By Saumya Aggarwal
Abstract
This article discusses the inclusivity of intersectionality in Indian legislations, expanding on its efficiency through judicial decisions and the effect of not taking intersectionality into consideration. The article also discusses the further scope for intersectionality in India’s legal scenario and recent developments related to this inclusivity.
Introduction
India is a highly heterogeneous society comprising various segments like castes, class, genders, color, changing languages, dialects and culture in every next district. It is traditionally patriarchal with respect to societal norms, rules and hierarchy, placing women at the lowest level.
Since Independence, the state has made various enactments and policies aimed at empowering females, promoting the right to education, employment, inheritance, freedom and liberty. However, it is questionable if the benefits of these policies are being enjoyed by the females of marginalized castes and classes. This idea of a division within a division, brings us to the concept of intersectionality.
The experiences of individuals are made of various identities of that individual. For example, the experiences of a woman are interlinked with her caste, color and class. Intersectionality says that social categories overlap and intersect in a mutually strengthening and co-constitutive way, creating unique experiences and tangible results. It forces us to identify and look at those groups that otherwise become invisible, if viewed as a single social group. For example, in employment policies for females, lack of an intersectional lens can restrict the benefits to upper-caste women, making Dalit women, who are placed at the lowest of the low level of society due to the double burden of caste and gender, invisible. Thus, rendering the policy useless as it is not wholly benefitting the people it was intended to benefit.
An intersectional lens, therefore, becomes extremely essential in the Indian Legal Framework to identify and dismantle the intricate identity intersections for the purposes of a more inclusive and fairer justice.
Legislative Analysis
By acknowledging that women’s experiences are influenced by not just their gender but also by other social characteristics, intersectionality challenges the essentialist conception of femininity. This nuanced approach contributes to the feminist debate by highlighting the particular difficulties encountered by LGBTQ+ people, tribal women, Dalit women, and other disadvantaged groups. The legislature has made various laws addressing crimes against women, like the Indian Penal Code 1860, Protection of Women from Domestic Violence Act (PWDVA) and more. However, these laws do not consider the intersecting components of oppression, thereby inadvertently maintaining or worsening inequality.
Indian Penal Code, 1860
The Indian Penal Code 1860 (hereinafter referred to as ‘IPC’) acknowledges the presence of gender based violence offering insight to complex challenges faced by women through its provisions addressing crimes against women, including rape and domestic violence. It also contains clauses that prohibit honor killings, thus addressing the topic of inter-caste marriages. Honor crimes have a severe negative influence on women from underprivileged groups, resulting in the loss of life, income, and self-respect. Ostracism, violence, and even death await women who dare to oppose caste-based constraints and exercise their autonomy, reflecting deep-seated prejudices and reinforcing oppressive caste hierarchies, thereby perpetuating cycles of violence and discrimination.
The broad reading of these legislations provide an inclusive interpretation, providing space for an intersectional lens, where the double discrimination of females can be addressed. For example, the provision of honor killing is specially aimed at the intersectional identity of women belonging to oppressed sections. However, the effectiveness of these provisions depends on robust legal enforcement and dismantling discriminatory social norms.
According to an International Dalit Solidarity Network, 62.4% of Dalit women in India have experienced verbal abuse at least once, 54.8% have experienced physical assault, 46.8% have experienced sexual harassment and assault, 43% have experienced domestic violence, and 23.2% have been raped. It is challenging to determine the actual scope of this issue since many of these occurrences remain unreported due to fear of additional discrimination by the police or a lack of court action. According to some reports, the conviction rate for rapes committed against Dalit women is less than 2%, and just 1% of the cases filed by Dalit women have actually resulted in convictions. In contrast, the conviction rate for rape cases submitted by all other women in the nation is roughly 27%. This demonstrates the stark reality of differences between privileged and unprivileged women where the unspecificity in statutes can ignore various socio-economic factors like poverty, illiteracy, unequal power relations and caste dynamics, exacerbating their vulnerabilities and making them more susceptible to discrimination and violence.
Protection of Women from Domestic Violence Act, 2005
Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘PWDVA’) is aimed at protecting women from domestic violence, particularly focused on the victims who are at the intersection of caste and class. The State takes a step forward towards a more intersectional approach from the previous legislations, by being more specific. However, for a number of reasons, its effectiveness in safeguarding women at the nexus of caste and class is sometimes questioned.
