Courtroom practices in the postcolony

This programme of research seeks to understand courtroom practices in Indian trial courts, focusing specifically on the role and experience of prosecutors, judges and victims. The first phase of this project entails an in-depth qualitative study of rape prosecutions in Delhi trial courts. Building upon this empirical analysis, the second phase will focus specifically on the role played by trial court prosecutors in north Indian trial courts.

The findings from the first phase will be published in a monograph titled Sexual Agency and Victimisation: A Postcolonial Feminist Analysis of Rape Trials (on contract with Oxford University Press for 2022). This book develops a postcolonial feminist account of adjudication within the criminal justice system. Postcolonial feminism highlights and challenges the gendered, racial and other social hierarchies built into the scope and operation of law. It draws out the way in which these stratifications are historically informed and mutually constitutive. This book deploys postcolonial feminism to develop a socio-legal analysis of rape trials in Delhi. It argues 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. This legal, postcolonial feminist account of rape adjudication uses primary data collected from April to October 2016. These data include all Delhi trial court judgments from January to June in 2014 and 2016 (n=254); ethnographic observation in each of Delhi’s six court complexes; 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; where elopement is prosecuted as rape; and other contested cases. You can find some findings from this study published in Social and Legal Studies.

The second phase will inaugurate a new body of criminal justice scholarship about postcolonial prosecutors. It will use India as a case study to identify and critique formal and informal institutional norms guiding prosecutors in adversarial, postcolonial criminal justice systems. Prosecutors are crucial actors in the legal system. They influence who should be punished, for what, and how. They have the power to withdraw prosecutions and their consent is crucial for plea bargains. Despite this, they have been subjected to little academic scrutiny, relative to other criminal justice institutions. This project will develop a novel account of norms governing postcolonial prosecutors. This account will draw on fresh data from semi-structured qualitative interviews with trial court prosecutors; case files; formal regulations, guidelines and manuals; press releases; and prosecutorial orders to withdraw prosecutions. The project’s findings will provide a valuable foundation to understand, evaluate and improve the performance of prosecutors.