Dalit woman’s rape in ’92 led to India’s first sexual harassment law – but justice still eludes her

In 1997, India’s women celebrated a landmark moment when the Supreme Court formulated the Vishaka guidelines that made it mandatory for institutions across the country to put in place measures to prevent and redress sexual harassment in the workplace. The Vishakha guidelines laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

But how did these guidelines come into existence in the first place? And who or what is Vishakha?

Bhanwari Devi case

The movement that pushed for these mechanisms has its origins in the sexual harassment and gangrape of Bhanwari Devi, a Dalit woman employed by the Rajasthan government’s Women’s Development Programme. As a “saathin”, as workers in the programme were called, it was Devi’s job to spread awareness about hygiene, family planning and the necessity of educating girls, along with campaigning against female foeticide, infanticide, dowry and child marriages. Harassed in the course of her work, Devi was raped by five Gujjar men as “punishment” in 1992 for stopping the wedding of a nine-month-old Gujjar girl.

A nation-wide network of women’s organisations decided to support Bhanwari Devi’s fight for justice. Led by groups in Rajasthan, the movement recognised that Devi was attacked at what was essentially her workplace. In the absence of a law that tackled such harassment, four women’s organisations filed a writ petition in the Supreme Court asking for guidelines that would help institutions recognise, prevent and redress sexual harassment in the workplace. These groups were Vishakha and Women’s Rehabilitation Group from Rajasthan and Jagori and Kali for Women from Delhi.

The guidelines came to be known in common parlance as the Vishakha guidelines, since that feminist women’s collective was the first party listed on the petition.

The writ petition

In reality, the petition was only a small part of a larger movement for justice for Bhanwari Devi.

The investigation into Devi’s case, right from the start, was fraught with problems. Activists argued that the police did not take her complaints seriously – there were several administrative delays in filing the first information report and the medical examination was conducted 52 hours after the crime.

Things got worse when in 1995, a trial court in Rajasthan acquitted all five men accused of raping Devi. A protest rally was held in Jaipur to demand that the case be handed over to the Central Bureau of Investigation. Protestors also demanded that Devi be given compensation. Some even asked for the death penalty.

“In that rally, many groups from other states and national groups from Delhi too joined us,” recalled Mamta Jaitly, one of the signatories of the petition and a former member of Vishakha. “The government did not pay attention and we were all lathi-charged. But after that rally, we had a review meeting in which we decided that we will need to resort to other measures – one among them was the need for guidelines to recognise, prevent and redress sexual harassment at the workplace. We felt it would be good to approach the Supreme Court.”

Naina Kapur, one of the lawyers who represented the petitioners in the Supreme Court, said the demands raised in the aftermath of Devi’s gangrape were “worn out tools that had done very little to push the envelope towards meaningful change”.

“Through experience, I had recognised that the criminal law route had failed women just as it would go on to do with Bhanwari. Just as it has historically done when it comes to sexual violations of women,” she said. “In my mind it was time move away from criminal justice remedies to constitutional ones. Towards the big picture. That meant focusing on the prior sexual harassment that Bhanwari, like countless women everywhere, everyday, had experienced at work and the failure of the local authority to act on her complaint.”

The idea was to seek multiple remedies, said Kavita Srivastava, the co-founder of Vishakha. “This was a movement for justice for Bhanwari Devi and we wanted to ensure that we covered as many grounds as possible,” she said. “Alongside the appeal challenging the trial court judgement, we also wanted recognition that this was sexual harassment at the workplace. We wanted recognition for workers like Bhanwari Devi, who were honorary workers surviving on small wages.”

Redefining the workplace

One of the greatest contributions of the Bhanwari Devi Andolan is a rethinking of the traditional definition of the workplace.

“The issue was that the government of Rajasthan was not owning up to the fact that Bhanwari was attacked while she was on duty for their child marriage prevention programme,” said Abha Bhaiya, the co-founder of Jagori. “Their failure to actually recognise her as a worker of a government programme is what triggered us to make this a discourse about workplace harassment.”

Added Urvashi Butalia, a member of Kali for Women (which is now Zubaan) and a signatory of the petition, “I don’t think we had thought that much about how we can actually define a workplace and how wide-ranging they can be. If Bhanwari was conducting her work in her village, going from home to home, and if it was during that time that she was raped and attacked, then whose responsibility is it to make that workplace secure? She was employed by the government and was getting paid by them.”

