Is it time for a law addressing sexual violence against Muslim women?

Muslim women in India are under a unique threat in India at the intersection of the rising crimes against both Muslims and women. Is it time for the law to recognise and address this?

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ON August 15, 2022, the government of Gujarat granted remission to all the 11 convicts sentenced in the case of Bilkis Bano gang rape and murder of her seven family members during the 2002 riots.

Upon their release, they were garlanded and greeted with sweets by supporters, some of whom touched their feet. C.K. Raulji, who was a member of the Gujarat legislative assembly (MLA) from Godhra and one of the two Bharatiya Janata Party (BJP) leaders who were part of the Gujarat government panel that unanimously decided to release the rapists, said at that time, "They were Brahmins and Brahmins are known to have good sanskaar."

However, on January 8, 2024, a Supreme Court Bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the remission. In the 251-page judgment authored by Justice Nagarathna, the court held the remission invalid and ordered the perpetrators to return to jail.

An unnamed identity?

The crucial aspect of 'identity' appears to be missing in the judgment as is often overlooked in many writings on this case. This becomes evident more so from the line of reasoning in the judgment which focuses solely on the 'gender identity' of Bano bereft of any consideration for her 'religious identity'.

It cannot be emphasised enough that Bilkis Bano petitioned not just as a woman and a victim of sexual violence but also as a woman of the Muslim faith. The preface of the judgment reads, "The issue is between heinous crimes against women and the remission of the perpetrators."

Another part of the judgment reads: "A woman deserves respect, however high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to.

Also read: What if? Indian Feminist Judgments Project imagines a more feminist and caste, class and religion-sensitive versions of judgments

"Can heinous crime, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions."

All women indeed deserve respect and the basic dignity that is the right of all human beings. As principles of equality and non-discrimination in the Indian Constitution seek to secure dignity for all, it is equally true that the distribution of these rights is seldom even for everyone.

There is also a growing discourse on violence, harassment and marginalisation of Muslims in general in contemporary India.

However, the discourse around the judgment in Bilkis Bano's case and the rise in the number of atrocities committed against Muslims in general fail to underscore and acknowledge the need for protection for Muslim women from sexual violence. Muslim women experience violence and marginalisation due to an intersection of multiple identities.

This article argues that the sexual violence experienced by Muslim women during communal violence in India is contextual and should be understood from the intersectional framework of religion and gender.

To do so, we have argued that sexual violence against Muslim women operates within the context of the power relationship between the majority (Hindus) and the minority (here Muslims) in addition to the power dynamic between the male and female genders. In doing that, this essay poses questions about the need for greater protection of Muslim women.

What is intersectionality?

The term intersectionality was first coined by Kimberlé Crenshaw, an American civil rights advocate, in the year 1989. She introduced the term to address oppressive experiences that could not be fully explained as the outcome of common discriminatory patterns.

Crenshaw explains how the experience of women of colour with violence and vulnerability occurs at the intersections of gender and race. She argues that characterising rape as a function of patriarchy ignores how it may act as a "weapon of racial terror".

She explains, "[W]hen Black women were raped by White males, they were being raped not as women generally, but as Black women specifically: their femaleness made them sexually vulnerable to racist domination, while their Blackness effectively denied them any protection."

Also read: Hijab row shows why we should see Muslim women's rights through the dual lens of religion and gender

In the Indian context, noted feminist activist and women's rights lawyer Flavia Agnes employs an intersectional approach to explain the violence committed against Muslim women during the 2002 Gujarat riots, of which Bilkis is one of the many victims but also a survivor.

Similarly, historian Tanika Sarkar's work suggests targeted and deliberate violence against Muslim women by Hindutva supremacists that is justified on the basis of two elements of the Hindu nationalist ideology. The first element is the creation of an image of the 'Self' and the 'Other' and the second one is vengeance for past crimes against Muslims.

Historian Megha Kumar traces the above facets to the writings of early Hindutva proponents such as V.D. Savarkar. She shows how sexual violence against Muslim women during riots is not just a women's issue but also needs to be understood as a religious issue, i.e., if a Muslim woman faces sexual abuse during communal riots, it is because she is both a Muslim and a woman.

Intersectionality and Indian Law

In addition to this growing recognition of intersectionality among academic literature on India, there is also an increasing acknowledgment of the framework within Indian jurisprudence. Several judgments by courts in India have expressly mentioned intersectionality as a framework to look into women's issues.

In Patan Jamal Vali versus The State of Andhra Pradesh, the Supreme Court discussed the difference between intersectional discrimination (discrimination because of intersecting identities) and single-axis discrimination (discrimination that considers single, rather than multiple identities).

