Discrimination is often attributed to independent factors such as gender, caste or class which are viewed separately. However, different grounds of marginalization may cultivate a uniquely personal experience of oppression to a victim of gender violence. The recognition of multiple grounds of discrimination is termed as intersectional discrimination.
Intersectionality rejects a narrow and formalistic understanding of equality where markers of discrimination are viewed in isolated spheres. This piece explores the jurisprudence of intersectional discrimination in the Indian context through various approaches.
About Intersectional Discrimination
The term ‘intersectionality’ is attributed to the pioneering work of Kimberle Crenshaw in the context of racial inequality in the United States. Crenshaw had argued that gender-based discrimination is multidimensional and the “singular focus on rape as a manifestation of male power over female sexuality tends to eclipse the use of rape as a weapon of racial terror.”
Gender-based violence is often a targeted form of discrimination that dehumanizes women from marginalized social groups. Gauthier De Beco thus opines that intersectionality allows a concrete analysis of structural discrimination in an unequal society. The lived experiences of women and transgender women from oppressed groups are thereby brought to the forefront.
The Supreme Court’s Recent Reference to Intersectionality
A two-judge bench of the Supreme Court of India in Patan Jamal Vali v. State of Andhra Pradesh (“Patan Jamal”) has recently held that the intersectional identities of a disabled woman from the Scheduled Caste community place her in a uniquely disadvantageous position.
In the judgement, the court opined that ”it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman” (para.12).
The Supreme Court had overturned the conviction of the accused by the High Court under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1989 (“ Atrocities Act”) as the prosecution failed to prove that the offence of rape was committed on account of the woman belonging to the Scheduled Caste community under Section 3(2)(v) of the Atrocities Act. As the offence was committed prior to the amendment of the Atrocities Act in 2016, the accused escaped conviction under it. However, intersectionality was considered as a relevant factor in sentencing the accused of the offence of rape under Section 376(1) of the Indian Penal Code, 1860 (“IPC”) in light of the woman’s caste and disability.
Following the amendment, mere knowledge on the part of the perpetrator that the woman belongs to the Scheduled Caste and Scheduled Tribe (“SC & ST”) communities is sufficient for conviction under the Atrocities Act. According to the court, the change in the law “has facilitated the conduct of an intersectional analysis” as women from the SC & ST communities are no longer required to meet the onerous evidentiary burden of proving causation.
Intersectional Jurisprudence in India
According to Shreya Atrey, intersectionality rejects the understanding of discrimination as the function of a ‘single categorical axis’. Thus, in the Indian context, it appreciates the recognition of the intersecting forms of oppression marked by identities such as gender, sexual orientation, caste, religion or class amongst others.
In essence, intersectionality incorporates the transformative potential of Sandra Fredman’s four-dimensional framework of substantive equality. The recognition principle in the theory enables courts to counter the humiliation and gender-violence that is directed against specific social groups on account of their disempowered position.
Under the Indian Constitution, the combined reading of Article 14 and Article 15(3) reflects the framework of substantive equality. This has also been recognised in Anuj Garg v. Hotel Association and in the recent case of Col Nitisha v. UOI, where gender inequality and discrimination has been recognised as intersectional in nature. The understanding of ‘intersectionality’ in India can also be traced to Navtej Singh Johar v. Union of India (“Navtej”) wherein the SC had read down Section 377 of the IPC to decriminalize consensual sex between homosexual adults.
The judgement in Patan Jamal acknowledges that gender discrimination cannot operate “in isolation of other identities, especially from the socio-political and economic context” (para. 36). The adoption of an intersectional approach breaks new ground in Indian jurisprudence. It is a welcome shift for a court that was oblivious of the caste oppression even as it explored the dynamics of sexual harassment at the workplace in Vishaka v. State of Rajasthan.
Notably, in the backdrop of the gruesome Nirbhaya incident, the Justice JS Verma Committee Report had also acknowledged that “a woman may suffer a double disadvantage – a) because she is a woman, and b) because she belongs to a caste/tribe/community/religion which is disadvantaged, she stands at a dangerous intersection if poor” (page 38).
The Supreme Court’s judgement in Patan Jamal thus rightly affirms the need to move beyond a single axis model of discrimination to reinvigorate sentencing policy from the perspective of the victim. An intersectional analysis enables the judiciary to take into account the skewed power dynamics in gender-based violence.
