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THE UNHEARD TALE OF WOMEN’s disabilities in India

marital rape - legal lock

By: Vishaka Sakhya of Ram Manohar Lohia National Law University and Deepti Hoonka of National Law Institute University

Introduction

Is man the most dangerous animal of all? What happens when this same man disrobes a woman of her dignity (literally and figuratively)? Is the woman still entitled to her rights, life, and identities?

These questions put forth jarring realities in front of us when churned inside the mind. From the era Draupadi to Nirbhaya, patriarchy has taught us that women are mere objects present in society to woo the man.

In the above examples, the former was a queen who had to go through a traumatic war experience just to get justice. The latter was a woman from a metro city who had to sacrifice herself to bring a revolutionary change in the criminal law system (Justice Verma Committee).

 The horridness of the situations they had to go through has the power to send chills down anyone’s spine. Now imagine the effect it has on a woman, to whom the society has assigned an undetachable set of labels, carrying the additional set of disadvantages of being from a marginalized section.

Think about a woman who has a disability and belongs to the oppressed castes. She is more vulnerable to the various assaults at the hands of society.

The situation often goes unaddressed in the truest sense if taken the route of a single axis of abuse – not including all the identities – gender, caste or disability.

Intersectionality or twofold discrimination

It is indeed a fact that Dalit women with disabilities may experience twofold discrimination because of the intersectionality of gender, disability and caste. Intersectionality is the intersection between different sets of identities. It affects the lives of various population groups.

The interactions between these identities and the systems and institutions that support them can lead to onerous experiences. Women and females with specific disabilities face the excessive hazard of sexual violence in India.

Those with bodily disabilities also find it tough to get away from violent situations because of confined mobility.  Visually challenged or women struggling with a hearing impairment might face difficulty in expressing effortlessly about their distressing abusive experience(s).

Women and ladies with disabilities, particularly highbrow or psychosocial disabilities, might not understand that non-consensual sexual acts are criminal offences due to the shortage of available information.

Patan Jamal Vali v State of Andhra Pradesh

The Supreme Court’s judgment pronounced the offender guilty of the rape under Section 376(1) of IPC. It also set aside the previous conviction under Section 3(2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, as ordered by the HC of Andhra Pradesh.

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The rationale was that offence was done on 31 March 2011, before the amendment making it necessary to prove that it was committed ‘on the ground’ that the victim belonged to the said caste.

The above section was amended in 2015 to include an intersectional lens to evaluate the offence by introducing the words ‘knowing that she belongs to Schedule Caste or Schedule Tribe’ instead of ‘on the ground’.

 In addition to this, Supreme Court has also come up with guidelines to make the Criminal Justice System more disabled-friendly.

Guidelines by Supreme Court

  •  •The National Judicial Academy and state judicial academies are requested to sensitize trial and appellate judges to deal with cases involving survivors of sexual abuse. 
  • •Trained special educators and interpreters must be appointed to ensure the effective realization of the reasonable accommodations embodied in the Criminal Law Amendment Act, 2013.
  • •The National Crimes Record Bureau should seriously consider the possibility of maintaining disaggregated data on gender-based violence.
  • •Police officers should be equipped with sensitivity when dealing with cases of sexual violence against women with disability, appropriately.
  • •Awareness-raising campaigns must be conducted, in accessible formats, to inform women and girls with disabilities, about their rights.

The guidelines would help the disabled only if we comply with them and implement them to the tee.

Vishaka Guidelines: Need for modification

One of the most celebrated legal achievements in the law field dates back to 1997 when Vishaka Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment.

An NGO named ‘Vishaka’ filed a petition in Supreme Court for Bhanwari Devi, a lower caste woman and a social worker who tried to prevent child marriage in her village in Rajasthan, inviting the wrath of the villagers.

A certain section of the upper caste men in the area gang-raped her as an act of revenge for poking her nose into upper-caste matters.

After the SC judgment in 2013, there was the promulgation of guidelines on sexual harassment of women in the workplace.

The Vishaka Guidelines and the 2013 Act are unquestionably positive developments, however, they do not cover the aspect of sexual harassment in informal workplaces, thereby meaning domestic labourers, who are predominantly Dalit/Adivasi, minorities, and women, would not have been included in the purview of those standards.

Consequently, underprivileged women cannot reap the benefits of these guidelines and Dalit/minority women are seen as ‘easy targets’ for sexual assault by perpetrators.

We need to modify these guidelines to safeguard persons who live at the intersections of various axes and are thus subjected to dreadful forms of oppression. So, the laws should be modified in such a way that is beneficial for all those who are currently standing on the lower rungs of society.

