Prologue to Vishaka guidelines

A divisional bench of Delhi High court in a case iterated that Vishakha guidelines should be “taken seriously, and not followed in a ritualistic manner.” However, the genesis of these guidelines ought to be appraised before addressing etymology of the mischief they address. Like other major legal changes, these guidelines were not bought by a single stroke of the pen; they too were incorporated after a case of brutality and extreme hardships meted to a woman.

Bhanwari Devi, a low-caste woman in Jaipur, Rajasthan: She was working as a volunteer (saathin) in State Government’s Women Development Programme, since 1985. Her job was to work in the societal domain and hence, as part of her job, she worked on several socio-economic issues affecting the community, relating to land, water, literacy, health, minimum wages, etc.  For these works, she gained public appraisal and support of local community. In 1992, the government of Rajasthan took up the campaign to prevent child marriage, which generally takes place in mass gatherings on the auspicious occasion of “akkha teej”. However, such campaign was not well received in a few parts of the state, where child marriage was considered sacrosanct. Bhanwari, being a part of the concerned welfare group, participated in the actions taken to stop child marriage. Though she herself was a child bride– married off when she was 5 years old– Her campaign against child marriage was not an attempt to challenge patriarchy or fight the feudal mindset; rather she was merely performing her job. Though, this job couldn’t fetch the support and appraisal of the locals, which previous activities of her’s gained. Due to her efforts, the authorities were able to stop a child marriage of a 9-month-old girl, belonging to an influential high caste family of her village. Enraged by such intervention, the members of that family, including the father of such child bride, allegedly, attacked her along with her husband, while they went to work on their field, and then gang-raped her in front of her husband. The local community exhibited their anguish by ostracising her and boycotting her family. Her agony was aggravated by the criminal justice system, which mocked her sufferings at the stage of investigation and added insult to it by stating abominable reasons while acquitting the accused at the trial stage. The entire scenario was an exhibit of the patriarchal social order, which is trapped by dogmas; where the social customs are superior to a women dignity— especially a woman who was merely doing her job. 

The acquittal caused a national uproar and the apex court was addressed. A petition was brought forth as a class action by social activists and certain NGOs.  The court noted that Bhanwari Devi’s case “reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.” The court didn’t delve in Bhanwari Devi’s case; rather it considered incumbent upon itself to issue guidelines to prevent sexual harassment of working women in all workplaces, and hence fill the legislative vacuum. The petition was decided as Vishaka & Ors. v. State of Rajasthan (1997 Supreme Court)

Justice J. S. Verma, speaking for the Supreme Court, appraised the petition in lights of various international conventions, which were addressing the issues; Considering India as a signatory to them, he emphasised upon their incorporation in domestic laws, referring to relevant constitutional provisions– Article 50, 253 and Entry 14 of Union List. The court was primarily guided by the rules laid in CEDAW, which determines protection from sexual harassment and right to work for women as basic human rights. The court thereby came up with 12 points guidelines.

The guidelines provided an inclusive definition for sexual harassment– stating that “…it includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. Physical contact and advances;
2. A demand or request for sexual favours;
3. Sexually coloured remarks;
4. Showing pornography;
5. Any other unwelcome physical verbal or non-verbal conduct of sexual nature.”

Where any of aforementioned acts is committed in circumstances, whereby the victim has a reasonable apprehension that in relation to the victim’s employment or work such conduct can be humiliating and may constitute a health and safety problem. Such act is discriminatory and the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work, including recruiting or promotion or it creates a hostile work environment. Also, she has a reasonable apprehension that adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. To curb the menace, the guidelines laid duties of an employer, preventive steps, and redressal mechanisms– through complaint committees, disciplinary actions and civil/criminal proceedings.

Subsequently, Sexual Harassment of Woman at workplaces (Prevention, Prohibition and Redressal) Act, 2013 was legislated which supplemented the guidelines and provided a legislative coat to the apex court’s directives. Also, Sexual Harassment was made an offence under IPC.

Bhanwari Devi received several accolades for her hardships– including Neerja Bhanot Award, grants from governments, an invitation to be a part of the United Nations World Conference on Women, in 1995. Her agony was reported in several international journals and articles. Also, an Indian movie (Bawandar) was made on the entire episode, in the year 2000. However, till now, Justice remains elusive for Bhanwari Devi. Her struggle is still on, yet her story catapulted a new wave of gender justice in India. She shook the community, where rape was exhibited as women’s fault; where gender biases percolated the ideas of justice, fairness and equality. She stoically spoke of the crime she bore, facing the culprits every day in the same village and living with societal apathy, despite being a victim of a gruesome offence. Her resilience despite these socio-economic hardships meted to her by the community; the fierceness with which she stood against her culprits and the perseverance she exhibited while pursuing the protracted battle of justice, made her an idol for women empowerment. Though justice to her is delayed and hence denied, yet her fight gave light to the millions facing a similar plight.

“You are not a victim for sharing your story.
You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth, and raging courage.”
— Alexandra Elle