Role of Courts in Gender and Caste violence.

Caste in Indian society is a material reality which, aligned with gender creates a discourse where dominating or upper caste gets an impunity to commit to violence against oppressed caste especially women. In this paper I will discuss how caste is used as a kind of sexual violence against woman from lower starta or oppressed caste. The response of society and state is also aligned with the discourse of upper caste where accused (from dominating caste) of sexual violence are presented as innocent, frivolously implicated by an Dalit caste woman. Judiciary which is considered as impartial and the custodian of the Constitution, modern democratic values and rights of all citizens of India is not free from patriarchal values. The courts have reflected biases against the oppressed caste. I will refer to the cases of Phulsing, Bhanwari Devi, Khairlanjee.

The Prevention of Atrocities Act 1989 and rules of 1995 were meant to provide protection TO scheduled caste and scheduled Tribes from any kind of violence and atrocities but interpretation of CourtS has not been very appreciative. The judicial pronouncement in the following cases has been very disappointing and disturbing. The court has acquitted the accused from the charges of using caste slur,abuse and causing insult to individuals of scheduled caste and scheduled Tribes.

In Infamous case of Phulsing vs State of Madhya Pradesh accused used the remarks, “Chamra Bhonsdike Jagah chod dena nahi to goli maar doonga”9 “you chamar, ****** leave the place otherwise I will shoot you dead” (Shukla 4412). The FIR was registered against the accused, but the accused continued to use his caste impunity against the complainant. He threatened the wife of complainant in other incident where he said, “Yahan se chamriya nikli to lat marenge, tere bap ka rasta nahi nahin” (“you chamariya, if you pass this way will kick you, it is not your father’s road”)” (Shukla 4412). The other separate FIR got registered under the POA. 

High court acquitted the accused Phulsing from both FIRs. The test created by the Madhya Pradesh High Court in case of Phulsing vs State of Madhya Pradesh 1991 appears as a clear bias to protect the accused who are from the upper caste.the court said that if the parties involved have other issues then use of a slur or abuse would not mean an atrocity under the POA act.

Using violence or sexualisation of the bodies of women from the lower strata of society has a long cultural and historical background. Local phrases are popular everywhere among upper caste men to abuse and mutilate the bodies of women from the oppressed caste. “For instance, one particular phrase among the men from Jat caste says that “you have not really experienced the land until you have experienced the dalit women” (Khan, 2014). In Uttar Pradesh the phrase, “a man is not satisfied until he has devoured goat’s milk and a Chamar woman’s body”[3] is commonly used among dominant and upper caste men. These phrases bring forth the nature of authority which dominant/upper caste men exercise over the bodies of Dalit women and the level of impunity they enjoy even after committing caste atrocities of a sexual nature against dalit women” (Patil 62).

In unfortunate case of Bhanwari Devi who was working as frontline worker for Rajasthan government’s women development project. she was oposing the child marriage in the village. Her rape was a correctional rape to teach her a lesson. She was a middle aged woman of lower caste  who was raped by the upper caste member of the village one of whom was a Brahmin. The trial court acquitted all five accuse of RIP by saying that Bhanwari Devi is from lower caste and accuse or from the upper caste and they cannot rape her as it is very low to their standards. As Bhanwari Devi is a middle-aged woman and had a bad character she cannot be raped. 

“The judgement refers to Bhanwari Devi’s status as a ‘lower caste woman’ to prove that she automatically becomes a ‘non-rapeable’ entity for the upper-caste male” (Patil 65). The court which is supposed to be the guardian of the Constitution and the rights of the citizens treated Bhanwari Devi as a woman who is from lower caste. The court kept the institution of patriarchy and family intact as it stated that uncle can not watch his nephew raping a middle-aged woman. Therefore rape has not been committed.

