Neither at that time, nor indeed in my later life, did I feel any particular predilection for the career of a doctor….Under the powerful influence of a school friendship with a boy rather my senior who grew up to be a well-known politician, I developed a wish to study law like him and to engage in social activities.
Freud (1925 {1924}). (p.8).
All the world’s a stage said Shakespeare and we might add, the dramatis personae the draughtsman of the law, the implementer of law, the lawyer, the prosecutor, the judge, the mediator and the counselor bring their own history of conscious and unconscious beliefs, biases, prejudices and stereotypes.
The impact of prejudices and biases permeates each and every stage of the legal paradigm beginning with the drafting of the law; the working of the law in practice; the proceedings in court; the evaluation of evidence’, the playing out of legal propositions like ‘presumption of innocence’ and the judicial pronouncements by courts. The positing of the unconscious as a major player in human behavior struck at the core of humans as rational beings exercising conscious choices. The unconscious comes into play not just in individual trials but also in adjudication as to the constitutional validity of laws touching upon nationalism, gender and sexuality including sexual orientation.
The judgments delivered by the courts upholding laws would on the surface be about the extent of play of fundamental rights to life, liberty, freedom of speech and expression and reasonable restrictions to be imposed on the rights on the ground of public morality, public order and national security. Moving as Freud (1905) puts it from the ‘manifest’ to the ‘latent’ in the context of ‘dream –work’ (p.160), we may find the role of factors like anxieties about annihilation, fears about partition, apprehensions about the rape and dishonor of mother and motherland or uneasiness with sexuality and homosexual attractions at play in the psyche exerting significant influence on the judgments.
However, legal systems all over the world do not take cognizance of the role of the impact of unconscious biases, prejudices and stereotypes and of the play of anxieties, fears and apprehensions, on law and practice.
Statutes and legislations
The role of the unconscious can be seen at the stage of the very drafting of the laws. Some examples of legislations in India where gender, sexuality, morality, nationalism come into play are The Immoral Traffic Prevention Act, 1956, the Dowry Prohibition Act, 1961, the Pre-Natal Diagnostic Techniques(Prevention of Misuse) Act, 1994, the SC/ST (Prevention of Atrocities Act), 1989. Similarly, provisions of the Indian Penal Code, 1860 pertaining to offences like Unnatural Offences (Section 377), Rape (Section 376), Adultery (Section 497), Outraging the modesty of a woman (Section 509), or provisions of the Evidence Act, 1872 pertaining to impeaching the character of a rape survivor could be other examples. Extra-ordinary laws the like Terrorist and Disruptive Activities (Prevention) Act, 1985, TADA, Prevention of Terrorism Act, 2002 (POTA) as well as the Armed Forces (Special Powers) Act, 1958 (AFSPA) offer another area of exploration.
The extremes of a spectrum often bring out and illustrate a phenomenon which may be pervasive in other areas in a milder form and difficult to grasp. However, once we are able to take cognizance of the frame of viewing it becomes easier to see the wide spread role and impact on the drafting of numerous statutes. In a society divided by hierarchies and status, sex workers come at the bottom of the ladder as one of the most stigmatized community and we can see the impact of this factor in the drafting of the law related to sex- work.
Suppression of Immoral Traffic (Prevention) Act, 1956
The legislation was enacted in pursuance of the ratification by the government of India in 1950 of the International Convention for the Suppression of Traffic in Persons and of the exploitation of the prostitution of others . The Suppression of Immoral Traffic (Prevention) Act, 1956 (SITA) is illustrative of the prejudices and stereotypes at play in the realm of the making and drafting of a law. SITA, the acronym of the law is the name of the consort of Lord Rama in the Indian epic Ramayana and is the very epitome of the pure woman. In 1986, the name of the law was changed to Immoral Traffic Prevention Act with the acronym “ITPA” . The legislation was brought in 1956 ostensibly for “the Suppression of Immoral Traffic in Women and Girls”. Trafficking would be generally understood to mean transporting a person by the means of the use of threats, force, coercion, abduction, fraud or deception . The legislation (ITPA) does not contain even a definition of trafficking leave aside provisions to check it. Yet so deeply is the association of prostitution with trafficking in the minds of the persons drafting the statute, that the law with regard to sex work is called prevention of “immoral traffic”.
