THE INTERSECTION OF CASTE, CLASS AND GENDER – A FEMINIST ANALYSIS: PART I

– by Manisha Arya

I. Positionality of Dalit Women in Caste and Class Hierarchy

One of the incidents in Tamil Nadu where a Dalit women leader who demanded higher wages was raped and then killed by upper-caste landlords. By demanding high wages in public space, the Dalit woman leader had violated the limits of her caste status which are defined by passivity and submissiveness and also overstepped her limits in gendered space.[1]

Caste, class and gender are inseparably linked. The gender codes for upper-caste women were more stringent as compared to Dalit women who had flexible rules of marriage and participated in the mode of production.[2] In India is such that even within Dalits there are sub-castes which have their own hierarchy. Within this institution too, the women of upper strata want to hold power over women of lower strata.

Over a period of time and with constitutional recognition of rights of Dalit, upper castes lost the power and status they held in society. One of the ways to retaliate against this and show the consequences of stepping out of the hierarchy of violence against Dalit women.[3]This violence perpetrated is mostly in the form of sexual assault and has both caste and class dimension to it.

If we are to infer the positionality of Dalit women in caste and class hierarchy; they face triple oppression by first, upper-caste men; second, men of their own caste and third, upper-caste women.

II. Dalit Women and the Rule of Caste in Indian Legal System

The composition of the legal and administrative system is such that the majority of people in power are upper-caste males.[4]Caste and class of the woman is an important factor in the legal system. At the initial stage itself, the police refuse to lodge a complaint, the cases which are registered and come up for hearing are further treated with indifference by local judges.[5]The hearing of the cases begins with the presumption that the complainant is lying. Besides, more burden is put on the complainant by a higher reliance on evidence and testimonies of the witnesses.[6]

In case of Tukaram v. State of Maharashtra[7], where a 14-year-old tribal girl was raped by police in premises of police station, the sessions court and the Supreme Court released the accused establishing that the character of the complainant was promiscuous and that there was no medical evidence (traces of semen or matting of pubic hair) to prove that the accused committed rape.[8]The high court had taken a different approach and had convicted the accused on the ground of the power relationship that existed which led to the passive submission and not consent by the complainant. However, as stated above this was overruled by Supreme Court.

In the year 1997, four years after the amendment of definition and punishment of rape by the 1983 amendment. A 21girl was raped in Tamil Nadu by upper-caste men, these men bribed the police and case was shut.[9] On insistence by Human Rights Watch group, the complaint was filed by Police but initially not under Sec. 375 or 376 of IPC but Sec. 75 of Madras Police City Act.[10] When the case was finally registered as a rape case, police refused to file the case underScheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The accused was put in jail for forty-five days and then released on bail. No charges were framed for the offence of rape and the accused remained out of jail. Incidents like these have been many, where even if police have registered the complaint the case never goes up to trial and the complainant having social and economic constraints cannot pursue the case.[11]

In 1989, the Parliament legislature passed the SC/ST (Prevention of Atrocities) Act, which gave special rights to Dalits against the atrocities committed by upper castes. Sections 3(1)(xi) and 3(1)(xii) provided for special protection to Dalit women from the sexual assault.[12] These laws were modified by an amendment in 2015.[13] However, the Supreme Court in case of Ashrafi v. State of Uttar Pradesh[14]diluted the knowledge requirement provided in punishing section that is Sec.3(2)(v) of the Act.[15] The court opined that the wording of earlier act envisaged that the accused should have committed the crime on the ground that such a person belongs to SC/ST community, but the accused did not commit rape because the complainant belonged to SC/ST community. The court further stated that knowledge requirement has been inserted by amendment of 2015 and cannot be applied retrospectively.[16]

It has been a trend, that the accused in the cases of rape of Dalit women are mostly acquitted by Trial court and if the Trial Court upholds conviction, High Court reverses it. One of the examples can be seen from the State of Orrisa v. Sukru Gowda[17], where the accused was convicted by Trial Court, but High Court reversed the order stating that “it is a well-settled law that a single man cannot commit sexual intercourse with a healthy adult female in full possession of her senses against her will.”[18]

In a progressive approach, the Supreme Court in the past few decades has been giving decisions based on the legal status and not on absurd reasons. In case of Ramesh Kumar v. State of Himachal Pradesh[19], where a tribal woman was raped the trial court acquitted the accused on the ground that the site map formed by the inspector and the timeline told by the witnesses do not match exactly to the time of the incident. The high court upheld the decision of Trial Court on appeal but the decision was reversed by the Supreme Court taking into consideration the other relevant evidence and that the time difference wasn’t much. In S v. Sunil Kumar and Others[20] and Satwain Bai v.Sunil Kumar and Others[21], the Trial court acquitted the accused stating that the witness or the prosecution could not identify the accused in test identification. The Supreme Court on appeal from the high court held that test identification is not an essential but preferable test for the case.