Since 2014 the Wikipedia entry on Bhawani Devi was like this, “The ‘Summary of evidence’ section, which lacks citation, is described as confirming ­the­ claim­ of­ Bhateri ­villagers ­that­ Bhanwari­ was ­a­ “village ­slut”, ­“a­ professional prostitute who felt cheated by life and exploited by men”, it being “easiest for her to claim that she was raped” (Sarkar 174). Wikipedia used multiple wrong entries from Indian Express, Tehelka and other sources like EPW which were completely distorted. It created a sympathy towards the acusseds  and disproportionately highlighted the infamous part of the verdict of trial court in which it stated that accuseds were from the upper caste and rape was not committed. The case of Bhanwari Devi led to the Vishakha guidelines and protection of women from sexual harassment at workplace especially in the rural area but there is no justice for Bhanwari Devi who said that, “Only justice can fill my belly not awards” (MURTHY 17).

The role of police and administration was as similar as it would be in racialized discourse of caste and gender based structure of hierarchies where the dominating caste has the cultural license to kill, crush and mutilate the bodies of Dalits. Police delayed to register FIR, nobody from the village testify the occurrence of sexual assault, the viscera samples of postmortem were not collected. The post-mortem was performed by an unprofessional apprentice which further led to destruction of evidence. My argument is that this is not a single case intentionally done but it is a part of larger structural violence discourse aligned with caste and patriarchy.

In 2008 the special court convicted eight men for committing the massacre. Six were given death sentences and two were given life imprisonment not less than 25 years. The police found the naked bodies but court concluded that the offence of murder outraging the modesty of a woman is not committed. The provisions of POA act was also not applied as the court said that it was not a premeditated act to commit massacre. The High court further reduced the death sentence of 6 to life imprisonment of 25 years. “Pratiksha Baxi (2014) poignantly notes that even though the law has the monopoly to punish crime, it does not displace the monopoly of the dominant caste to rape, parade and kill Dalit women; secondly by not naming Khairlanji as a caste atrocity the judgement reiterates the fact that crime will be punished, but the caste hegemony will not be challenged. The Khairlanji verdict thus dealt a severe blow to the idea of social justice.” (Patil 66).

“In cases where rapes were committed the police and judiciary were of the view that either the rape was not committed (Bhanwari Devi & Khairlanji) or that it was not a rape but a consensual act (e.g. Lalasa Devi).…..In the case of Dalit women, the police suspect the complainant is trying to misuse the POA Act to incriminate and defame the innocent dominant/upper-caste man” (Patil 67). Hence my argument is that sexual violence against women from lower strata of society especially Dalit and lower caste woman is highly motivated by the caste of that woman and higher and lower judiciary is complicit in the discourse which provide impunity to the accused.

Chawla, S. “Phulsingh vs State Of Madhya Pradesh on 16 February, 1991.” Indian Kanoon, https://indiankanoon.org/doc/994519/. Accessed 2 April 2022.

MURTHY, LAXMI. “From Mathura to Bhanwari.” Economic and Political Weekly, vol. 48, no. 23 (JUNE 8, 2013), 2013, pp. 16-18.

Pandey, Anubhav. “Case Analysis – Tukaram and Another v. State of Maharashtra (Mathura Rape Case).” iPleaders, 19 April 2018, https://blog.ipleaders.in/case-analysis-tukaram-and-another-v-state-of-maharashtra-mathura-rape-case/. Accessed 2 April 2022.

Patil, Prachi. “Understanding sexual violence as a form of caste violence.” Journal of Social Inclusion, vol. 7, no. 1, 2016, pp. 59-71.

Sarkar, Urvashi. “Wikipedia, Bhanwari Devi and the Need for an Alert Feminist Public.” Digital Activism in Asia Reader, edited by Sumandro Chattapadhyay, et al., Meson Press, 2015.

Shukla, Rakesh. “Judicial Pronouncements and Caste.” Economic and Political Weekly, vol. 41, no. 42 (Oct. 21-27, 2006), 2006, pp. 4411-4414.