Caste system in India is established as a hierarchical institution based on inequality. Vincent A. Smith defines caste as “a group of families internally united by peculiar rules for the observance of ceremonial purity, especially in the matters of diet and marriage.”(Smith, 62) Each family follows certain caste-based rules that distinguishes it from other castes. This means that an individual has a caste by birth by virtue of being born in that family and therefore cannot change their caste. The family and individuals irrespective of their caste may follow any occupation, religion or philosophy. However, their caste remains constant. Dharma or duties of a caste, has some general rules which each caste has to follow, such as respect to Brahmins and cattle, especially cows. Individuals had to follow the rigid customary norms of their family, mainly those relating to diet and marriage, the breach of which could lead to banishment from the caste (Smith).
Brahmans (priestly and learned), Kshatriya (warriors), Vaisya (merchants, farmers and labourers) and Sudra (who served people of dominant castes) are the four varnas prevalent since ancient times for classifying people as per their birth. The caste system of freezing people into fixed social categories based on occupation was derived from the varna system; it gradually became hereditary and more complex as various sub castes (jati) branched out. Caste system also gave rise to a community of people outside the caste hierarchy who became untouchables for doing the most menial kind of work.
The caste system is responsible for fragmenting the Indian society, cultivating envy and discontent in the disadvantaged, and a feeling of pride in others, especially the dominant castes. Thus liberty and cooperation among individuals is impaired in such a society. In order to dismantle caste hierarchy, the modern legal system has introduced the concept of equality. While this has brought protection to the oppressed section from unjust ancient laws, the caste system stands strong beneath the superficial veil of the modern laws.
The origin of patriarchy proceeds from caste structure. This is evidenced by ancient scriptures that assign a subordinate place to women in general and to women of oppressed sections in particular. The patriarchy, or, rule of the father, gave rise to male domination of women, establishing their subordinate position during early pre-colonial times. Male domination came to be characterised by discrimination, victimization and violence against women. She also became a property of her father and later her husband, while her chastity and virginity became matters of honour for the family. A man’s honour lay in controlling her sexuality in order to maintain the purity of his progeny.
The three aspects of caste hierarchy, namely, marriage, reproduction and sexuality, were governed by laws given in ancient scriptures. Women faced immense inequality in matters of marriage. The appropriate age for a girl to marry was when she was three times younger than the man. Thus, a twelve year old girl was suitable to marry a 30 year old man. They were forced to have sexual intercourse with men thrice their age, which also had religious approval. According to Manu, there were eight kinds of marriages. This included Rakshasa marriage, which took place by abducting and raping the woman, and Paisach marriage, which took place by having sexual intercourse with a sleeping woman. The offspring from such marriages were considered liars and polluters of religion. Sexual intercourse outside marriage was considered immoral and a social vice.
The regulation of sexual intercourse or sangrahana on the basis of caste-based sex laws followed oppressive practices for women in general, and women and men of oppressed sections in particular. For instance a few sangrahana laws according to Brahaspati were (Kane, 830):
- A man who has sexual intercourse with a woman of the same caste should be punished with the confiscation of his entire property, the castration of penis and testicles, (and/or) by parading the offender in the village on a donkey.
- A man who has sexual intercourse with a woman of oppressed caste should be punished with half of the above mentioned punishment.
- A man who has sexual intercourse with a woman of dominant caste should be given capital punishment with confiscation of his entire property.
Thus caste has played a major role in assigning women in India their subordinate place in society. A. S. Altekar examines the position of women from ancient times to the modern period and argues that the position of women in the ancient period was not as subordinate as one would think. However, looking at Manusmriti and other scriptures one would argue against this opinion. In fact, Uma Chakraborty is convinced that Hindu nationalist scholars somehow wish to ignore the unequal gender relations of the early period in order to uphold the Brahmanical sources of information that veil patriarchy. It is clear that women in India held a subordinate position in general and the ones belonging to oppressed castes were more vulnerable and discriminated against than women of dominant castes.
Codes purporting to punish sexual offences were framed to preserve the caste hierarchy rather than to give justice to victims of rape or assault. The existence of caste system made women of the oppressed castes especially vulnerable to sexual violence. These women at the lowest level of the caste hierarchy remained ‘multiply burdened’ and marginalised since time immemorial.
Rape laws have been mainly seen from radical feminist perspective in India (Kotiswaran,86 and Menon,110) which can be called the mainstream feminist outlook.
In mainstream debates, women of dominant castes are at the centre of discussion whereas women from more vulnerable sections, such as Dalit women, are often marginalised. The infamous Mathura rape case, where the tribal woman was disbelieved by the court, was not looked at from the perspective of vulnerability of oppressed sections of women. Similarly, in the recent Hathras rape case, involving the rape of a nineteen year old woman, the entire government machinery tried to protect the upper caste offenders. These are examples where the fact of the rape victim belonging to an oppressed section, is not highlighted enough. In order to make discussions and debates around victims and survivors of sexual violence who belong to oppressed sections more inclusive, it is imperative to adopt a more effective perspective on laws against sexual violence. Such an approach may be derived from the theory of intersectionality given by Kimberlé Crenshaw.