“Intersectionality is not identity politics on steroids. It’s a lens for seeing how inequalities often operate together and exacerbate each other.”
—Kimberle Crenshaw
Access to justice is the bedrock of constitutional democracy. It is imperative, therefore, that no stone is left unturned by a State in its attempts at ensuring equal access to justice for its citizens. The exclusion of a citizen from access to justice can result from either of two situations: (i) a perceived inefficiency of the country's legal system, or (ii) an inadequate comprehension by the country's judiciary of the true scope and ambit of the legal concepts enshrined in its Constitution. The former is a systemic defect that is addressed, inter alia, by increasing the judge-to-population ratio, infusing the required judicial infrastructure, and rectifying procedural flaws that afflict the system. The latter, however, is a slower process that requires the country's judiciary to take note of the changes in society and to reimagine judicial remedies so as to best serve the public interest and need.
Justice A.K. Jayasankaran Nambiar
The Constitution of India guarantees to all Indian citizens the fundamental right to equality – of status and opportunity. It is a sovereign guarantee of equality that carries with it an assurance that state action vis-à-vis a citizen, while free from arbitrariness, will also be non-discriminatory in its impact on the citizens. While the general guarantee of equality is contained in Article 14, which speaks about equality before the law and the equal protection of laws, the aspect of non-discrimination is dealt with in Articles 15 and 16 that deal respectively with the prohibition of discriminatory practices in society, and in the matter of employment to the public services of the State. Article 15 prohibits discrimination against a citizen on the grounds only of religion, race, caste, sex, place of birth, or any one of them, and is a mandate that is directed to the State. Article 15(2), on the other hand, contains a similar mandate that is directed to the State as well as to fellow citizens. The use of the words 'only' and 'any one of them' in the same sentence in Article 15, albeit, lends support to the view that the prohibition thereunder is against discrimination of a citizen on any one or more of the specified grounds; however, judicial interpretation of the provision has not been consistent with that line of reasoning, and has often led to incongruous situations on the ground. Going by the constitutional text, however, the combined effect of Articles 14 and 15 is that while the State can indeed pass unequal laws, the inequality must be based on a reasonable classification (Article 14) effected among persons and, insofar as it affects citizens, the classification cannot be based on any one or more of the prohibited grounds mentioned in Article 15.
A survey of our judicial precedents up to the first decade of this millennium suggests that we have always looked to define discriminatory practices in binary terms. For instance, when we speak of discrimination based on sex, we look to whether the male and female citizens, as a homogenous class by themselves, are treated differently and to their prejudice. In a like manner, an allegation of discrimination against differently-abled persons is always considered against the backdrop of the treatment accorded to able-bodied persons. What is left out of consideration, however, is the discrimination perceived by persons in whom multiple disadvantages converge to confer on them an identity that is unique and burdensome when it comes to seeking social benefits or recognition. Unless the legal remedy forged to remove the discrimination includes every aspect of a disadvantaged person's identity, the guarantee against discrimination will remain a teasing illusion to many in our country. As Lady Hale observed in the context of access to justice, "For all people to be equal before the law, there must be equal access to the law. This requires people knowing their rights and entitlements, being aware of processes for remedy or redress, having the ability to access those processes, being able to effectively participate in those processes, and achieving an outcome that is just, in light of the merits of the case and by processes that are conspicuously fair and perceived to be so."
It was in the above context that intersectionality, when first introduced, was seen as an innovative and welcome concept that had the propensity to level the playing field for the many citizens who felt that they did not 'fit' into recognised categories of persons in society. Intersectionality challenged the stereotyping or 'essentialism' that informed the social categorization of persons who were disadvantaged through prejudicial state action. In a well-articulated and thought-provoking article published in 1989, Kimberlé Crenshaw, who is credited with having coined the term 'intersectionality', critiqued the then well-accepted feminist jurisprudence by pointing out that it failed to consider the case of Black women who faced multiple disadvantages in society on account of their gender identity as women and racial identity as Black. She likened the situation to a traffic intersection where vehicles traveled in different directions and an accident could be caused through the negligence of any one or more of those vehicles. She reasoned that in such instances, a delay of legal relief to a victim until such time as the identity of the negligent driver was proven would be akin to medical relief being denied to a victim for want of proof of insurance coverage. Taking the specific case of Black women who were victims of rape by white men, she pointed out that such women were victims not only of 'male' dominance but also of 'white' dominance, and their case for legal relief had to be considered on the twin criteria of sex and race. In that sense, intersectionality was a concept that looked to explore the complex and cumulative ways in which the effects of multiple forms of discrimination combine, overlap, or discriminate.
In our country too, the multiple effects of discrimination are felt, for instance, when Dalit women are subjected to sexual violence at the hands of privileged higher caste men. Their suffering increases when they are subjected to further trauma on account of the insensitive attitude of law enforcement agencies, who do not register their complaints because they belong to an inferior caste or because the perpetrators of the crime are politically or economically more powerful. Such multiple effects of discrimination are also perceived in the matter of public employment when the State chooses to exclude only a sub-class of female employees, e.g., disabled females, while including disabled males for employment. Thus, there is scope for the introduction of the concept of intersectionality in our jurisprudence so that we may have a more inclusive justice dispensation system in our country.
