By Nidhi Agrawal
This is the first part in the 2-part post by Nidhi Agrawal.
Introduction
Contemporary Dalit feminist literature highlights the two-fold discrimination of Dalit women by locating their discrimination at an intersection of gender and caste hierarchies. I seek to argue that this discrimination is not merely two-fold but involves an additional player in the discrimination framework, i.e., the state, which is not merely an incompetent bystander but is actively contributing to their marginalization. To this end, I first highlight how the State creates a state of exception where violence against Dalit women is normalized showing the inapplicability of law in safeguarding Dalit women, in the context of various underinclusive criminal law reforms. Second, I evaluate issues of essentialism that arise in attempts to view Dalit feminism either from the caste, or the gender lens in a hermeneutical manner which does not consider the subtler problems that arise from their intersection. Finally, in light of essentialism, I problematize the application of utilitarianism and submit that a Rawlsian-Ambedkarite conception of social justice allows for an individuated form of justice to better apply to the Dalit feminist discourse.
A State of Exception: Suspension or Absence of Laws
Agamben describes the state of exception as a period in which the juridical order is suspended, which grants the state unfettered power over the rights of those who reside in its territory. The state of exception does not reside outside the existing juridical order but is often legitimized within the constitutional provisions in the form of emergency clauses. I argue that the state of exception created against Dalit women is not a direct suspension of laws, or legal order, instead it takes subtler forms. The state of exception is created through the exercise of Biopower in which the state generates a discourse that legitimizes the oppression of Dalit women. For the purposes of this paper, I would be taking the example of rape and other forms of violence suffered by Dalit women. This is because the discursive practices of the state generate norms and schematic structures for women, which they are expected to abide by, effectively control their lives. Dalit women however are not seen as fitting within that schematic framework due to the Brahmanical-patriarchal depictions of Dalit women as lascivious and prurient. These Brahmanical-patriarchal depictions can be seen as a continuation of the view of untouchables as disordered and prurient, beyond the confines of “civilized society”. This translates into narratives of victim-blaming when it comes to cases of sexual violence against Dalit women. Dalit the women are considered to have consented to or asked for the sexual violence by being unruly, disordered and sexually promiscuous. This operates as biopower and hence, the law in effect does not ‘operate’ for them. In such situations, Dalit women face hurdles every step of the way in their access to the state mechanisms of law and justice through character trials, unreasonable requirements of testimonies and victim stigmatization. The non-adherence to the stereotypical state-generated norms does not only reflect in legal-political consequences but also in social consequences. Anupama Rao, in her piece, ‘Understanding Sirasgaon’, highlighted how non-conformity with the discourse of what a female Dalit ought to do, such as refusal to perform menial tasks or marrying outside the Dalit caste leads to the exercise of sexual violence. Hence, the norms created by the biopower discourse, and the subsequent “non-adherence” of Dalit women to those norms legitimizes the state’s non-creation and application of laws specifically for Dalit women due to stereotypical depictions of their ‘immoral’ character. This is how the state of exception is created by the state against Dalit women without explicit recognition of the same.
These subtle manifestations of the state of exception against Dalit women take two broad forms. First, it is created through the non-application of the framework of laws to cases of violence against Dalit women by allowing impunity to the perpetrators rather than suspension of the law itself. There exists a large corpus of material documenting the ingrained impunity against those who engage in violence against Dalit women. This is due to the culmination of a series of factors, ranging from the state’s inaction in making Dalit women aware of their rights, lax prosecution of the perpetrators, and even violence by the agents of the state, such as rape in police custody. The state hence acts as an instrumentality of the upper caste and men, which leads to a de facto suspension of the application of laws towards Dalit women, even if the laws might exist on paper. This is highlighted through the case studies undertaken in the article further.
