- Recently, the Supreme Court has given its judgment in 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.
CONCEPT OF INTERSECTIONALITY
- Intersectionality is an approach which takes into account multiple marginalities that the victim faces in the society.
- This term was coined by Kimberle Crenshaw on the statement of the Combahee River Collective which addressed the intersectional discrimination faced by black women in the U.S.
- Using the concept of intersectionality, the court in the judgement have 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.
- Hence society need to understand how multiple sources of oppression operated cumulatively to produce a specific experience of subordination for the blind Dalit woman.
CONCERN REGARDING THE RECENT JUDGEMENT BY THE SC
- It is to be noted that, initially 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 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (PoA Act), and sentenced him to life imprisonment.
- But the Supreme Court, in its judgment delivered by Justice D.Y. Chandrachud and Justice M.R. Shah, has confirmed the conviction and the punishment for rape under the IPC while setting aside the conviction under the PoA Act.
- Hence, 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.
- While on the other the Supreme Court has set aside the conviction under the PoA Act, like its many other previous judgments.
SCHEDULE CASTE AND SCHEDULED TRIBE (Prevention of Atrocities) ACT, 1989
- PoA Act amended in 2015 specifically recognise more atrocities against Dalit and Adivasi women including sexual assault, sexual harassment and Devadasi dedication.
- Section 3(2)(v) of the act states that if any person not being an SC/ST member commits any offence under the IPC punishable with imprisonment of 10 years or more against a person on the ground that such a person is from an SC/ST community, he shall be punishable with imprisonment for life and with fine.
- This section was amended in 2015, to change the phrase “on the ground that such a person is a member of SC/ST” to “knowing that such person is a member of SC/ST”.
WHY SETTING ASIDE OF CONVICTION UNDER THE PoA ACT IS PROBLEMATIC?
- There has been a constant trend that the court has set aside judgements under convictions under the PoA Act.
- Ramdas and Others v. State of Maharashtra, 2006: in case of the a Dalit minor girl case, SC held that mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act.
- Dinesh Alias Buddha v. State of Rajasthan, 2006: Supreme Court held that it is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.
- Asharfi v. State of Uttar Pradesh, 2017: Supreme court held that the evidence and materials on record did not show that the appellant had committed rape on the ground that the victim was member of an SC community.
- Khuman Singh v. State of Madhya Pradesh,2019: Supreme 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.
- In all these judgements there is too much focus on the Burden of proof.
- However it is very difficult for the prosecution to prove in any given case that the accused had sexually assaulted the victim because she being Dalit/ Adivasi. The only evidence that prosecution can prove is that the victim was from an SC/ST community and that the accused was aware of that.
- In the present case, the accused knew the victim’s caste as he was known to the victim’s family.
- Ignoring the caste factor in the intersectionality concept by the court is not justified because it is very difficult to establish whether it was caste, gender or disability that led to the commission of the offence.
- Setting aside the conviction under PoA also matters because repeated setting aside of convictions under the PoA Act bolsters the allegations that the law is misused and amounts to the erasure of caste-based violence faced by women.
- As stated in the recent Parliamentary Standing Committee Report on Atrocities and Crimes against Women and Children, the high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration.
- The judgment is a missed opportunity for the court to use intersectionality to uphold the conviction under the PoA Act. Hence, the matter should be referred to a larger bench.
- Intersectionality theory, need to take into account role of caste for the discrimination against women.
- The courts needs to laid down directions to train judges, the police and prosecutors to be sensitised in cases of sexual assault in such cases, as done by U.S. courts.