The recent law on sexual harassment at the workplace rides on the back of decades of campaigns by women’s groups, starting with the rape law in the famous “Mathura case” to the guidelines on sexual harassment arising from the fight by Bhanwari Devi to punish the men who gangraped her for opposing child marriage. Unfortunately, lawmakers have failed to heed some of the crucial lessons that can be drawn from these struggles.
Mathura, the 16-year-old adivasi girl whose gang-rape in police custody in Chandrapur, Maharashtra, triggered a nation-wide campaign against rape and demands for reform in criminal law, would be 56 years old this year. Bhanwari Devi, whose gang-rape by upper-caste men in Bhateri village of Rajasthan caused immense outrage and provided the impetus for a significant ruling against sexual harassment at the workplace, is also 56 years old.
Both these icons of the women’s movement might not have benefited directly from the campaigns to reform the law dealing with rape. Mathura had faded into obscurity, having got married and was getting on with her life, completely unaware that one of the pillars of Indian democracy – the Supreme Court of India – was being challenged on her behalf. In 1980, she was in her 20s when journalists from the national media descended on her village to interview the young woman whose case had been the driving force behind changes in the rape law. Not much was heard about her after that.
Yet, the “Mathura case”1 has gone down in the annals of feminist history as a watershed in challenging patriarchal notions of the judiciary. Though she had been raped in 1972, the case came into the public domain in 1979 when, for the first time ever, there was a questioning of the judgment of the apex court which overturned the Bombay High Court conviction of the policemen, on grounds that the complainant was “habituated to sex”. Moreover, the acquittal took into consideration the fact that Mathura had not “raised any alarm for help” and the “absence of any injuries or signs of struggle” on her body. Thus began a significant debate about “consent” and “submission”, and the notion that while consent involves submission, the converse is not necessarily true.
Pointing out inadequacies not only in the provisions of the Indian Penal Code, but in the judicial proceedings, four professors of law condemned the attitude of the judges in the Mathura case and questioned the “extraordinary decision sacrificing human rights in the Indian law and the Constitution”. The letter emphasised the social context, “the young victim’s low socio-economic status, lack of knowledge of legal rights and lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations”. The letter raised fundamental questions: “Must illiterate, labouring, politically mute Mathuras of India be condemned to their pre-constitutional Indian fate?…Nothing short of protection of human rights and constitutionalism is at stake”.2
Placing the crime of rape firmly in the context of power relationships and gender inequality led to major reform in the law relating to rape in 1983, when the concept of “custodial” rape was introduced and the “burden of proof” in these cases was shifted on to the accused, provision for in camera trials was introduced and the law prohibited the disclosure of the identity of the victim, and punishments were made more stringent.
No Real Change
Yet, about 10 years after these amendments, the situation had not changed significantly. In 1992, Bhanwari Devi, asathin (village level worker) in the Women’s Development Programme in Rajasthan, was gang-raped by five upper-caste men for having the temerity to stop them from conducting child marriages. As a women’s rights activist, Bhanwari was aware of the procedural requirements to report a rape, and battled indifferent medical personnel in Jaipur, 55 km away, and biased policemen at every step. It was only 52 hours after the rape that the mandatory medical examination was conducted. The law took its own sluggish course. A charge sheet was filed a year later, and in 1995, a sessions court acquitted the men on the ground that “upper-caste men could not have raped a dalit woman”. The judiciary also could not believe that an uncle and nephew could rape the same woman. The impunity of the family and caste system remained intact.
By 2007, two of the accused had died while the appeal languished in the high court. Like Mathura, Bhanwari’s life goes on. However, she has been transformed into an icon for struggling women all over the country, receiving accolades and recognition as a symbol of resistance. While the rape case has not been won, Bhanwari’s spirit of resistance is a winner through all the tribulations of dealing with the gargantuan legal machinery that has come to represent that elusive concept called “justice”. At public meetings earlier this year in Mangalore and Bangalore to mark International Women’s Day, Bhanwari’s dynamism mesmerised the audience, igniting hope that women need not be victims alone. “Only justice can fill my belly, not awards,” she declared, forefronting what for the women’s movement has been one of the most difficult struggles – to reconcile societal notions of justice and reparation with individual trauma.
