INTERSECTIONALITY OF RIGHTS: EXPANDING CONTITUTIONAL PROTECTIONS

INTERSECTIONALITY OF RIGHTS: EXPANDING CONTITUTIONAL PROTECTIONS

 This Article is written by:- SHASHANK PANDEY & JIA SHUKLA, ISWAR SARAN DEGREE COLLEGE (A Constituent PG college of University of Allahabad).

ABSTRACT

The concept of intersectionality of rights is a fundamental consideration to be taken while framing any laws for curbing discrimination in a society. Here in this article, we discuss intersectionality of rights and its role in the promotion of social justice, particularly in the Indian society. We explore ‘intersectionality’ as a critical concept which explains how different social identities—such as caste, gender, race, religion, disability, and class—overlap to create unique experiences of discrimination and affect marginalized communities in ways that are often excluded from the remedial methods of social injustice. Intersectionality of rights is vital to address the multiple layers of marginalization especially in a society as diverse as India.

We explore the existing constitutional provisions and any inefficacy they might have in their implementation, providing an insight into the various forms of discrimination that, in hindsight have surfaced, and are yet to be included, and suggesting measures to expand constitutional protections to promote social justice.

INTERSECTIONALITY OF RIGHTS: EXPANDING CONTITUTIONAL PROTECTIONS

A right is a legal, moral, or societal entitlement or claim that individuals or groups have, which allows them to act in certain ways or to be treated in specific manners. It represents the privileges or freedoms granted to people, typically protected by laws, rules, or ethical principles. Rights ensure that individuals can pursue their interests, well-being, and dignity within a society. They are fundamental to maintaining fairness, justice, and equality. One thing about rights is that they are not isolated. They work in cohesion with one another. They are neither unrestricted, nor exclusive. They intersect and overlap in many ways. Several instances which come before us make us realise that rights are prone to coming in conflict with one another.

The concept of intersectionality of rights recognizes that individual experiences of marginalization and oppression cannot be reduced to a single axis of identity, such as race, gender, or class. Rather, intersectionality acknowledges that individuals possess multiple, intersecting identities that interact to produce unique experiences of discrimination, exclusion, and privilege. This nuanced understanding of rights highlights the need for a more holistic and contextual approach to addressing social injustices, one that takes into account the complex interplay between different forms of oppression and recognizes the diverse experiences of marginalized communities. By examining the intersectionality of rights, we can better understand how power dynamics operate in society, and work towards creating a more inclusive and equitable framework for the protection and promotion of human rights.

Origin, Meaning and Definition:

Intersectionality is a critical concept that explains how different social identities—such as caste, gender, race, religion, disability, and class—overlap to create unique experiences of discrimination. The term was first introduced by Kimberlé Crenshaw in 1989 to critique how legal and feminist movements often ignored the multiple dimensions of oppression faced by marginalized individuals. Since then, intersectionality has evolved into an essential framework for analyzing social justice, discrimination law, and policy reforms worldwide. This discussion explores the origins of intersectionality, tracing its roots from early feminist and civil rights movements to its application in legal systems, particularly in India and other global contexts.[1]

Crenshaw introduced the term 'intersectionality' to highlight how several facets of discrimination may overlap, putting a completely new form of effect on marginalised communities. Her works became the basis for many reforms in the legal frameworks thereon in the US.

Definition:

"Intersectionality is a way of understanding how different forms of oppression intersect and compound, creating unique experiences of marginalisation and exclusion."[2]  -Nivedita Menon

“Intersectionality is a critical perspective that recognizes the multiple and intersecting forms of oppression that individuals and groups face, including caste, class, gender, and disability.”[3]    -Kalpana Kannabiran

Indian Purview: Need for Expanding Constitutional Protections

India a country holding diverse nature as its attribute, the discriminative aspect of people living here is as diverse as mentioned latter. Indian laws address caste, gender, religion and disability separately but do not explicitly recognise intersectional discrimination. Intersectionality of rights is vital for the promotion of social justice for individuals facing multi-faceted marginalisation.