First of all, under the PWDVA, women from marginalized groups—especially those from lower castes and socioeconomic classes—may encounter more obstacles while trying to obtain support services and legal remedies. Their capacity to seek assistance and successfully traverse the legal system may be hampered by discrimination, ignorance, and socioeconomic limitations. Secondly, there may be differences in how the PWDVA is applied in various groups and geographical areas, which could result in unequal access to support services and the legal system. In certain instances, caste-based hierarchies and deeply ingrained social norms can support domestic abuse and make it more difficult for women to exercise their legal rights. Additionally, women’s vulnerabilities can be made worse by the intersectional nature of caste and class, with social stigma, economic dependency, and restricted access to services all playing a role in domestic violence experiences.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
The Act contains measures that expressly address crimes committed against women from Scheduled Castes and Tribes, recognizing the particular difficulties in their experiences because of their social and economic standing. It defines a number of crimes against women from these communities as horrors, including rape, sexual harassment, assault, and intimidation, and it guarantees severe punishments for violators. However, critics question its adequacy in addressing all gender-specific forms of violence experienced by its intersectional beneficiaries due to the challenges in its implementation and enforcement. Usually, the police are also deeply influenced by the caste bias which can lead to treating lower-caste women as non-humans. This poses a challenge with respect to filing of FIR and in extension – the entire legal redressal system.
Judicial Analysis
Judges may have unconscious biases against caste groups, which could distort their judgments of guilt, reliability, and plausibility. For example, Dalits or members of lower castes may be viewed as less trustworthy or deserving of sympathy than members of upper castes. In instances of caste-based violence or discrimination, judges may be more lenient toward members of the dominant castes, or they may impose harsher penalties on Dalits or other members of disadvantaged castes. In addition, judges from higher castes could unintentionally favor those from similar financial backgrounds, perpetuating systemic inequities in the legal system. The tendency whereby judges ascribe traits to a social group, which ultimately acts as a roadblock to justice, is known as judicial stereotyping.
These stereotypes can lead to double discrimination of female litigants. For example, in rape cases, the past relationships of the female victim has a major influence on the ruling as it questions the character of the female victim and questions the credibility of her (non)consent. Even though courts have directed against this practice of revealing past relationships and negating its effect on the present case, the stereotyping of the female body still persists. These prejudices, stereotypes and discrimination is doubled when it comes to women belonging to lower caste.
Even in cases of economic intersections, Judges may inadvertently favor rich or well-connected litigants because they believe they are more reliable or deserving of favorable results. Conversely, people from low-income socioeconomic origins could face systemic barriers to accessing justice, like a lack of legal representation, a lack of knowledge about their legal rights, or trouble navigating complex legal processes. When class, caste, and gender clash, as in disputes over inheritance or land ownership, judges’ decisions may mirror broader social inequalities and power imbalances. Wealthy individuals from privileged backgrounds may utilize their resources to influence court rulings or slant the legal system in their favor, increasing disparities in access to justice.
The judicial interpretation of Article 15 of the Indian Constitution is one of the major barriers to dispute discrimination on intersectional grounds. Article 15(1) enumerates the grounds on which discrimination is prohibited and can be disputed, in the country. Initially, it was interpreted that the grounds are to be read in isolation. If there were more than one grounds, then it would not come under the purview of A.15(1). In adopting this artificial view, the courts missed the nature and complexity of discrimination against women, including the fact that forms of disadvantage intersect and intensify discrimination.
Later, this single ground reading was changed to ‘coupled with other considerations’ in Air India v Nergesh Meerza. This allowed the court to examine discrimination on the basis of various grounds and adopt a more inclusive approach. However, this is still not an intersectional approach as the various reasons of discrimination become ancillary, which it is not. The intersections of discriminatory grounds, if understood in an ancillary manner, undermine the degree of the crime committed and takes us further away from dismantling the complex structure of Indian society.
Recently, the Indian judiciary acknowledged the existence of ‘intersectional oppression’ in Patan Jamal Vali v. The State of Andhra Pradesh (2021), taking a step forward towards inclusivity in not only judicial decision making, but also legislative policies and enactments.
Conclusion
Caste, gender, and class interact in complex ways to influence court rulings in the Indian legal system. The legal system struggles to address the requirements of people with overlapping identities, unequal access to legal counsel, and limitations on available legal remedies. To overcome biases and disparities in the judiciary, systemic changes are required. To ensure fairness and impartiality in decision-making, these measures include training judges on unconscious bias, promoting diversity in the court, and strengthening accountability frameworks. Encouraging underprivileged people to assert their rights and increasing their access to justice are also essential components of creating a more equitable legal system in India.
About the Author:
Saumya Aggarwal is a fourth year student studying BCom LLB at Jindal Global Law School, O.P. Jindal University.
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