Second, it is seen through the absence of specific protective measures for Dalit women, which considering their marginal social position effectively locates them beyond the application of laws, as is in the case of the state of exception. There exist various legislations to protect either women or the scheduled castes, however, no legislation recognizes or offers protection from the specific problems that arise from the intersectionality of both caste and gender hierarchies. This is tied to the problem of essentialism, as many issues of Dalit women are specific to issues which come about because of their cast, and cannot be addressed through generalized legislation toward women or lower castes. For example, violence against Dalit women has an added dimension to caste politics, along with the typical causes of rape. Rape is often used as a coercive tool to reinforce caste hierarchies and maintain intra-caste purity. It is often used to punish the Dalit husband who has transgressed caste boundaries by raping his wife. Hence, general laws of protection of women are ineffective in countering the specific challenges faced by Dalit women.
A particularly notable example of the same is Vishaka Guidelines (1997). They were formed in the backdrop of the rape of Bhanwari Devi, a Dalit woman, not merely because she was a woman engaging in social reform, but particularly due to her Dalit woman identity. The guidelines failed to provide for protection in the organized or informal sectors where Dalit women predominantly face sexual abuse, focusing only on sexual harassment at the workplace in formal sectors. This irony is symbolic of the pattern of upper caste women centered solutions to Dalit women’s specific problems. Another instance of the state ‘looking the other way’ from the caste identity within the gender identity can be seen through the reforms of gender violence post-Mathura (1972), Nirbhaya (2011) and Hathras (2020) rapes. In the case of Mathura gang rape, the victim was a Dalit woman, who was assaulted in custody by the agents of the state. The District Court judge in the Mathura case, perpetuated the discursive narrative of the state explained above by reinforcing the stereotypical promiscuous image of Dalit women by saying that “She was used to having sex and must have consented to the police, she claimed rape so that she would appear virtuous to her lover”. There were a series of reforms on domestic violence and dowry deaths, however as pointed out by Nidhi Sabharwal, these were primarily related to the domestic sphere but did not consider the more common public instances of sexual violence faced by Dalit women specifically. Therefore, the reforms brought in the backdrop of the Mathura case failed to consider reforms on caste specific gender violence or provide Mathura justice.
This is not a problem of the past, with similar issues arising in the Hathras case (2020). In the Hathras case, Smita Patil highlighted the casteist nature of the State in dealing with violence against Dalit women. The 8-day delay in filing the FIR, and the hurried and hushed-up burning and burial of the victim’s body by the state clearly indicate the Brahmanical-Patriarchal notions encoded within the state. This is mainly because the rape was a “Crime of Power” where four rapist-murderers were men from the Savarna caste, importantly one of the men had a history of caste violence with the family. The omissions and negligence by the state officials show how this violence gets encoded in executive behaviour.
Even the post-Nirbhaya reforms, often lauded as India’s biggest step in offering legal protection from rape and deterrence to the perpetrators omitted to consider the caste dimension. This is particularly problematic since the Justice Verma report had indeed pointed out the caste dimension of gender violence. But the state chose to remain oblivious to that aspect, and the implementation of that report through the Criminal Laws (Amendment) Act, 2013 did not create Dalit women-specific safeguards. S. 376 was enhanced to include more rigorous punishment for sexual offences by men in an authoritative position, repeat offenders and gang rapists. However, an opportunity was lost to expand the definition of S. 376 to include caste-gendered sexual violence as a separate offence within the provision. This ‘oblivious’ nature of state would be better seen as willful ignorance or disregarding since the caste aspect of Justice Verma report would have been brought to the forefront following the Khairlanji rape and massacre of Priyanka Bhotmange and Surekha Bhotmange (2006). These examples highlight institutionally legitimized disregarding of provisions for Dalit women’s protection by the state. As highlighted, these are not one-off, mistaken omissions but can be seen as a continuing trend of apathy towards the state’s protection of Dalit women. Hence, through the lack of de jure protection based on their specific problems, the state creates a more subtle form of state of exception. The discourses of the state, by making them a part of the ‘state of exception’ effectively go beyond merely governing the lives of the people through biopower, but also to control their deaths. By placing Dalit women in a state of exception beyond the protection of specific law, Dalit women’s lives are endangered. This can be seen through a two-fold process, first, the state devalorizes the lives of Dalit women by allowing the Savarna discourse of regarding Savarna woman’s body as sacred, “based on the notions of chastity, virginity and docile femininity”. and second, allowing Dalit women to be seen as a source of sexual pleasure to be entrenched through a negligent disregard for their safety and disciplining of their bodies through different misogynist discourses as highlighted above. It portrays them as unruly, unregulated and promiscuous, and in the second part, it enforces the same by placing them in the state of exception. The effect of this process leads to the transformation of the state of Dalit women from that of a Zoe (biological fact of life) to the Agambeian Homosacer. Hence, Dalit women’s lives become dispensable in the political calculation of human lives, ready to be sacrificed at the whims of the state. It is important to understand that this form of power is exercised daily because the state of exception is ‘intangible’ unlike the conventional dispensation of laws. There is an application of the “small doses” of death in the lives of Dalit women which gets normalized in the state of exception. ‘Everyday tyranny’ of the state as described by Nilsen is a useful tool to examine this; it highlights both the normalization of the state of exception for Dalit women (‘everyday’). This calls into question the Weberian justification for the state having a monopoly over all forms of violence, Dalit Feminism and the subtle state of exception that the state may create with its monopoly on violence.
