New Delhi: The gang-rape and subsequent death of a 19-year-old in Hathras, Uttar Pradesh has yet again highlighted the ignorance and denial of the intersection of caste and gender violence by some who are part of the Indian feminist movement.

When news of the incident first broke on 27 September 2020, there wasn’t much public outrage or media coverage. When some Dalit activists called it caste-based violence, news reporters were quick to comment, “But there was prior enmity between the families.” Or, “We have seen similar gruesome cases amongst upper caste women as well.”

On Twitter (here and here) some self-proclaimed feminists went on to say: “Let’s not reduce the heinous crime against the Hathras victim as a crime against a Dalit.”

What else is it, one may ask?

The increase in anti-Dalit violence in Uttar Pradesh over the past few years is not an unknown phenomenon. Newslaundry’s Nidhi Suresh pointed to what makes Hathras a classic example of a caste rape: a dominant caste (Thakur) wielding power over a vulnerable Dalit woman.

The victim’s brother described to Suresh in clear terms how the village still practises untouchability. Of the nearly 600 families in the village, half are Thakur, another 100 are Brahmin and only 15-odd families are Dalit, district officials told the Indian Express.

When Dalits go to a shop, the brother told Suresh, the shopkeeper sprinkles water on the money they pay, and if by mistake one of them touches a packet of biscuits, they must buy it and cannot return it. Such is Yogi Adityanath’s Uttar Pradesh (UP).

A feminist who views women as a homogenous group irrespective of caste, class or religion wouldn’t see any difference between Jyoti Singh Pandey, the 23-year-old gangrape victim in December 2012 and the Hathras teen.

However, there are stark differences between the two. In 2012, no one had come out openly in support of the rapists and the whole country stood together demanding justice for “India’s daughter”.

In the Hathras case, members of an organisation of upper caste men, the “Sarvana Parishad” visited the superintendent of police’s office in large numbers to show solidarity with the accused rapists. Despite photographic evidence on social media, UP officials called it fake news.

Is the Hathras victim not India’s daughter?

While the 23-year-old student Delhi gang-rape victim was flown to be treated at a multi-specialty facility in Singapore, the Hathras victim was not even provided an ambulance to take her to the local hospital. A grieving brother drove his paralyzed, injured sister to the hospital on a motorcycle. Even when they reached the hospital, her family had to beg doctors to attend to her as she lay in a general ward.

On 22 September, she was able to make a dying declaration stating that she had been raped when she had gone to gather fodder for her animals.

It is a well settled principle of criminal law that the testimony of a rape victim does not need corroboration and it alone can form the basis of conviction. In Moti Lal vs. State of Madhya Pradesh, the Supreme Court while dimissing the appeal and upholidng the conviction of the accused, categorically observed that a rape victim’s testimony can be accepted even if not corroborated independently. Yet, the police said there was no rape because of the absence of semen in the victim’s vaginal tract, even though the medic-legal examination report observed “penetration by penis”.

The Criminal Law (Amendment) Act of 2013 followed the public protest against the 2012 gang-rape and widened the definition of rape to include not just penile-vaginal penetration but penetration by any object into any orifice of the victim. It states that the crime of rape does not require ejaculation. Moreover, a rapist may wear a condom and a medical examination would thus not find the presence of semen in that case.

Taking the victim’s dying declaration along with the fact that the forensic report showed injuries, one cannot rule out rape as defined by a law that has now been in place for seven years. When determining whether rape was committed, courts look at the legal definition rather than the medical one. It follows that regardless of the finding in the forensic report, one cannot eliminate the possibility of rape conclusively. These are the basics of criminal law, which the police know but chose to overlook.

The 23-year-old student died as a hero, her death rightfully mourned by a nation. The Hathras teenager struggled for dignity even after death, denied the funeral rites that she and her family deserved.

Her whole life she suffered the perils of being a lower-caste Hindu. She was not able to complete more than a couple of years of formal schooling because the school was far away and there was no way her family could safely send her there. In death too she was stripped of the most basic human right, reduced to a corpse, disposed off hurriedly.

Sexual violence is used as a tool of oppression and revenge against women all over the country. But we must not be oblivious to the reality that women who come from oppressed communities are easier and more frequent targets.

Research shows that Dalit women are subjected to more severe or aggravated forms of sexual violence in comparison to upper caste females.

Consider the Khairlanji massacre of 2006 in Maharashtra, when four members of a scheduled-caste family were brutally murdered simply for having lodged a police complaint over a land dispute. Enraged, the accused, who were members of the politically dominant Kunbi caste, retaliated by attacking the women of the family, paraded them naked in public and sexually assaulted them before killing them.

