Bhanwari Devi Gang Rape Case – Birthing of the Vishakha Guidelines
May 1, 2022
Sexual harassment under Section 354A of the Indian Penal Code is the unwelcoming physical contact, requests for favors of a sexual nature, showing of pornographic or otherwise inappropriate material, or remarks of a sexual nature. The provisions of this section are intended for the benefit of women in India who are repeatedly subjected to such comments and actions without the protection of laws. Section 354A of the Indian Penal Code is a general provision and does not apply specifically to any particular scenario where the woman has been subject to such acts of indecency. Something as fundamental as a law against workplace harassment of women did not exist as recently as the late 1990s.
The Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act and Rules 2013 was created in the aftermath of a large-scale protest against the gang rape of a social activist under government employ. The supreme court was approached by a group of organizations representing several women and other organizations dedicated to the upliftment of women with the guidelines that have since come to be known as ‘Vishaka Guidelines’. These guidelines, ratified by the supreme court, were to be treated as laws under the provisions made by various articles of the constitution and are in force even today to protect women against workplace harassment.
The Birth of the Vishaka Guidelines
The Vishaka Guidelines were the product of a widespread and popular movement against patriarchal practices of workplace harassment and the larger problem of the dominance of men in the workplace. The issue took flame when a young woman was brutally gang-raped in her house and was denied any form of justice or compensation due to the nature of the incident, the lacking investigation, broader issues of casteism and family dynamics, and the nature of Indian patriarchal society in general. Seeing the suffering of this woman and concluding there must be hundreds if not thousands of women placed in similar positions daily, an organization by the name of Vishaka in conjunction with four other popular women’s organizations approached the Supreme court of India with the same issue.
They felt that it was strongly required for the Constitution and the courts to recognize sexual harassment in the workplace as a serious offense, one that was making the lives of Indian women miserable and difficult. In response to these claims, the Supreme court took cognizance of the issue and referred to the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEADW) to create a set of guidelines that would serve as a law governing over cases of sexual harassment in workplaces. The Supreme court did so noting that a law protecting women in workplaces was absent in the current circumstances.
Analyzing the Bhanwari Devi Gang Rape Case
Vishaka & Ors. v State of Rajasthan & Ors [(1997) 6 SCC 241]has left its impact on the Indian legal landscape as one of the most instrumental cases, a case which led to the emancipation of women in a significant capacity and made the various courts and departments of the nation aware of the discrimination faced by women in day to day activities. The facts of the Bhanwari Devi Gang Rape Case briefly are as follows:
The primary cause for aggression against one Bhanwari Devi was her attempt to stop the marriage of a child in her home village of Bhateri, Rajasthan. She was at the time of the attempt to stop this marriage under the employ of the government in the capacity of ‘Saathin’ (friend) in the Women’s Development Wing of the Rajasthan Government.
When she was successful in stopping the marriage of this child, she attracted the aggression of four Gujjar men belonging to the family of the child and one Shravan Sharma and was attacked in/on the way to her home while her husband was beaten and restrained.
Bhanwari Devi and her husband proceeded to try and file a complaint with the local police station but were severely discouraged and asked to not file a complaint owing to the status of the Gujjar family. The medical tests that were required to be taken were hence delayed by over 52 hours and the names of the persons identified did not find mentioned.
The Bhanwari Devi Gang Rape Case was brought before the trial court where the accused were acquitted of all charges leading to widespread backlash and the eventual intervention of Vishaka (the organization) in conjunction with other organizations dedicated to the upliftment of women in India.
A PIL was filed under Articles 14, 15, 19, and 21 of the Constitution of India in addition the issue of protection of women from workplace harassment was raised vociferously.
The most important aspect of the Bhanwari Devi Gang Rape Case is the enactment of guidelines that provide for the protection of women from harassment in the workplace. A country with the population of India must certainly take significant strides to protect all women working, organized sector or otherwise, and the Bhanwari Devi Gang Rape Case served as a stepping stone to make such legislation possible, making it easier for hundreds of thousands of women to feel safer and more comfortable at their workplaces. The Vishaka guidelines, although nowhere close to perfect, are a set of guidelines that demonstrate the possibility of a responsible and responsive government to enact change for the better and safeguard the rights of multiple thousands of working women.
The Vishaka Guidelines
The entirety of the guidelines are far too detailed and descriptive to find a full mention here but the guidelines (heavily summarised) are as follows:
Measures for Prevention – The employer is required through official notifications, circulars, notices and express instruction to prohibit acts that come under the definition of sexual harassment under the provisions of the guidelines and Section 354A of the Indian Penal Code, 1860.
Proceedings in case of Misconduct – If the actions committed fall under the purview of the Indian Penal Code, 1860, the employer is required to take prosecutorial action against the accused by informing the relevant authorities.
Appropriate disciplinary action must be taken.
Redressal Mechanism – An organization must have a redressal mechanism to address the complaints. This must be irrespective of the fact whether the act constitutes an offense under the Indian Penal Code, 1860, or any other law as such.
Redressal Committee – Such a redressal mechanism or more precisely such a complaint committee must have women as more than half of its members and its head must be a woman. The committee must comprise a counseling facility. It is also acceptable to collaborate with NGOs or any such organizations which are well aware of such issues. A report must be sent to the government annually on the development of the issues being dealt with by the committee.
In addition to the above, meetings must be held to spread awareness regarding harassment of women in the workplace and all employees must be made aware of the punishments and fines associated with actions that come under the purview of these guidelines.
While the decision by the Supreme court to pass a set of guidelines to protect women in the workplace, these guidelines have not been exceptionally successful in restricting workplace harassment. While these guidelines are a sophisticated way to make companies take cognizance of a complaint and take action, the implementation of these guidelines leaves a lot to be desired. Often, larger companies and organizations have an internal mechanism to sort out issues of sexual harassment within the workplace. This is usually done through the transfer or removal of the accused from their current posting and compensating the victim, however, these mechanisms often do not lead to a case before the courts making the punishments for acts of sexual harassment paltry and insignificant.
Further, the nature of Indian society restricts women from complaining against acts of sexual harassment as they are considered troublemakers in their respective offices and run the risk of ostracization. In addition to the issue of ostracization, the guidelines in their current state are inefficient in responding to complaints of incidents that may have taken place in the past or had people in high positions involved in the incident. These shortcomings are all restricting the guidelines from fully realizing their potential and efforts must be made to address these shortcomings and make Indian society aware of the injustices taking place in the workplace against women.
The Vishaka Guidelines came at a time when it was necessary to protect women at the workplace from harassment of all kinds, especially sexual. The court’s cognizance of the issue and the timely ratification of various global initiatives made it possible for the guidelines to be made enforceable and filled a void in the provisions of the IPC. The guidelines were created to safeguard the interests of working women and have thus far been successful as a mechanism for the same, however, like any important legislation, this too is a double-edged sword.
While the guidelines seek to protect and empower women, they are within the larger and all-encompassing Indian society that still idolizes its women at home but demeans and dehumanizes them outside the company of a so-called guardian. In this context, the guidelines have become nothing but ancillary and relegated to the position of a secondary relief in some of the most extreme cases. That being said, the guidelines have prompted a remarkable response from much of the Indian organized employment sector and highlighted that a workplace free from stress and harassment is a fundamental right of all women under Articles 14, 15, 19, and 21 of the Indian Constitution.