The author, Nidhi Agrawal, is an undergraduate law student at National Law School of India University (NLSIU), Bangalore.
Gopal Guru, Dalit Women Talk Differently, 30 EPW 2548 (1995).
V. Rodrigues, Justice as the Lens: Interrogating Rawls through Sen and Ambedkar, 5 Indian Journal of Human Development 153 (2011).
Giorgio Agamben, State of Exception 3(2005).
Smita M. Patil, Gender Equity and COVID 19: Dalit Standpoints, 56 EPW (2021).
Supra note 3; Foucault, Governmentality in The Anthropology of the State: A Reader 137(2006).
Shailaja Paik, New Dalit Women and Their ‘Improper, 53 EPW 36 (2018), 131-133.
Gail Omvedt, Review of Towards a Theory of “Brahmanic Patriarchy,” by Uma Chakravarty, 4 EPW 35, (2000), 187–90.
Anupama Rao, The Caste Question: Dalits and the Politics of Modern India (1st ed., 2009.
Supra note 1.
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Nidhi Sadana Sabharwal & Wandana Sonalkar, Dalit Women in India: At the Crossroads of Gender, Class, and Caste, 8 Women’s Bodies and Global Poverty Eradication 44 (2015).
Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
Satyama Dubey & Ors. v. Union of India, (2020) WPC No. 296.
Moni Basu, The Girl Whose Rape Changed a Country, 2013, available at (Last visited on May 29, 2022).
Supra note 11; Baxi, Open Letter to the Chief Justice of India, (1979) 4 SCC (J) 17.
[17] Smita M. Patil, Law of One’s Own: On Dalit Women’s Arduous Struggles for Social Justice, 56 EPW, 2021 available at (Last visited on May 5, 2022).
J. S. Verma, Report of the Committee on Amendments to Criminal Law, 2013, Government of India, 2013.
The Criminal Laws (Amendment) Act, 2013.
Central Bureau of Investigation v. Sakru Mahagu Binjewar, (2010) SCC OnLine Bom 2255.
Abhinaya Ramesh, Dalit Women, Vulnerabilities, and Feminist Consciousness’, (2020) 55 EPW 31, 34.
Supra note 13.
Scroll, What do dating, romance and love really mean for a Dalit woman in India today?, July 31, 2020,available at (Last visited on September 13, 2023) .
Girogio Agamben, Homo Sacer : Sovereign power and bare life, 1998.
Italian philosopher Giorgio Agamben’s concept for life that has been exposed to what he terms the structure of exception that constitutes contemporary biopower. The term originates in Agamben’s observation that the Ancient Greeks had two different words for what in contemporary European languages is simply referred to as ‘life’: bios (the form or manner in which life is lived) and zoē (the biological fact of life). His argument is that the loss of this distinction obscures the fact that in a political context, the word ‘life’ refers more or less exclusively to the biological dimension or zoē and implies no guarantees about the quality of the life lived. Bare life refers then to a conception of life in which the sheer biological fact of life is given priority over the way a life is lived, by which Agamben means its possibilities and potentialities.
Alf Gunvald Nilsen, Adivasis and the State (2018).
Andreas Anter, The Modern State and Its Monopoly on Violence, in The Oxford Handbook of Max Weber (2020).
