{"id":247730,"date":"2021-04-29T15:44:03","date_gmt":"2021-04-29T10:14:03","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=247730"},"modified":"2021-04-30T13:53:43","modified_gmt":"2021-04-30T08:23:43","slug":"a-blind-scheduled-caste-woman-raped-supreme-court-explains-intersectional-oppression-and-how-it-needs-to-be-addressed","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/04\/29\/a-blind-scheduled-caste-woman-raped-supreme-court-explains-intersectional-oppression-and-how-it-needs-to-be-addressed\/","title":{"rendered":"A blind Scheduled Caste woman raped! Supreme Court explains intersectional oppression and how it needs to be addressed"},"content":{"rendered":"

Supreme Court: <\/strong>After the plight of a blind Scheduled Caste woman who was raped reached before the bench of Dr. DY Chandrachud and MR Shah, JJ, the Court did an in depth analysis of intersectional oppression, the punishment to be awarded in such cases and what all factors need to be considered by the Courts while dealing with such cases. The Court said,<\/p>\n

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\u201cWhen the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Transwomen may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

In the present case, a blind girl belonging to a Scheduled Caste community was raped inside her own home by her brothers\u2019 acquaintance. The accused was convicted under under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal Code.<\/p>\n

Uitlising the facts of this case, the Court explored a disturbing trend of sexual violence against women and girls with disabilities and to set in motion a thought process for how the structural realities resulting in this state of affairs can be effectively addressed.<\/p>\n

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\u201c\u2026 <\/strong>women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as \u201csoft targets\u201d and \u201ceasy victims\u201d 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.\u201d<\/em><\/span><\/p>\n<\/blockquote>\n

Intersectionality and it\u2019s analysis<\/strong><\/span><\/h3>\n

Intersectionality can be defined as a form of \u201coppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone…\u201d.[1]<\/a><\/p>\n

An intersectional lens is useful for addressing the specific set of lived experiences of those individuals who have faced violence and discrimination on multiple grounds. A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as \u201ctotemic\u201d and \u201chomogenous\u201d.<\/p>\n

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\u201cA legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

An intersectional analysis requires to consider the distinct experience of a sub-set of women who exist at an intersection of varied identities. This is not to say that these women do not share any commonalities with other women who may be more privileged, but to equate the two experiences would be to play down the effects of specific socio-economic vulnerabilities certain women suffer. At its worse it would be to appropriate their pain to claim a universal subjectivity.<\/p>\n

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\u201c\u2026 an analysis of intersectionality does not mean that we see caste, religion, class, disability and sexual orientation as merely \u201cadd ons\u201d to the oppression that women may face. This is based on the assumption that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalization on other grounds.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

Intersectionality requires Courts to analyse law in its social and economic context allowing us to formulate questions of equality as that of \u201cpower and powerlessness\u201d instead of difference and sameness. The latter being a conceptual limitation of single axis analysis, it may allow certain intersectional claims to fall through the cracks since such claims are not unidirectional in nature.<\/p>\n

Hence, there is a need for the Court to address and unpack the qualitative impact of the various identities an individual might have on the violence, discrimination or disadvantage being faced by them in the society.<\/p>\n

Disabled Witnesses and their testimonies <\/strong><\/span><\/h3>\n

A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body[2]<\/a>.<\/p>\n

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\u201cThis kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness\u2019 disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness.<\/p>\n

Protection of Members of Scheduled Castes and Scheduled Tribes<\/strong><\/span><\/h3>\n

Section 3(2)(v) of SC & ST Act<\/strong><\/p>\n

Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where<\/p>\n

(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;<\/p>\n

(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and<\/p>\n

(iii) The offence is committed \u201con the ground that such person is a member of a Scheduled Caste or Scheduled Tribe\u201d or such property belongs to such a person.<\/p>\n

The key words in this Provision are \u201con the ground that such person is a member of a SC or ST\u201d. The expression \u201con the ground\u201d means \u201cfor the reason\u201d or \u201con the basis of\u201d and recognizes only a single axis model of oppression.<\/p>\n

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\u201c\u2026such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

However, the provision cannot be read as \u201conly on the ground that the victim was a member of the Scheduled Caste.\u201d The statutory provision does not utilize the expression \u201conly on the ground\u201d. Reading the expression \u201conly\u201d would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words \u201con the ground\u2019 but the juxtaposition of \u201cthe\u201d before \u201cground\u201d does not invariably mean that the offence ought to have been committed only on that ground.<\/p>\n

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\u201cTo read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.<\/p>\n

Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words \u201con the ground of\u201d under Section 3(2) (v) have been substituted with \u201cknowing that such person is a member of a Scheduled Caste or Scheduled Tribe\u201d, thereby, decreasing the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.<\/p>\n

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\u201cSection 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.\u201d<\/span><\/em><\/p>\n<\/blockquote>\n

The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.<\/p>\n

However, since the offence in the present case took place before the amendment, on 31 March 2011, the Court held that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) was consequently set aside.<\/p>\n

Why the accused in the present case deserved punishment no less than a life imprisonment? <\/strong><\/span><\/h3>\n