The multiple forms of oppression can't be recognised without including intersectionality. A person may experience oppression in layers, i.e., several types of oppression such as caste, class, gender and disability, simultaneously. Currently, all discrimination remedies focus on a single basis for discrimination, ignoring persons with intersecting identities that may face compound marginalisation. 

India’s constitutional framework, particularly Articles 14, 15, 16, and 21, guarantees equality and protection against discrimination. However, the application of these provisions often follows a single-axis approach, meaning that courts and laws address one form of discrimination at a time (e.g., caste OR gender OR religion) rather than acknowledging how multiple identity factors combine to create unique disadvantages. Intersectionality provides a framework for recognizing overlapping forms of discrimination. In India, where caste, gender, religion, disability, and economic class deeply shape social experiences, an intersectional approach is essential for ensuring more inclusive legal protections. Intersectionality is necessary for expanding constitutional provisions and making India’s legal system more effective in addressing multi-layered discrimination.[4]

(a) Article 14: Equality Before Law (Fails to Recognize Overlapping Discrimination)

Article 14 (“the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”)[5] guarantees equality before the law, but courts often interpret it in generalized terms, without recognizing how multiple social identities combine to create deeper inequality.

Example: A Dalit Muslim woman may face discrimination based on caste, religion, and gender simultaneously, but legal remedies usually address only one factor at a time, leading to incomplete justice.

(b) Article 15: Prohibition of Discrimination (Single-Axis Interpretation)

Article 15(1) (“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.)[6] prohibits discrimination based on religion, race, caste, sex, or place of birth. However, courts often examine these categories separately, rather than considering how they intersect.

Example: A Dalit woman may experience both caste-based and gender-based discrimination, but courts may only address it as either caste discrimination or gender discrimination, not both.

(c) Article 16: Reservation Policies (Fail to Address Intersectional Marginalization)

Article 16 (“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”)[7] provides for affirmative action (reservations) in public employment, primarily based on caste and economic status. However, no specific reservations exist for Dalit women, disabled Dalit persons, or lower-class Muslims—despite their unique intersectional disadvantages.

Example: A Dalit transgender person faces caste, gender identity, and social stigma, but there is no legal framework recognizing their triple vulnerability in reservation policies.

(d) Article 21: Right to Life and Dignity (Ignores Social Contexts)

Article 21 (“No person shall be deprived of his life or personal liberty except according to procedure established by law.”)[8] guarantees the right to life and dignity, but courts often apply it without considering the intersectional realities of marginalized communities.

Example: Honor killings often target Dalit women who marry outside their caste—a crime rooted in both caste and gender-based oppression. However, courts typically frame honor killings as a gender issue, ignoring the caste-based motivations behind such crimes. Intersectionality of rights is the most essential fact to consider when developing legal frameworks against discrimination. The various phenomena that become easily included with the approach of intersectionality are: - 

• referral to members of Intersectional social categories
• inclusion of forms of forms of oppression faced by members of such categories, and
• the experiences of members of such categories.

Various Aspects of Intersectionality

1. Caste and Class

In India, the caste system remains a critical lens for understanding intersectionality. People from lower castes, particularly Dalits (previously referred to as "Untouchables"), experience multiple forms of discrimination based on caste, which intersects with class, gender, and religion.

• Dalit Women: Dalit women, for example, face a compounded discrimination due to their caste and gender. They experience both caste-based and gender-based violence, often in forms that are harsher than those faced by men of their caste or women from higher castes.
• Economic Status: The intersection of caste and class can further marginalize Dalits, as many are also economically disadvantaged and face challenges in accessing education, healthcare, and jobs, which exacerbates their social exclusion.