ITPA deals with acts like keeping a brothel, soliciting in a public place, living off the earnings of prostitution. Reflecting the extreme prejudice prevalent against sex workers the legislation has a number of provisions which are a violation of guaranteed fundamental rights and are clearly unconstitutional. Shukla (2015) observes: “The split between the “pure” and the “impure” is manifested at its most extreme with sex workers as the source of pollution in society and is amply reflected in the working of the law”. (p. 183)
In a departure from well established principles of criminal jurisprudence where consent or lack of consent of an adult is the crucial factor in determining the commission of offences like kidnapping and illegal confinement, ITPA has paradoxical offences which do not take into account the consent of adult persons. Section 5 ITPA makes taking a person “with or without his consent” for the purpose of prostitution an offence. Section 6 ITPA creates an offence of detaining a person “with or without his consent” in premises in a brothel. Similarly, Section 16 ITPA makes no distinction between “adults” and “minors” in the conduct of ‘raid and rescue’ operations by the police. The raids conducted violate the dignity and rights of sex workers and end up with the ‘rescued victim’ feeling arrested and detained by the police. In clear violation of the fundamental rights to reside in place of choice and to move around freely throughout India Section 20 ITPA gives power of ‘Removal of prostitute from any place’ to a Magistrate.
The recent Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 drafted by the Ministry of Women and Child Welfare, Government of India to be enacted into law extends the prejudice and stigmatization of sex workers. The provisions of the proposed law take away the fundamental right of sex workers to be produced before a Magistrate within 24 hours of detention guaranteed under the constitutional rights to life, liberty and production before Magistrate within 24 hours. Similarly, section 4 of the Bill provides that a person rescued can be produced before the District Anti-Trafficking Committee by in addition to a police officer, by any public servant or social worker or public spirited citizen. The provision empowering any public servant or social worker or public spirited citizen is clearly a violation of the rule of law and the fundamental rights of rescued persons. The provision empowering any public servant or social worker or public spirited citizen leaves the window open, if not an invitation to busy bodies, interlopers, moral policing by all and sundry to ‘rescue’ persons and produce before the District Anti-Trafficking Committee.
Court Proceedings: The Law in Action
The role of unconscious biases, prejudices and stereotypes is not confined to the impact on and reflection in judgments. The proceedings in courts are an area where these are often played out. The manner of address, the tone, the time and opportunity given by the judge, the behavior of other players like the prosecution and lawyers are all impacted by an individual’s stereotypes of say the ‘promiscuous woman’; the ‘addict’, the ‘terrorist’. Similarly, the color, status and appearance of the individuals, whether appearing in court as survivor/victims, witnesses, accused, private parties in dispute or lawyers, impacts attitudes and behavior of the law in action. A homophobic judge may well address a victim/survivor who has been robbed and in appearance looks like the stereotype of the ‘homosexual’ in the mind of the judge, in a pejorative manner in the court proceedings as if he/she is an accused rather than a prosecution witness.
Few persons like to think of themselves as prejudiced individuals discriminating consciously against people from a certain religion, or caste or gender or class or sexual orientation. It would be rare a judge who would consciously think “I am against workers or Muslims/Hindus/Christians or homosexuals”. Predominantly the biases, prejudices and stereotypes operate at an unconscious level. Shukla (2011) speaking of efforts at minimizing of the impact through workshops at the Delhi Judicial Academy at New Delhi the capital of India and at the National Judicial Academy at Bhopal, the capital of the State of Madhya Pradesh in central India observes: “A major problem area is the centrality of the belief in judges that they are individuals who are free from biases, prejudices and stereotypes. Assumptions taken for granted in the area of psychoanalysis with regard to the paradigm of conscious/unconscious could not be taken as shared by participants. The introduction to the workshop explains the basic premises, emphasizing that feelings in the conscious are amenable to processing. It then tries to illustrate from situations in the sphere of law familiar to the participants the playing out of unconscious biases, the possibility of taking on board onto the conscious, processing the feelings and an opportunity to minimize their impact on judicial decision‐making”.