This is the first part in the 2-part post by Nidhi Agrawal.
Introduction
Contemporary Dalit feminist literature highlights the two-fold discrimination of Dalit women by locating their discrimination at an intersection of gender and caste hierarchies. I seek to argue that this discrimination is not merely two-fold but involves an additional player in the discrimination framework, i.e., the state, which is not merely an incompetent bystander but is actively contributing to their marginalization. To this end, I first highlight how the State creates a state of exception where violence against Dalit women is normalized showing the inapplicability of law in safeguarding Dalit women, in the context of various underinclusive criminal law reforms. Second, I evaluate issues of essentialism that arise in attempts to view Dalit feminism either from the caste, or the gender lens in a hermeneutical manner which does not consider the subtler problems that arise from their intersection. Finally, in light of essentialism, I problematize the application of utilitarianism and submit that a Rawlsian-Ambedkarite conception of social justice allows for an individuated form of justice to better apply to the Dalit feminist discourse.
A State of Exception: Suspension or Absence of Laws
Agamben describes the state of exception as a period in which the juridical order is suspended, which grants the state unfettered power over the rights of those who reside in its territory. The state of exception does not reside outside the existing juridical order but is often legitimized within the constitutional provisions in the form of emergency clauses. I argue that the state of exception created against Dalit women is not a direct suspension of laws, or legal order, instead it takes subtler forms. The state of exception is created through the exercise of Biopower in which the state generates a discourse that legitimizes the oppression of Dalit women. For the purposes of this paper, I would be taking the example of rape and other forms of violence suffered by Dalit women. This is because the discursive practices of the state generate norms and schematic structures for women, which they are expected to abide by, effectively control their lives. Dalit women however are not seen as fitting within that schematic framework due to the Brahmanical-patriarchal depictions of Dalit women as lascivious and prurient. These Brahmanical-patriarchal depictions can be seen as a continuation of the view of untouchables as disordered and prurient, beyond the confines of “civilized society”. This translates into narratives of victim-blaming when it comes to cases of sexual violence against Dalit women. Dalit the women are considered to have consented to or asked for the sexual violence by being unruly, disordered and sexually promiscuous. This operates as biopower and hence, the law in effect does not ‘operate’ for them. In such situations, Dalit women face hurdles every step of the way in their access to the state mechanisms of law and justice through character trials, unreasonable requirements of testimonies and victim stigmatization. The non-adherence to the stereotypical state-generated norms does not only reflect in legal-political consequences but also in social consequences. Anupama Rao, in her piece, ‘Understanding Sirasgaon’, highlighted how non-conformity with the discourse of what a female Dalit ought to do, such as refusal to perform menial tasks or marrying outside the Dalit caste leads to the exercise of sexual violence. Hence, the norms created by the biopower discourse, and the subsequent “non-adherence” of Dalit women to those norms legitimizes the state’s non-creation and application of laws specifically for Dalit women due to stereotypical depictions of their ‘immoral’ character. This is how the state of exception is created by the state against Dalit women without explicit recognition of the same.
These subtle manifestations of the state of exception against Dalit women take two broad forms. First, it is created through the non-application of the framework of laws to cases of violence against Dalit women by allowing impunity to the perpetrators rather than suspension of the law itself. There exists a large corpus of material documenting the ingrained impunity against those who engage in violence against Dalit women. This is due to the culmination of a series of factors, ranging from the state’s inaction in making Dalit women aware of their rights, lax prosecution of the perpetrators, and even violence by the agents of the state, such as rape in police custody. The state hence acts as an instrumentality of the upper caste and men, which leads to a de facto suspension of the application of laws towards Dalit women, even if the laws might exist on paper. This is highlighted through the case studies undertaken in the article further.
Second, it is seen through the absence of specific protective measures for Dalit women, which considering their marginal social position effectively locates them beyond the application of laws, as is in the case of the state of exception. There exist various legislations to protect either women or the scheduled castes, however, no legislation recognizes or offers protection from the specific problems that arise from the intersectionality of both caste and gender hierarchies. This is tied to the problem of essentialism, as many issues of Dalit women are specific to issues which come about because of their cast, and cannot be addressed through generalized legislation toward women or lower castes. For example, violence against Dalit women has an added dimension to caste politics, along with the typical causes of rape. Rape is often used as a coercive tool to reinforce caste hierarchies and maintain intra-caste purity. It is often used to punish the Dalit husband who has transgressed caste boundaries by raping his wife. Hence, general laws of protection of women are ineffective in countering the specific challenges faced by Dalit women.
