‘Legal education serves the interests of power’: Infosys Prize winner

New Delhi: Jawaharlal Nehru University’s Pratiksha Baxi, an associate professor in the Centre for the Study of Law and Governance, won the Infosys Award in 2021 for her “pioneering work on sexual violence and jurisprudence”. Her book, Public Secrets of Law: Rape Trials in India, was published in 2014. Baxi spoke to Careers360 about the changes needed in legal education and “courtroom talk”, how the massive backlog of cases is used to “entrench power” and how plans to use technology in court cases may not help.

Q. Can legal education play a bigger role in positively changing social mores?

A. We need an honest debate about how legal education expands impunity and serves the interests of power. Law schools can do so much more to amplify the translation of constitutionalism as a way of life. Legal education oriented to social suffering, injustice and harm can go a long way in changing social mores. Unfortunately, we do not see enough human rights work in our law schools. There are scores of law students who would like more critical and interdisciplinary engagement with law and society. Although there are many welcome changes in legal education, we need to challenge the idea that law is a monopoly of legal experts, while strengthening the learning of law in the social sciences.

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Q. You have written on how rape trials are conducted in India. What changes are required in legal education to make the process less harmful to survivors?

A . Many law teachers find it embarrassing to teach the rape law in law schools. It is a sad reality that there are very few courses in our law schools that train law students on how to adjudicate rape cases without harming rape survivors or teach students how to develop constitutional doctrine to redress the harm caused by rape. For example, lawyers could be encouraged to develop constitutional tort law in the field of sexual violence, as an alternative way of redressing the harm of sexual violence. Or how might defence lawyers conduct cross-examination without evoking the victim’s past sexual history, and yet conduct a fair trial? Courtroom talk cannot be changed through legislation. It is law teachers who must innovate how to defend a rape accused without re-traumatising a rape survivor. For, as I have shown in my book, courtroom speech matters. Law students must be encouraged to dwell on the law-in-action rather than law-in-books alone.

Law education must engage with a little reform that can go a long way. For example, the clothes of rape survivors are collected by the police or at the hospital for forensic examination. However, most often, rape survivors are not supplied with a pair of clothes to replace the clothes confiscated by the state as evidence. An eminent feminist lawyer told me about a foreigner who was raped when she was jogging. Her clothes were confiscated by the police who then gave her a dirty blanket to wear. Angrily she asked, “Am I expected to carry an extra pair of clothes while jogging just in case I am raped?” Surely confiscating clothes as evidence without replacing them amounts to state-sanctioned stripping. By looking at everyday legal processes, such as demanding that rape survivors be given a pair of clothes during the forensic examination, students of law can bring about
meaningful changes.

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Q. Why is women’s representation so low in the legal field? What are the barriers that prevent women from entering this field?

A. Law has continued to be male-dominated. There are many reasons. Some are outright masculinist exclusions. For example, many courts do not even have toilet facilities for women lawyers. Family courts were built in some states but ironically they forgot to provide toilet facilities for women, transpersons and children. Prisons do not cater to the sexual and reproductive needs of women and transpersons. Even courts and chambers are unsafe for women.

Sexual harassment within the judiciary is mostly a taboo topic and when it is raised, it has regretfully been seen as an attack on the independence of the judiciary. Women lawyers continue to face high thresholds of sexism within their profession, even though there have been very important achievements by women on the bar and the bench. Women lawyers had to litigate to get a crèche in the Supreme Court. Most courts do not have a crèche or books in the women’s bar room.

If courtroom culture is not changed radically then women’s representation will continue to be low in the profession. Merely increasing the representation of women in the judiciary is not enough to change the culture of courts.

Q. There’s a huge backlog of cases across Indian courts.

A. The backlog is systemic. It serves a purpose. Backlog is used to entrench power. It is not only about a shortage of lawyers or judges.

Backlog keeps a huge population of undertrials, mainly from disadvantaged groups, in prison.

It allows pressure to be put on rape survivors to “compromise” the case, even though the compromise is illegal. Now, there is a worrying trend of punishing rape survivors who turn hostile to the prosecution case through the law on perjury. However, as my research has shown, women are often forced to compromise due to complex reasons of threat and intimidation. In such instances, punishing women for perjury or filing defamation charges against them, without considering the socio-legal process underlying compromise, is an example of how the carceral state disciplines and punishes women. It is a systemic effect of backlog.

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Q. What are your views on the use of technology in judicial processes? There are efforts to use AI in court cases, for example.

A. Technology, as we know, is not neutral. There has not been enough debate on how the independence of the judiciary is weakened when e-court systems are put in place without clear data protection policies and when e-courts operating in an interoperable system do not tell us how court databases are autonomous from databases that enable a surveillance state.

Surely, we should be aware that judicial data that is generated to be put in the service of machine learning models of adjudication will serve the interests of power. Can robot lawyers fix the broken system of law or will they simply expand impunity?

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Q. Has the Covid pandemic affected the legal profession in any way? Should the current batch of students be equipped to face a slightly different post-pandemic situation?

A. It was surprising that no national-level special funds were announced for students during the pandemic. Not only was the digital divide unsurmountable for public universities, especially, but it has also been difficult for students to learn through the online mode. The more concerning thing is the spate of changes in the education policy during this time. The abolition of the MPhil degree was regretful. It will especially adversely impact the capacity of women to pursue research. The changes in admission policy with common tests and outsourcing postgraduate admissions to the NTA [National Testing Agency] or UGC-JRF [University Grants Commission – Junior Research Fellowship] route has created further serious problems, especially in ensuring representation and diversity in the selection of students to interdisciplinary research programs. Resources for seminars, libraries and student welfare have significantly diminished in public universities. And the conditions of research have diminished in public universities. For students to be creative, they need safe and vibrant academic spaces to experiment with ideas and methods. Hierarchical and unsafe academic cultures which discipline and punish their students and teachers cannot produce world-class research, in private or public universities.

Women lawyers continue to face high thresholds of sexism within their profession, even though there have been very important achievements by women on the bar and the bench. Women lawyers had to litigate to get a crèche in the Supreme Court