Judicial verdicts and unconscious
Moving on from the conduct of court proceedings to the nitty-gritty of establishing the commission of crimes, we take a look at the play of the apparently objective and irreproachable fundamental legal maxims of criminal jurisprudence like ‘presumption of innocence’, ‘burden of proof on prosecution’, ‘evaluation of evidence’ and ‘proving beyond reasonable doubt’ . In practice these high principles of law are played out in hundreds of court rooms mediated through the agency of a judge, an individual as much prey to the foibles, idiosyncrasies, pride, prejudices and egotism as any human being.
A person accused of theft and appearing to the judge like the very stereotype of a drug addict may evoke a gut feeling that –‘smackiya hai, isi ne chori kee hogi’ (translation: He is a smack addict, must have committed the theft). Judicial training does not have any component of taking this gut feeling on board and processing it. In practice the ‘gut feeling’ impacts in a vital manner the presumption of evidence, the evaluation of evidence and the determining of innocence or guilt.
The overwhelming role of subjective notions of the individual judge can be more clearly seen in instances where the trial court has convicted and given the maximum punishment and the appellate court has acquitted the accused persons. Rajiv Gandhi, the ex- Prime Minister of India was assassinated on May 21, 1991 in Sriperumbudur in the State of Tamil Nadu, India. The trial court constituted under the Terrorist and Disruptive Activities (Prevention) Act (TADA) convicted and awarded the death penalty to all the twenty-six accused persons. Under TADA, there was no appeal to the High Court and the accused had only one appeal to the Supreme Court. The Supreme Court acquitted nineteen of the twenty six persons. The conviction and award of death penalty and the acquittal of nineteen persons out of twenty-six on the same evidence brings home sharply the stark role of the attitudes, opinions, notions and perceptions of the individual judge impacting liberty, and the very life and death of persons accused of offences.
Sedition and the case of Kanhaiya Kumar
Kanhaiya Kumar, the President of the Students’ Union of the Jawaharlal Nehru University (JNU) in Delhi, India was arrested on charges of sedition for participating in an event marking the third anniversary of the death of Afzal Guru who was awarded death penalty and executed on 9th February 2013. Guru was convicted as a conspirator in the attack on the Indian Parliament in 2001. This year too like the past anniversaries of his death, speakers at the function termed Guru’s execution as ‘judicial murder’ and hailed him as a martyr. This time round the police arrested Kanhaiya Kumar in February under the serious charge of sedition. After being in jail for a little over two weeks the Delhi High Court released Kumar on interim bail. The judgment granting interim bail in the Kanhaiya Kumar versus State of NCT of Delhi substantially establishes the basic premises of the necessity of psychoanalytical inputs into judicial training
Psychoanalysis and Trauma Testimony
The positioning of trauma at the core of psychoanalysis equips it to intervene in the vital area of law and individual as well as collective trauma testimony. Therapeutic success with war neurosis during and post World War I places psychoanalysis in a unique position to help the trauma survivor and to sensitize the legal system to the impact of trauma: the psychological damage; the fragmentation; the conflation of different incidents, dates, times and occurrences; the existence of vivid memories in and of themselves along with lack of clarity as to how they are inter-related and the sequence of events characteristic of Post Traumatic Stress Disorder. Freud (1955 [1920]) writes “In 1918 Dr. Ernst Simmel, head of a hospital for war neuroses at Posen, published a pamphlet in which he reported the extraordinary favourable results achieved in severe cases of war neurosis by the psychotherapeutic method introduced by me. As a result of this publication, the next Psychoanalytical Congress, held in Budapest in September 1918, was attended by official delegates of the German, Austrian and Hungarian Army Command, who promised that Centres should be set up for the purely psychological treatment of war neuroses” (p. 215).