 2. Gender and Sexuality

Gender and sexuality in India are shaped by deep-rooted traditional norms and patriarchal structures. Women and LGBTQ+ individuals face significant discrimination, but this oppression is magnified when combined with other factors like caste, class, and religion.

• Women in Rural vs. Urban Areas: Women in rural areas or those from lower socio-economic backgrounds often have less access to education, healthcare, and employment opportunities compared to women from more privileged urban backgrounds.
• Transgender and Non-Binary Communities: The LGBTQ+ community, particularly transgender individuals, face discrimination that is compounded by their caste, class, and even religion. Many trans people, especially from Dalit or Muslim communities, face severe stigma and violence and have limited access to resources.

3. Religion and Identity

• Religious identity plays a pivotal role in the Indian social fabric, with Hinduism being the majority religion. However, India is also home to diverse religious communities, including Muslims, Sikhs, Christians, Buddhists, and others. The intersection of religion with caste, gender, and class can result in different forms of marginalization.

• Muslim Women: Muslim women, for instance, face oppression both as women in a patriarchal society and as Muslims in a largely Hindu-majority country. They are often subjected to social exclusion and state policies that disproportionately target their community, such as the Citizenship Amendment Act (CAA) or the National Register of Citizens (NRC).
• Religious Minorities and Caste: In India, caste-based oppression exists not only in Hinduism but also among other religious minorities. For example, Dalits in the Sikh or Christian communities often experience caste-based discrimination similar to that experienced by Hindus.

 4. Disability and Social Exclusion

People with disabilities in India face discrimination that intersects with caste, class, gender, and religion. The societal marginalization of people with disabilities is compounded by physical inaccessibility, lack of adequate healthcare, and widespread prejudice.

• Women with Disabilities: Women with disabilities face double discrimination — one due to their gender and another due to their disability. This often leads to higher rates of abuse, limited social mobility, and restricted access to education and employment.
• Caste and Disability: Dalits with disabilities experience an additional layer of marginalization, as they are excluded both on the basis of their caste and their disability.

 5. Urban vs. Rural Divide

In India, there is a significant disparity between urban and rural areas, and this divide intersects with caste, class, gender, and education. Rural women, for example, are often more disadvantaged compared to their urban counterparts due to limited access to resources and opportunities. Rural Poor Women: These women face systemic disadvantages, including a lack of healthcare, poor educational facilities, and limited employment options, which is compounded by caste-based discrimination and patriarchal norms.

6. Access to Education and Healthcare

Access to education and healthcare in India is deeply stratified along caste, class, and gender lines. For instance, women from rural, lower-caste, or religious minority backgrounds often face difficulties in accessing quality education and healthcare services.

• Health Disparities: Dalit and Adivasi women face significant barriers in accessing healthcare, which is worsened by social taboos, caste-based discrimination, and inadequate infrastructure in rural areas.
• Educational Inequality: Students from marginalized communities, particularly Dalits and Muslims, often experience discrimination in schools and universities, which hinders their educational progress and upward mobility.

 7. State Policies and Legal Frameworks

In India, state policies often fail to address the intersectional needs of marginalized communities. While the Indian Constitution guarantees equality, discrimination persists due to the lack of nuanced policies that consider the overlapping identities of individuals.

• Reservation Policies: India’s affirmative action policies, such as reservations (quotas) in education and government jobs for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs), are a step toward addressing social inequalities, but these policies often fail to address intersectionality in a meaningful way. For example, a Dalit woman may not benefit from such policies as much as a Dalit man, due to gender-based barriers.
• Legal Protections: Though laws exist to protect against discrimination, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the Rights of Persons with Disabilities Act, implementation remains a challenge, and legal recourse may not be accessible to those at the intersections of multiple marginalized identities.

