Introduction
“The way we imagine discrimination or disempowerment often is more complicated for people who are subjected to multiple forms of exclusion. The good news is that intersectionality provides us a way to see it.”
– Kimberlee Crenshaw
Intersectionality as a reality exists beyond the facets of geographical boundaries, hues of sections and societal frameworks. While Intersectionality as a concept has branched into several interpretations, each more complex than the next one, Crenshaw’s Intersectional theory, was strictly constructive to a point of determining the true nature of oppression and the tiff with legal, economic and societal framework thereof as envisaged in her introductory paper. Disability and Gender as an intersectionality, creates one of the most vulnerable communities in India and otherwise. With socio-economic legal framework completely shackling any sense of autonomy that people deserve, the accommodation that is their undeniable right is given to them with a sense of inferiority on paper, and most often not ever in reality.
This article hence attempts to focus on criminal justice access and interactions of the law, legal fraternity and investigative agencies with that of this intersection. It predominantly focuses on women and disability, while attempting to recognise the peril that alternate genders face in a contract of severely heteronormative laws and realities. The article hence lays down how the Criminal Justice system is routed against women and people from the LGBTQIA+ community.
- The position of Intersection of Gender and Disability in the Criminal Justice System.
In a recent SC judgment of Patan Jamal Vali v. The State of Andhra Pradesh, while dealing with the case of rape of a blind Scheduled Caste woman, J. Chandrachud aptly held the importance of an intersectional lens in terms of the identity of a woman intersecting with sexual orientation, disability, caste, class or creed. Thereof he also implied that such sections are vulnerable to a higher degree of violence such as that of a trans woman.
Herein, the court rightly recognized the intersection of gender and disability, to have a comprehensive and realistic understanding of the issues and discrimination plaguing such victims, which also leads up to sexual assault and rape. Thus, it is essential to underscore the intersectionality of the violence being perpetrated against such victims, in order to assess the gravity of the crime and to thereby provide appropriate relief.
- The Current Legal Framework:
- Code of Criminal Procedure
As per proviso to section 154(1) of the CrPC, in case of any information received by a police officer, where the victim is a permanently or temporarily, mentally or physically disabled, then it shall be recorded at the residence or any convenient place of the victim’s choice, within the presence of a special educator or an interpreter. A similar procedure has also been carved out for PWDs, with respect to recording of statements and confessions, under the proviso to section 164(5A)(a) of the CrPC. Furthermore, such recorded statements or confessions of PWDs are mandated to be treated as a statement in the context of an examination-in-chief, as per section 137 of the Indian Evidence Act, 1872, so as to eliminate the need of recording it again at the trial stage.
Some other changes were codified in the proviso to section 54A of the CrPC, wherein the process for identifying the arrested person was modified for PWD victims in such a manner that the Judicial Magistrate would supervise the entire procedure and facilitate the PWDs with any additional methods required by them to carry out the identification comfortably. Additionally, the proviso to section 160(1) of CrPC, states that any woman or a person who is mentally or physically disabled cannot be required to bear attendance as a witness in the police station.
- Indian Penal Code
The grave nature of crimes and violence committed against the intersectional group of WWD (Women with Disability), has been addressed and accounted for in several provisions of the IPC as well. For instance, under section 376(2)(l) of the IPC, the rape of a woman, who suffers from mental or physical disability, would constitute an aggravated rape and thus be liable for a harsher sentence. Moreover, under section 376A of the IPC, if a person rapes a woman causing her to be in a permanent vegetative state, then construing it as a mental disability, the provision strictly extends a minimum imprisonment of 20 years, which can extend to life imprisonment or even death.
- Rights of Persons with Disabilities Act
It is shocking to note that despite India having ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2007, it only fulfilled its obligations thereunder, by enacting the Rights of Persons with Disabilities Act (RPD Act) in 2016. Nonetheless, it is pertinent to underscore that section 4(1) of the RPD Act, expressly recognized for the first time that women and children with disabilities are required to be meted out an equal treatment as compared to others and also identified the role of the government and local authorities in ensuring the same.
Furthermore, section 92 of the RPD Act, accounts for the punishment of sexual offences and other atrocities committed against WWD. For instance, sub-clause (b) and (d) of the aforesaid section includes any act of assault or force used to outrage the modesty of a WWD and sexually exploiting a WWD, who can be dominated by the accused, respectively, and for such offences, imprisonment of minimum 6 months extending up to 5 years has been prescribed in the statute. Also, the same punishment is attracted in case of termination of pregnancy of a WWD without her express consent.
- Challenges in the Criminal Justice System:
- Reporting of violence
The primary challenge which WWD face is the reporting of any violence or assault committed against them, as it is the first step in any criminal justice system which sets things in motion. However, it is saddening to note that most of the WWD victims aren’t able to clear this initial hurdle itself because of various factors at the personal as well as the institutional level. WWD victims often face inaccessibility issues in filing of FIRs and physical barriers in accessing the police and judicial authorities, which are often coupled with the insensitive and lackadaisical behavior of the police in providing adequate means like a sign-language interpreter to gauge the seriousness of the matter at hand.
The Ministry of Health and Family Welfare had issued Guidelines and Protocols regarding the medico-legal care for survivors/victims of sexual violence in 2014, (2014 guidelines) have highlighted that WWD face various barriers with respect to reporting of sexual abuse, and they extend to communication issues, along with their increased dependency on their guardians, who are sometimes the abusers too. The problem was increasingly compounded in the lockdown imposed in the wake of the pandemic, wherein many WWD faced instances of domestic violence and sexual abuse, however it was largely unreported due to their disadvantaged position which is not rectified by the State.
- Testimony of the victim
Another grave challenge that a WWD faces in the present criminal justice system is the sheer lack of weightage given to a disabled victim’s testimony, and their unequal treatment as compared to other able-bodied witnesses. For instance, in the case of Mange v. State of Haryana, the court disregarded the testimony of the prosecutrix, who was a minor girl and suffered from the disabilities of being deaf and dumb. Such callous, apathetic, unequal and inferior treatment meted out to WWD, has perpetuated the miscarriage of justice of silencing their voices, instead of empowering them to represent their case with dignity.
This attitude towards the WWD stems from the underlying assumption that these victims cannot provide credible testimony because of the inability of their bodies to support the same. However, the apex court in the afore-mentioned Patan Jamal case has clarified that the WWD’s testimony and their credibility as witnesses must not be doubted till they satisfy the requisite criteria for instilling judicial confidence, and their disability must not render it inferior in weight.
Conclusion
An intersectional analysis of the discrimination, inequality, violence and assault faced by women suffering from disability broadens the understanding and the scope of intermingled states of oppression encountered by these victims. It is imperative to have such an intersectional approach in order to truly unpack the societal and economical structures of inequalities which plague the WWD, and thereby provide their redressal within the criminal justice system. The lack of disaggregated data of WWD victims, the inaccessible barriers in going through a legal ordeal often silences them before they even begin on the path of accessing justice. Therefore, it is essential for widespread reforms to be incorporated in the legislative, executive as well as the judicial domains so as to allow the WWD victims to exercise their fundamental rights.
The Author, Praneeta Tiwari, is a 5th year law student at National University of Juridical Sciences, Kolkata.