Sneha Bhambri
In Chapter 6, Pratiksha Baxi reflects on feeling out-of-place while researching rape trials in a District Court in Gujarat between 1996-1998. She highlights feeling out-of-place even before initiating fieldwork, by elaborating on the challenges faced in securing permissions and later undertaking the fieldwork on the subject of rape, as a female researcher “unlettered in law” (p 119). The upholding of the law’s patriarchal nature by legal stakeholders during her fieldwork then brings to light the varied ways in which she felt out-of-place in court.
With over two decades having passed since the author’s research—one of the first courtroom ethnographies in India—it remains a question whether much has changed on the ground for researchers without a background in law, specifically, women researchers. In 2022, I spent time researching domestic violence (DV) case proceedings in the Lower Courts (also known as Magistrate Courts) of Mumbai. With DV cases often being regarded as a “family matter”, doing research on them didn’t make legal stakeholders around me think that my research was transgressive and did not bring with it the instances of harassment that Baxi was subjected to. However, besides these exceptions, many of the other challenges experienced by the author formed my own experience of undertaking fieldwork on DV cases in the lower courts of Mumbai.
Similar to Baxi, the issue of audibility of proceedings continued to pervade my fieldwork with the court being located at a busy junction, constituting crowded courtrooms with simultaneous hearings. Further, despite lawyers being accustomed to my presence in court, I still “negotiated feeling out of place in the court building on an everyday basis” (p 129). I could never walk in the corridors of the court freely and without a purpose. Baxi (2013) highlights this feeling in her work when she was reprimanded by a lawyer to walk faster “if you want to learn law” (p xxxv). During my fieldwork, I too walked back and forth across multiple corridors each day to go through the updated cause lists and figure out which courtrooms I wanted to spend time in throughout the day. Part of my research involved understanding the spatiality of the court complex. Loitering, therefore, and sometimes getting lost were a natural occurrence during the initial days. However, I took cognisance of the gaze of the lawyers on me, almost always men, when I hung around corridors. I was not a “regular” practising lawyer and did not have the sense of time purpose that the lawyers were armed with. This pressure of being watched kept me alert. Even when I was lost and couldn’t locate a courtroom, I tried to present myself as being aware of where I was, where I was headed and that I wasn’t lost or loitering without a purpose. The pressure of being unlettered in law and being a woman gazed at, made me calculate every move I made in and around the court.
In this essay, I aim to delve into two particular aspects discussed by Baxi and their relation with feeling out-of-place in court: legitimacy in the courtroom and securing permissions, and position in the courtroom and identity.
Ethics and Legitimacy in the Courtroom
Much like Baxi, I had no legal background and was a student of criminology. My knowledge of criminal law was dependent on the limited study of it during my post-graduation, from reading books, bare acts, and speaking to my advisor. I was confident that I had the knowledge required to undertake my study and thus, eligible to engage with lawyers. To further strengthen my eligibility, I decided to dress in lawyerly clothes—black and white, to not stand out but assimilate in the courtroom. Despite these efforts, unlike Baxi who took into account the advice to present herself as a law student against sociology, her area of study, to “gain more legitimacy in the court” (p 123), the absence of this option played a predominant role in my out-of-placeness in the court and shaped my fieldwork.
Most lawyers I spoke to in the court and others who came to know of me questioned my presence in the court since I didn’t have a law background. The first question lawyers always asked me was whether I was a lawyer, and if not, whether I had studied law, was studying law, or apprenticing under a senior lawyer. Upon mentioning my background in criminology and my research, their perception and willingness to engage with me shifted. Their tone changed from genial curiosity to being dismissive and authoritative. Soon, my requests for interviews from lawyers whose cases I was following began to be brushed aside. Instead of “scolding” as was in the case of Baxi (p 124), teaching emerged as a pedagogy in my case, upon disclosure of my background. The lawyers thought I wanted to learn about the DV law and the functioning of the court from them since I had no background in law and yet was undertaking research in court. It took at least two attempts to convince them that I didn’t want them to teach me but rather shed light on their clients’ experiences of DV proceedings. The “slight annoyance” (p 130) that crept in, in my interviews and request for them, was not due to their questions being interrogative (as was the case for Baxi) but rather due to their lack of time and the limited value our conversation had for them.
These experiences bring to light the question of ethics and disclosure in the field in relation to one’s context. Ethics and risk assessment in educational institutions, particularly, in the West (where I was a student), bring multiple restrictions devoid of an attunement with the context in which the research would be undertaken. One senior lawyer I had spoken to before setting foot on the field suggested that instead of applying for permission to gain access to court proceedings, which she regarded as unnecessary, I answered questions about my identity by stating that I was apprenticing under her supervision. Others suggested that my lawyerly clothes would suffice and that applying for permission would be “extreme” and “too much.” While I was still firm on seeking permission to risk being warded off from the courtroom by the judge, the idea of presenting myself as an apprentice was one I had considered to strengthen my eligibility to be present in the courtroom and to closely interact with lawyers. However, the option of presenting as an apprentice did not exist for me. The emphasis on abiding by a methodical Western standard of ethics, on being “truthful” on the field and not risking damage to institutional accreditation, emerged as a key factor shaping my research and access to the field (Hedgecoe 2016; Marzano 2021). The limited room for me to utilise my cultural intuition contributed to my out-of-placeness in the field. Bernal (1998) put forth the concept of cultural intuition, defining it as reliance on personal and professional experience, existing literature, and the analytical process when undertaking research. The “powerful researcher-vulnerable participant dynamic” (Murphy & Dingwall 2007) that makes disguising researcher identity deceptive (Zavisca 2007) would have had little to no impact in this situation where the lawyers had more authority and control not only in how I accessed and inhabited the court but also in how and if I could access them. The West’s lack of flexibility, its defensive and formal standards of consent presented as truthful (Marzano 2021) and the subsequent imposition of this one-size-fits-all approach, with limited or no room to take into account the researcher’s positionality and situated ethics plays a key role in the out-of-placeness experienced by researchers in the Global South. There is an urgent need for institutions to question the relevance of enforcing these practices and for scholars of the Global South to continue to challenge these practices.