A typical example of seeing the interplay of caste dynamicsin the intersection of caste-gender is the caseof Bhanwari Devi.[22]She was employed as a Saathinunder Women’s Development Programme in Rajashtan.As Saathins their main work was to stop the practice of child marriage and promote education for girls. Bhanwari was a prominent Saathinin her village and was successfully able to stop many cases of child marriage.[23] In 1992, she created hindrance in the child marriage which was being performed by Sarpanch of the village. In retaliation, she was gang-raped by five members of upper caste while she was working on the fields.[24]The response of the police to the incident was that “she was too unattractive to gain the attention of young men”.[25] The trial court acquitted the accused on the ground that rape is committed by young men, and accused being middle-aged and respectable could not have committed the crime. Further, the court also stated that “upper-caste men will never pollute themselves by raping a lower-caste woman.”[26]The case was appealed in High Court but did not come up for hearing. The accused in this case belonged to upper caste, held political power and had strong political bonds.

In the aftermath of this, an NGO named Vishakha filed a PIL in Supreme Court demanding law preventing the harassment of women in the workplace.[27] Supreme Court in its judgment laid down various guidelines for preventing sexual harassment and in 2013 a codified law for the prevention of sexual harassment in the workplace was passed in 2013.[28]Even though the basis of filing this PIL were the facts of the Bhanwari Devi case, the guidelines provided by the Supreme Court did not take into consideration the problems faced by Dalit Women.[29]Unlike, the Vishakha guidelines, the provisions of the 2013 Act accounts for various sectors (domestic work and unorganized sectors) in which most of the employees are Dalit Women.[30] But how effective can these laws be when caste, class and gender dynamics come into play?According to the Act, for unorganized sectors, the complaints have to be looked over by Locals Complaint Committee.[31]The composition of the committee is at the taluk level. Even though the provision takes into account that sufficient representation is given to people of different categories, women of lower castes cannot in reality hold power. The power is still be held by upper castes, and then the representation of lower caste women becomes a mere token.

Majority of Dalit women are employed in agriculture, domestic work, hospitality, etc. The employers in majority of the cases belong to upper-caste, filing the complaint of sexual harassment by Dalit women not only means losing out of the source of income but also facing consequences of sexual assault and danger of physical harm to her family members.The legal consequences of sexual harassment of Dalit women do not scare upper-caste men, firstly because of the limited access to these legal recourses by Dalit women and secondly because the legal system is comprised of the men of a same upper caste who place the rule of caste over rule of law.

The views are personal.

ABOUT THE AUTHOR

MANISHA ARYA

Manisha Arya holds a law degree from National Law School of India University, Bangalore (NLSIU, Bangalore). Her area of interest lie in women rights, gender rights, caste rights, intersection, and education.

The above article is part of a two-part series. The next part can be found here.


[1] Vasanth Kannabiran and Kalpana Kannabiran, ‘Caste and Gender: Understanding Dynamics of Power and Violence’ in Anupama Rao (eds) Issues in Contemporary Indian Feminism:Gender and Caste (2003) 257.

[2] Uma Chakravarti, Gendering Caste through a Feminist Lense (first published in 2003, Kali for Women 2003) 82-84.

[3] Vasanth Kannabiran and Kalpana Kannabiran, ‘Caste and Gender: Understanding Dynamics of Power and Violence’ in Anupama Rao (eds) Issues in Contemporary Indian Feminism:Gender and Caste (2003) 255.

[4]Smita Narula, ‘Equal by Law, Unequal by Caste: The “Untouchable” Condition in Critical Race Perspective (2008) Public Law & Legal Theory Research Paper Series 8-30/2008, 51 .

[5] ibid 52.

[6] Simta Narula, Broken People: Caste Violence Against India’s “untouchables”(first published in 1998, Human Rights Watch 1998) 170.

[7] ibid 170.

[8]Tukaram v. State of Maharasthra, AIR 1979 SC185.

[9] Narula (n 4) 172.

[10] This section refers to nuisance in public place and has fine as punishment.

[11] Narula (n 4) 174.

[12] SC/ST (Prevention of Atrocities) Act 1989, Ss. 3(1)(xi) & 3(1)(xii).

[13] SC/ST (Prevention of Atrocities) Amendment Act 2016, s 3(1)(w)(i)(ii).

[14]Ashrafi v. State of Uttar Pradesh, MANU/SC/1556/2017.

[15] Sec. 3(2)(b), SC/ST (Prevention of Atrocities) Act, 1989.

[16]Ashrafi v. State of Uttar Pradesh, MANU/SC/1556/2017.

[17]State of Orrisa v. Sukru Gowda, MANU/SC/8415/2008.

[18] Ibid.

[19]Ramesh Kumar v. State of Himachal Pradesh, MANU/SC/0733/2013.

[20]S v. Sunil Kumar and Others, MANU/SC/1587/2015.

[21]Satwain Bai v.Sunil Kumar and Others, MANU/SC/0416/2015.

[22] Narula (n 4) 176.

[23] Narula (n 4) 176.

[24] Narula (n 4) 177.

[25] Narula (n 4) 177.

[26] Kalpana Kannabiran, Tools of Justice: Non-discrimination and the Indian Constitution (first published in 2012, Routledge 2012) 26.

[27]Vishakha v. State of Rajasthan, AIR 1997 SC 3011.

[28] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

[29]Vishakha v. State of Rajasthan, AIR 1997 SC 3011.

[30] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 2(d), s 2(e), s 2(o).   The organized sectors are formal then unorganized sector, and women employees in organized sector are in a better position to avail to legal recourse. Stating this, I in no way want to deny the power dynamics that play in organized sectors too.

[31] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 6.

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