The act wasn’t just another crime. It was meant to be a public spectacle, a lesson for the entire community. Many similar documented cases reveal a pattern of impunity in attacks on Dalit women.

“Those who are surprised by the way #Hathras case is handled, note that in my 11 years of experience as a lawyer I have protested in police stations to register atrocity cases,” tweeted lawyer Kiruba Munuswamy. “Every single case is dealt like this.”

No State For Women

UP tops the charts on many fronts—highest number of crimes against women and scheduled castes, highest number of crimes against girls under Prevention of Children from Sexual Offences (POCSO) Act, highest number of dowry cases and acid attacks.

Crimes against women in the state have increased from 56,011 in 2017, 59,445 in 2018 to 59,853 in 2019. As per National Crimes Record Bureau (NCRB) data, 3,131 rapes were reported in the state in 2019 alone—under nine a day—of which 2,859 involved women aged 18 years and above, and 272 cases involved girls below 18 years.

The state government has done little to check the soaring crime rate. 17,274 cases of crime against women are pending investigation since 2018. UP also happens to be the state where the highest number of cases of crime against women have been quashed in the investigation stage. In 2019, as many as 263 women’s crime-related cases were quashed by the UP police in the investigative stage itself. The NCRB report has not cited any reason for this.

In August 2019, UP Director General of Police O P Singh issued a circular saying crimes against women were not being properly registered and investigated by police in certain districts. It was, he said, “unexpected and unacceptable”.

However, if the Hathras case is any indication, not much has changed since.

The state machinery seems to be working against the victim and her family: cremating the victim’s body at 2:30 am without the presence or consent of the family. A leaked video shows UP officials apparently pressuring the family to retract their statements, and, for the first few days after the cremation with a police blockade around Hathras, the family was denied access to lawyers and media.

The NCRB’s 'Crime in India' report also indicates that UP in 2019 had the highest number of cases related to crimes against women that were found to be true (11,748) but had to be dropped due to insufficient evidence.

Those meant to protect victims are themselves not free from social biases and the hierarchies of caste. Caste prejudice plays an important role as most policemen in UP belong to intermediate castes.

A September 2020 report by the Commonwealth Human Rights Initiative and the Association for Advocacy and Legal Initiatives titled “Barriers in Accessing Justice” released on 29 September looked at 14 cases in UP where police refused or failed to register complaints of sexual assault survivors.

The report revealed that Dalit survivors of sexual violence face discrimination on the basis of caste in addition to gender. It was also found that caste discrimination was rampant across police stations in UP and that the caste of the complainant impacts the decision-making of police officers with respect to registration of FIRs.

Courts, Politics And Society

Caste prejudice exists across the spectrum—in law enforcement, judiciary, politics, the media and beyond.

The process of seeking justice itself leads to further harassment of Dalit women. Since the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, makes no provision for anticipatory bail, mandates fast-track investigation and chargesheet to be filed within 60 days, police are typically reluctant to register FIRs under the Act.

This is also why assaults on lower caste women are rarely registered or prosecuted. Even where cases are registered, the conviction rate is abysmal. As per NCRB’s 2019 report, as many as 1,55,371 cases of crime against women are pending trial since over a year in UP alone.

The courts have also often set aside convictions under the SC/ST Act on the ground that it could not be proved that rape was committed simply because the victim was Dalit. Rather than taking a more liberal approach in protecting the rights of SC/STs, courts have imposed the undue burden of proving intent on the victim.

Courts lack sensitivity when dealing with cases of atrocities against Dalit women.

The trial judge in Rajasthan hearing the rape case of Bhanwari Devi, a saathin, or social worker, from the Kumhar community, ruled that the accused could not have committed the rape as “rape is usually committed by teenagers and since the accused were middle-aged and therefore respectable, they could not have committed the crime. An upper-caste man could not have defiled himself by raping a lower-caste woman.” Besides, throughout the process, the rape accused in Bhanwari Devi’s case enjoyed massive political support and BJP’s Kanhaiya Lal Meena even organized a rally in their support.

Similarly, in the Khairlanji case, the trial court set aside the rape charges and denied that the murders were motivated by caste prejudices. At the time, the then state home minister, R. R. Patil had also attempted to protect the criminals and allegations of bribery were made against doctors who performed the post-mortem.

Ruth Manorama, a social activist, during a lecture rightly characterised Dalit women as being “Dalit among Dalits because they are thrice alienated—on the basis of caste, class and gender”.

In a world where every piece of evidence is coloured, at best, and coerced, at worst, and words of “justice” remain just words, it is time for the feminist movement to recognise that caste is relevant to the fight for women’s rights.

(Mani Chander is a lawyer based in New Delhi.)

Previously on Article 14: The Creation of a Vigilante State in Uttar Pradesh