Recognising the inherent limitations afflicting our justice dispensation system in the matter of providing equal access to justice to our citizens, during a Roundtable discussion on Equal Access to Justice for All in the Global South, held at New Delhi in November 2023, a set of Principles were drawn up on the role of the Judiciary in ensuring equal access to justice for all. In particular, it was recognised that judges have a pivotal role in upholding the rule of law and safeguarding the fundamental rights of all individuals and that judges had to be committed to promote equality and equal protection of laws by ensuring that no one is denied access to justice due to social, economic, or other circumstances. It was also accepted that judges should uphold the principle of non-discrimination and ensure that everyone is treated equally before the law and further ensure that individuals, while accessing justice, do not face discrimination based on race, ethnicity, gender, religion, identity, sexual orientation, disability, or any other personal characteristic.
In the backdrop of the above commitment, intersectionality helps us to revisit hitherto settled legal notions using a critical lens and by examining whether the various social constructs such as race, gender, and other social depictions of human beings in society are, in fact, designed to advance the interests of dominant interest groups. If indeed found to be so, the present notions of neutrality have to be seen as nothing more than a mirage that distracts us from existing inequalities, and hence to be discarded. We must thereafter examine the constitutional text with a distinct perspective to reimagine the way forward for our criminal and equality jurisprudence.
In recent years, we have infused the concept of intersectionality into our criminal jurisprudence, especially when deciding on the proportionate punishment that is to be imposed on the perpetrator of a crime. For instance, in Patan Jamal Vali, the court upheld the sentence of life imprisonment that was imposed on a man found guilty of committing sexual violence on a visually impaired dalit girl. The court reasoned that the trauma of the victim in that case was compounded on account of the disadvantage perceived not only on account of her sex, but also on account of her ethnicity and visual impairment, and hence the gravity of the crime was greater in her case.
There is similar scope for infusing the concept of intersectionality in our equality and human rights jurisprudence as well. One would think that under our Constitution, the preamble to which clearly states that equality of status and of opportunity is assured to all citizens, the guarantee against discrimination will take within its fold an intolerance to such state action as is designed to discriminate against even the most marginalized persons in a given category. However, our current jurisprudential conceptions of equality and non-discrimination indicate that a challenge to state action that is premised on other grounds coupled with those specifically mentioned in Article 15 or 16, would fail on the specious argument that there was no discrimination based only on a prohibited ground. For instance, state action that is prejudicial against a disabled woman because of her sex and her disability, would not be perceived as discriminatory on the ground only of sex, and therefore pass the test of constitutionality. In modern times, when the lived experience of each person is different and is based on the social constructs such as gender, race, caste, sexual orientation, etc. by which he/she is identified in society, it becomes incumbent on 'we, the people' to recognise the different shades of identity of persons in society and apply the constitutional ideals in a meaningful and purposive manner so that the constitutional guarantees are perceived and appreciated by each and every citizen of this country. We must remember that the Constitution of India is first and foremost a social document, and hence it is a necessity that, while defining a category for the purposes of testing state action for its discriminatory effects on persons of that category, we adopt an inclusive approach and include within that category the hitherto marginalised persons who bear the greatest impact of such prejudicial state action. For the said category of persons, we would also need affirmative state action to bring them into mainstream society.
We also need to understand that the inclusive approach to our equality jurisprudence may often necessitate the 'exclusion' of certain groups from the benefits of affirmative State action. As more and newer classes of persons are identified as beneficiaries for affirmative state action, it becomes imperative for the State to undertake a periodic exercise of identifying those existing beneficiaries who have since attained a sufficient level of socio-economic development that would make it possible for them to join the mainstream society. As affirmative state action is intended to bring historically disadvantaged classes of persons into mainstream society, it is axiomatic that for those persons in the broad class of disadvantaged persons, for whom the benefits are no longer required because of their attaining the required level of socio-economic development, the benefits of affirmative state action have to be withdrawn. This is what happened through the introduction of the concept of 'creamy layer' in N.M. Thomas, whereby it was felt necessary to eliminate the creamy layer of OBC's who had achieved the required degree of socio-economic progress, from reservation benefits. The concept of creamy layer was later upheld in Indra Sawhney, and also applied to SC's and ST's. More recently, in Davinder Singh, a seven-judge bench of the Supreme Court ruled by a majority of 6:1 that sub-classification within the reserved category of SC's is permissible for granting separate quotas for the more backward among that category. In doing so, the court overruled the decision in E.V. Chinnaiah that had portrayed SC's as a homogenous entity that cannot be further classified. The court clarified that Article 341 of the Constitution of India does not by itself provide for reservation but is merely concerned with the identification of castes eligible for reservation, and hence it was permissible for the State to sub-classify SC's for the purposes of reservation under Articles 15(4) and 16(4).
While intersectionality as a social concept needs to be appreciated by our citizens generally, it also needs to be recognised as an essential component of our constitutional jurisprudence. The concept must inform and shape the relief that we grant to the litigants who throng our courts. Even while testing state action for infringement of the fundamental rights of citizens, we need to test the effect of state action on the individual concerned, and that, by necessary implication, would take in all aspects of a person's identity. Only then would we be able to fulfill our commitment to Equal Access to Justice for All.
A.K. Jayasankaran Nambiar is a judge of the Kerala High Court.
The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK.
