The Supreme Court of India, in a recent judgement of Patan Jamal Valli, extensively covered the ubiquitous issues of sexual violence, disability, women oppression, and intersectionality. The view of the Apex Court of India is extremely germane anent the social and societal conditions of the country which are oppressive for the women, the disabled, and the people belonging to the backward sections of the society called Scheduled Caste and Scheduled Tribes.
The facts of the case in brief, are as follows – The Supreme Court was hearing a criminal appeal filed against the order of Andhra Pradesh High Court in which it had sentenced two concurrent life imprisonment terms to a person who was convicted for the offense of committing rape on a visually–impaired girl. One of the said two sentences was awarded under § 376(1) of the Indian Penal Code, 1860 which denotes the punishment for the criminal offense of rape. The second life sentence was awarded by the said High Court under § 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter “SC and ST Act”) The said SC and ST Act has been specially enacted by the Parliament of India to protect the lives, interests, and well-being of the people belonging to the marginalized sections of the society. These people belong to groups commonly denoted as Scheduled Castes (SC) and Scheduled Tribes (ST).
The Supreme Court affirmed only one of the two sentences i.e., life imprisonment under § 376(1) of the IPC, 1860, and scrapped the sentence pronounced under the SC and ST Act. The reason for this was that it could not be proved that the victim was raped due to her being of a Scheduled Caste. However, the judgment in personam of the Court is not important from the human rights perspective as much as the obiter dicta made by Chandrachud, J who authored the judgment. He copiously accentuated the relationship between the concepts of intersectionality and oppression, violence in India on account of disability and gender, and the societal anathema of caste injustice. In this article, I intend to trace the approach of the Supreme Court in the evaluation of these concepts, specifically intersectionality and disability with respect to the Indian legal context, and conclude the impact of this judgment on the social fabric and legal framework of the country vis-à-vis human rights perspective.
Intersectionality: The Different hues of Identity
Observing the enhanced possibility of a person who might face physical, mental, or sexual violence because one is from the weaker sections of society, constitutes the base of intersectionality. The Court referenced the works of May Eaton in which she had termed intersectionality as a form of "oppression that arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone..."
The Supreme Court adduced the works of Kimberly Crenshaw, who described the phenomena of intersectional violence as follows – “Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.”
The Court emphasized that in India, the violence faced by Scheduled Caste and Scheduled Tribe women is intersectional given the backward positions of both the female gender and the said castes. Further, it was noted, that the concept of intersectional violence is not highlighted in the Indian legal framework because of the fact that laws tend to focus on the singular identity of the victim due to the ostensible clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that "but for" that identity, they would have been treated in the same way as a comparator. However, such essentialization of experiences of different identity groups creates a problem where discrimination or violence of intersectional nature has occurred. It is so because the evidence of discrete discrimination or violence on a particular ground may be difficult to prove.
In India, the fundamental rights awarded to every citizen under the Constitution of India provide for a holistic analysis of the discrimination faced by the people. In Navtej Singh Johar, Chandrachud, J had remarked – “This formalistic interpretation of Article 15 would render the constitutional guarantee against discrimination meaningless…This narrow view of Article 15 strips the prohibition on discrimination of its essential content. This fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.”
Furthermore, in 2013 JS Verma Committee was appointed, to suggest suitable changes in the Indian Penal Code, had also noted how the discrimination caused by intersecting identities amplifies violence against specific communities. It observed that in order to form a society based on gender equality, we have to ensure that women do not suffer on account of their gender, or on account of any other factor like caste or religion.
From the author’s point of view, the phenomena of intersectionality and violence in the Indian context underline the need for the Supreme Court to address the quantitative and qualitative effects which different identities of an individual might have on discrimination and violence faced by them in society.
Disability: A Factor which Augments the Suffering of Women.
Disability, either physical or mental, increases the violence faced by women. In India, no data has been collected, which specifically highlights the violence faced by women and girls with disabilities. It is a formidable hindrance to understanding the problem and formulating a more suitable and tailored solution to resolve this menace.
Chandrachud, J. in this case, took note of the Human Right Watch report of April 2018 in which it had underlined the problem of sexual violence faced by women with disabilities. The report highlighted - “Those with physical disabilities may find it more difficult to escape from violent situations due to limited mobility. Those who are deaf or hard of hearing may not be able to call for help or easily communicate abuse or may be more vulnerable to attacks simply due to the lack of ability to hear their surroundings. Women and girls with disabilities, particularly intellectual or psychosocial disabilities, may not know that non-consensual sexual acts are a crime and should be reported because of the lack of accessible information.”
In this case, the Supreme Court emphasized the gravity of sexual violence faced by disabled women in India and issued certain guidelines to make the criminal justice system more disabled friendly –
a) National Judicial Academy and State Judicial Academies should sensitize judges to deal with cases involving survivors of sexual abuse, especially with those survivors who are disabled.
b) National Crime Record Bureau of India should consider the possibility of maintaining data and records calculating gender-based violence in the country in which, one of the variables should be a disability. This will ensure that the magnitude of the problem shall be mapped out and it will lead to an effective solution.
c) Police Officers should be trained regularly, in dealing with cases in which the victim is a disabled person. The training should highlight the importance of approaching the victim directly and not through his caretaker or helper in recognition of their agency.
d) Awareness-raising campaigns and programs should be conducted, in accessible formats, to inform women and girls with disabilities about their rights. They should be made aware of the legal course to follow in case they are subject to sexual violence.