WRITTEN WORKS
Journal Articles
Writing & publishing articles in peer-reviewed journals are like punting. You are the punter propelling the punt with the responsibility of the lives of many passengers you carry, tackling the challenges you face from not only the critical and excited passengers but also the river bed and the river stream. You know what I mean, right!!
SHAILESH KUMAR
Featured Article
CHILD SEXUAL ABUSE CASES IN INDIA AND JUDICIAL OFFICERS' PERCEPTIONS AND EXPERIENCES OF POCSO-RELATED SPECIAL TRAINING
2023. Socio-Legal Review 18 (2), 264-300
Stakeholder training has been considered essential to tackle the problem of poor engagement with child sexual abuse (‘CSA’) victims in the pre-trial and trial stages of the criminal process. Be it stakeholder attitudes and behaviour towards the CSA victims and the accused involved in CSA cases or stakeholders’ procedural practices, more and improved training has been repeatedly emphasised. It is, therefore, pivotal to investigate what kind of special training is imparted to stakeholders under the Protection of Children from Sexual Offences (‘POCSO’) Act, 2012, as well as the challenges and limitations to such training. Also important is to analyse and discuss what, if any, implications such training has on stakeholder engagement with child victims and on CSA cases. This article answers these questions by employing a qualitative empirical method and a new set of data – in-depth face-to-face interviews with 17 judicial officers (Judicial Magistrates & POCSO Special Judges) on their perceptions and experiences of special training to deal with POCSO cases, along with court observations, conducted during six months’ fieldwork (2019-2020) in India. The findings suggest that around half of these respondents received training on POCSO matters. Such training resulted in stakeholders, though not all, implementing the special POCSO procedures during pre-trial and trial stages. Through these findings, the article showcases that there are limitations to special training and to the law itself in its present form, given the infrastructural challenges that exist for these stakeholders and the socio-economic inequalities capturing both victims and accused in registered POCSO cases. Consequently, it aims to contribute to thinking through new ways on effective stakeholder training and of future directions of research, and argues that despite several limitations, the law remains a site of possibility to deliver improved experiences with the justice system to both CSA victims and accused.
FURTHER ARTICLES
Shifting Epistemology of Juvenile Justice in India
2019. Contexto Internacional 41 (1 Spl. Issue: Gender in the Global South), 113-140
The conception of juvenile justice has its ontological root in the internationalisation of childhood and the construction of children as a distinct social class. The Euro-centric vision of children as rights-possessors that informed the United Nations Convention on the Rights of the Child (CRC) (1989) transformed the epistemology of juvenile justice. India ratified the CRC in 1992, and defined ‘child’ uniformly, irrespective of sex, unlike in the past, thereby challenging its gendered subjectivity of ‘female child.’ Such emergence of a new modality of delivering juvenile justice that I see as the epistemic shift did not last long, and one gory incident, alongside mediatised demonisation of male children, and brewing social discontent on women’s safety, changed its landscape. This paper foregrounds an analysis of the role of gender in juvenile justice jurisprudence from the colonial period to the present time. Reflecting on the populist punitiveness at play, it talks about the Indian state’s poverty of understanding of children’s rights. Mapping legislative, juridical and political dimensions of the journey of the juvenile justice framework in India, the paper shows how the construction of gendered notions of a particular group of male child offenders has resulted in the punitive turn of the juvenile justice system in India. It further unpacks the potentiality of repercussions of such punitiveness and offers reasons as to why a retributive response by the state is a step backwards in reforming juvenile delinquents.
