This article first appeared on BitterLemonSnorts on October 13, 2020
The recent Hathras incident of rape and murder has garnered widespread protest that has criticised the handling of the case by the government in power and the police forces involved, and it would also be safe to say that there’s suddenly a political angle induced where opposition parties and activists for Dalit rights are lending voice to the issue of caste based discrimination and the government’s response to it.
The facts of the case involved a woman from a lower caste that was allegedly gang-raped by four men from a higher caste and the subsequent handling of the matter by law enforcement has been lax to non-existent. While those in support of the Yogi Adityanath government say this wasn’t a rape at all, the very fact that for a week after the incident when the mangled body of the victim languished in a hospital eventually succumbing to its death, the police weren’t making any effort to arrest any of the accused to verify what they’re claiming never even happened. And this lack of incentive seemingly did not extend to when the cops promptly arrived to bury the woman’s body, and irrespective of whether the allegations that they did this without informing the family are true, it was an allegation strong enough to warrant the Allahabad High Court taking suo moto cognisance and trying to figure out what the hell was going on.
While this is still something that’s causing a huge uproar in the system, I think it’s high time we take a look at the laws again, specifically in terms of how there’s such a stark difference between the way a criminal matter is handled when the race element intertwines itself with it, and this issue is probably a good spark to light the fire, because not only is this a caste issue, it’s also a caste to gender issue.
That being said, the focus of this article is a digression from the case that is Hathras towards the more wider conversation on the intersectional inclusion of Dalit women in domestic law, because to this date, the feminist movement in India has largely been pandering to a specific niche upper class, and to this day there exists no specific protection for Dalit women, that tries to separate the atrocities they face from the rest of the country. It is extremely disheartening to note that there’s been more action, deliberation and discussion on this matter in the UN and other such organisations on the international stage, specifically on the issue of Dalit women, than there has been across the length and breadth of the entire country.
We need a dedicated domestic legislation in order to protect the rights of Dalit women, specifically because the women of this community are literally the lowest of the low in the social hierarchy. I’m going to try and use all the literature available on the international plane and try to establish the necessity for a dedicated domestic legislation.
But before diving into the legislations themselves, here are a few issues that Dalit women face that are largely ignored by the savarna feminist upper class niche: there’s an inherent lack of access to resources, and control over their own land; they lack basic social services, specifically because they’ve got no clue how to avail them; furthermore, how are we going to generate political participation when these women are not even empowered to step out of the house; they lack access to justice when it comes to violence against them; trafficking and sexual exploitation of these women; and last but not the least, the familial systems, economic consequences of marriage, prenuptial, postnuptial agreements and associated property rights upon marriage dissolution are a couple more issues specific to impoverished communities that need redressal. Now that we’ve established these issues, let’s move on to the international instruments and legislations.
Let’s start from the top, i.e. take a look at the broader legislations that advocate for specific inclusion. Firstly, of course, we have the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both these legislations are largely viewed as the mother documents in international human rights law, and rightfully so, because of how inclusively they’ve made provisions that are in need of ratification. Articles 2 of the ICCPR and the ICESCR, Articles 4 and 26 of the ICCPR, the provisions regarding self determination and registration of birth, right to work, just and favourable conditions of work, social security, adequate standards of living and the protection of the family are some provisions that could in themselves point out the necessity for a specific legislation, but considering governments in power and law enforcement officials don’t even acknowledge a disparity existing, we’ve got to turn to a more case based approach to resolving the matter.
Here’s where I’d like to bring up the Report of the Special Rapporteur (Yakin Ertürk) on Violence against Women, its Causes and Consequences (A/HRC/11/6/Add.1) which was published in 2009. The report is pretty powerful for one specific reason, and that is for the fact that the author of the report, flew all the way down to India, went to the grassroots and collected information on a case by case basis, documenting instances and examples of real-time violence against women, along with factual evidence to support it, and the best part is, she even wrote out allegation letters to the government in power at the time, urging them to take cognisance, which unfortunately, they never did. Here are a couple of excerpts from the report:
“Despite the formal abolition of “untouchability” by article 17 of the Indian Constitution, de facto discrimination and segregation of Dalits persists, in particular in rural areas and with regard to access to places of worship, housing, hospitals, education, water sources, markets and other public places.” (217)
“Dalit women are confronted with discrimination, exclusion and violence to a larger extent than men. Land and property issues in particular, tend to cause or be at the root of conflicts over which Dalit women have faced eviction, harassment, physical abuse and assault. Dalit women are often denied access to or are evicted from their land by dominant castes, especially if it borders land belonging to such castes. They are thus forced to live in the outskirts of villages, often on barren land. Reportedly, on many occasions, cases of violence against Dalit women are not registered, and adequate procedures are not taken by the police.” (218)
“Regarding the Government response of 29 April 2008 to the communication sent on 19 December 2007, the Special Rapporteur regrets that the Government failed to address the general situation of Dalits, and in particular Dalit women in India. The communication made reference to the general descent based discrimination that Dalit women and men suffer, the lack of proper implementation of existing legislation as well as the lack of police and judicial action to protect the rights of Dalits…”
Even after this kind of provocation by an organisation at the international stage that corroborated information on a factual basis, it’s pretty humiliating to read the end result, and even more distressing to hear law enforcement and legislators deny the fact that there is any discrimination at all. I’m urging you to check out the Report. Some of the cases are pretty distressing to read.
Coming to the more specific action taken on the international stage, there’s of course the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which in Articles 2 and 16 maintain a position against all forms of discrimination, including in cases of marriage inception, death and dissolution. Article 15 also maintains the necessity for access to justice and awareness imparted accordingly. But leaning off of the CEDAW, the CERD Committee Recommendation No. 29 and the CEDAW General Comment on Rural Women which happened in 2013 between India (Article 14 of the Constitution) and Nepal are of more relevance because they specifically highlight all of the issues at the beginning of this article and suggest solutions accordingly.
At the 41st Session of the HRC in Geneva, there was a side-event on Dalit Women and Gender Justice, where Abhirami Jotheeswaran (belonging to the National Dalit Movement for Justice-National Campaign on Dalit Human Rights) said, “India has passed several laws and regulations prohibiting caste-based discrimination, but implementation is the main challenge. In order to overcome this large implementation gap, there is a need to identify caste and gender sensitive advocates that help Dalit victims and survivors.“
The Millennial Development Goals, the Sustainable Development Goals, as well as the discussions on Gender Equality in the 2030 Agenda by UN Women highlight, explain and establish how important ensuring gender equality is to the eventual achievement of the development goals.
The accountability of governments and law enforcement officials’ commitment to gender equality being strengthened is the need of the hour. The Hathras incident is thankfully causing us to raise some never before asked questions and generate discourse on the matter. Here’s to hoping things change for the better.
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