Intersectionality in terms of Gender, Caste, and Disability

 

Author: Shruti Sheetal

Kirit P. Mehta School of Law (NMIMS), Mumbai

INTRODUCTION

Disabled women belonging to the lower strata of the Indian society, referred to as the Scheduled Caste is one of the most vulnerable positions to be in. Since the oppression of the victim happens on so many stages therefore the rendering of justice the same should be assessed under the multiple perspectives to which the victim is subjected. The topic of 'Rape of Disabled' came into the limelight by the recent judgment of “Patan Jamal Vali v. State of Andhra Pradesh ”. 

• Facts of the Case: This case is about a blind girl (aged nineteen) who belonged to the Scheduled caste community. She was raped by one of her own brother’s consociates, inside her own house in broad daylight. The girl’s mother was just fifty yards away, at the public water pump, doing her household chores when the accused inquired about the location of the members of the house. On finding out that the poor girl was all alone, the accused raped her. When the mother heard the girl screaming, she came running to her, and barged into the house, only to see her little girl lying on the floor in nude condition and covered with blood stains all around her genitals. Fortunately, the neighbors saw the accused running out of the house and caught hold of him.

• Background of the case: The accused was convicted under Section 376(1) of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. As per the SC/ST (POA) – 'if any offense under has been committed, which is supposed to be punishable with an imprisonment of ten years or more under the Indian Penal Code, knowing that the victim belongs to the Scheduled Caste or Scheduled Tribe community, then he/she shall be punished with life imprisonment and a fine.  Section 376(1) talks about punishment for committing rape. The Hon’ble High Court of Andhra Pradesh upheld the decision of the Sessions Court and convicted the accused under both, Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and Section 376(1) of the Indian Penal Code. The accused was convicted with life imprisonment and a fine accordingly. However, the Hon'ble Supreme Court carried on a detailed analysis of the 'intersectional oppression' of the victim when awarding punishment in such cases. Ultimately the accused was convicted of life imprisonment under only Section 376(1) of IPC.

ASSESSMENT OF THE CASE

Using the details of the present case law, the Hon'ble Court analyzed a worrisome prevalence of sexual abuse targeting females with disabilities and explored ways to address the underlying structural issues. The Court opined that - “… women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as “soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our legal response to such violence, in the instant case as well as at a systemic level, must exhibit attentiveness to this salient fact.”

1. Intersectional perspective: 

The concept was introduced by Kimberlé Williams Crenshaw around 1989 and refers to the notion whereby discrimination stemming from different grounds represents a separate disadvantage that is simultaneously analogous to and distinctive from it based on individual criteria. This can be visualized as a 'Venn diagram' wherein intersectionality is that part of the diagram which is co-joined by all the circles present in the diagram, that particular region not only shares the features of all the circles present in the diagram but also bears the disadvantages of every circle by the virtue of being a part of that circle. When we talk in terms of intersectionality in gender, caste, and several other categories the same is faced by the victims of such categorization and discrimination. A perspective based on intersectionality is effective for tackling the unique experiences of the sufferers who have endured violence and prejudice on numerous grounds. As it concocts identity as "totemic" and "undifferentiated," a single perspective to evaluate violence and prejudice leaves such minority situations opaque inside a broader group. 

Since the victims in such cases are subjected to oppression within so many subgroups while simultaneously being a member of a larger targeted and oppressed group, it becomes much more essential for the Courts to adopt an intersectional approach while dealing with such 'heinous crime' of rape. One can just imagine the clampdown faced by someone who is a woman, belongs to a minority group, and is disabled. 

The Courts should at least make sure that the degree of suffering the victim in such cases goes through should be equivalent to the magnitude of punishment awarded to the accused. It is a fact that a person falling under such a category is prone to much more dangers than an ordinary individual. 

In the present case, it is very obvious that the crime happened because of the increased vulnerability of the girl as identified under many oppressed categories within the one big fraught community. If indeed the girl belonged to a higher caste than the perpetrator, especially in a rural setting, he probably would not have attempted to sexually assault her at her own house around 9 in the morning. Since her mother was nearby, it was an understood fact that the accused took advantage of the victim's helplessness, blindness, and caste to rape her. It is well established that the accused committed rape on the victim, a 19-year-old unmarried girl who was blind by birth. He did so because she belonged to a scheduled caste and thought she couldn't take action about it.

2. Vulnerability v. Victimhood: 

The case might seem simple and unambiguous on the outside but it is very complicated to analyze. The Court needs to take into consideration several viewpoints and perspectives. Reducing her identity to her impairment would be oversimplified. Conversely, the Court must be sensitive to her disability-related vulnerability to abuse and exploitation. We'll use this example to analyse a worrying pattern it highlights. Furthermore, the evaluation of intersectionality should not only be limited to analysing factors such as caste, class, race, sexual orientation, and many more; in addition to the main oppression of the victim, but they should examine legislation in its socio-economic context, leading us to frame equity and fairness as "power and powerlessness" rather than variance and homogeneity. Since intersectional assertions are not unilateral, a single-axis assessment may misinterpret them. The Court must examine the influence of an individual's identity on assault, prejudice, or marginalization in the community.

3. Reasons for Increased Vulnerability of Disabled Women: 

• Intellectual Disability: Women with intellectual disabilities can face problems in assessing the situation and threat they are subjected to. Furthermore, they are not in a rational state of mind which can serve as a barrier to reporting of such crimes.

• Special Institutions and Modified Structures: The institutions catering to such victims lack specific structures essential for them depending on the nature of their impairments. Though such changes have been made mandatory by the POSCO act but still in India it lacks execution.

• Medical Examination: Prompt emergency examination can detect and assist in timely evidence collecting. However, many healthcare experts struggle to appropriately communicate procedures and therapies to females with disabilities, adding to their trauma.

CONCLUSION

The case of “Patan Jamal Vali v. State of Andhra Pradesh” did force the Indian judiciary to carefully think about the application of intersectional perspective, especially when dealing with sexual offences against women. The Hon'ble Supreme Court did establish certain guidelines regarding the obligations of judicial and administrative institutions of the country when dealing with offences against the disabled. However, after the failure of adherence to such similar guidelines which were already made compulsory by the POSCO Act, the successful execution of the present guidelines seems uncertain.

REFERENCES

• Patan Jamal Vali v. State of Andhra Pradesh, AIR 2021 SC 2190 (India)
• Campbell, M., 2015. CEDAW and women’s intersecting identities: a pioneering new approach to intersectional discrimination. Revista Direito GV, 11, pp.479-504.