Recognising Caste-Based Violence Against Women

Recognising caste-based violence against women

By repeatedly setting aside convictions under the PoA Act, courts bolster allegations that the law is misused

court using the intersectional lens re- cognises that evidence of discrimination or violence on a specific ground may be absent or difficult to prove. It agreed with the finding of the ses- sions judge that the prosecution’s Jayna Kothari case would not fail merely because the victim’s mother did not mention in her statement to the police that The horror of the gang rape of a 19- the offence was committed against year-old Dalit woman in Hathras in her daughter because she was from 2020 is still fresh in our minds. Acti- an SC community. It also confirmed vists, academics and lawyers argued that it would be reasonable to pres-

that the sexual violence took place PTI ume that the accused knew the vic- on account of the woman’s gender tim’s caste as he was known to the and caste and that the Scheduled man intersects with her caste, class, munity would not attract the PoA victim’s family. Despite such a Castes and the Scheduled Tribes religion, disability and sexual orien- Act. In Dinesh Alias Buddha v. State nuanced understanding, the court (Prevention of Atrocities) Act, 1989 tation, she may face violence and dis- of Rajasthan (2006), the Supreme held that there was no separate evi- (PoA Act) must be invoked. crimination due to two or more Court held: “It is not case of the pro- dence led by the prosecution to show On the heels of the Hathras crime grounds. It said we need to under- secution that the rape was commit- that the accused committed the of- came a new judgment of the Su- stand how multiple sources of op- ted on the victim since she was a fence on the basis of the victim’s preme Court (Patan Jamal Vali v. pression operated cumulatively to member of Scheduled Caste.” In Ash- caste. It is unfortunate that intersec- State of Andhra Pradesh) addressing produce a specific experience of sub- arfi v. State of Uttar Pradesh (2017), tionality, which seeks to recognise the intersectionality of caste, gender ordination for the blind Dalit wo- the court held that the evidence and the multiple grounds of marginalisa- and disability. In this case, the victim man. Placing special emphasis on materials on record did not show tion faced by women, was used by of sexual assault was a blind 22-year- making the criminal justice system that the appellant had committed the court to state that it becomes dif- old Dalit woman. The trial court and more responsive to women with dis- rape on the ground that the victim ficult to establish whether it was the High Court had convicted the ac- abilities facing sexual assault, the was member of an SC community. In caste, gender or disability that led to cused for rape under Section 376 of court also laid down directions to 2019, in Khuman Singh v. State of the commission of the offence. the Indian Penal Code (IPC), and un- train judges, the police and prosecu- Madhya Pradesh, a case of murder, Why would this matter, one might der Section 3(2)(v) of the PoA Act, tors to be sensitised in such cases. again the court held that the fact that ask, if the punishment of life impri- and sentenced him to life imprison- But despite using an intersectional the deceased was a member of an SC sonment was upheld? It matters be- ment. The Supreme Court, in its lens, the court set aside conviction community was not disputed but cause the repeated setting aside of judgment delivered by Justice D.Y. under the PoA Act. The PoA Act was there was no evidence to show that convictions under the PoA Act bol- Chandrachud and Justice M.R. Shah, enacted to address atrocities against the offence was committed only on sters the allegations that the law is confirmed the conviction and the persons from SC and ST communi- that ground; conviction under the misused and amounts to the erasure punishment for rape under the IPC ties and was amended in 2015 to PoA Act was set aside. There are sev- of caste-based violence faced by wo- but set aside the conviction under specifically recognise more atrocities eral precedents insisting on an un- men. Further, as stated in the recent the PoA Act. On the one hand, this against Dalit and Adivasi women in- realistic burden of proof. This issue Parliamentary Standing Committee judgment is a huge step forward as cluding sexual assault, sexual harass- needs to be referred to a larger bench Report on Atrocities and Crimes the court used the opportunity to ment and Devadasi dedication. Sec- to take a different view. against Women and Children, the bring recognition to intersectional tion 3(2)(v) states that if any person “high acquittal rate motivates and discrimination faced by women on not being an SC/ST member commits Burden of proof boosts the confidence of dominant the grounds of sex, caste and disabil- any offence under the IPC punisha- In all these judgments, the court held and powerful communities for conti- ity. However, by setting aside the ble with imprisonment of 10 years or that there was no evidence to show nued perpetration”. This judgment conviction under the PoA Act, it is more against a person on the ground that the accused committed sexual was a missed opportunity for the like many other previous judgments that such a person is from an SC/ST assault on the ground that the victim court to use intersectionality to of the Supreme Court. community, he shall be punishable was member of an SC/ST communi- uphold the conviction under the PoA with imprisonment for life and with ty. One is tempted to ask: what kind Act or refer the matter to a larger The intersectional approach fine. This was amended in 2015, to of evidence would that be? How bench if needed. We need to stop Let us focus on the positive aspects change the phrase “on the ground would the prosecution prove in any hiding behind smokescreens of hyp- first. The Supreme Court, in a first, that such person is a member of SC/ given case that the accused had sex- er-technicality of evidence and re- elaborated on the need for an inter- ST” to “knowing that such person is a ually assaulted the victim because cognise caste-based violence against sectional approach, to take into ac- member of SC/ST”. she was Dalit/ Adivasi? The only evi- women when it stares us in the face. count the multiple marginalities that In cases of sexual violence against dence that can be led is that the vic- Else, our caste discrimination laws the victim faced. It relied on well- Dalit and Adivasi women, courts tim was from an SC/ST community will be rendered toothless. If inter- known intersectional theorists such have almost consistently set aside and that the accused was aware of sectionality theory mattered in this as Kimberlé Crenshaw who first convictions under the PoA Act. In that. When a woman is from a margi- case, it should have influenced an in- coined the term ‘intersectionality’ 2006 in Ramdas and Others v. State nalised caste and is disabled, she fac- terpretation of the PoA Act that re- and on the statement of the Comba- of Maharashtra, where a Dalit minor es discrimination due to her sex, flects the lived experiences of wo- hee River Collective which addressed girl was raped, the Supreme Court caste/tribe and disability, all of which men facing sexual violence. the intersectional discrimination set aside the conviction under the render her vulnerable to sexual vio- faced by black women in the U.S. Us- PoA Act stating that the mere fact lence. This is what intersectionality Jayna Kothari is co-founder of Centre for Law ing these sources, the court recog- that the victim happened to be a wo- theory requires us to recognise. and Policy Research and Senior Advocate nised that when the identity of a woman who was member of an SC com- In the Patan Jamal Vali case, the who practices in the Supreme Court of India