Intersectionality in India: Case laws

(a) Bhanwari Devi Case (1992) & Vishaka Guidelines (1997)

Bhanwari Devi, a Dalit woman social worker, was gang-raped by upper-caste men in Rajasthan when she tried to stop a child marriage. The local police and courts dismissed her complaint, showing both caste and gender bias. The Supreme Court issued the Vishaka Guidelines for workplace sexual harassment, leading to the POSH Act (2013). However, the judgment failed to address caste-based sexual violence, treating it only as a gender issue. [9]

Intersectionality Needed: Legal protections against sexual violence must acknowledge caste hierarchies to ensure Dalit and Adivasi women receive justice.

(b) NALSA v. Union of India (2014) – Transgender Rights

The Supreme Court recognized the rights of transgender individuals and granted them OBC (Other Backward Class) status for reservations. The ruling did not consider caste-based discrimination within the transgender community. Dalit and Adivasi transgender persons experience both caste and gender identity-based oppression, but the judgment failed to address how caste affects transgender people differently.[10]

Intersectionality Needed: Future legal reforms must include specific protections and reservations for Dalit and Adivasi transgender individuals.

(c) Shayara Bano v. Union of India (2017) – Triple Talaq Case

The Supreme Court struck down Triple Talaq, calling it unconstitutional. The court treated it only as a religious issue, without acknowledging the economic and social marginalization of Muslim women. Muslim women not only face gender-based oppression but also religious discrimination in access to jobs, education, and legal representation.[11]

Intersectionality Needed: The judgment should have included measures to economically uplift Muslim women, ensuring real social empowerment.

India’s constitutional provisions were designed for equality, but fail to address multi-layered oppression. Expanding legal frameworks to recognize intersectionality will ensure justice for the most vulnerable groups. Courts, policymakers, and legal scholars must push for intersectional jurisprudence to create a truly inclusive legal system. Intersectionality is not just an academic concept-it is a necessary legal tool to ensure that India’s constitutional protections evolve to meet the needs of its diverse, marginalised communities. 

Single-Axis Interpretation in India: Limitations in Legal Frameworks

India’s legal system primarily follows a single-axis interpretation of discrimination, meaning that courts and policies address one identity factor at a time (e.g., caste or gender or religion) instead of recognising how multiple factors combine to create unique experiences of oppression. This approach limits the effectiveness of constitutional protections under Articles 14, 15, and 16.

A single-axis approach means treating discrimination as arising from only one category (e.g., caste alone, gender alone). It fails to acknowledge overlapping oppressions (e.g., how Dalit women experience both caste and gender-based violence differently from upper-caste women or Dalit men).

 Caste and Gender-Based Violence Treated Separately:

• SC/ST (Prevention of Atrocities) Act protects against caste-based crimes, but does not focus on sexual violence against Dalit women.
• POSH Act (Sexual Harassment Law) protects women at the workplace but does not account for how Dalit women face both caste and gender-based harassment.

Positive Approaches

In cases of intersectionality, the Indian judiciary has employed various approaches to interpret constitutional provisions. Here are some key trends:

Approaches to Intersectionality

1. Intersectional Analysis: The judiciary has started to recognize the importance of intersectional analysis in understanding the experiences of marginalized groups. (e.g., Vishaka v. State of Rajasthan, 1997)

2. Contextual Interpretation: The judiciary has interpreted constitutional provisions in the context of the specific experiences of marginalized groups. (e.g., Danial Latifi v. Union of India, 2001)

3. Purposive Interpretation: The judiciary has interpreted constitutional provisions to achieve their purpose and objectives, taking into account the experiences of marginalized groups. (e.g., National Legal Services Authority v. Union of India, 2014)

Key Cases

1. Vishaka v. State of Rajasthan (1997): A landmark case, it dealt with the issue of sexual harassment at workplaces, in which the Supreme Court recognised the importance of intersectional analysis in understanding the experiences of women, particularly those from marginalized communities in recognising how structural factors such as caste, class and socio-economic background intensify gender-based discrimination.

