POSH Law in India: A History
By Kirthi Jayakumar
This post is the first in a 16-part series for the 16 Days of Activism against Gender-based Violence. In 2020, the campaign continues to call for the ratification of ILO C190, but with a dedicated focus on informal women workers - especially those whose lives and livelihoods have been acutely impacted by COVID-19 and the unprecedented economic crisis that has followed.
Trigger Warning: Mentions of specific forms of Sexual Assault, Details incidents of sexual violence.
Image: Bhanwari Devi / Source: BBC
India’s legal system addresses workplace sexual harassment through the Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act, 2013). The run up to this legislation began with Bhanwari Devi’s fight for justice, which continues to this day. Her case shone the spotlight on workplace sexual harassment in India. It paved the way for the historic case of Vishakha and others v. The State of Rajasthan, which culminated in the “Vishaka Guidelines” that governed employer responsibilities in addressing workplace sexual harassment, until the POSH Act, 2013 was passed.
Bhanwari Devi’s case
In mid-1985, Bhanwari Devi, a woman from the kumhar caste, became a “saathin” under the Women’s Development Project (WDP) that was founded and run by the Government of Rajasthan. In that capacity, she addressed issues specific to land rights, access to water, enabling access to literacy and health resources, enabling the implementation of the Public Distribution System, and facilitating the payment of minimum wages while carrying out famine relief efforts. Two years later, when a man attempted to rape a woman from a neighboring village, Bhanwari Devi fought for the woman’s rights. The village supported her efforts and co-operated her. But that changed when she questioned child marriage, which was both rampant and normalized among the gurjar community.
Although outlawed in India, child marriage was and continues to be a part of the customary practices of several communities in Rajasthan and other parts of India. In 1992, the government of Rajasthan decided to implement a campaign to put an end to child marriage. This campaign was to be implemented on ground for a whole fortnight before the festival of Akha Teej, a day that was considered auspicious for the performance of marriages and was often the day on which several child marriages were conducted. Along with her colleagues under the WDP, as well as members of the District Women’s Development Agency (DWDA), Bhanwari Devi was sent out on field to speak to the villagers to speak to them about the ill-effects of child marriage, and to persuade them not to marry off their children at an age prior to the legally permitted age of marriage. Despite their enthusiastic cooperation on a range of issues that Bhanwari Devi addressed through the WDP, this campaign found no support from the community. It was also met with vehement disapproval from local leaders, including the Sarpanch himself.
Among the many people that Bhanwari Devi spoke to, a father, Ram Karan Gurjar, had arranged the marriage of his nine-month-old daughter. Despite her persistent efforts to deter him from performing the marriage, he refused. Recognizing that several families were in violation of the law and did not heed the campaign’s key message, the local police began to make rounds, hoping to catch perpetrators red handed. One of the weddings they stopped was that of Ram Karan Gurjar’s infant daughter’s wedding, on the day of Akha Teej. Although the wedding did not take place on the day of Akha Teej, the nine-month-old was married off in the early hours of the next morning, well before sunrise. There were no legal consequences, though. However, it seemed to the villagers, especially those close to Ram Karan Gurjar, that the police had arrived on the scene because of Bhanwari Devi and her advocacy.
What followed was a series of vengeful actions taken against Bhanwari Devi, beginning with a social and economic boycott of her and her family. As a result, the villagers stopped selling their wares to her family, and refused to buy the earthen pots they made and sold for a living. The villagers threatened her employer with dire consequences for keeping her in his employment, as a result of which she was forced to leave her job. On another occasion, her husband was beaten up by a gurjar man.
On September 22, 1992, Bhanwari Devi and her husband were out working on their field. Five men from the gurjar caste attacked the both of them, beating them with sticks until her husband lost consciousness. When she filed a complaint with the police later, Bhanwari Devi would identify them as Ram Sukh Gurjar, Gyarsa Gurjar, Badri Gurjar, Shravan Sharma, and Ram Karan Gurjar, whose daughter's marriage she had attempted to prevent. She would indicate in her complaint that the men took turns raping her when her husband lay unconscious.
