Justice Beyond A Single Axis: Caste, Disability and Sexual Violence in India

The author of the blog is Sahildeep Singh. He can be reached at sahildeep.singh22@nludelhi.ac.in.

An intersectional group portrait of three women activists, including a wheelchair user, united in solidarity, holding an advocacy sign in an outdoor park. (AI-generated image)

“A socially sensitised judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.” - Dinesh v. State of Rajasthan, para 6.

Introduction

The concept of intersectionality has been recognised as a concept with utmost sophistication by the court, but the statutory framework to punish it is still missing. Marginalised and disabled people have to endure a lot, particularly women, in cases of intersectional sexual violence. First, caste and disability make women acutely vulnerable to sexual violence. Then, the non-recognition of their hardship by the criminal justice authorities often leads to secondary victimisation.

Power rapes

A deaf and mute Dalit woman who was subjected to rape was not disabled first, then a Dalit and then a woman; she experienced all these identities simultaneously as a disabled Dalit woman. This intersection of multiple identities made her acutely vulnerable and an easy target for sexual violence. This sexual violence is a result of power dynamics in society; these are power rapes by the privileged caste men, by the abled men, taking advantage of the helplessness of women belonging to the lower rung of society.

Caste, sexual violence and the history

The first ignored case of intersectionality was that of Bhanwari Devi’s. Bhanwari Devi's experience was a case of caste-based violence, but it was presented as an instance of "sexual harassment at the workplace". This case also manifested the existence of judicial stereotyping about caste, and the caste-based sexual violence remains unaddressed throughout, leading to secondary victimisation. 

In the  Khairlanji Massacre case, a Dalit woman who was fighting for her land rights against the privileged caste people was raped along with her three daughters. A mob of dominant-caste “paraded them naked, raped a Dalit woman and her daughter, and lynched them in public”.  The trial court refused to invoke the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [“SC/ST Act, 1989”], citing that revenge was not motivated by the victim’s caste identity. In the Bhagana Gang Rape incident (2014), “four minor Dalit girls belonging to the Dhanak community were abducted, drugged, and raped by a group of upper-caste Jat men as retaliation for Dalit resistance to Jat takeover of communal lands.”

The courts, too, have a polarised view about what to do with caste. The Himachal Pradesh High Court was of the view: 

‘The mentioning of caste/status separately in criminal proceedings is a colonial legacy and requires it to be stopped. We should, as a public policy, shun the caste system.”

The apex court in the Aparna Bhatt case stated:

“A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.”

The leitmotif behind recognising these intersecting identities is to expose the power imbalance between the victim and the accused. When courts fail to account for these power dynamics through appropriate sentencing, they reinforce the very inequalities that enable such violence.

Caste and injustice

The regular setting aside of convictions under the SC/ST Act, 1989 highlights that the law is misused and amounts to the erasure of caste-based violence faced by women. The regular setting aside of the SC/ST Act, 1989, is due to the strict interpretation of Section 3(2)(v), which makes it impossible to prove the intention, resulting in a grave miscarriage of justice. Originally, the sine qua non to apply Section 3(2)(v) of the SC/ST Act, 1989 was that an offence should have been committed against a person ‘on the ground’ that such person belonged to the SC/ST community. But after the 2015 amendment, the words  “on the ground that” under Section 3(2)(v) were substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. In either case, it was difficult for the prosecution to establish the case.

