This blog, written by Poorva Sharma, is the winning entry of the HUMAN.DROITS Blog Writing Competition. Poorva Sharma is a fourth-year law student at Dharmashastra National Law University, Jabalpur (M.P.). She is passionate about human rights, constitutional law, and international law and actively seeks to explore contemporary legal issues through her work. She can be reached at poorva065-21@mpdnlu.ac.in.
Introduction
The court, so long romanticised as the final bastion of justice, does not exist in a vacuum. It is subject to the same hierarchies, biases, and systemic inequalities that mark the society it is meant to govern. The effect is seen most acutely in sexual violence cases, where the victim’s identity— caste, religion, disability, or socio-economic status—is an unstated but determinantal factor in judicial rulings. While the Constitution promises equality before the law (formal equality) under Article 14, the lived experience of marginalised women seeking justice is filled with structural obstacles, judicial insensitivity, and intersectional vulnerabilities erased.
The judiciary has, at times, addressed these issues, acknowledging that gender violence is not an atomised or individualised experience but more often, the legal framework clings to a formalist model, refusing to acknowledge the way the intersection of multiple identities multiplies vulnerability eventually straying away from Rawlsian order (and non-application of veil of ignorance).
This blog explores the evolving jurisprudence on sexual violence and asks the question whether the Indian judiciary has actually internalised the tenets of intersectional justice.
Court, Case, Caste and Sexual Violence
Sexual violence against women on caste grounds has repeatedly underscored the vulnerability of justice to deeply ingrained social hierarchies. The Supreme Court in State of Karnataka v. Krishnappa recognised the uneven exposure of Dalit women to sexual offenses, holding that “the socio-economic status of the victim is an irrelevant factor in adjudicating the magnitude of an offense (para 17).” The Khairlanji Massacre of 2006, in which four members of a Dalit family, including two women, were raped and killed brutally by upper-caste men, is the greatest illustration of this omission. The trial court declined to invoke the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the grounds that the predominant motive was vengeance rather than hatred on the grounds of caste. The Bombay High Court, in the enhancement of punishments, also failed to place the violence firmly in the caste-gender nexus, missing the chance to establish a paradigm-shifting precedent. The failure to effectively invoke CEDAW’s requirement further exacerbates India’s lackluster commitment to international standards.
In the infamous Bhanwari Devi case (Vishaka v. State of Rajasthan), a lower-caste Kumhar grass roots social worker was gang-raped by upper-caste men as revenge for her defiance of child marriage traditions. The acquittal by the trial court on technical grounds that “an upper-caste man could not have defiled himself by raping a lower-caste woman” exposed the deep-seated prejudices that pervade judicial minds. Although the judgement codified sexual harassment guidelines in consonance with CEDAW guidelines, it left issues relating to caste-and-gender-based violence insufficiently addressed.
Religion and Gendered Violence
The intersection of religion and gender violence is starkly illustrated in situations where communal identity acts as an incitement to sexual offenses. The case of Bilkis Bano, arising out of the Gujarat riots, shows how sexual violence functions as a tool of communal persecution. In an unusual instance of judicial accountability, the Supreme Court ensured life imprisonment for the convicts and provided compensation to the survivor, accepting that “the grotesque and diabolical crime in question was driven by communal hatred” (para 2.1). Later, release of the rapists convicted, justified in terms of “good behavior” laws, institutionalised fragile advances.
The United Nations Security Council Resolution 1325 on Women, Peace, and Security calls for legal accountability in cases of sexual violence during communal or conflict situations; Indian jurisprudence has, however, been hesitant to adopt such international standards. The judiciary’s reluctance to criminalise marital rape is not uniform across all communities but is inextricably linked with questions of religious freedom, particularly in the sphere of Muslim personal law, which is still largely uncodified and thought of in terms of religious jurisprudence. For example, Muslim women are more vulnerable under such a legal vacuum because Nikah (marriage) has been defined as a contract. Different scholars believe that such a definition necessarily includes the wife’s agreement to sexual intercourse. The judiciary’s hesitation to rule on marital rape under Muslim personal law illustrates the ongoing tension between religious freedom and gender justice, in spite of India’s commitments under CEDAW to eradicate all types of gender-based discrimination, including the personal laws.
The Compounded Vulnerability of Disability
Traditionally, women with disabilities face an added layer of vulnerability in cases of sexual violence, a situation often compounded by institutional apathy. In State of Maharashtra v. Madhukar Narayan Mardikar, the Supreme Court reiterated that “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes… She is equally entitled to the protection of law (para 8).” Yet, this forward-looking view has not always translated into meaningful protections for survivors with disabilities.
The Deaf and Dumb Girl Rape case shed light on the problem of institutional apathy when a woman with speech and hearing disabilities was raped in a state-run welfare home. Convicting the accused, the Delhi High Court emphasised on the need for institutional accountability by stating “the victim girl was not in a position to tell her name and age…No questions were asked to make enquiry about her intellectual capacity….Considering the facts, there was no fair trial and the accused has been prejudiced”. In the Patna Railway Rape Case, in which a visually impaired woman was raped on a train, the Supreme Court emphasised the need for sensitising law enforcement officials but fell short of calling for systemic reforms. The lack of explicit judicial mention of the UN Convention on the Rights of Persons with Disabilities (CRPD), which India has signed, suggests a gap between international obligations and domestic implementation.
Has our Jurisprudence Evolved from Our Failures?
A review of these cases shows a gradual but significant shift from gender-neutral legal reasoning to a more nuanced, though uneven, recognition of intersectionality. The judgment in Tukaram v. State of Maharashtra (Mathura rape case), acquitting the accused by implying that the victim’s previous sexual history constituted consent, was the hallmark of patriarchal jurisprudence. A more progressive recognition of personal choices and abandoning the ‘piousness of a woman’ approach flowed from Madhukar Narayan Mardikar (para 8) as discussed; however, the intricacies of intersectionality remained largely ignored. The 2012 Nirbhaya case was a landmark moment, and it resulted in legislative reform through the Criminal Law (Amendment) Act of 2013. However, it failed to incorporate provisions that were caste and disability specific.
From the infamous case of Bhanwari Devi, in which caste considerations lay behind the acquittal of the perpetrator, to the Bilkis Bano outrage, in which communal violence was used as a weapon of sexual brutality, Indian jurisprudence has oscillated between recognition and reluctance in acknowledging intersectionality.
Conclusion: Beyond Rhetoric, Towards Action
The intersectionality of caste, religion, and disability in sexual violence cases requires a shift in Indian jurisprudence. The solution lies in juxtaposing intersectionality with Indian Jurisprudence on crime against women, i.e. firstly, by incorporating substantive equality over formal equality, as formal legal provisions rarely translate into substantive justice for marginalised groups; secondly, implementing constitutional morality over social morality, as the judiciary, as seen in Navtej Singh Johar v. Union of India, has at times taken progressive stands by giving precedence to constitutional morality over deep-seated social prejudices (sometimes vox populi) which has to be implemented stringently in cases of sexual violence; and, thirdly, choosing restorative over retributive justice as the lack of institutional support to Dalit and disabled survivors is a reflection of an overemphasis on punitive justice and a lack of emphasis on institutional change.
While landmark judgments have sporadically touched upon these aspects, the larger legal framework remains inadequately geared to deal with the intersecting realities of marginalised survivors. Unless the judiciary itself corrects its inherent biases and integrates intersectionality into its interpretive paradigm, justice will continue to be a privilege for the few and not a fundamental right for the many. Anchoring India’s international obligations under CEDAW, CRPD, and UNSCR 1325 in domestic adjudication is an important step toward realising intersectional justice.
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