A particularly notable example of the same is Vishaka Guidelines (1997). They were formed in the backdrop of the rape of Bhanwari Devi, a Dalit woman, not merely because she was a woman engaging in social reform, but particularly due to her Dalit woman identity. The guidelines failed to provide for protection in the organized or informal sectors where Dalit women predominantly face sexual abuse, focusing only on sexual harassment at the workplace in formal sectors. This irony is symbolic of the pattern of upper caste women centered solutions to Dalit women’s specific problems. Another instance of the state ‘looking the other way’ from the caste identity within the gender identity can be seen through the reforms of gender violence post-Mathura (1972), Nirbhaya (2011) and Hathras (2020) rapes. In the case of Mathura gang rape, the victim was a Dalit woman, who was assaulted in custody by the agents of the state. The District Court judge in the Mathura case, perpetuated the discursive narrative of the state explained above by reinforcing the stereotypical promiscuous image of Dalit women by saying that “She was used to having sex and must have consented to the police, she claimed rape so that she would appear virtuous to her lover”. There were a series of reforms on domestic violence and dowry deaths, however as pointed out by Nidhi Sabharwal, these were primarily related to the domestic sphere but did not consider the more common public instances of sexual violence faced by Dalit women specifically. Therefore, the reforms brought in the backdrop of the Mathura case failed to consider reforms on caste specific gender violence or provide Mathura justice.
This is not a problem of the past, with similar issues arising in the Hathras case (2020). In the Hathras case, Smita Patil highlighted the casteist nature of the State in dealing with violence against Dalit women. The 8-day delay in filing the FIR, and the hurried and hushed-up burning and burial of the victim’s body by the state clearly indicate the Brahmanical-Patriarchal notions encoded within the state. This is mainly because the rape was a “Crime of Power” where four rapist-murderers were men from the Savarna caste, importantly one of the men had a history of caste violence with the family. The omissions and negligence by the state officials show how this violence gets encoded in executive behaviour.
Even the post-Nirbhaya reforms, often lauded as India’s biggest step in offering legal protection from rape and deterrence to the perpetrators omitted to consider the caste dimension. This is particularly problematic since the Justice Verma report had indeed pointed out the caste dimension of gender violence. But the state chose to remain oblivious to that aspect, and the implementation of that report through the Criminal Laws (Amendment) Act, 2013 did not create Dalit women-specific safeguards. S. 376 was enhanced to include more rigorous punishment for sexual offences by men in an authoritative position, repeat offenders and gang rapists. However, an opportunity was lost to expand the definition of S. 376 to include caste-gendered sexual violence as a separate offence within the provision. This ‘oblivious’ nature of state would be better seen as willful ignorance or disregarding since the caste aspect of Justice Verma report would have been brought to the forefront following the Khairlanji rape and massacre of Priyanka Bhotmange and Surekha Bhotmange (2006). These examples highlight institutionally legitimized disregarding of provisions for Dalit women’s protection by the state. As highlighted, these are not one-off, mistaken omissions but can be seen as a continuing trend of apathy towards the state’s protection of Dalit women. Hence, through the lack of de jure protection based on their specific problems, the state creates a more subtle form of state of exception. The discourses of the state, by making them a part of the ‘state of exception’ effectively go beyond merely governing the lives of the people through biopower, but also to control their deaths. By placing Dalit women in a state of exception beyond the protection of specific law, Dalit women’s lives are endangered. This can be seen through a two-fold process, first, the state devalorizes the lives of Dalit women by allowing the Savarna discourse of regarding Savarna woman’s body as sacred, “based on the notions of chastity, virginity and docile femininity”. and second, allowing Dalit women to be seen as a source of sexual pleasure to be entrenched through a negligent disregard for their safety and disciplining of their bodies through different misogynist discourses as highlighted above. It portrays them as unruly, unregulated and promiscuous, and in the second part, it enforces the same by placing them in the state of exception. The effect of this process leads to the transformation of the state of Dalit women from that of a Zoe (biological fact of life) to the Agambeian Homosacer. Hence, Dalit women’s lives become dispensable in the political calculation of human lives, ready to be sacrificed at the whims of the state. It is important to understand that this form of power is exercised daily because the state of exception is ‘intangible’ unlike the conventional dispensation of laws. There is an application of the “small doses” of death in the lives of Dalit women which gets normalized in the state of exception. ‘Everyday tyranny’ of the state as described by Nilsen is a useful tool to examine this; it highlights both the normalization of the state of exception for Dalit women (‘everyday’). This calls into question the Weberian justification for the state having a monopoly over all forms of violence, Dalit Feminism and the subtle state of exception that the state may create with its monopoly on violence.
