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This article is written by Aman Singh pursuing Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction

Discrimination of all types has prevailed at a global level since time immemorial. When multiple forms of discrimination take place due to the interplay of two or more grounds based on identities, such as gender and disability, it is called intersectionality. There have been several legislative enactments to combat the issue of discrimination. However, multiple discriminations lead to vast oppression and marginalization, and therefore, they have to be addressed specifically.

The term “intersectionality” was coined by Kimberle Williams Crenshaw, a civil rights advocate, professor and philosopher. It is an analytical framework made to understand how the combination of a person’s social and political identities create different modes of privileges and discrimination.  For example factors like gender, sexuality, race, nationality, physical appearance, social status, disability etc. The overlapping or intersecting of these factors (social and political identities) could be either oppressive or empowering. 

For instance, a disabled migrant labour woman may have similarities to and differences from other oppressed groups in the meanings that are assigned to their multiple placements in the society. Migrant labour women may identify with the oppressive and discriminatory experiences of local women as well as with those of labourer men. At the same time, disabled migrant labourer women’s experiences may not be equivalent to those of these other groups. They may experience discrimination as a response to their disability, gender, social status and/or place of birth. Thus, their experience does not necessarily reflect the sum of oppressions of disability, sexism, place of birth and social status but rather their unique identities. That is, for example, even though a Bihari labourer woman and a local labourer woman are both women, and labourer women and labourer men are both labourers, the perception and treatment of the former groups are usually at an edge as compared to other oppressed groups. This article is an attempt to address the issue of intersectional oppression and analyse measures to counter such oppression in society.

Understanding the intersectional oppression 

Intersectional identities also include experiences of privileged contexts that intersect with those of oppression. For example, a Palestinian immigrant woman with a particular faith considered as a religious minority may experience a sense of safety and privilege because of her legal immigration status in the United States, but she may experience discrimination and a lack of access to appropriate resources within and outside of her family and ethnic community on the basis of her faith or belief or religion. Facets of distinctiveness such as race, class and gender can be oppressed or privileged, in ways that may differ across contexts, and can result in differing experiences that interact dynamically to shape an individual’s experiences, advantages, and disadvantages across time and space. The intersections of multiple identities transform the oppressed and privileged aspects of each person’s layered, interlocking identities.

Strictly speaking, we all have several intersecting identities. Universal intersectionality is not the province of intersectionality, however. Rather, another core opinion of intersectionality is its focus on the intersecting identities of people from historically oppressed and marginalized groups such as racial/ethnic minorities, low-income people, the LGBTQ community and those with disabilities. Because people from multiple historically oppressed and marginalized populations are its starting point, intersectionality examines the health of these populations in their own context and from their vantage point rather than their deviation from the norms of White middle-class people. Turns out, this makes good sense practically, not just theoretically.

Measures to counter the intersectional oppression

During contemporary times, various marginalised groups such as the LGBTQ community, ethnic minorities and racial/cultural minorities, persons with physical challenges and people with below-average intelligence face new challenges every day throughout the world. The oppression faced by them is often caused by collective oppressors, addressed by many authors as “the conservatives”. Most of the time we hear about cases concerning xenophobia, homophobia, islamophobia, etc. Through international media. Countries are fighting with this menace and recognising the rights of every human regardless of any such factor which is having the potential to trigger discrimination in society. 

Few measures which have been introduced, implemented and suggested to counter intersectional oppression are discussed below:

Affirmative action

Such actions are a set of duties of the governing authorities of a nation for the safeguard of its people and their rights. The aim of such policies is to increase social and political representation from every section of the community living in the country without any kind of discrimination based on sexual orientation,  gender, domicile, race etc. for example Articles 15 and 16 of the Indian Constitution. 

Anti-discrimination law

People can be controlled by the rule of law. Thus, to control the oppression of the marginal sections a punitive law is a must. Apart from punitive law, constitutional provisions play an important role as well. Such provisions play the role of touchstone in any unwarranted conditions. For example; Article 14, Article 17, Article 15, Article 16 of the Indian Constitution, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Cultural assimilation

It is the process of a group’s practices, culture and/or language coming to resemble those of another group. A woman from the West, for example, might wear a head covering in an eastern country to adapt to that culture.

Cultural pluralism

When a smaller ethnic/cultural group is recognized and provided equal protection, rights, opportunities, and respect by the dominant community in a nation/area then that ethos is called cultural pluralism. 

Empowerment

It can be defined as the degree of self-determination in communities. This supports them to exemplify their interests in a self-determined and responsible way, getting a sense of sovereignty and self-existence. Empowerment helps communities to become more confident in themselves and control their progressive growth in life. 

Fighting discrimination

As it is recognised that any kind of discrimination is a violation of Human Rights. In pursuant to this principle, a program by Human Rights known to be “Fighting Discrimination” focuses primarily on every and any kind of discrimination, hate crimes, genocides, biased crimes. 

LGBTQ rights

However, many countries like Iran, Afghanistan, Brunei, Nigeria does not recognise same-sex marriage or homosexuality. Most of them also made it a punishable offence (even punishment of death in Iran) are simply against human rights and oppressive. Treating someone differently because of their sexual orientation is one of the major reasons for Human Rights violations. Recently, cases of honour killing have been reported across the world on this ground too. Remarkably, till January 2021, same-sex marriage has been recognised by 29 countries. 

Self-determination

This principle was added in the Atlantic Charter declared on 14th August 1941 by Franklin D. Roosevelt. This principle strives for liberty as the right to all the people to choose their sovereignty and get fair equality in terms of opportunity and international political status. 