There are several examples where convictions under the SC/ST Act, 1989, were set aside because the crime was not committed only ‘on the ground’ that the victim belongs to the SC/ST community:

In Ramdas & Ors v. State of Maharashtra, the prosecutrix belongs to the Pardhi caste, and she was raped by the accused. The prosecutrix and the accused were residents of the same village.  In Raghuveer Lodh v. State of U.P., the accused, who raped the victim, were acquainted with each other and belonged to the same village. The conviction under the SC/ST Act was set aside. In Ashrafi v. State of U.P., the accused forcibly entered the victim’s residence and committed rape. The accused and the victim knew each other, as they were from the same locality. However, the conviction under Section 3(2)(v) of the SC/ST Act, 1989 was set aside. In Patan Jamal Vali v. State of Andhra Pradesh, the accused knew the family of the victim very well, as they were from the same village. But again, in this case, the punishment under the SC/ST Act, 1989 was set aside. In Puttu Lal v. State of Uttar Pradesh, the Allahabad High Court set aside the conviction under the SC/ST Act, 1989 even though the victim and the accused were residents of the same village.

What kind of evidence?

This raises an important question as to what kind of evidence courts expect to prove that the offence was motivated by caste, especially when familiarity between the accused and victim may itself indicate awareness of caste identity. Otherwise, all the cases would end up like Dinesh @ Buddha vs. State of Rajasthan, where the accused actually did not know the victim and the conviction under the SC/ST Act, 1989 genuinely needed to be set aside. 

Why it matters now?

Why caste-based violence needs attention now is particularly due to the reason that it has increased over the past few years. National Crime Records Bureau, Crime in India 2023, Chapters 7A & 7C show that rape cases involving Scheduled Caste women increased from 2,073 in 2013 to 4,214 in 2023, showing a rise of about 103%. Cases involving Scheduled Tribe women increased from 847 to 1,189 during the same period, reflecting a rise of around 40%. As per NCRB 2023 data, 3,07,355 cases are pending under the SC/ST Act, and about 22,000 are rape cases.

Disability and the injustice

Recently, a deaf mute Dalit woman died by suicide after rape in Ghaziabad, Uttar Pradesh, on 21st August. The police registered an FIR under BNS Section 64(2), and the DCP said, “As the woman was a Dalit, we will be adding sections relating to the SC/ST Act.” The NHRC has also taken suo motu cognisance of the concerned cases. Intersectionality is the lived reality of our society. 

The Criminal Law (Amendment) Act, 2013, enacted in the aftermath of the Nirbhaya incident and informed by the recommendations of the Justice J.S. Verma Committee, significantly expanded the legal framework governing sexual offences in India. As a result, a provision was added, namely,  Section 376(2)(l), making rape of a physically/mentally disabled woman an aggravated form of rape, which provided for an enhanced punishment. Under the BNS, 2023, the corresponding section is section 64(2)(k). If we look at pre-amendment rape cases of disabled women, we certainly will argue that such cases were taken on par with other rape cases, which was also justified because, at that time, such rapes cases were not recognised as an aggravated form of rapes and a framework for enhanced punishment was also missing.  For example, in Gopal Bhowmik v. State of West Bengal, the accused committed rape upon the victim, who was deaf and mute. The accused was placed before the Fast Track Court, where he was punished under section 376 of the IPC, 1860. In Samitri and Ishwar Singh v. State of Haryana, the prosecutor, a minor, was mentally disabled and the right side of her body was paralysed. The conviction of the accused for rape, imprisonment for 7 years and a fine was upheld by the High Court.  In Suresh v. State of Maharashtra, the case involved the alleged rape of a deaf, mute, and intellectually disabled woman. Yet, the trial court convicted the accused without even examining the prosecutrix.

Post the 2013 Amendment, the situation has not changed much; the structural violence is yet to be recognised and addressed.  In Soubam Naoba Singh v. State of Manipur, the prosecutrix was a mentally retarded person and was subjected to rape by the accused, but the trial court had sentenced the appellant to rigorous imprisonment for 10 years under Section 376 of the IPC. In Patan Jamal Vali v. State of Andhra Pradesh, despite the prosecutrix being a blind Dalit woman, the Court, in this case, did not render any enhanced punishment to the accused, and Section 376(2)(l) of the IPC, 1860, remains uninvoked.

