Interviewed by Shubh Mathur & Pratham Gupta
Q) As someone who has been comprehensively involved in this domain of law, how would you adjudicate the relationship between the Indian legal fraternity and members of the marginalized communities over the past decade? And would you be inclined to believe that stratification within said marginalised communities also plays a role in how the law treats them?
Ms Shah - The Indian legal fraternity is deeply embedded in caste privilege and entrenched power networks, resulting in an elitist perspective that influences how laws are drafted and interpreted. This bias is particularly pronounced in the field of criminal justice, where the very structures meant to protect vulnerable people often them.
This elitist capture of law begins right from the gatekeeping of law schools through exams like the common law school entrance exam (CLAT), which favour those with caste, class, and language privilege. Even when students from marginalised communities overcome these institutional barriers and enter law schools, they face pervasive casteism and elitism that hinder them from fully thriving. Furthermore, the pedagogy that all students are exposed to is disconnected from the realities of marginalized communities. For instance, though students learn about substantive and procedural criminal law, they are not provided with the critical skills to question why people of certain identities are criminalised, and what the consequences of incarcerating people are.
Judges, policymakers, and lawyers become products of this knowledge and socialisation. They reinforce the law’s role — coded in coloniality and Brahmanical Patriarchy— as a tool of oppression, which is ill-equipped to serve members of marginalised communities.
With respect to your second question, yes, to some extent law is unable to address the complexities of stratification within marginalised communities. Law is bent on individualisation, objectivity, universalisation, and putting people in boxes— all legacies of colonial rule. It is therefore unable to adapt itself to address the needs of diverse communities and sub-groups. We have seen this manifest in the Supreme Court’s recent decision in State of Punjab & Ors. v. Davinder Singh & Ors., and in its failure to account for the intersecting experiences of marginalised people with multiple subordinating identities.
Q) There exists a plethora of differences in the way women interact with the carceral system, as compared to men, be it in terms of their social position of marginality, the crimes they're convicted of, the rules that govern them or the prison infrastructure created for their retribution and reformation. Do you think our criminal justice system takes these differences into account and adjudicates them on an egalitarian ground? Second, is there enough discourse around the need for a more humane manner of meting out justice, for it to translate into policy action?
Ms Shah - The criminal justice system in India is predominantly shaped by savarna male lawmakers and judges, thereby failing to account for women's (and especially Dalit women’s) unique experiences. Most incarcerated women are detained for non-violent, poverty-driven offenses, or due to an inability to pay fines or bail. Those who commit heinous crimes often do so in the context of gender-based violence, poverty, or mental illness, and these crimes are frequently directed against a family member.
Once incarcerated, women are disproportionately impacted by the carceral structure. They endure heightened trauma, struggle with the burden of sole child-caring responsibilities even while in prison, and suffer from separation from their loved ones. The scarcity of women's prisons compared to men's prisons across India exacerbates this issue, forcing women to endure greater carceral distance from their families, who, as a result, visit them less frequently. Additionally, women are often deserted by their partners once incarcerated. Women in the criminal justice system face a dual burden: the stigma of criminalisation and the societal judgment of being "unfeminine" for having committed a crime.
On the second question, while there is a global discourse on reforming justice systems to be more humane, India lags in translating these ideas into policy. The focus of reform within India remains confined to the criminal legal system, often without questioning or compromising its foundational traditional structures driven by anger and vengeance, leaving little room for compassion. This mindset is evident in public demands for the death penalty in gruesome cases of sexual violence, even before due process has been observed, as seen in the recent R.G. Kar Medical College rape case. This punitive approach is likely rooted in an education system that often lacks critical engagement with the inefficacies and harms of the prison system. There's an urgent need to foster social consciousness and promote discourse on humane forms of accountability. Without this shift in perspective, any attempts at reform will be limited to superficial changes, rather than addressing the deeper issues within the justice system.
Q) In your work, you've extensively talked about the limitations of carceral forms of justice: one, it being inaccessible to survivors of sexual violence from subaltern castes and second, and more importantly, its inefficacy in providing a solution to the scourge of sexual violence (which is inextricably entwined with caste violence). In light of these shortcomings, what should be the alternative way to approach this issue? And would such a project entail a radical re-imagining of how we think of justice?
Ms Shah - This question is especially relevant in light of the recent R.G. Kar Medical College rape case, where many politicians (irrespective of their party affiliation) have demanded the death penalty for the accused. While retribution might seem like an immediate and easy solution, I argue that it is a simplistic response to a much deeper issue that requires addressing the systemic roots of violence. Yes, our trauma responses as survivors of sexual violence or as people who fear sexual violence could lead us to argue for retribution and the death penalty even, but the state has to have a more informed and balanced approach.