While the rape case drags on, Bhanwari’s experience provided the impetus for a radical change in jurisprudence in the law on sexual harassment. This new approach which firmly embedded the concept of sexual harassment in the framework of constitutional guarantees of rights rather than notions of propriety, modesty or honour, emerged from the judicial recognition of the precarious position of women workers, especially those in rural settings. In response to a writ petition filed by women’s groups, the highest court in the land issued the Vishaka Guidelines on Sexual Harassment at the Workplace in 1997. The Supreme Court held,
sexual harassment at the workplace is violative of Article 14 of the Constitution which guarantees the Right to Equality as well as Article 19 which guarantees the Right to Practise any Profession, trade or business. Since the right to work depends on the availability of a safe working environment, and the Right to Life (Article 21) means a life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have any meaning.
Indeed, it is ironic that one of the most radical conceptions of ensuring the right of women workers to a safe working environment emerged out of the experience of a worker in the insecure work arrangement within the Women’s Development Programme of Rajasthan – one that the government has categorically denied is employment at all. This is particularly paradoxical, given that this programme was an outcome of the mobilisation of the late 1970s following the publication in 1975 of “Towards Equality, Report of the Committee on the Status of Women in India (CSWI)”3authored by stalwarts in women’s studies like Phulrenu Guha, Lotika Sarkar and Vina Majumdar. Following on from this realisation, the Sixth Five-Year Plan (1980-85),4 which for the first time included a chapter on Women and Development stated,
A low rate of literacy and low economic status stress the need for greater attention to the economic advancement of women. Improvement in the socio-economic status of women would depend on a large extent on the social change in the value system, attitudes and social structure prevailing in the country.
It was to redress the situation that benefits of development in post-Independence India had not reached the vast majority of women in rural areas that the Mahila Vikas Abhikaran, or the Women’s Development Project (WDP) of Rajasthan was set up in 1984. According to the Policy Document of the Project,5
Most government schemes in which the involvement of the family in the process of development is essential, have grievously suffered due to women’s isolation. This is true not only of programmes of child welfare – in which women’s involvement is well-accepted – but also those of dairy development, social forestry, IRDP, agricultural production, etc. Indeed women’s development is one of the most critical challenges for Rajasthan.
Catalyst for Change
The WDP undoubtedly acted as a catalyst for change in rural Rajasthan, and its close association with the women’s movement in the early days contributed to a radical understanding of women’s empowerment, an understanding that began to have a life of its own. The village women’s meetings (jajams) evolved as unique forums to raise women’s issues, and women began breaking out of the shackles of traditional bondage and raised hitherto taboo subjects. They began to take part in the jati (caste) panchayat, protested against domestic and other forms of violence, demanded property and other rights, etc. The information that was shared about government schemes related to health, education, public distribution, wages and measurements in famine works, minimum wages, land records, property and other legal rights became a tool to challenge social and gender inequities. Women began to be aware of their rights and soon began to spot prevalent corrupt practices and together with the Sathins raised their voices against exploitation.
Initially they had the support of WDP, but with time, women’s power that had been unleashed at the grass roots began to upset prevailing hierarchies. This then led the state to start exercising its authority and control women’s assertions. There was growing discontent and the contradictions that were built into the programme from the very beginning began to effect cleavages that had no internal remedy. As the sathin became increasingly aware of the exploitative nature of her employment and the blatant inequalities in the salary structure within the hierarchy of WDP, the ironies of the situation surfaced.6
With the stated aim of empowering rural women through “communication of information, education and training and to enable them to recognise and improve their social and economic status”, the sathins’ job was to act as a bridge between the government and the masses, essentially, implementing and making any number of government schemes palatable. They worked, and continue to work, in precarious conditions, for a monthly pittance of Rs 1,600, which was raised from Rs 200 in the 1990s, after dogged campaigning by the Mahila Vikas Abhikaran Sathin Karamchari Sangh (the WDP Sathin Union). The poor wages and job insecurity were compounded by the challenges of the work itself.