Trauma survivors have a difficult time in the Indian legal system given the requirements of clear, cogent and consistent testimony in law
Juveniles and criminal-correctional process
The area of juveniles in conflict with law is an area where psychoanalytical interventions can make a significant difference. The incidence of increase in crimes by juveniles is increasingly pushing the law to move to a harsher regime. At present, juveniles in conflict with law are treated differently under the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) in India and are to be released on attaining the age of eighteen years. Today, there is a strong sentiment against the more lenient differential regimen for juveniles who have committed serious offences, especially due to recidivism. Juveniles in conflict with law are not sent to jails for adults and are incarcerated in Juvenile Homes established under the JJ Act. Periodically, the juveniles locked up erupt with fury and anger – breaking things, collecting furniture and setting it to fire and escaping from the protection homes.
It can be safely postulated that intense and intolerable buried feelings of rage, anger, self-loathing, self-disgust, guilt, fear, aggression, pity, persecution, depression, loneliness and emptiness may be some of the emotions at play to varying degrees in the psyche of juveniles driven to uncontrollable destructive and self-destructive behaviour. Psychotherapeutic interventions to bring the buried distressful feelings to the fore, a processing of the deep fears and rages, initiating the acknowledgement and taking back of one’s bad parts, equipping the individual to tolerate frustrations and distress are integral to the schema of the Juvenile Justice (Care and Protection of Children) Act, 2000 visualizing rehabilitation and re-integration of the juvenile offender into society.
The rationale of differential treatment of and setting up of a separate process for juveniles is treatment and guidance rather than punishment. The law takes on board factors like teens are particularly vulnerable to peer pressure and it is worthwhile to give children who have committed offences a second chance at life. It is also premised in the belief that changing the social environment in which juveniles live is a more effective way to reduce juvenile violence rather than pushing them into the adult criminal court system and prisons. Steps to provide counseling/psychotherapeutic services, catering to developmental needs of the child, conceptualizing a mental health care plan for each juvenile, changing the social environment, continuing therapy services after the release form the bulwark of the approach of the JJ Act. Shukla (2013) speaking of ground realities with regard to the running of juvenile homes in India observes: “In the absence of such measures the entire purpose of the legislation gets lost and reduced to lock up the juvenile in unhygienic deplorable conditions, throw away the key for the duration and then release him in society, possibly more embittered, angry, vengeful and prone to violence and self-destruction. We helplessly await the next crime he may commit on release and then hopefully we can lock him away for good as an adult”!
The confinement of individuals without being able to process the unconscious negative feelings contributes to the repeat offences, recidivism and relapse to substance abuse.
The way ahead
An examination of the tremendous impact and role of the unconscious intra-psychic processes at play can help us move forward to take on board more and more areas of discrimination and disability in the quest for justice. This would involve evolving psychoanalytical interventions for greater sensitization to caste, class, gender, sexual orientation and trauma in the arena of drafting and implementation of laws, matrimonial disputes, court proceedings, judgments and the criminal correction process..
However, the courts are the domain of the judge. Psychoanalytical interventions in judicial training are a vital area which has the potential of making a significant impact in the quest of justice. AsYoung succinctly puts it: “One of the illuminating distinctions that Kleinian psychoanalysis has given us is that between knowing and knowing about. In psychoanalysis, knowing about something often operates as a defence against knowing it in a deeper, emotional sense. I well recall my first, greatly-valued supervisor, Bob Hinshelwood, saying once in an ironic way that if you don’t understand what the patient is on about in the session, you make a clever interpretation, and if you aren’t in touch with the patient at all, you can always write a paper. It is fairly easy to know about psychotic anxieties and projective mechanisms, but knowing them in an inward and sustained way is very difficult, indeed” (p. 1).
Shukla (2015) writing of interventions towards sensitizing judges to the vulnerabilities of trauma survivors observes: “The ability to see the defenses at play in oneself is at the heart of the workshop and would enable the judges to see them at play in the testimonies of trauma survivors as well as themselves and equip them to constructively intervene in the proceedings”. The challenge lies in judges accepting that the unconscious biases, prejudices and defense mechanisms and intra-psychic processes at play in the trauma survivor are part of a spectrum are at play in all of us.
References
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