I believe we cannot be hopeful and reliant on carceral justice, which both in its substance and the way in which it is implemented, preserves power hierarchies, invisibles the needs of victims and co-opts their voices, and empowers the state with a monopoly over harming people. As I’ve discussed in my work and as many scholars such as Pratiksha Baxi have highlighted, the legal system creates several institutional barriers for survivors, humiliates them, discredits their experiences, relegates their role to that of a witness, especially those from marginalised communities. The Bhanwari Devi case is a stark example— despite inspiring the Vishaka guidelines, Devi has been denied “justice” for nearly three decades after the gang rape was committed by sarvna men. Society's and law’s selective outrage tends to ignore the suffering of marginalised women, revealing a deep-seated indifference towards those deemed outside the societal fold.
Carceral feminists have been driving the legal discourse on sexual violence, focusing on harsher punishments, as seen post the Nirabhaya rape case. However, even with stricter laws, little has changed on the ground. This is because traditional justice is inherently masculine, rendering feminist rape reforms ineffective within a broader patriarchal framework. We need to re-imagine justice, not as accused-centric retribution but as a process driven by the victim's needs, and one that doesn't depend on further violence.
In my work, I argue for a radical re-imagination of the way in which we conceptualise justice— not just in substance but also in process. Instead of justice being reduced to retribution and being reliant on the state causing harm to the accused through imprisonment or the death penalty, justice must be non-masculine, non-hierarchical in nature, giving power and voice back to survivors. Perpetrators can be made accountable for their actions, without harming them, and instead by giving them the resources to understand the wrong they have done, such that they refrain from doing so again in the future.
As an example, I discuss alternative approaches to sexual violence being explored by Indian organisations such as Counsel for Secure Justice and Enfold. These include restorative practices, which can be both preventive and responsive. Preventively, they argue for an investment in systemic changes to address societal power structures. As Ambedkar noted, no legal revolution is possible without a prior social revolution. We must address the roots of the issue—masculinity, rape culture, poor education, and entrenched gender and caste hierarchies—if we hope to prevent such crimes. Restorative justice, when responsive to sexual violence, centres the survivor's voice, focusing on what they truly want without resorting to state violence against the accused.
Image credits - The New Yorker
Q) Over the past few years, there have been growing conversations surrounding the non-criminalisation of marital rape, yet we have not seen any action by the courts or legislature on this matter? How would you adjudicate such a situation and do you think the country will eventually remove this exception?
Ms. Shah - To me it’s interesting, though unsurprising, that the state has two contrasting views on sexual violence. When the perpetrator is a stranger, the penalties are severe, even leading to the death sentence in many cases. However, when the perpetrator is known, particularly a partner, the crime is legitimised, with women and girls actively expected to shield their perpetrators from consequences. Despite growing conversations on criminalising marital rape, no significant action has been taken by courts or the legislature. This inaction stems from a focus on preserving the patriarchal family structure. Until this underlying priority shifts, policy change is unlikely.
At best this move will happen at the judiciary level, through the case of Hrishikesh Sahoo v. State of Karnataka which has been pending before the Supreme Court for over two years now. Even if criminalisation were to occur, it would likely be symbolic, with poor implementation. Effective legal interventions require a shift in cultural norms that limit women’s sexual agency and personhood within marriages. Without this, criminalising marital rape may have little impact, as cultural barriers will still prevent women from reporting it.
Sociology scholar Elizabeth Bernstein’s concept of carceral feminism highlights that feminist demands made through law often overlook the systemic issues that perpetuate women’s victimisation in the domestic sphere, limiting more holistic policy solutions. The U.S., through its experience with the Violence Against Women Act, of 1994, is beginning to recognise the unintended consequences of criminalising domestic violence and is shifting towards alternative approaches. While India’s context differs, it would benefit from studying these outcomes before pursuing a similar path to ensure that legal changes truly protect all women, especially those from marginalised communities.
Q) Capital punishment in India has been a hotly debated juncture. Would you be inclined to agree that it is time such provisions are removed from the Indian legal system? Furthermore, what are your opinions on the calls for the death penalty for sexual violence convicts?
Ms Shah - The ineffectiveness of the death penalty as a deterrent is evident. Despite this, it continues to be relied upon in India, with a recent report revealing that trial courts in India lately handed down the highest number of death sentences in over two decades.
Specifically, in the context of sexual violence, before 2013, capital punishment was only applicable when the perpetrator had also murdered the survivor. However, public outcry post-Nirbhaya has led to amendments in the penal statute making non-homicide sexual offences, such as cases leaving survivors in a persistent vegetative state or involving repeat offenders, eligible for the death penalty.