The court also held that: "When the identity of a woman intersects with, inter alia, her caste, class, religion, disability, and sexual orientation, she may face violence and discrimination due to two or more."

In the same judgment, Justice D.Y. Chandrachud (as he was then) draws attention to the possibility that individuals who hold marginalised positions within multiple oppressive systems may experience oppression as a result of two or more of these systems.

Also read: Courage's counsel: An interview with Bilkis Bano's lawyer Shobha Gupta

Justice Chandrachud refers to the statement of Combahee River Collective and Crenshaw, which discusses the intersectional oppression of Black women in America, to arrive at this conclusion.

Besides this judgment, the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) (SC/ST) Act,1989 also acknowledges a person's multiple identities. Under this Act, if a member belonging to a Scheduled Tribe (ST) or a Scheduled Caste (SC) community is subject to sexual atrocities from any person not belonging to such a community, he or she shall be tried under provisions of both the Indian Penal Code (IPC) as well as the SC/ST Act. Section 3(2)V of the SC/ST Act enhances the punishment for offences in which the victim is a member of an ST and SC community.

In the case of sexual abuse, if the perpetrator has mere knowledge that the victim belongs to an ST or SC community, it will be sufficient to hold that person under the SC/ST Act.

Intersectionality and the growing marginalisation of Muslims

There is growing marginalisation of Muslims in India. Muslims lag behind on all socio-economic indexes. This marginalisation is not a recent phenomenon, it has been a slow but sure process since the Independence of India, not denying the fact that its pace has increased manifold post-2014.

The Sachar committee report, The Social, Economic and Educational Status of Muslim Community in India, revealed that the socio-economic condition of Muslims in India is much worse than that of ST and SC communities.

Also read: Equality Commission: A solution to discrimination?

The Muslim community regularly experiences discrimination in areas including housing, education and employment. It also faces barriers at both structural and social levels in achieving political power and wealth, and lacks access to healthcare and basic services. This growing marginalisation along with the structural discrimination exposes it to more vulnerabilities.

Authors such as Flavia Agnes and Megha Kumar have applied the framework of intersectionality to understand the sexual violence against Muslim women during the extraordinary times of riots. The power imbalance during riots is stark and can be identified more easily than in ordinary times.

However, with the growing marginalisation and increased hate crimes against Muslims, the fear that the community will be forced to live under a permanent state of siege is not misplaced. Some of the manifestations of this state of siege are already here in the form of mob lynching, violence against those offering namaz or wearing hijab and 'bulldozer justice'.

This means the line between extraordinary (riot) and ordinary (normal) has become blurry. In these circumstances, sexual violence faced by Muslim women needs to be understood through the lens of intersectionality as it provides the necessary nuance in understanding the nature of this violence as a power play of multiple identities.

Once this permanently extraordinary situation of Muslim lives in India is acknowledged, the need for enhanced protection for Muslim women from targeted sexual violence should be further introspected.

Also read: India needs a special law to protect and promote minority rights in the criminal justice system

In the context of ST and SC communities, the legal system does not differentiate between ordinary and extraordinary times. Rather, the emphasis is on the perpetrators. Here, the identity of the perpetrators is important. Any kind of sexual violence against a woman belonging to an SC or ST community by a member not belonging to an SC or ST community leads to the perpetrator being held under both the IPC and SC/ST Act.

Numerous reports have shown that during communal riots, Hindutva supremacists frequently target and subject Muslim women to horrific sexual violence. That being said, the acts of sexual violence are not exclusive to the riots. Hindutva supremacists have been known to target Muslim women even during 'normalcy'.

Events like the 'Sulli deal' and other incidents of sexual assault must also be understood in the context of power dynamics and intersectionality.

As stated above, the line between ordinary and extraordinary is blurred when it comes to Muslim women in India. One should not shy away from the fact that it is complicated to provide any solution to this multi-layered problem.

However, a new pattern of thinking and discourse is required especially in the legal sphere. Muslim women who suffer sexual assaults and other forms of violence at the hands of Hindutva forces still do not have any special legal protections, unlike women belonging to ST and SC communities.

Is it possible that a measure comparable to the SC/ST Act could be instituted to protect Muslim women from the horrifying sexual violence to which they have been subjected for years? Can we imagine a law of such nature for Muslim women, too? If yes, what would this imagination look like? How could such an imagination be sought?

A discussion around this line of thought that considers the intersectionality of this violence is the need of the hour in both academic and legal spheres.