2. Danial Latifi v. Union of India (2001): The Supreme Court interpreted the Constitution to protect the rights of Muslim women, taking into account the intersections of gender, religion, and personal law.[12]

3. National Legal Services Authority v. Union of India (2014): The Supreme Court recognized the rights of transgender persons, taking into account the intersections of gender, identity, and expression.[13]

Challenges and Limitations

1. Limited Understanding of Intersectionality: The judiciary's understanding of intersectionality is still evolving, and there is a need for greater awareness and training.

2. Inconsistent Application: The judiciary's application of intersectionality has been inconsistent, with some cases demonstrating a nuanced understanding of intersectionality, while others neglect its importance.

3. Patriarchal and Caste-Based Biases: The judiciary has been criticized for perpetuating patriarchal and caste-based biases, which can limit its ability to apply intersectionality effectively.

Avenues for further explorations 

1. Increased Training and Awareness: There is a need for increased training and awareness on intersectionality among judges, lawyers, and other stakeholders in the justice system.

2. Development of Intersectional Jurisprudence: The judiciary should strive to develop a more nuanced and consistent intersectional jurisprudence, taking into account the experiences of marginalized groups.

3. Greater Representation and Participation: There is a need for greater representation and participation of marginalized groups in the justice system, to ensure that their experiences and perspectives are taken into account.

Challenges in Implementing Intersectionality

Due to the complex socio-political and cultural landscape of the country we face several challenges in implementing intersectionality. Some of these are:

1. Diversity and Complexity of Identities: India is a highly diverse country with a multitude of ethnic, religious, caste, gender, and regional identities. Intersectionality emphasizes the overlapping of these identities and how they affect individuals' experiences of oppression or privilege. Indian laws often address each aspect of identity in isolation (e.g., gender, caste, or religion), making it difficult to recognize and address the nuanced ways in which multiple factors combine to affect individuals' lives.

2. Caste-Based Discrimination: While the Constitution of India prohibits caste-based discrimination, caste continues to be a significant factor in social and economic stratification. Intersectionality would require an understanding of how caste intersects with other factors like gender, religion, or class to create compounded forms of discrimination. However, addressing caste-based discrimination in legal frameworks remains challenging due to entrenched social norms and resistance to acknowledging caste-based oppression in various spheres.

3. Limited Legal Provisions for Marginalized Groups: Indian laws, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, provide protections for certain marginalized groups. However, laws often focus on one axis of oppression at a time. For example, legal provisions for women might not fully address the compounded marginalization faced by Dalit women or Muslim women. There is a lack of comprehensive legal provisions that recognize the interplay of multiple forms of discrimination.

4. Lack of Legal Recognition of Multiple Identities: Indian law tends to categorize people into discrete groups, such as caste, religion, or gender. The intersectional perspective, which sees individuals as having multiple overlapping identities, is not fully reflected in Indian laws. This can lead to a lack of nuanced legal responses to the lived realities of people who do not fit neatly into one category.

5. Sociocultural Resistance: Indian society is often resistant to change, especially in rural areas where traditional gender norms, caste hierarchies, and religious practices are deeply entrenched. This resistance complicates the implementation of laws that embrace intersectionality. For example, even though there are laws protecting women, in practice, many women, particularly from marginalized communities, face barriers in accessing justice.[14]

6. Inadequate Data and Research: To effectively implement intersectionality, there is a need for data that reflects how different forms of discrimination interact. However, there is a lack of comprehensive, intersectional data collection in India, which makes it difficult to design policies and legal interventions that address these overlapping issues.

7. Judicial Interpretation: The judiciary in India often interprets laws through a more traditional lens, focusing on a single axis of identity (such as gender or caste) rather than considering multiple intersecting identities. The limited use of intersectional frameworks by the judiciary could prevent laws from fully addressing the complexities of discrimination that marginalized individuals face.