While public outrage is understandable, lawmakers must be guided by fairness and due process, considering the complex implications of such decisions. Project 39A, a research centre based at National Law University-Delhi, has documented that sexual violence now accounts for the highest percentage of death penalty cases in India; yet this increase has not led to a corresponding decrease in rape convictions. The death penalty, not only fails to deter crime, but is also unable to assist survivors and their families heal or promote societal safety. Instead, it inflicts irreversible damage on the perpetrator, his family, and his community, while failing to address systemic issues surrounding sexual violence. Some states have expanded the scope of the death penalty further; for instance, Andhra Pradesh's Disha Act mandates the death penalty for rape cases with “sufficient” evidence. Similarly, Maharashtra's Shakti Criminal Laws (Maharashtra Amendment) Bill proposes mandatory death sentences in certain cases of sexual violence, and West Bengal is planning to do too, despite the Supreme Court's ruling that mandatory death penalties violate fundamental rights. It is anticipated that other states may follow suit in response to high-profile rape cases that unfold in their respective jurisdictions.
The pattern of unequal punishment persists in death penalty cases as well, where the death penalty is disproportionately targeted against men from lower castes, while men from dominant castes often evade such punishment for similar crimes. The uneven application of the death penalty in India has left marginalised communities, particularly Dalits, more vulnerable. They face systemic disadvantages such as lack of access to quality legal representation and public goods, while neoliberal policies have exacerbated pathways leading to heinous crimes. Recognising these issues, the Supreme Court initiated a suo motu writ in 2022 to refer death penalty sentencing to a Constitution Bench for more meaningful hearings.
Even as some savarna feminists advocate for carceral solutions to sexual violence, they have largely opposed the death penalty. They argue that it is a populist measure that fails to address the root causes of sexual violence and may even incentivise perpetrators to kill survivors to erase testimonial evidence. Given that over 95% of rape cases in India involve perpetrators known to the survivor, such harsh penalties might discourage reporting. Therefore, the death penalty normalises the everyday violence experienced by women, by focusing on only those cases which get picked up by the public, and only on those women who deserve to have their honour guarded and dishonour avenged.
In light of these concerns, contemporary movements against sexual violence should adopt an abolitionist stance on the death penalty. Courts, in the interim, must resist public pressure and carefully consider the broader consequences of their decisions, especially in sexual violence cases.
Q) Marginalised populations’ access to legal spaces is dictated, and inhibited, by a number of factors; antipathy towards them is at times embedded in the infrastructure, procedure and vocabulary of legal institutions. Consequently, despite them having formal, constitutionally mandated access to these spaces, their access to justice remains staggeringly low. How can the judiciary address this?
Ms Shah - I would like to qualify my response with respect to criminal law cases exclusively. Marginalised populations’ access to legal spaces is often inhibited by infrastructure, procedures, and the very language of legal institutions, which embed antipathy towards them. Although they possess constitutionally mandated access to justice, this access remains superficial. This issue is further compounded by intergenerational trauma and loss of faith in the legal system, rooted in historical experiences of systemic injustice. Since colonial times, the judiciary has often been a site where these populations are criminalised and denied justice, with judges upholding Brahmanical patriarchy alongside colonial ideals.
While the Indian judiciary has made efforts to address these disparities, I contend that reforms alone are insufficient. True change demands a radical reimagining of how justice is dispensed. This includes not only altering the Panopticon-like structure of courtrooms— structures that Foucault argues reinforce power hierarchies through their design— along with the clothes judges adorn, and the legal jargon in which they speak, but also transforming the composition of the judiciary itself.
Judges often overlook the broader impact of their decisions, such as the collateral consequences of sentencing women to prison, which frequently results in the indirect imprisonment of their children as well. While this may be partly due to the heavy workload that leaves little time for reflection on these nuances, it is also a result of the privilege and implicit biases that influence their perspectives.
Justice Krishna Iyer’s experience serves as a powerful example of why we need more diversity in the judiciary. His brief incarceration profoundly influenced his judgments on carcerality, underscoring the importance of lived experience in shaping a more empathetic judiciary. Justice Iyer once emphasized that he would only sentence someone to prison if he was confident in the prison’s capacity for rehabilitation. If more magistrates approached their decisions with such conscientiousness, we might see a justice system that is more humane and just.
Justice Krishna Iyer, Image Credits - SpicyIP
Q) There have been reports which have stated that the majority of prisoners in the country belong to the depressed classes. Given such data, what relevance do theories like Critical Race Theory in the West; modified suitably for taking cognisance of Indian modalities of Social Stratification, have for understanding Indian Social Realities?