Interpreting the Scales of Justice: Architecture, Symbolism and Semiotics of the Supreme Court of India
The neutrality of the art and architecture of courtrooms and courthouses has dominated the public perception in the Indian context. The courtroom design and the visual artistic elements present within these judicial places have very often been considered to be insignificant to the notions of law and justice that they reflect. As art and architecture present certain historical narratives, reflect political allegories and have a significant impact on the perceptions of their viewers, they have critical socio-political ramifications. This makes it pertinent to explore them and investigate the paradox of their deployment and interpretation in today’s increasingly mediatized world. Through an ethnographic study of the Supreme Court of India, this paper interprets its art and architecture, and, the symbolism and semiotics reflected through them. Arguing against their neutrality and insignificance, the paper demonstrates how they reflect nationalism, certain ideologies and power-space dynamics. It further argues that they act as evidence of political metaphors related to justice, power and democracy. With a conversation between law, architecture and semiotics, the paper investigates the historical and spatial dimensions of its architecture and artistic elements. Mapping the Court’s architectural elements, I examine how the visual representation of ‘justice as virtue’ finds translation in its design through transfer of certain images, including the image of the ‘scales of justice’, into it, while absenting the notion of ‘justice as struggle’—to contemplate on how legal architecture gives evidence to the vexed relationship between law and justice and also of the break from the colonial past
Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities
2017. NLSIU Journal of Law and Public Policy 4 (Spl. Issue: Uniform Civil Code), 124-143
This paper takes up one of the most perplexing questions of our time that how should the Indian Republic deal with the situation of creating a public domain of personal laws, particularly for Muslims. In personal laws, personal is mere verbatim. Personal Laws are a product of a larger social framework of society, and accordingly, it develops customary practices. Needless to say, society appears as a factory and produces culture, and this production cycle is not neutral to power. In this space, the central argument appears that it is no other but God that makes personal laws. Therefore, God is the final legislator, and his commands, as personal laws shall not be challenged. Needless to say, this is the central theme for even public laws in theocratic countries. It is a question to examine whether merely one’s belief of the sacrosanctity of personal laws should lead to their being not challenged. If this is the case, then what is the commitment and demands or arguments of different groups, that they seek legal intervention in the domain of personal laws to fill the legal vacuum and surgically examine some anti-women practices? Such practices range from the right to divorce, alimony, the question of maintenance, inheritance, qualification for witness etc. So, these demands create a situation of binaries, where one group seeks to protect practices relating to personal laws based on cultural rights or even minority rights, to preserve and protect, practice and propagate their culture. On the other hand, a group seeks to revisit the unsettled question of the past, and give them their adequate due to entitlement for citizenship.
Environmental Governance, Indian Constitutional Framework and the Dilemma of Public Trust Doctrine
2017. Journal of the Campus Law Centre, University of Delhi 4
Environment and ‘development’ have arguably stood against each other, and with ample support of the corporate frenzy of the State, the scale of ‘development’ has outweighed the scale of conservation of the environment quite often. But, in the Indian context, the application of the Public Trust Doctrine (PTD) along with other doctrines governing the environmental framework, ably supported by the Indian constitutional framework have kept a check and balance on the corporate-State nexus which tries to dismantle the process of environmental protection by alienating natural resources for private use. The Indian judiciary’s proactive role in the wider interpretation of the provisions of the Indian Constitution and recourse to the PTD has worked well and has arose hope among the environmentalists as well as the general populace. In the Indian legal context, the problem lies with the persistent reference by the Indian judiciary to the Saxion conception of the PTD that derives legitimacy from the history of Roman and English law, overlooking the literature that has evolved thereafter challenging the same. None of the contemporary judicial decisions of the apex court of India, with recourse to the PTD, has considered the Huffmanian PTD’s conception that questions the Saxion vision and historicity. It is understood that the PTD, along with other doctrines pertaining to environmental protection, acts as a solid base on which the statue of Environmental governance stands, but then the base itself cannot be left questionable.
Breaking the Shackles: Sexuality, Freedom, and Judicial Recognition to Live-in Relationships
2016. HNLU Journal of Law and Social Sciences
The freedom to create a family is one of the fundamental freedoms and a vital one, as it is the family, which arguably provides us plethora of public and private benefits. What then acquires importance is the way through which one can create a family. Live-in Relationship, under such situation, has come out as an alternative, extra-legal and alleged anti-social sexual discipline to create a family.
The advent of its spread in the Indian society, specially in the urban cities, though have various reasons, one of the prominent reason has been the use of marriage as state-imposed sexual discipline. Though, there has been few conflicting judicial decisions, still, the Indian higher courts by recognising live-in relationships, have attempted to strengthen the status of men, women and children.
Plea Bargaining in India: An Economic Perspective
2016. Army Institute of Law Journal 9
The Indian legal literature is full of research works on the snail pace of the disposal rate of cases in the Indian courts. One tool, though still empirically questionable, is the system of 'plea bargaining'. On the other hand, there is a discourse of economic analysis of law that applies the tools of microeconomic theory to the analysis of legal rules and institutions, on which the works by Ronald Coase, Guido Calabresi and Richard Posner are considered as seminal and authoritative. This paper, using an inter-disciplinary study of Law and Economics, utilises the abovementioned discourse to look at the plea bargaining system in India with an economic perspective and the paper delves into the economic aspect of the plea bargaining system along with other matters.
The Constitution (73rd Amendment) Act, 1993 and the Status of Rural Local Governance in India in the Last Two Decades
2016. Rostrum Law Review 2 (2)
It has been two decades since the Panchayati Raj system got the constitutional mandate of being the third-tier of democratic governance in India. Still, the lack of devolution of functional and financial powers being supported by the lack of willpower of legislative and executive authorities has made it a toothless tiger and a mere puppet to the state governments. This article looks into different perspectives on it in the last two decades and tries to bring forth the hurdles in its functioning and the vulnerable actors involved in it. Lastly, the article presents possible solutions such as the application of the principle of subsidiarity and redesigning of the 11th schedule to make gram swaraj a functional reality in India.