The author, Nidhi Agrawal, is an undergraduate law student at National Law School of India University (NLSIU), Bangalore.
Gopal Guru, Dalit Women Talk Differently, 30 EPW 2548 (1995).
V. Rodrigues, Justice as the Lens: Interrogating Rawls through Sen and Ambedkar, 5 Indian Journal of Human Development 153 (2011).
Giorgio Agamben, State of Exception 3(2005).
Smita M. Patil, Gender Equity and COVID 19: Dalit Standpoints, 56 EPW (2021).
Supra note 3; Foucault, Governmentality in The Anthropology of the State: A Reader 137(2006).
Shailaja Paik, New Dalit Women and Their ‘Improper, 53 EPW 36 (2018), 131-133.
Gail Omvedt, Review of Towards a Theory of “Brahmanic Patriarchy,” by Uma Chakravarty, 4 EPW 35, (2000), 187–90.
Anupama Rao, The Caste Question: Dalits and the Politics of Modern India (1st ed., 2009.
Supra note 1.
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Nidhi Sadana Sabharwal & Wandana Sonalkar, Dalit Women in India: At the Crossroads of Gender, Class, and Caste, 8 Women’s Bodies and Global Poverty Eradication 44 (2015).
Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
Satyama Dubey & Ors. v. Union of India, (2020) WPC No. 296.
Moni Basu, The Girl Whose Rape Changed a Country, 2013, available at (Last visited on May 29, 2022).
Supra note 11; Baxi, Open Letter to the Chief Justice of India, (1979) 4 SCC (J) 17.
[17] Smita M. Patil, Law of One’s Own: On Dalit Women’s Arduous Struggles for Social Justice, 56 EPW, 2021 available at (Last visited on May 5, 2022).
J. S. Verma, Report of the Committee on Amendments to Criminal Law, 2013, Government of India, 2013.
The Criminal Laws (Amendment) Act, 2013.
Central Bureau of Investigation v. Sakru Mahagu Binjewar, (2010) SCC OnLine Bom 2255.
Abhinaya Ramesh, Dalit Women, Vulnerabilities, and Feminist Consciousness’, (2020) 55 EPW 31, 34.
Supra note 13.
Scroll, What do dating, romance and love really mean for a Dalit woman in India today?, July 31, 2020,available at (Last visited on September 13, 2023) .
Girogio Agamben, Homo Sacer : Sovereign power and bare life, 1998.
Italian philosopher Giorgio Agamben’s concept for life that has been exposed to what he terms the structure of exception that constitutes contemporary biopower. The term originates in Agamben’s observation that the Ancient Greeks had two different words for what in contemporary European languages is simply referred to as ‘life’: bios (the form or manner in which life is lived) and zoē (the biological fact of life). His argument is that the loss of this distinction obscures the fact that in a political context, the word ‘life’ refers more or less exclusively to the biological dimension or zoē and implies no guarantees about the quality of the life lived. Bare life refers then to a conception of life in which the sheer biological fact of life is given priority over the way a life is lived, by which Agamben means its possibilities and potentialities.
Alf Gunvald Nilsen, Adivasis and the State (2018).
Andreas Anter, The Modern State and Its Monopoly on Violence, in The Oxford Handbook of Max Weber (2020).