Also, reluctance on the part of the Executive in addressing structural violence is evident in official crime statistics. The National Crime Records Bureau, Crime in India 2013, Chapter 7A and Chapter 7B, shows no disaggregated data on sexual offences against women and girls with disabilities, reflecting the complete absence of disability-based categorisation in crime reporting at the time. The NCRB 2023 data reveal that rape of women with disabilities is significantly under-recorded under the specific aggravated provision of Section 376(2)(l), IPC, with only 130 cases reported nationwide.

Conclusion

The law cannot claim to deliver justice if it sees survivors only through a single axis of identity. While legislative reforms have progressively strengthened India's legal framework on sexual offences, the absence of an explicit intersectional approach continues to leave many survivors at the margins of legal protection. It is about acknowledging the unequal realities in which violence occurs. Courts must move beyond formal equality and adopt an approach that is alive to structural disadvantage, while the Executive must ensure that crime data, investigative practices, and victim-support mechanisms reflect these lived realities.

As the recent Ghaziabad case painfully demonstrates, intersectionality is not a theoretical construct. The true measure of a justice system lies not in how it responds to the average case, but in how it protects those who stand at the intersections of multiple forms of discrimination. Until the law fully recognises and responds to these intersecting vulnerabilities, justice for many survivors will remain elusive.

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Gender War: The Intersectional Sexual Violence of the Bangladesh War (1971)

The author of the blog is Anureet Kaur, a second-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab, with an interest in International Law. Email ID: anureetkaur23266@rgnul.ac.in.

“How can a woman’s body instigate so much hatred and violence? If we need to shame a family, we go after their daughters. If we need to shame a country, we go after their daughters. It’s the same mindset.”

~Leesa Gazi

On December 16, 1971, Bangladesh got independence after a nine-month liberation war against West Pakistan. The war cost 3 million martyrs and the dignity of over 0.4 million women. Almost 1/3rd of the Bangladeshi population was affected by the unrecorded atrocities committed by the Pakistani army and the Razakars.

In the early 1980s, Bangladesh was not only fighting a war for its liberation, but there were a number of wars that broke out within the country itself, which resulted in changing the geopolitical landscape of the South Asian region. In this blog, I have identified and mentioned four wars that took place during that period in the Bangladeshi landscape:

1. An internal war between the Urdu and Bengali speaking population of Pakistan, which ultimately culminated in all other wars.

2. The war for Bangladesh’s liberation, popularly called the Liberation War of 1971.

3. The international war between India and Pakistan.

4. Gender war.

The term “Gender War”, a war against the women of East Pakistan (present-day Bangladesh), was first mentioned by Yasmin Saikia in her book “Women, War, and the Making of Bangladesh: Remembering 1971”. In this period of nine months, millions of women were raped and got impregnated. Though the official figures vary, the record points that the number of rapes committed by the Pakistani army and the Razakars crosses more than 400,000. 

In this struggle for freedom, various intersectional factors played a role in shaping the experiences and nature of atrocities committed against the women of Bangladesh. Through this blog, I have made an attempt to analyse the contribution of various intersectional identities, such as gender, race, ethnicity, linguistic and religious affiliations, in inflicting sexual violence against Bangladeshi women during the Liberation War of 1971. 

Gender War: Horrors of 1971

On March 25, 1971, Lt Gen Tikka Khan, commander of the Pakistan Army’s Eastern Command (infamously known as the “sobriquet of Butcher of Bangladesh”) started operation “Searchlight”, a military operation aimed at killing and butchering Bengalis in the name of saving Pakistan. The operation led to infliction of massacres, mass rapes and various forms of torture on the country’s populace.

Women were abducted from various corners of Bangladesh and locked up inside the cantonments by the Pakistani army and their local Bengali collaborators. As reported, Bengali captives inside the cantonment could hear the screams of the captured women, when they were being molested and raped. The condition of these rape camps, run by Pakistani forces and the Razakars, was horrendous. 

