Intersectionality for social equity, justice

Intersectionality is a framework that examines how various social and political identities – race, gender, class, sexuality – combine to create unique systems of oppression and privilege.

While intersectionality remains a relatively new concept in mainstream Indian discourse, the Supreme Court has begun to recognise its significance while dealing with cases of discrimination.

In Patan Jamal Vali v. State of Andhra Pradesh (2021), Chandrachud J cites Mary Eaton to define intersectionality as a cumulation of different forms of oppression based on various identities of the individual which, in combination, gives rise to a distinct experience.

The Court held – “When 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.”

Further, in Navtej Singh Johar v. Union of India (2018), while determining the constitutionality of Section 377 of the Indian Penal Code 1860, Chandrachud J alluded to a wider and substantive interpretation of the right against discrimination. He observed that the anti-discrimination code should include intersectional analysis that goes beyond factors such as religion, sex, or caste, mentioned in Article 15(1).

A formalistic reading of Article 15 will allow discrimination based on sex, religion, or caste and a ground not mentioned in Article 15, as it’s not only based on sex, religion, or caste.

The Supreme Court examined the rape of a blind Dalit woman in Patan Jamal Vali, acknowledging the intersectional oppression she faced due to her gender, caste, and disability. While convicting the accused under various charges, the Court struggled to fully apply an intersectional perspective to the SC/ST (Prevention of Atrocities) Act due to its narrow definition.

The conviction under this Act was set aside because it required proof that the offence was solely based on caste.

However, a 2016 amendment allows for a broader interpretation, enabling a more intersectional analysis of offences under the Act.

Another example of the dichotomy between a multi-faceted approach and a uni-dimensional approach to discrimination and equality is the reservation for the Economically Weaker Section (EWS) under Articles 15(6) and 16(6) (inserted by 103rd Constitutional Amendment). Articles 15(6) and 16(6) provide for up to 10% reservation to Economically Weaker Sections of the society. However, the provisions exclude OBCs, SCs, and STs from EWS reservations, on the ground that they already enjoy the benefits of the existing reservation.

While the majority upheld the exclusion, the dissenting judges struck down the EWS reservation on the grounds of exclusion. Even though the dissenting judges did not analyse the exclusion from the lens of intersectional discrimination, they do recognise that OBCs, SCs, and STs are often among the poorest sections of society.

An intersectional analysis will help argue that those who fall within OBCs, SCs, or STs and are economically weak are especially disadvantaged due to the intersection of social and economic factors. This puts them in a special category of disadvantage and inequality in society, justifying their inclusion in the EWS category.

Incorporation at multiple levels

Intersectionality requires a nuanced understanding of existing rights in the Constitution. It can be incorporated into the legal framework at several levels, especially, judicially through interpretation, legislatively through statutory provisions, and policies at execution.

It becomes imperative for all the levels to work in tandem since, as observed in the Patan Jamal Vali case, when the legislation itself is worded narrowly, the court’s ability to read in intersectionality becomes limited. At the same time, if the courts interpret legislation or the Constitution narrowly, the legislature will have to amend the legislation or the Constitution to overcome the judicial hurdle. The amendments to the Constitution to insert reservation provisions to get around the myopic judicial interpretation of the equality code serve as the best example.

Further, General Comment No 16 to Article 3 of the International Covenant on Economic, Social, and Cultural Rights recognises the distinct experiences of women facing intersectional discrimination.

Similarly, the Committee on the Elimination of Discrimination against Women in General Recommendation No 40 identifies intersectionality as one of the seven pillars for equal and inclusive representation.

The Supreme Court, in NALSA v. Union of India (2014), mentions Yogyakarta Principles which also recognise the intersection of various kinds of discrimination. While intersectionality is gaining ubiquity in the international legal framework and conversations on equality and discrimination, Indian legal, political, and social systems are yet to catch on.

Intersectionality is vital in today’s world, especially when addressing issues like climate change and AI-driven job disruptions, which disproportionately affect marginalised groups. By embracing it, India can build a more equitable society, challenging systemic biases, promoting inclusive policies, and empowering marginalised communities.

(The writer is an Assistant Professor at the Alliance School of Law, Alliance University, Bengaluru)