The Vishaka Guidelines were developed in response to a 1997 Supreme Court of India case, Vishaka and Others v. State of Rajasthan, in which the Court recognized the need for a legal framework to address sexual harassment in the workplace. The case dealt with the issue of sexual harassment of women at the workplace and the lack of provisions in Indian law to address it. The judgment effectively established the framework for protecting the rights of women against sexual harassment in the workplace and is considered a major step forward in the promotion of gender equality in India. The Court held that the State was responsible for ensuring a safe working environment for women, and established the Vishaka Guidelines as an interim measure until a proper law was enacted, and norms to be observed by employers to provide a safe working environment for women and prevent sexual harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was later passed, which adopted many of the principles laid out in the Vishaka Guidelines and provided a legal framework for addressing sexual harassment in the workplace in India.
What happened to Bhanwari Devi?
In 1985, Bhanwari Devi was employed by the Women Development Programme (WDP) in the State of Rajasthan, India as a "saathin" (friend), whose role was to educate women on issues such as women's empowerment, child marriage, and female infanticide.
However, in 1992, her efforts to prevent the marriage of a 9-month-old baby angered members of the Gujjar community, who decided to take revenge. They physically assaulted Devi's husband and, when Devi tried to intervene, the five perpetrators brutally gang-raped her.
Despite the heinous nature of the crime, the legal process that followed was plagued with issues such as false accusations, victim blaming, ostracization of Devi and her family, improper medical examination, and humiliation by the Police. Ultimately, the five accused were acquitted of rape by the District and Sessions Court on grounds that were widely criticized as flawed, discriminatory and unjust. The Court relied on stereotypes and societal biases such as:
-The village head cannot rape; -Men of a higher caste cannot rape a lower caste woman because that would be considered impure; -Men over 60 years cannot commit rape; -The Court referred to the uncle and nephew (part of the accused) and stated that a man could not rape in front of a relative; and -The victim's husband cannot passively watch the entire episode.
Consequences of the Trial Court’s Judgement:
The acquittal of the perpetrators in the Bhanwari Devi rape case in 1995 sparked widespread outrage and condemnation in India. The judgement was seen as a gross injustice and highlighted the need for a legal framework to address sexual harassment in the workplace.
In response, various non-governmental organizations (NGOs) filed a Public Interest Litigation (PIL) in the Supreme Court in 1997, seeking to establish a comprehensive judicial process for preventing sexual harassment of women in the workplace. They also argued that employers should be held responsible for ensuring the safety and security of women in their workplaces.
As a result of this PIL, the Supreme Court of India formulated the Vishaka Guidelines in 1997, which aimed to prevent sexual harassment of women in the workplace and to provide a mechanism for redressal of complaints. These guidelines laid down the definition of sexual harassment, established the employer's responsibility to prevent and address such incidents, and provided for the appointment of an internal complaints committee to investigate complaints of sexual harassment.
Shocking Facts!
Despite the widespread condemnation of the events surrounding Bhanwari Devi's case and the public pressure for justice, her appeal for the conviction of her perpetrators in the Rajasthan High Court has only been heard once since 1995. Unfortunately, due to the prolonged legal process and the lack of progress in the case, two of the accused have passed away in the intervening years. This highlights the need for a more efficient and timely justice system in cases of sexual violence and the importance of holding perpetrators accountable for their actions.
Why is the PoSH Act 2013 only to protect women?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) was enacted to protect women from sexual harassment at the workplace. The widespread incidents of sexual harassment directed at women in the workplace and the inadequate legal framework to address this issue, likely played a significant role in the creation of this law.
Bhanwari Devi's case, which brought attention to the issue of sexual violence against women and highlighted the need for a legal framework to address it, served as a catalyst for the creation of the PoSH Act. Her case, along with the efforts of various NGOs and activists, helped to bring attention to the issue and pushed for the need for a law to protect women from sexual harassment at the workplace.
As stated by Professor Pamecha, who worked closely with Devi in her social work, "Bhanwari Devi had no direct role in this law, but she served as the catalyst for it. She was the main factor that brought attention to this issue and helped to push for a legal framework to protect women from sexual harassment at the workplace."
A safe workplace for women is an ongoing fight:
Despite the formulation of the Vishaka Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also known as the PoSH Act), Bhanwari Devi's case remains unresolved and she continues to live in the same village as her perpetrators. This highlights the difficulties faced by underprivileged women in seeking justice and the deep-seated patriarchal attitudes that exist, particularly in rural areas. Moreover, this case also illustrates the dangers that female activists face when attempting to challenge these attitudes.
While the PoSH Act represents a significant step towards creating a safer workplace for women, it is important to acknowledge the negative consequences that women can face when reporting sexual harassment by colleagues or superiors. A survey conducted by the Indian Bar Association in 2017 found that 70% of 6,047 female respondents did not report workplace sexual harassment by superiors because they feared repercussions.
It is the responsibility of organizations to ensure that their policies effectively prevent sexual harassment in the workplace and that women employees feel comfortable reporting incidents. As Justice Arjit Pasayat has noted, "While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female."
At Rainmaker, we strive to combat sexual harassment in the workplace through our self-paced e-learning modules, training sessions, blogs, and workshops. To read more of our blogs on the PoSH Act, please click here.
DISCLAIMER: The incident involving Bhanwari Devi has been widely reported on the internet, and while the author has sourced information from credible sources, there may be variations in the details provided by different sources. The purpose of this blog is to succinctly present some of the key aspects of Bhanwari Devi's tragic incident, which served as the basis for the passing of the PoSH Act.
References:
- https://www.bbc.com/news/world-asia-in
- https://main.sci.gov.in/jonew/judis/13856.pdf
- https://www.hindustantimes.com/india-news/70-women-don-t-report-workplace-sexual-harassment-employers-show-poor-compliance/story-40pcb35iu328VSLjjjpotL.html
Author: Gayathri Madabhushi, Intern, Rainmaker Directions and Contributions: Akanksha Arora, AVP-Legal, Rainmaker
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