Not only were these women raped and abducted but they were starved, kept without clothes so that they couldn’t commit suicide, brutally beaten, molested and a large number of them got impregnated. After the end of the war, many corpuses and graves were found near these rape camps. Noor Jahan (14-year old survivor) was confined to one such rape camps which were spread across the entire country. 

“We lay there like corpses, side by side. There were 20, maybe 30, of us confined to one room. The only time we saw daylight was when the door creaked open and the soldiers marched in. Then the raping would begin.” 

~Noor Jahan

Women: Custodians of National Honour

Women are imagined as reproducers of a nation and symbol of honour for both the family and the country. Nira Yuval-Davis and Floya Anthias highlighted in their book “Woman-Nation-State”, the role of women in two crucial ways:

1. Women as a collective symbol of national culture and honour.

2. Women as biological producers.

Source: Springer

These two roles also played a significant role in aiding the brutal violation against Bangladeshi women in the Liberation War of 1971. Lt. Gen. Tikka Khan gave the orders to begin a campaign of mass rape against Bengali women and girls and impregnate them with “blood from the west”.

Nayanika Mookherjee, in her paper “The absent piece of skin: Gendered, racialised and territorial inscriptions of sexual violence during the Bangladesh war” highlighted and emphasised the role played by the ethical identity of Bengalis in the commencement of the 1971 war. The interviews conducted by her shed light on the verbatim used by the Pakistani army men:

“We [they] would leave behind a Pakistani in the womb of every Bengali woman.”

Rape was seen as medium by the Pakistani army to improve the genes of Bengali population. West Pakistan’s leadership and military commanders considered the Bengali men to be impure and weak. Thus, rape and forced impregnation was a deliberate strategy of Pakistani army to manipulate image of Bengali women as reproductive transmitters. 

Layers of Oppression: Intersectionality in Wartime

The sexual violence against Bangladeshi women brought together various intersectional factors, including nationality, religious identity, caste, ethnicity, sexuality and politics. Gender was seen as a trope for race and sexuality. Religion played a crucial role in the creation of Pakistan in 1947 as it was the sole principle that unified two different regions as one nation. However, both West and East Pakistan were separated by geography, language, culture, culinary and various other practices.

Moreover, Bengalis were considered as “half converts”, “Hinduised” and “impure or inferior Muslims”. Due to this reason, the political leadership in West Pakistan started a policy of “forcible cultural assimilation of Bengalis”. Rape was strategically used as a weapon to populate a new race of “Pure Muslims” in the region. 

The booty of war (maal-e-gonemat) was the notion used to justify the rape of women in Bangladesh. Bengali Muslim men were considered short, lazy, dark and weak, in comparison to tall, fair and brave men of the West. Furthermore, Hindus, being a minority religion in Bangladesh, were a more vulnerable group and thus faced a larger risk of sexual violence. Linguistic identity was another major intersectional factor as Urdu was seen as a superior language, in comparison to Bengali, and was the mother tongue of the majority of the population of West Pakistan.

Thus, the saga of sexual violence against women in the Bangladeshi Liberation War lies in the differences in Islamic and Bengali identity, along with racial, religious, cultural, historical, ethnic and linguistic variations between these two different regions.

Aftermath of War: Justice Denied

“During wars there is a tendency to take opportunity in the case of an attractive woman. A man would kill a man as the man could otherwise kill him. But women cannot kill a man and above all if a man killed a woman that would be cowardice. But these men could express their masculinity by raping her and rape is like killing a woman.” 

~ Mrs Fulrenu Guho

Almost 30% of Bangladeshi population has to suffer the repercussions of these mass rapes and massacres. These are just the reported cases, the actual number is much higher. Moreover, the data points that the number of spot rape cases were almost 70%, rest 12% occurred at other places and 18% in designated camps. 