Ms Shah - About two-thirds of prisoners in India belong to Scheduled Castes, Scheduled Tribes and Other Backward Classes. This statistic underscores the deep entanglement between caste and the criminal legal system— and this is expected for a country whose foundational legal code included the Manusmriti.
Caste manifests in the criminal legal system today in two critical ways. Firstly, casteism remains deeply entrenched in carceral laws, policies, and institutions. A glaring example is the discriminatory provisions in prison manuals across various Indian states, which continue to assign tasks within prisons on the basis of caste. This issue was brought to light by journalist Sukanya Shantha in her investigative report for The Wire, as recently as in December 2020. The report has since been converted to a Public Interest Litigation, which is currently pending before the Supreme Court. States have come forward not only to defend their caste-based provisions but to also justify them.
Secondly, when scholars discuss crime and punishment, they often adopt a “caste-blind” approach, since modern criminal law for the most part of it, is written in a supposedly caste-neutral manner. However, this approach neglects to interrogate the apparent link between caste and criminal law policies, especially in terms of the intentions behind the drafting of these laws, the way they interact with people’s realities, and how they are implemented. Critical theories are therefore essential for identifying and addressing caste-based issues within socio-legal systems.
The notion that law facilitates racial subjugation is a key framework advanced by Critical Race Theory (CRT) scholars. Originating in the American legal academy in the 1970s, CRT has since expanded to other fields, arguing that racism, while not always explicit, is deeply entrenched in laws, policies, norms, and practices— paralleling the entrenchment of casteism in India. Critical Caste Studies (CCS), inspired by CRT in the U.S., has recently emerged, driven by the dissatisfaction among anti-caste scholars over the invisibilisation of caste in mainstream scholarship, especially in legal scholarship. Although the term CCS is relatively new, its roots lie in anti-caste thought as conceptualised by pioneers like Jyotirao Phule, Tarabai Shinde, and Dr. Ambedkar. Like CRT, CCS seeks to unravel caste privilege and power networks from within the law and legal institutions and to expose the political and non-objective nature of law, which gives it its legitimacy.
However, I argue that we must go a step further by adopting an intersectional approach through the Critical Dalit Feminist framework, especially when addressing carceral law and policy. This framework engages with feminist and queer issues specific to Dalits, recognising the unique and compounded marginalisation they face within the criminal legal system.
Q.8) Recently, a bench of the Indian Supreme Court stated that even in PMLA “bail is the rule and jail is the exception”. What are your opinions on such statements, especially concerning the plight of marginalized communities?
Ms Shah - Marginalised individuals encounter numerous obstacles at every stage of the justice system, particularly when it comes to securing bail. The principle that "bail is the rule and jail is the exception" often fails to materialise for those from disadvantaged backgrounds, despite repeated utterances by the Supreme Court, for a whole host of reasons.
Many undertrials languish in jails due to a lack of access to competent legal representation—lawyers who can effectively advocate for bail and possess the social capital necessary to expedite its grant. Legal aid lawyers, often overworked and understaffed, struggle to provide the quality of representation each client deserves.
Furthermore, technical grounds frequently serve as barriers to bail for marginalised individuals. For instance, those from another state may struggle to find surety in the state where they are incarcerated, effectively preventing them from securing their release. Moreover, even when bail is granted, many cannot afford to pay for it, leaving them imprisoned despite having been granted legal relief. Although the law on bail is designed to be neutral, its implementation is far from fair. This disparity in how bail is granted and executed seems less like an unintended consequence of the justice system and more like a deliberate policy choice by those in power to keep poor people behind bars.
This restricted and classist approach to bail has contributed to India having one of the largest populations of undertrials in the world, with a staggering 77 per cent of those behind bars awaiting trial. Many of these individuals will ultimately be found innocent, raising critical questions: how can we hold the state liable to those whose lives it has unjustly disrupted? how do you quantify the value of years that are taken away from a person’s life, and how can the state provide adequate reparations, if at all?
Ms Stuti Shah is a doctoral candidate in law at Columbia University, New York. Her thesis re-imagines crime and punishment in India through a subaltern and Dalit feminist lens, critically examining legal and penal institutions that perpetuate harm to people and communities. In 2022, she was awarded the prestigious LL.M. Pathways Public Interest and Government Fellowship, which enabled her to work with Reprieve U.S. Stuti is currently providing research assistance to Children of Incarcerated Caregivers and has previously worked with organizations such as the African American Policy Forum and Sanctuary for Families. She is also an educator, offering an elective course at National Law University, Bangalore, and has previously taught at Mount Carmel College, Bangalore. For 2024-2025, Stuti has received a Fulbright award to work with Project 39A in Delhi, where she will continue her work on issues related to capital punishment and criminal justice.
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