Demarginalizing the intersection of caste, class, and sex

Abstract

This article examines two decisions of the Supreme Court of India: Vishaka v. State of Rajasthan, which formulated a set of directives for the prevention of sexual harassment of women at workplaces; and the National Legal Services Authority v. Union of India, which recognized “third gender” persons and directed the state to provide them with affirmative action. Within a wider application of human rights and fundamental rights that are guaranteed in the Constitution of India, both these court decisions relied on a nondiscrimination category of sex. This article recovers the underpinnings of caste and class that are latent, obscure, and omitted in these decisions. The conceptual framework of “intersectionality” is useful in making this recovery, and for showing the application of intersectional approaches toward more transformative formulations of law reform and judicial outcomes.

Acknowledgments

The author is grateful for the research assistance provided by Jwalika Balaji and for all comments and inputs received from the editorial team, two anonymized reviewers, and guest editors Dipika Jain and Debanuj Dasgupta. The author is responsible for all errors and omissions.

Notes

1 Vishaka (1997) is contiguous in this sequence of the emerging discourse on sexual harassment in the United States. Consider this chronological arrangement: First there was the Equal Employment Opportunity Commission’s “Guidelines on Discrimination Because of Sex,” 29 C.F.R. ch. XIV 1980; then there was Meritor Sav. Bank, FSB v. Vinson (1986), Harris v. Forklift Systems, Inc. (1993), McWilliams v. Fairfax County Board of Supervisors (1996), Wrightson v. Pizza Hut of America (1996), Doe by Doe v. City of Belleville (1997), Faragher v. City of Boca Raton (1998), Burlington Industries v. Ellerth (1998), and Oncale v. Sundowner Offshore Services (1998)—as discussed by Eskridge and Hunter (2011: 645–646).

2 “Transgender persons in India were counted for the first time in the 2011 census. The census had a category ‘other’ than male and female. In principle, this category could have included all those who are ‘other’ than male or female, including indigenous gender transgressive persons like Hijra [etc.]. The census found that there are almost half a million of this ‘other’ population; of these, more than 16 percent (78,811) are SC and about 7 percent (33,293) are ST. In other words, almost one quarter (23 percent) of this ‘other’ category are SC and ST” (Baudh 2017: 229).

3 The Supreme Court concluded that, “it [is] amply clear that a caste is nothing but a social class—a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy” (Indra Sawhney 1992: Para. 82).

4 “Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste” (Ram Singh 2015: Para. 54).

5 Within the application of liberty clauses, the court recognizes and applies the right to freedom of speech and expression guaranteed in Article 19 (1) (a); and also recognizes the self-determination of gender as an integral part of personal autonomy and self-expression within the realm of personal liberty, as guaranteed under Article 21 of the Constitution of India.

6 Foregrounding of caste in the Constitution of India (since 1950) includes an explicit prohibition of discrimination based on caste in Article 15, affirmative action provisions for reservations based on caste in Article 16, and the abolition of caste-based untouchability in Article 17. In addition to these Constitutional protections, there are many statutory protections that are based on caste, such as the Protection of Civil Rights Act, 1955.

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Sumit Baudh

Sumit Baudh is associate professor and executive director of the Centre on Public Law and Jurisprudence at O. P. Jindal Global University in Sonipat, Haryana, India. A recipient of multiple awards—including a University of California Human Rights Fellowship, a Michael D. Palm Fellowship of the Williams Institute (UCLA School of Law), the Center for Intersectionality and Social Policy Fellowship (Columbia Law School)—he has also served as an independent consultant widely, including for the Arcus Foundation, UNDP India, Commonwealth Human Rights Initiative, and LLH Norway.