The task of “consciousness raising” or preventing “social evils” like dowry, sex selection and child marriage can be extremely hazardous, especially at the village level with deeply entrenched feudal, caste and patriarchal structures. Bhanwari was raped while attempting to overturn exactly these sorts of practices, in her own community. It takes immense courage to enter the homes of neighbours, relatives and friends, and demand that they go against prevailing customs and stop child marriage or refuse to take dowry. Needless to say, there is no job security, no benefits, no welfare measures or even basic infrastructure like transport, and no support at all from their employers – the government – while doing this risky work. The unsafe working conditions of the majority of women workers in the unorganised sector is a larger and more complex question, but the legislation that emerged from Bhanwari Devi’s struggle for a safe working environment is one step towards ensuring the rights of women workers.
Sexual Harassment Law
The Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, which was signed into law on 22 April, is a significant civil remedy that recognises women’s right to a safe work environment free of sexual harassment. The onus is on the employer, who is responsible for ensuring such an environment and is to be held liable in case of any violations. While the public sector and private sector are covered, the law also includes other work places, including the sphere of paid domestic work. Additionally, the broad definition of “employee” encompasses a range of work situations including the informal/unorganised sector:
employee means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis either directly or through an agent, including a contractor, with, or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
The challenge, of course, is in the implementation. Quite apart from the debatable legality of conferring powers of a civil court on “Internal Complaints Committees”, the proper functioning of these bodies in the organised sector and “Local Complaints Committees” depends largely on their composition. The requirement of women members as well as members “familiar with issues related to sexual harassment” is crucial for a sensitive handling of cases, since sexual harassment at the workplace must be viewed within the framework of unequal power relations within the workplace, where women at lower rungs are more vulnerable.
Indeed, the major flaw of the new law is the provision to penalise women for making “false and malicious complaints”. It is this provision, Section 14, which succeeds in pulling the rug from under the feet of any woman who plucks up the courage to complain about sexual harassment. The Indian Penal Code (Section 211) already contains a provision to protect citizens from false complaints. Therefore, the inclusion of a specific clause such as this in a law primarily meant to ensure women’s rights must be viewed with disquiet. Despite years of complaints and submissions by women’s groups demanding that this provision be dropped, the new law includes it and thereby undercuts itself.
As the Report of the Justice Verma Committee7 observes,
We think that such a provision is a completely abusive provision and is intended to nullify the objective of the law. We think that these ‘red-rag’ provisions ought not to be permitted to be introduced and they show very little thought.
Despite such a strong recommendation, the Act contains this misogynist provision which can only serve to further victimise women. Over-compensating for “misuse”, even before the law can be used, is merely writing the script for its own nemesis.
1 Tuka Ram and Anr vs State of Maharashtra on 15 September 1978: 1979 AIR 185, 1979 SCR (1) 810.
2 Baxi U, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar, “An Open Letter to the Chief Justice of India”, SCC Journal, Vol 4, p 17, 1979.
3 Ministry of Education and Social Welfare, 1975.
4 Planning Commission, Government of India 1981.
5 Policy Document, Women’s Development Project, Rajasthan, Department of Rural Development and Panchayati Raj, Government of Rajasthan, May 1984.
6 A Sawhny and Kiran Dubey, “Justice, the State and Sathins’ Struggle”, EPW, 36(16), 21 April 2001.
7 Report of the Committee on Amendments to Criminal Law, chaired by Justice J S Verma, with Justice Leila Seth and Gopal Subramaniam as members. The report was submitted on 23 January 2013.