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A new law for disabled people

In India, there was no comprehensive law that defined and implemented the rights of people with disabilities, which could have made a huge difference in the lives of the disabled. Rights of Persons with Disabilities Act, 2016 came into effect on 30 December 2016. It replaced the Persons with Disabilities Act, which went into effect in 1995.

Prior to the new act, just seven disabilities were covered, but it now includes over 15 new, including dwarfism, acid attack victims, intellectual disability, and specific learning disabilities etc.

Under the Act, anyone who insults or intimidates a person with a disability or attempts to humiliate him or her in public is punishable by imprisonment. Furthermore, it increases the job opportunities of persons with disabilities, the Act has increased the reservation quota from 3% to 4%

This is a welcome move by our authorities, however, we believe that the government should do more from their end. The Act’s ambiguous and vague language, particularly in the sections dealing with discrimination and guardianship, is a major source of worry.

Despite the fact that the number of forms of disability has been extended to 21, many people will still be left out. The list should be broadened to include more persons who are afflicted with less well-known disabilities.

So-called ‘social evil practices’ prevalent in our society

As we have seen, women from practically all backgrounds have to struggle to manage the prejudices and preconceptions associated with their identity. It seems to be a herculean task for the women who fall into the category of the LGBTQIA+ community.

This is so because they are either considered to be suffering from a “disease” or out of the “scale of normalcy”. They are given no ‘room’ in society and are supposed to keep themselves ‘closeted’.

 It’s high time we realize the distinction between gender (male, female, and transgender) and sexual orientation and start seeing them as spectrums encompassing various elements rather than a band with two extremities in the first case and a hetero-centric model in the second case.

They should be provided with the same freedom and privacy as everyone else, as confirmed by the SC in Navtej Singh Johar v UOI, 2018. But this is just the foundation of a building that has to be built into a skyscraper.

Conclusion

In a nutshell, women from different sections of society are on an equal footing when it comes to exploitation. And since the said equality serves a negative purpose, it can be said it is almost no equality at all. We may have come a long way, when we take into account the past instances as a frame of reference, in terms of opportunities given to women. But in a sense, we have only been given proper direction to our destination.

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It is now the journey that will lay down a precedent for future generations to construct a world where identities though being a significant part of human life, do not define the abilities/disabilities of a person.

Such an idea proves to be utopian at this point but with rigorous efforts, especially in the legal field, we can make it a reality. Also, we have to give more attention to the marginalized part of the society, especially, the differently-abled women as they face discrimination due to their disability.

These efforts have to come from each part of society to make a difference. From here on the only way is forward. This movement shall be continuous just like for democracy, which in its real sense is always at the evolving stage and there’s always room for betterment.

These fundamentals have to be understood, the message has to be spread and awareness has to be brought. This can be done when people educate themselves and realise this at their levels to come forward for the noble cause, especially the females.

We have to remember – rights are not given on their own, they have to be taken. So come to the forefront, fight for yourself, win the war and conquer the battlefield and make it a point to understand what Eleanor Roosevelt said – “Well behaved women rarely make history.”

Sources referred:

  1. Prachi Bhardwaj, A blind Scheduled CASTE Woman raped! Supreme Court explains intersectional oppression and how it needs to be addressed SCC Blog (2021), 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/
  1. Sanjeev Sirohi Advocate, Testimony of disabled witness cannot be considered weak or inferior: Sc issues guidelines to make criminal justice system more disabled friendly Legal Articles in India (2021), http://www.legalservicesindia.com/law/article/1937/24/Testimony-Of-Disabled-Witness-Cannot-Be-Considered-Weak-Or-Inferior-SC-Issues-Guidelines-To-Make-Criminal-Justice-System-More-Disabled-Friendly
  1. Prannv Dhawan, Intersectionality matters: The Supreme court judgment in Patan JAMAL Vali v state of Andhra Pradesh Centre for Law & Policy Research (2021), https://clpr.org.in/blog/intersectionality-matters-the-supreme-court-judgment-in-patan-jamal-vali-v-state-of-andhra-pradesh/
  1. Subodh Asthana, The vishaka guidelines: A step against sexual harrasment iPleaders (2020), https://blog.ipleaders.in/vishaka-guidelines/
  1. Patan Jamal Vali v. State of A.P., 2021 SCC OnLine SC 343
  1. Ius Laboris. 2021. A new law for India to protect the rights of persons with disabilities – Ius Laboris. [online] Available at: <https://iuslaboris.com/insights/a-new-law-for-india-to-protect-the-rights-of-persons-with-disabilities/>

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