International Understanding of Intersectional Discrimination
Intersectionality distinctly appears in the twin-track approach of the Convention on Rights of Persons with Disability (“CRPD”). As observed by the Committee on CRPD in General Comment No. 6, “intersectional discrimination can be direct, indirect, denial of reasonable accommodation, or harassment.” This approach has also been reiterated by the SC in Vikash Kumar v. UPSC & Ors. The SC held that disability-based discrimination is intersectional in nature and a policy of reasonable accommodation thus cannot be unidimensional.
In LNP v. Argentina, where a minor girl was sexually assaulted because of her membership to an ethnic minority community, the Human Rights Committee (“HRC”) recognised the disadvantage caused by the systematic failures of the state during the pre-trial and trial stage. During the trial, the Criminal Chambers had disregarded the veracity of the victim’s testimony. She was referred to as a woman of easy virtue. Thus, even the judicial process had perpetuated discrimination on the ground of her gender coupled with factors like her age and ethnicity.
The Convention on the Elimination of Discrimination Against Women (“CEDAW”) Committee adopts a fluid and expansive approach towards intersectionality. The CEDAW Committee The Committee recognises that ‘categories of discrimination cannot be reduced to watertight compartments.’ Gender-based discrimination interacts with various socio-economic disadvantages that women experience. The CEDAW Committee, General Recommendation 25 suggests the adoption of special measures for women to eliminate multiple grounds of discrimination.
The understanding of anti-discrimination laws and intersectionality also necessitates a comparative law inquiry. The text of the Constitution in South Africa explicitly includes the grounds of multiple discrimination under section 9(3). This is clearly a substantive equality model. However, many developed jurisdictions adopt a narrower approach to the understanding of discrimination. In the Constitution of the United States, discrimination is understood through the context of an ‘equal treatment approach’ under the 14th Amendment based on independent grounds of inequality. A better understanding of this concept in the Indian context would be in exploring the substantive equality model.
Violence against women has continued unabated despite stricter laws. Women from disempowered social groups have bore the brunt of sexual violence in a communal pogrom or caste-based violence in India. Popular discourse in India is often marked by a pronounced reluctance to acknowledge the intersectional nature of gender violence. This is especially true for women belonging to minority communities. Various markers of discrimination such as caste, religion or ableism may operate in conjunction with the patriarchy entrenched in India’s hierarchical social structure.
The discrimination faced by persons with different sexual orientations and gender identity (“SOGI”) must also be accommodated in the framework. The Yogyakarta Principles on SOGI recognize that discrimination on the basis of sexual orientation or gender identity may intersect with other forms of marginalization. The Supreme Court in NALSA v. UOI had relied upon the Yogyakarta Principles to extend constitutional protection to the gender identity of trans-persons in India (para 21).
Further, the authors disagree with the approach of the court to exclude the concurrent punishment of the accused under the Atrocities Act on the basis that the intersectional approach has been included under the sentencing. It should be noted that the intersectional approach does not necessitate the exclusion of sentencing under the special law on caste discrimination even prior to its amendment.
The guidelines framed by Justice Chandrachud in Patan Jamal seek to make the criminal justice system more disabled-friendly. The veracity of the testimony of a disabled witness/victim also cannot be disregarded. Sensitization of judges, public prosecutors, and other police officials with regard to intersectional discrimination is the need of the hour.
Lastly, the Supreme Court in Patan Jamal has specifically recommended that separate data is to be maintained by the National Crime Records Bureau (“NCRB”) with a disability as one of the variables. The practice of the NCRB in India to maintain aggregated data on gender-based violence has thus been criticized as it overlooks the oppression faced by disabled women. The limited data available at the disposal of the NCRB highlights the systemic oppression faced by Dalit women in recent years.
An intersectional approach to understanding gender-based violence is cognizant of the historical conditions that shape prevailing social inequalities. It remains to be seen whether the incorporation of intersectionality can add renewed vigour to the promise of substantive equality enshrined in the Constitution.
(This post has been authored by Rongeet Poddar and Gursimran Kaur Bakshi. Rongeet is a West Bengal National University of Juridical Sciences, Kolkata graduate and currently a lawyer based in Kolkata. Gursimran is a final-year student at National University of Study and Research in Law, Ranchi.)