happened isn’t wrong, they argue; because she’s used to it, how very simple.
Whenever discussions arise that involves one’s ascribed gender role, human prejudice and sociality stereotypes naturally surface. Our courts deal with matters of public importance, that extend far beyond gender roles, yet we expect them to remain impartial. Certain biases are so deeply ingrained that they surface as if scripted into the system itself.
In addition, the bar and bench interact daily; in smaller courts, the professional familiarity runs high. The number of judges is defined depending of the extent of the jurisdiction. In smaller localities, the probability of a Lawyer knowing the professional preferences of a Judge is rather significant, and doesn’t it make it easier putting up a show when you know your audience? If one has presented before a bench before, they would know what is coming their way, and can work in a manner tailored accordingly.
The judicial showcase unfolds in our court proceeding, while the legislative theatre transpires in the form of punishment and the written law.
In the erstwhile Indian Penal Code, 1860 (IPC), Sexual Offences was the final section under Chapter 16, now in the Bharatiya Nyaya Sanhita, 2023 (BNS) it’s under Chapter 5. Sexual Offences against women and child jumped eleven chapters higher in our text, but was a true change brought in its essence?
Consent, induction and seduction are the sole factors that mark the difference between the punishment for ‘Rape’ and ‘Sexual Intercourse by a Person in Authority’ under Sections 64 and 68 of the BNS, respectively. Marital Rape remains non-criminalized, but a husband can be charged under the offense of Gang Rape under Section 70 of the BNS, if he was part of the group that raped his wife.
The punishments for several offences have been rewritten, however what that offence entails in the 21st Century has been overlooked. In this masquerade, the meaning ‘Justice’, the essence of ‘Nyaya’, has been lost. Are the punishments made stricter, more penal, to appease to the public, calm them down? Or does our justice system truly believe that harsher penalties will deter crime?
India, Singapore and Hong Kong were all once British Colonies. All three read from the same legal script. Singapore’s Penal Code was adapted from the IPC, but over time, each of them performed Justice differently.
Singapore chose discipline as its language. Its courts became a theatre of authority, where punishment itself was the performance. As legal scholars Bryan Druzin and Anthony Wan observed in the Washington University Global Studies Law Review (2015), Singapore’s penal system “has not fully transitioned to a carceral culture.” In other words, it still relies on the spectacle of punishment. Caning and hanging are still used as public proofs of control.
Hong Kong, on the other hand, dismantled the stage. It moved toward a rights-based, reformative justice culture. It abolished corporal punishment in 1991 and capital punishment soon after. There, justice ceased to be performed for the audience; it began to be practiced for the individual.
Then comes our India. We rewrote the law to leave behind the colonial past. But a costume change does not change the character. The dialogues might have changed, but the meaning hasn’t.
Our origins are the same, but the road ahead is not. If our courts remain to be more performance than principle, justice will stay what it has too often been - a well-rehearsed act in an empty theatre.
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