Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Gang-rape, sexual harassment
Supreme Court of India
Bhanwari Devi was a saathin (social worker) for the Women’s Development Programme in Bhateri (Rajasthan, India), working on a campaign to end child marriage. As part of her job, she worked directly with families to prevent the marriages and report cases to the police when urgent follow-up action was needed. This included one particular case, where Bhanwari reported a family from the Gujjar community to the police. They were arranging the marriage of a one-year old infant.
Upset with the intervention, the family rebelled against Bhanwari. After attempting to ostracise her from her community, five men – Ram Sukh Gujjar, Ram Karan Gujjar, Gyarsa Gujjar, Badri Gukkar and Shravan Sharma – went to her home. Her husband was attacked and restrained, while she was gang-raped.
Bhanwari and her husband went to the police for help. No thorough investigation was launched and police delayed taking statements regarding what had happened. Before the police told her to return home, she was asked to leave her skirt behind as evidence. Bhanwari was also forced to seek medical attention in Janipur. When she arrived, the doctor only recorded her age – leaving out any reference to rape in his report. Fifty-two hours passed before a medical examination was conducted.
Determined to receive justice for the brutal acts committed against her, Bhanwari took her case to a trial court in Jaipur. However, the court acquitted all five men. In dismissing the case, judges found it highly improbable that an uncle and his nephews would rape another woman together. They also found it impossible to believe that Bhanwari’s husband could have been restrained while watching his wife be raped. Other reasons offered by the Court included Bhanwari’s delayed report to the police and the lack of medical evidence identifying the men who had raped her.
In response to Bhanwari’s story, Vishaka (Group for Women’s Education and Research) joined together with four other women’s organisations to file a petition to the Supreme Court of India on the issue of sexual harassment at the workplace. The injustice and brutal attack Bhanwari suffered would expose the gravity of sexual harassment in the workplace and the lack of protections women have against it.
What was the decision?
“Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’… A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. Right to life means life with dignity. The primary responsibility for ensuring such “safety” and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive…”
Through its analysis, the Court concluded that sexual harassment in the workplace is a violation of women’s human rights, specifically:
- Constitution of India
- Article 14: Equality before the law
- Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
- Article 19 (1)(g): Right to practice one’s profession, or to carry on any occupation, trade or business
- Article 21: Right to life and personal liberty
The Court analysed the case through the lens of gender equality, recognising sexual harassment in the workplace as a “social problem of considerable magnitude” and discriminatory form of violence against women (VAW). “Gender equality…” the Court noted, “…includes protection from sexual harassment and the right to work with dignity, which is a universally recognised basic human right.” India’s international human rights agreements were important to achieving this purpose – especially in the absence of domestic norms to address the issue concerned. In particular, the Court referred to India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has prohibits discrimination in the workplace and outlines specific state obligations to end it:
- Article 11(1)(a, f): The right to work and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction
- Article 24: States parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention
- General Recommendation No. 19: On the elimination of violence against women
Without domestic legislation to adequately address sexual harassment in the workplace, the Court undertook measures to enforce gender equality and non-discrimination in accordance with universal human rights norms and standards.
In its judgment, the Court provided a set of guidelines for employers – as well as other responsible persons or institutions – to immediately ensure the prevention of sexual harassment. In accordance with Article 141 of India’s Constitution, these guidelines were to be considered law until appropriate legislation was created:
- Duty of the Employer or other responsible persons in work places and other institutions. It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
- Definition. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances
b) a demand or request for sexual favours
c) sexually coloured remarks
d) showing pornography
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature
- Preventive Steps. All employers or persons in charge of a work place – including private employers – should take the following preventative steps, which include:
a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways
b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender
c) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment
- Criminal Proceedings. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- Disciplinary Action. Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
- Complaint Mechanism. Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
- Complaints Committee. The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
- Workers’ Initiative. Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
- Awareness. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
- Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
Learning from other institutions
Throughout the text of the case document, Bhanwari’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. This reinforces the legal value of international human rights standards on gender equality, and helps build a unified global commitment to tackling VAW. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- Convention on the Elimination of All Forms of Discrimination against Women: 12, 13
- International Covenant on Civil and Political Rights: 15
- Beijing Declaration and Platform for Action: 24
The “Vishaka Guidelines” created by India’s Supreme Court were the first enforceable civil law guidelines on the rights of women to be free from violence and harassment in both public and private employment. This landmark victory led the Indian Government to introduce legislation prohibiting sexual harassment in the workplace and inspired other reforms across South Asia – including action taken in Bangladesh and Pakistan. The Supreme Court of Bangladesh, for example, referred to the Vishaka Guidelines in a ruling that determined violence against women in the workplace were a result of the Government’s failure to take action against it through law. Similarly, it also provided detailed guidelines to be implemented by employers until the Bangladeshi Government took action through legislation.
Despite widespread recognition of her story and the enactment of laws to protect women from sexual harassment at work, Bhanwari has waited over 23 years and is yet to receive justice against her attackers. Her continued fight is a reminder of the challenges women continue to face in accessing justice.