The Bangladeshi government soon after the end of the war, gave the title of “birangonas” (war-heroines) to the raped women and shifted the focus to majorly three areas:

1. Rehabilitation: Various rehabilitation centres were set up for victims.

2. Abortion: Soon after independence, the government adopted the abortion programme, and international adoption was permitted.

3. Financial Assistance: Government provided financial assistance in various ways to the victims of war-time rape.

Moreover, the government allowed the destruction of all records of abortions and international adoptions. Thus, at present, there is no official documentation recording the number of these abortions and adoptions. However, Lessa Gazi’s commendable documentary allowed the preservation of testimony of some of the victims of war-time rape. 

The United States, the Lemkin Institute for Genocide Prevention and Genocide Watch recognised the Genocide and atrocities committed during the Bangladeshi war. However, it has been more than fifty years since the war ended, and still, the Bangladeshi women have not received an official apology from Pakistan. 

“We still haven’t received an apology from Pakistan for the horrendous war crimes it committed against the Bengali people.”

~Saida Muna Tasneem

Non-recognition of these atrocities by Pakistan, the United Nations and the rest of the international community demonstrates that justice has not yet been delivered to the victims of these atrocities.

Way Forward: Lessons for the Future

During the War of 1971, the imagination of women as reproducers of a nation and symbols of honour has led to ignorance and violation of their bodily autonomy and integrity. As discussed above, the saga of sexual violence against women in the Bangladeshi Liberation War was infected by the differences in their Islamic and Bengali identity, along with racial, religious, cultural, historical and linguistic variations between these two different regions (East and West Pakistan). The intersectionality of sexual violence, along with other factors, needs to be recognised to better understand its impact on the victims and their families. The genocide of 1971 should be acknowledged to uphold international accountability and prevent future atrocities.

References:

• Saikia, Y. (2011). Women, war, and the making of Bangladesh: Remembering 1971. Duke University Press.

• Mookherjee, N. (2015). The Spectral Wound: Sexual Violence, Public Memories, and the Bangladesh War of 1971. United Kingdom: Duke University Press.

• Mookherjee, N. (2015). The raped woman as a horrific sublime and the Bangladesh war of 1971. Journal of Material Culture, 20(4), 379-395. https://doi.org/10.1177/1359183515603742.

• "Operation Searchlight and the University of Dhaka: Beginning of the Liberation War of Bangladesh", International Journal of Emerging Technologies and Innovative Research (www.jetir.org), ISSN:2349-5162, Vol.11, Issue 11, page no.d51-d66, November-2024, Available :http://www.jetir.org/papers/JETIR2411309.pdf.

• Ranjan, Amit. “Bangladesh Liberation War of 1971: Narratives, Impacts and the Actors.” India Quarterly 72, no. 2 (2016): 132–45. https://www.jstor.org/stable/48505492.

• MOOKHERJEE N. The absent piece of skin: Gendered, racialized and territorial inscriptions of sexual violence during the Bangladesh war. Modern Asian Studies. 2012;46(6):1572-1601. doi:10.1017/S0026749X11000783.

• Chowdhury, E. H. (2016). War, Healing, and Trauma: Reading the Feminine Aesthetics and Politics in Rubaiyat Hossain’s Meherjaan. Feminist Formations, 28(3), 27–45. https://www.jstor.org/stable/26776835.

• Guhathakurta, M. (1986). Gender violence in Bangladesh: The role of the state. Inst. of Social Sciences.

• Ranjan, A. (2016). Bangladesh Liberation War of 1971: Narratives, Impacts and the Actors. India Quarterly, 72(2), 132–145. https://www.jstor.org/stable/48505492.

• Mookherjee N. The Birangonas (War Heroines) in Bangladesh: Generative Resilience of Sexual Violence in Conflict through Graphic Ethnography. In: Clark JN, Ungar M, eds. Resilience, Adaptive Peacebuilding and Transitional Justice: How Societies Recover after Collective Violence. Cambridge University Press; 2021:143-163.

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