This blog, written by Kahuwa Sarma, secured Fourth Place in the HUMAN.DROITS Blog Writing Competition. Kahuwa Sarma is a 3rd-year law student at Chanakya National Law University, Patna, India, with a keen interest in criminal law and human rights issues. She aspires to channelise her interest into understanding the complex dynamics of legal frameworks and human rights advocacy. She can be reached at kahuwasarma@gmail.com.
Introduction: What is Intersectionality?
Intersectionality relates to different intersecting and overlapping social relations of a person, which contribute to and are used to detect instances of discrimination, highlighting how some social groups are more vulnerable than others.. For instance, a black woman is prone to both racist and sexist discrimination due to her intersecting disadvantageous social positions. Understanding intersectionality provides an important perspective into how different forms of discrimination intersect to create relatively more disadvantageous social positions for women over others. Outside intersectionality, the understanding of gender inequality is incomplete. UNDP’s Gender Equality strategy for 2022-2025 is about addressing the different intersecting forms of inequality and discrimination that interact with gender inequality around the globe.
History presents clear examples of the practice of controlling women by invading their bodily autonomy. Sexual violence was, and is, the most prevalent crime against women due to the related notions of loss of chastity and dignity as a result of patriarchy, and some groups of women are more at risk of facing sexual exploitation and violence as compared to others. The study of intersectionality has a major role in identifying those more vulnerable groups of women and designing suitable policies tending to their needs and safety. These problems were not just limited to gender but extended to other factors such as social and caste backgrounds, financial backgrounds, disabilities, or other such disadvantageous circumstances. For a long time, however, such problems were not accounted for in the history of prosecuting cases of violence against women and in policy decisions of the administration.
The brighter side of the spectrum is the Indian judiciary’s eagerness to recognise the intersectional discrimination faced by women and its positive response to the same. The evolving jurisprudence focuses on how intersectional identities combine to create more disadvantages for certain groups of women over others. The earliest example of an Indian case recognising intersectionality, although passively, is the case of Girdhar Gopal v. State (1952). In this case, the Madhya Pradesh High Court recognised that discrimination is not “only” on the ground of sex but also on the consideration of “propriety, public morals, decency, decorum, and rectitude” (Para 5). It acknowledged the intersection of public notions of modesty and vulnerability of young women, intersecting with gender norms.
Present Trends In The Judicial Understanding Of Intersectionality
The understanding of intersectionality in the present times is more profound than before. In the recent case of Patan Jamal Vali v. State of A.P. (2021), the Court recognised the need to use “an intersectional lens” and acknowledged that the issue of rape in the present case was accentuated due to the woman being blind and belonging to a lower, disadvantaged caste (Para 12, 71). A similar spectrum was recognised by the Justice JS Verma Committee report (Page 38) in the backdrop of the Nirbhaya Case wherein it stated that a woman could face a double disadvantage due to her being a woman and because of simultaneously belonging to a disadvantaged caste, tribe, religion, or community. Resultantly, the Indian judiciary has been more proactive in recent years in recognising this aspect.
Similar jurisprudence has been developed in various degrees in various other cases. In the case of Anuj Garg v. Hotel Assn. of India (2008), the Court ruled that stereotypes and the excuse of “protective discrimination” could not be used to deny employment opportunities to women (para 7.1). A similar use was made of the understanding of the idea of intersectional discrimination of women in the case of Nitisha v. Union of India (2021) where the Court held that discrimination against women was not just a result of overt practices but was also deeply embedded historically in institutional and policy practices which have been designed to benefit men, who have been the historically advantaged section (Para 55, 66).
A passive stance can be inferred from the case of Vishaka v. State of Rajasthan (1997) wherein the Court recognised the achievement of true gender “justice” and “equality”, using overlapping provisions of Art. 14, 15, 19 and 21 to achieve the same (Page 405 Para 2). The case had sparked outrage because of the vulnerability faced by a village woman working against the traditional system, which culminated in the event of harassment at the workplace (Page 406-407, Para H). The judgment of M. Sameeha Barvin v. Govt. of India (2021), started with the quote:- “Disabled women struggle with both the oppression of being women in male-dominated societies and the oppression of being disabled in societies dominated by the able-bodied”, highlighted the systematic discrimination faced by specially-abled women athletes in India (Para 1).
Conclusion
A thorough analysis of many Indian judicial pronouncements reveals the importance of understanding sexual violence against women through the lens of intersectionality for better execution of sentences and for better policy decisions for women. The various judicial pronouncements highlight the overlapping vulnerabilities arising out of the intersectional identities of women, demonstrating a complex arrangement of discrimination impacting certain groups of women more profoundly than others. While some judgements like Patan Jamal Vali v. State of A.P. (2021) explicitly recognise the realm of intersectionality, others like Anuj Garg v. Hotel Assn. of India (2008) only briefly touch upon the topic without express recognition.
The judicial approach to the topic of intersectionality is, in conclusion, an uneven practice. The jurisprudence of intersectionality in cases of violence against women is not a developed concept in India and there is no work of precedential value to rely on to strengthen the understanding of intersectionality within the judiciary. Courts rely on intersectionality as per their convenience, and most judgements still don’t acknowledge its integral value in cases of sexual violence. An intersectional lens helps courts be better equipped to understand the specific barriers faced by victims like social stigma, economic dependence, institutional biases, and procedural hurdles.
Despite the lack of conformity among various cases concerning the issue of intersectionality, there is a strong optimistic growth in this regard. Judgements, as in the case of Patan Jamal Vali, are an optimistic approach to this topic and pave the way for further and deeper consideration of cases of sexual violence through the lens of intersectionality in the future. It is only with this nuanced understanding that the Indian legal system can truly begin to address the complex nature of sexual violence and provide a measure for meaningful access to justice for all women, especially those at the intersection of different marginalised identities. The journey of Indian jurisprudence in this direction will be significant for fulfilling the constitutional promises of equality, dignity, and justice.
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