Intersectionality, and a Person in Two Groups

In one line

Intersectionality is the recognition that a person belonging to two or more disadvantaged groups suffers a disadvantage different in kind, not merely greater in degree, and that Indian law, which protects groups one at a time, has no forum and no statute that addresses the combination.

The idea

Indian law identifies a group and then protects it. Article 15(4) protects socially and educationally backward classes, the Scheduled Castes and the Scheduled Tribes. Article 15(3) permits special provision for women and children. The 2016 legislation protects persons with disabilities. The 1992 legislation protects notified minorities.

Each of those categories is treated as though it were a single axis. The person is either a woman or not, either a Scheduled Caste member or not, either disabled or not.

But real disadvantage is not experienced one axis at a time.

Take the standard example. A Dalit woman working as a manual labourer in a village, with a visual impairment. She is:

Within the Scheduled Castes, so within article 17, article 46, article 338, the atrocities legislation and the reservation scheme.

A woman, so within article 15(3), the 1990 legislation and the workplace harassment framework.

A person with a disability, so within the 2016 legislation.

An unorganised worker, so within the 2008 legislation.

Four categories, four commissions, four statutes, and no forum with jurisdiction over the intersection.

Why the intersection is different in kind

Three reasons, and this is where the argument is made.

One: the harm has a specific content. The atrocities legislation contains offences framed for the caste dimension. The workplace framework addresses the gender dimension. Neither addresses a caste-specific sexual offence against a woman with a disability whose evidence the system will find hard to take. The 2018 amendments to the atrocities legislation and the disability provisions on access to justice each address a piece, and the piece each addresses is not the intersection.

Two: the remedies conflict in their conditions. A benefit conditioned on caste requires a caste certificate. A benefit conditioned on disability requires a disability certificate under section 58 of the 2016 legislation. A benefit conditioned on being an unorganised worker requires registration under the 2008 legislation. Each certificate is issued by a different authority on different evidence, and the compounding effect of three separate certification processes on one person is itself a barrier.

Three: the commissions have no jurisdiction over each other's subject. The women's Commission may look into a matter relating to women; the Scheduled Castes Commission into a matter relating to the Scheduled Castes; the Chief Commissioner into a matter under the 2016 Act. A complaint about the intersection is either split three ways or falls between them, and no statute permits a joint reference.