Social integration

It is an approach to or a process where all the people including newcomers in a country join together in a structural manner to work unitedly and in a cooperative way to achieve peaceful social relations in the society at large.

Feminism

A revolutionary blend of social movements, and political movements and ideologies with an aim to establish equality of sexes socially, politically, economically and personally. Feminism played a great role in the evolution of intersectionality. From getting the right to vote to head of the state, women achieved the status they derived through feminism. However, sometimes feminism is also misused. It is a fight against the patriarchal society which is still a problem for the section of women in many countries. Breaking gender stereotypes and instituting educational, political, social, financial, interpersonal rights with opportunities are the outcome of positive feminism.

Hate speech laws by country

Hate speech is one of the most notorious crimes, especially in multicultural countries. Such speeches have a tendency of spreading animosity amongst different sections of people. Such speech may have any ulterior motive or hidden agenda behind it. Usually characteristic such as race, political inclination, colour, sex, disability, religion, national origin or sexual orientation”. There are laws making such hate speeches a penal offence in most of the countries of the World.

Human Rights

These are inalienable basic fundamental rights “to which a person is entitled since his or her birth simply by the virtue of him or her being a human being” and their fundamental rights are natural in every human being no matter he is male, female, black, white, American, Asian, homosexual, heterosexual etc. All human beings are born free and equal in dignity and rights (UDHR, 1948)

Talking about the international framework, we have several conventions protecting the rights of vulnerable groups. Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination against Women, Convention for Refugees and Disabled are also in place as the international community wants to address the problem of multiple discriminations that these classes of people are usually subjected to. It is pertinent to mention Article 1 of The Convention on the Rights of Persons with Disabilities of the UN which provides that every person with a disability of any kind such as mental, physical, intellectual or sensory impairment have their human rights protected and have equal human rights and enjoyment thereof like anyone else. (UN, 2006)

Nonviolence

Non-violence is a personal practice. Practising violence always leads to unpleasant consequences which may alleviate the problems of discrimination and oppression. 

Racial integration

As the term itself suggests, it means integration of all the races in pursuit to achieve a common goal or fighting against a common enemy of the society. For example, integration of white and black people together to suppress crime in the society or with a goal to create a peaceful environment. 

A brief address to intersectional oppression in India 

Discrimination in India is a long-standing menace and a plethora of judgments have been passed, judicial precedents made and stringent laws enacted but still, the biggest democracy is fighting with this problem. In India, gender violence is often not only a gender-related crime but a combined effect of various other factors including caste, class and religion (Adrija Dey, 2016). The scope of Intersectional oppression has widened recently in the case of Patan Jamal Vali v. State of Andhra Pradesh, decided on 27.04.2021. However, it was recognised in the infamous Nirbhaya case as well which eventually led to the public movement compelling government to do some much needed punitive changes in form of The Criminal Law (Amendment) Act, 2013 also known as the Nirbhaya Act.

In Patan Jamal Vali v. State of Andhra Pradesh, a blind girl belonging to the scheduled caste was raped. If we read the preceding line again, we can emphasize three words clearly which are: blind (disability), girl (gender), Scheduled Caste (caste). These factors which work add-ons to the already oppressed class in our society makes them an easy target of heinous crime resulting in not only violating their human rights but also putting them in trauma, ultimately shaking the sense of safety and trust in society. While hearing this case, Justice Dr DY Chandrachud rightly observed that, in such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman (Bhardwaj, 2021). Hon’ble Justice emphasized an intersectional approach when oppression is caused by multiple factors instead of taking a single-axis model. Many of the statutes having provisions regarding discrimination or any such crime related to a specific class, caste, gender etc. However, the language used in the provisions is such that they restrict and limit the scope of exploring into the multi-dimensional approach. For example; Article 15 of the Indian constitution contains the words “on grounds only of” but it should be realised that the mere presence of the word “only” does not restrict the court to look into only one factor of oppression and suppression of others. A holistic approach should be made and strict precedent must be made for the safety of the vulnerable victims of intersectional oppression. India has taken steps towards addressing the issue of multiple discrimination and it would be more comprehensive if such oppression is widely interpreted under the non-discrimination provisions of the constitution and other statutes.

Conclusion 

Intersectional analysis may be informed by developments in critical race analysis, gender equality analysis, equality rights jurisprudence and disability rights analysis. These are few strategies which were made with a view to address the pigeonholes or say stereotypes and in addition, the unique experience about which we have discussed in the preceding points, based on the gender or the race or any kind of disability, their ethnicity or religious belief or even their sexual orientation (which is a major revolutionary factor in the present world’s context).

The intersection of factors like sex, disability, race etc. forms a unique blend of marginalised sections and such created section is vulnerable to oppression due to their socially handicapped character. Such unique minorities need to be identified and their problems in regards to oppression/discrimination, lack of equal opportunities in various spheres must be addressed.

There are government laws to curb discriminatory practices, however, the bigotry practices in a nation by politically influential groups and the social context and factors need to be addressed to control and eventually end the oppression suffered by the marginalised groups. The judicial approach towards the use of an intersectional lens to look into such cases where other factors also played an equal role rather than sticking to the limitations of the statute which limits the act of discrimination to a single and only factor is a much-welcomed step. More stringent and specific laws for dealing with such offences having prima facie application of the intersectional approach is the need of the hour. Awareness campaigns and voluntary measures should also be carried out to change the mindset of “conservative” people and in addition, these approaches can address social conditions such as poverty, homelessness etc. 

References


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