Before Vishakha

It is not that the problem of sexual harassment in the workplace had not been raised before the Bhanwari Devi case. However, in the absence of a law, complaints were dealt with under Sections 354 (outraging the modesty of a woman) and 294 (eve teasing) of the Indian Penal Code.

“We found the eve teasing law very objectionable because it trivialises the violence faced by a woman,” Bhaiya said. “Eve teasing is a very British, orthodox position. Even the idea of modesty – whose modesty are we talking about and why use such a term?”

In 1998, another case made sexual harassment a matter of public discussion when Indian Administrative Service officer Rupan Deol Bajaj spoke out against senior police officer KPS Gill. Bajaj alleged that Gill had pinched her bottom at an official party. She took her fight to court but the case was only resolved in Bajaj’s favour in 2005.

“KPS Gill would not have dared to pat a man on his bum as he did to her,” Butalia said. “She was really a courageous woman. I think these two histories – Bhanwari’s and hers – are really linked. It’s very interesting that one comes from a very privileged woman and the other from a Dalit woman.”

Judiciary’s mixed record

When the groups filed their petition, they were not expecting much, they said. “But we put all our energy into it,” Bhaiya said. “There was such an outrage within the feminist movement about what happened to Bhanwari – she was helpless in many ways and yet showcased such strength and we all stood by it. The strength came from all of us but also from her. It was a very dialectical time.”

Kavita Srivastava of Vishakha recalled a particular instance of Bhanwari Devi’s courage. “After the trial court judgement, she was attacked by the villagers who conducted a rally against her,” she recalled. “They drove right up to her house and created a pretty aggressive atmosphere. When many of us rushed to help her, she said I will take care of myself, you do what you have to do. She meant the appeal and the petition. She was so focused.”

A fair share of the credit for the eventual verdict must go to lawyers Naina Kapur and Meenakshi Arora who fought the case, Fali Nariman, who appeared as amicus curiae or friend of the court, and the Supreme Court bench that deemed the issue a priority, added Butalia.

“It was quite unique that such a verdict was even delivered,” she said. “The court could have sent [the petition] back saying it is not for them to make the law but the Parliament’s responsibility. Instead, they chose to draw on international law, the Constitution of India, the right to freedom of work and so on. They said they would create an interim measure till the law comes into place.”

Kapur explained, “Vishaka was a binding judge-made law which, for the first time, recognised workplace sexual harassment as a violation of a woman’s right to constitutional equality at that workplace. That is what it made to unique.”

However, it is the same judiciary that also failed Bhanwari Devi. Her own appeal against the trial court judgement acquitting the five accused is still pending 26 years after the crime. “We may be starry-eyed about Vishakha and so is she [Bhanwari Devi] but let’s also remember that she still hasn’t gotten justice,” Srivastava said. “Twenty-six years since the rape and 22 years since the appeal. Can you believe that her courage and spirit has still not been sullied even after all this?”

Bhanwari Devi, who is now 56 years told, is still working for the welfare of women, Dalits and the marginalised in Rajasthan. “I am alive because of the women’s movement,” she told Scroll.in. “The court of law and the government has failed me but I got justice in the people’s court.” She added that she had “also got justice in god’s court”, a reference to the fact that four of the five men accused of raping her have since died.

Former Vishaka member Mamta Jaitly said that justice delayed is justice denied. “The case just hasn’t come up for hearing and is still pending,” she said. “Are such matters not important for the judiciary or the government? It’s incredible that the same judiciary has been both proactive and simultaneously an utter failure.”

Kapur pointed to a larger failure beyond the denial of justice for Devi in the criminal case, which she said was inevitable “given the historical treatment of sexual violations” in traditional legal processes. “An innovative argument which promoted long overdue recognition of sexual harassment as an equality violation was never replicated through other cases,” she said. “The real benefit of Vishaka can only be served, if we compel compliance with workplace sexual harassment as an equality issue, make a conscious shift from the limiting language of criminal law to the expansive language of equality.”

This article has been updated to include insights from Naina Kapur.