Permission, Position, and Identity
A key factor that serves as both an entryway and barrier to the site of research is access to a network of people and organisations that are part of or related to the field of research. The presence of this network helps in gaining access to the field with limited hurdles, and a lack of it serves as the first instance of the researcher’s out-of-placeness in the field. While permissions proved to be a cause of concern for Baxi due to rape trials being held in-camera, she highlights being able to secure permission through access to relevant stakeholders associated with the field in her personal and professional realm. Similarly, Makhija (2019) in her study highlights being able to undertake research on DV in lower courts by wearing the barrister’s band as a result of her law degree, and Khorakiwala (2020) points out how despite certain setbacks, the process of gaining permission and navigating the court was much easier as a lawyer. Garg (2019) in her study on rape trials in India also highlighted the role of social and professional networks and the fact of access being about “whom you know, rather than what you know” playing a key role in securing interviews with lawyers (p 93). Unlike Baxi and other court ethnographers, my “marginal position” in this regard brought with it multiple challenges (Massoud 2024, p 4). Being unlettered in law and having no connections to people in the field of law, particularly, in criminal law and domestic violence, served as a major barrier to undertaking my research leaving me with no access to gatekeepers. This lack of network was my first instance of feeling out-of-place both in the field of socio-legal research and in the space of the court, even before setting foot in it.
While I managed to connect with two to three lawyers, these lawyers practised in civil courts and had limited support to offer in terms of advice and other contacts. Organisations I reached out to did not respond and a lawyer I spoke to, whose practice was centred on DV cases, questioned the relevance of the research and neither agreed nor disagreed to participate in the research, leaving me with uncertainty. In the court itself, lawyers were unwilling to engage with me given my lack of background in law and this prevented me from establishing relations and having the opportunity to shadow a lawyer, closely follow their cases and meet their clients as much as possible for Baxi and Makhija. This was further exacerbated by the fact that my study was a rapid ethnography (Vindrola-Padros & Vindrola-Padros 2018), with data collection spanning only a few weeks.
Despite having access to the court from the authority enshrined to provide it, the success of my fieldwork was still dependent on lawyers, who took on the role of gatekeeping the space of law. Institutions do not function in isolation; they require the presence of institutional and non-institutional/external actors to perform their functions. Miller (2019) argued that the nature of an institution, at any given point in time, reflects the character of “influential role occupants” and any behaviours repeatedly exhibited by these institutional actors define the institutional culture. This includes the informal attitudes, norms, values, and rituals these actors perform. Therefore, both formal rules governing the role of lawyers in court and informal attitudes displayed in interactions with external stakeholders all provide a glimpse into the institutional culture. Thus, “hostile or negative towards particular social groups” form a part of and define the institutional culture (Skolnick 2008; as cited in Miller 2019). The unwillingness of lawyers to engage with me wasn’t an isolated, individual action but rather a chain of reactions from lawyers I interacted with.
Access to a social and professional network in the legal field and an education background in law are all socioeconomic, personal and professional determinants, the presence or absence of some or all, resulting in overlapping forms of marginalisation (Crenshaw 2010; as cited by Massoud 2024). While I was privileged due to being an upper-caste, upper-class, English-speaking woman studying at a Western institution—factors that I believe aided the process of securing attended permission from the High Court and my legitimacy in front of the judges whose proceedings I—I was disempowered in other ways. My identity as a first-time researcher in a legal setting, lacking the social currency of an educational and professional background in law and the network of connections that aid access to the field all highlight how even within the same geographical and cultural context, each individual faces, and experiences out-of-placeness in varied ways, levels, and intensities.
Deliberating on the role of positionality in relation to one’s socioeconomic, personal and professional privileges cannot dismantle the barriers present in accessing the field (Massoud 2024). However, this recognition of overlapping marginalisation is critical in recognising the barriers that have shaped the field, who can then access it and collectively work towards dismantling them. It is critical to break them so that a researcher who may be devoid of a law background, devoid of a strong network of connections or, might be a first-generation learner and hold other distinct identities can step foot in the field of socio-legal research without the fear of being gatekept.
In the 25 years since Baxi’s research, several challenges have continued to remain and presented themselves in the work of other court researchers in the recent past. Each researcher experienced out-of-placeness during their fieldwork in a range of ways, its impact limited for some and exacerbated for others, depending on their privileges and marginalities, and the choices they could make. There is, therefore, an ever-urgent need to work towards reducing this out-of-placeness in court-based research in India.
Sneha is a pre-doctoral researcher. She holds an MPhil in Criminological Research from the University of Cambridge and an M.A in Social Work specialising in Criminology and Justice from TISS, Mumbai, India. Her research work and interests lie in the fields of criminology, socio-legal studies, legal geography, and performance studies.
Feature Image: Durba Sen, Storm.
This is part of a book round-table on Out of Place: Fieldwork and Positionality in Law and Society (CUP 2024). Read the other posts here.
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