The horror of the gang rape of a 19-year-old Dalit woman in Hathras in 2020 is still fresh in our minds. Activists, academics and lawyers argued that the sexual violence took place on account of the woman’s gender and caste and that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) must be invoked. Another case of sexual violence on a blind Dalit woman highlights caste based sexual atrocity.
- In cases of sexual violence against Dalit and Adivasi women, courts have almost consistently set aside convictions under the PoA Act.
- In 2006 in Ramdas and Others v. State of Maharashtra, where a Dalit minor girl was raped, the Supreme Court set aside the conviction under the PoA Act stating that the mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act.
- In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court held: “It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.”
- In 2019, in Khuman Singh v. State of Madhya Pradesh, a case of murder, again the court held that the fact that the deceased was a member of an SC community was not disputed but there was no evidence to show that the offence was committed only on that ground; conviction under the PoA Act was set aside.
- There are several precedents insisting on an unrealistic burden of proof. This issue needs to be referred to a larger bench to take a different view.
- The only evidence that can be led is that the victim was from an SC/ST community and that the accused was aware of that.
- When a woman is from a marginalised caste and is disabled, she faces discrimination due to her sex, caste/tribe and disability, all of which render her vulnerable to sexual violence.
- This is what intersectionality theory requires us to recognise.
- The Supreme Court, in a first, elaborated on the need for an intersectional approach, to take into account the multiple marginalities that the victim faced.
- It relied on well-known intersectional theorists such as Kimberlé Crenshaw who first coined the term ‘intersectionality’ and on the statement of the Combahee River Collective which addressed the intersectional discrimination faced by black women in the U.S.
- Using these sources, the court recognised that when the identity of a woman intersects with her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.
- It said we need to understand how multiple sources of oppression operated cumulatively to produce a specific experience of subordination for the blind Dalit woman.
- Placing special emphasis on making the criminal justice system more responsive to women with disabilities facing sexual assault, the court also laid down directions to train judges, the police and prosecutors to be sensitised in such cases.
- On the heels of the Hathras crime came a new judgment of the Supreme Court (Patan Jamal Vali v. State of Andhra Pradesh) addressing the intersectionality of caste, gender and disability.
- In this case, the victim of sexual assault was a blind 22-year-old Dalit woman. The trial court and the High Court had convicted the accused for rape under Section 376 of the Indian Penal Code (IPC), and under Section 3(2)(v) of the PoA Act, and sentenced him to life imprisonment.
- The Supreme Court, in its judgment delivered by Justice D.Y. Chandrachud and Justice M.R. Shah, confirmed the conviction and the punishment for rape under the IPC but set aside the conviction under the PoA Act.
- On the one hand, this judgment is a huge step forward as the court used the opportunity to bring recognition to intersectional discrimination faced by women on the grounds of sex, caste and disability.
- However, by setting aside the conviction under the PoA Act, it is like many other previous judgments of the Supreme Court.
