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INTERSECTIONALITY IN THE LAW

INTRODUCTION

In today’s world, we are more aware than ever before of the complexities of discrimination and oppression. However, much of our understanding of these issues is based on a limited perspective that fails to take into account the multiple and intersecting identities that shape our experiences. This is where intersectionality, a theory that acknowledges how several identities and types of discrimination can overlap and compound one another, comes into play.

The term intersectionality was coined by Kimberle Crenshaw in 1989, and it has since become an influential framework for understanding how social identities and power structures intersect and impact people’s lives. The Intersectionality concept is termed as inequalities based on sex, vibrant colours, racial or gender identity and orientation, sexual orientation, individuals with disabilities, category, and other forms of discrimination “intersect” to produce specific dynamics and effects. It acknowledges that people have a variety of identities and that these identities interact and overlap with one another in intricate ways. People who are both women and people of colour, for instance, could encounter discrimination in ways that are different from those experienced by white women or men of colour.

INTERSECTIONALITY: INDIAN LAW

In the Indian context, intersectionality is an important concept in law because the country is diverse, with a complex social structure based on multiple identities such as caste, religion, gender, and class. Discrimination based on these multiple identities is pervasive in Indian society and can result in the marginalization and exclusion of certain groups.

One of the key ways that intersectionality is relevant in Indian law is through the Indian Constitution, which forbids discrimination on the grounds of birthplace, ethnic background, or faith. Nevertheless, discrimination based on multiple identities can be difficult to address within the legal framework of the country, as discrimination may not always fit neatly into a single category.

For example, caste-based discrimination in India often intersects with other forms of discrimination, such as discrimination based on gender or disability. Dalit women, for example, face discrimination not only because of their caste but also because of their gender. For instance, the Bhanwari Devi case is a prime example of intersectionality, as it involves the intersection of gender, caste, and class in the context of violence against women. Bhanwari Devi was a lower-caste woman who worked as a social worker in Rajasthan, India. In 1992, She was assaulted in an incident by upper-caste males who were seeking revenge for her attempts to stop child weddings. She was assaulted in an incident by upper-caste males who were seeking revenge for her attempts to stop child weddings. The incident was a stark reminder of the rampant violence and discrimination that Dalit women face in India due to their lower-caste status and gender.

The case led to the formulation of the “Vishaka Guidelines” by the Supreme Court of India in 1997, which established guidelines for preventing workplace sexual harassment. The incident resulted in the 2005 enactment of the Protection of Women from Domestic Violence Act, which acknowledges the intersectional nature of violence against women and offers legal safeguards to victims. The Bhanwari Devi case is a powerful example of how intersectionality can shed light on the unique challenges faced by marginalized groups, and how legal and social change can be achieved through a comprehensive approach that addresses the root causes of discrimination and oppression.

Not only Dalit women but also Muslim women in India face intersectional discrimination based on their religion and gender. They may face discrimination in education, employment, and access to justice, and may be subjected to discriminatory personal laws. One significant case that highlights the intersectional discrimination faced by Muslim women in India is the Shah Bano case. In 1985, Shah Bano, who was a Muslim woman from Madhya Pradesh, was left without any money after her husband filed for divorce. She requested support from her husband in a petition under Section 125 of the Code of Criminal Procedure. She was awarded maintenance payments from her ex-husband after the case made it to the Supreme Court of India. Conservative Muslim leaders, who claimed that the Supreme Court had exceeded its power by intervening in the personal rules of the Muslim community, fiercely opposed the ruling. Due to this, the Muslim Women (Protection of Rights on Divorce) Act was passed in 1986, overturning the Supreme Court’s ruling and placing restrictions on the amount of maintenance that Muslim women may get.

Not only caste-based discrimination is prevalent but also discrimination against the LGBTQ+ community. As India’s legal system has historically criminalized homosexuality under IPC sec 377 which was a relic of colonial-era British regulations. This law was struck down in 2018 by India’s apex Court in the case of Navtej Singh Johar v. Union of India which recognizes the intersectional nature of discrimination against LGBTQ+ individuals in India, acknowledging that they face discrimination not only based on their sexual orientation but also on other grounds such as caste, gender, and religion.

However, while the decriminalization of homosexuality was a significant step towards equality, the struggle for same-sex marriage in India remains ongoing. India’s Marriage Laws do not currently recognize same-sex marriages, and the legal recognition of such marriages is still a matter of debate and discussion.

INTERSECTIONALITY IN THE INTERNATIONAL ARENA

Intersectionality has become an important concept in international law, particularly in the context of the rights of humans. The UN and additional international bodies have recognized the need to address intersectional discrimination and violence, and have developed frameworks and mechanisms for human rights to be protected and promoted for individuals who face multiple types of prejudice. For instance, the United Nations General Assembly ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979. It recognizes that discrimination against women is not limited to gender alone, but is also influenced by other factors such as race, ethnicity, religion, and social status. The treaty requires signatory states to remove discrimination against women by taking appropriate action, including intersectional discrimination.

In many countries People with disabilities face intersectional discrimination based on their disability, as well as other factors such as gender, race, and socio-economic status. They can encounter obstacles to accessing education, employment, and medical aid, and can be subjected to violence and abuse. To guarantee their security, the United Nations General Assembly approved the Convention on the Rights of Persons with Disabilities (CRPD) in 2006.

Even for protecting women in conflict zones who face intersectional discrimination based on their gender, as well as other factors such as race, ethnicity, and religion and they may be subjected to using sexual assault as a tool of war, and may face barriers to accessing justice and basic needs such as healthcare and education by the United Nations Security Council in 2000 resolution 1325 of the United Nations Security Council on Women, Peace, and Security. It acknowledges that women and girls are disproportionately affected by armed conflict and that intersectional prejudice against them must be addressed. The resolution demands that women participate in peace discussions and that gender views be taken into account in all facets of conflict resolution and peacebuilding.

The Universal Declaration of Human Rights (UDHR), which was ratified by the United Nations General Assembly in 1948, is the cornerstone of international human rights legislation. It acknowledges that all people have innate dignity and equal rights, regardless of their gender, colour, ethnicity, religion, or other status. The UDHR has been crucial in recognising the connections between violence and prejudice and in advancing human rights for all.

CONCLUSION

Intersectionality is essential in understanding the complexities of the law and its impact on individuals with intersecting identities. It challenges the one-dimensional approach to law by recognizing that people can face multiple forms of discrimination simultaneously. By incorporating an intersectional lens, the legal system can address systemic barriers and biases that disproportionately affect marginalized groups. It also calls for diversity and inclusivity within legal institutions. Embracing intersectionality in law is crucial for creating a society that is more just and equal and that takes into account the individual needs and experiences of each person, regardless of their background or identity.

Author(s) Name: Sakshi Chakrawati Waghmare (ILS Law College, Pune)