8. Awareness and Capacity Building: Intersectionality is a relatively new concept in the Indian legal context. There is a lack of awareness and training among legal professionals, lawmakers, and even the general public regarding the importance of considering multiple identities when addressing discrimination. Implementing intersectionality would require significant efforts in capacity building and education across various sectors of society.

In conclusion, while India has made strides in protecting the rights of various marginalized groups, the challenge of implementing intersectionality in laws lies in the inability to fully address the multiple factors that affect individuals' lives, often due to legal, social, and cultural barriers.

Expanding Constitutional Provisions: Recommendations

(a) Expanding Article 15 to Recognize Multi-Layered Discrimination Courts should explicitly acknowledge cases where multiple forms of discrimination overlap (e.g., caste + gender + religion). Solution: Introduce “intersectional discrimination” as a legal category in anti-discrimination laws.

(b) Expanding Reservations Under Article 16 to Account for Intersectionality Create special quotas for marginalized sub-groups, such as:

• Dalit transgender persons.
• Disabled Dalit women.
• Muslim women from economically backward backgrounds.

(c) Strengthening Article 21 to Address Intersectional Gender-Based Violence Recognize caste-based gender violence as a distinct category under rape and domestic violence laws. Ensure fast-track courts for Dalit and Adivasi women facing caste and gender violence.

Why Intersectionality is Essential for Constitutional Expansion?

India’s constitutional provisions were designed for equality, but fail to address multi-layered oppression. Expanding legal frameworks to recognize intersectionality will ensure justice for the most vulnerable groups. Courts, policymakers, and legal scholars must push for intersectional jurisprudence to create a truly inclusive legal system.

Conclusion

In conclusion, the intersectionality of rights represents a critical advancement in the way constitutional protections are understood and applied. This framework, which emphasizes the interconnectedness of various forms of identity—such as race, gender, class, sexuality, and ability allows for a more nuanced and comprehensive approach to justice. Traditional legal interpretations often treat these identities in isolation, failing to capture the complex realities faced by individuals who exist at the intersection of multiple marginalized groups. By incorporating intersectionality into constitutional protections, the law can address the unique and compounded forms of discrimination that affect these individuals, ensuring that legal remedies are more responsive to the lived experiences of all people.

Expanding constitutional protections through an intersectional lens also forces a reevaluation of legal frameworks, encouraging them to evolve with an ever-changing social and cultural landscape. This shift towards inclusivity and equity not only strengthens individual rights but also promotes collective social justice, fostering a society that acknowledges and rectifies historical and systemic inequities. Ultimately, embracing intersectionality ensures that constitutional protections are not just theoretical or abstract but are truly effective in safeguarding the dignity, equality, and freedom of all citizens, especially those who have been historically marginalized. This evolution in legal thought marks an important step toward achieving a more just, fair, and inclusive society.

1. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Colour, (Stanford Law Review, 1991) 43.

2. Nivedita Menon, Seeing like a Feminist, (Zuban Books, 2012) 42.

3.Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution, (Routledge 2015) 12.

4. Flavia Agnes, Intersectionality and Women’s Rights: A Critical Analysis, (2012) 44 Economic and Political Weekly 41.

5. The Constitution of India 1950, art 14.

6. The Constitution of India 1950, art 15(1).

7. The Constitution of India 1950, art 16.

8. The Constitution of India 1950, art 21.

9. Vishaka v State of Rajasthan (1997) 6 SCC 241.

10. National Legal Services Authority v Union of India (2014) 5 SCC 438.

11. Shayara Bano v Union of India (2017) 9 SCC 1, [3] (para 3).

12. Danial Latifi v Union of India (2001) 7 SCC 740.

13. National Legal Services Authority v Union of India (2014) 5 SCC 438.

14. Nivedita Menon, Sexuality, Caste, Governmentality: Contemporary Reconfigurations of Gender and Sexuality in India, (2015) 43(1) Indian Journal of Gender Studies 1.