What followed was a long and arduous battle that continues till date. Despite reporting the incident, Bhanwari Devi was met with disrespect, where the police asked her to leave her clothes behind as evidence, thereby forcing her to return covered in the frugal cloth that her husband’s turban afforded her. She and her husband had to walk three kilometers at 1:00 AM, to reach the nearest saathin’s house in the next village. When she went to the Primary Health Centre for a medical examination, the male doctor on duty refused to examine her without a female doctor around – and instead, referred her to the Sawai Man Singh Hospital in Jaipur, saying that he was sending her for a test to confirm her age – and not to confirm rape and gather forensic evidence. When Bhanwari Devi went to Jaipur, the doctor there refused to conduct any tests without a Magistrate’s order permitting it – and the Magistrate, in turn, refused to give any orders past his working hours and asked her to come the next day. Thus, forensic evidence was collected a good 48 hours after the incident – and no information was recorded on the wounds on her body. This was in violation of the law, which requires medical evidence in rape cases to be recorded within 24 hours of the incident. When the matter went to the court, the accused men were supported by a local politician, a member of the legislative assembly, who helped them by providing them legal support.
After a local daily carried news of the event, several vernacular and national dailies picked up the incident and spread word countrywide. Women’s groups in Jaipur came together, making inquiries and seeking to support Bhanwari Devi. Sadly, this was used against her, by her village, as her alleged rapists and others who supported them claimed that she had lied about the entire incident. She was humiliated publicly, and resolved not to take any monetary compensation, so that such allegations would hold no water. However, after five judges were changed, the sixth judge to hear and adjudicate on the matter at the district and sessions court in Jaipur acquitted all the five accused, claiming that Mohan Lal, Bhanwari Devi’s husband, couldn’t have possibly watched five men rape his wife passively. The judge also claimed that the accused included a pair of men who were related in the capacity of uncle and nephew, and they couldn’t have possibly raped a woman in each other’s presence.
A rally was held in Jaipur on 15 December 1995 to protest against the acquittal of the rape accused. Source: VIVIDHA
Outraged by this decision, several women’s groups came together to pressure the State Government to go on appeal against the judgment. Alongside seeking cudgels for Bhanwari Devi, these groups petitioned the Supreme Court of India, which then passed a judgment issuing guidelines to address workplace sexual harassment – which led to the passing of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Until the legislative framework came about, the “Vishaka Guidelines” or the set of rules provided by the Supreme Court in the Vishaka judgment, governed the issue of workplace sexual harassment.
However, Bhanwari Devi’s case dragged on, and fifteen years thereafter, the Rajasthan High Court had held only one hearing on the case, by which time two of the accused had already died. In the meantime, Bhanwari Devi received many honors. She was a participant at the United Nations Fourth World Conference on Women in Beijing and received a cash prize under the Neerja Bhanot Memorial Award. In 2002, the then Chief Minister of Rajasthan allotted her some land and gave her monetary support for the education of her son.
Despite the accolades she received, Bhanwari Devi and her family faced the burden of social stigma, and ostracism by her own family. After her mother’s passing, she was not allowed to attend the funeral by her brothers. She gave them the money that she had received from the then Prime Minister, which they then used to arrange a caste panchayat to request Bhanwari Devi’s inclusion in their community again. While she was taken in, she wasn’t treated with respect. She continues to live on the meager income that her buffalo and two bighas of land allow her – while the money she received from her awards were locked into a trust fund to aid women.
Continuing Structural Violence
Even as Bhanwari Devi continues to wait for justice, her story proved to be a very important part of the women’s movement in India. On the one hand, her efforts and advocacy against child marriage culminated in the increase in the average age of the first-time mother in Rajasthan, on the other, her story brought to light the issue of workplace sexual harassment and crystallized the law addressing the issue. Through the guidelines, now known as the Vishaka guidelines, workplace sexual harassment found a route for advocacy and employers were enjoined to discharge the duty of providing safe workplaces for women.
What Bhanwari Devi’s case also showed the world, however, and this is seldom addressed as much as it should be, is that caste-based oppression augments one’s gender oppression. What Bhanwari Devi faced was undoubtedly violence targeting her and her identity as a woman – but what not only enabled the offense, but also paved the way for structures to keep the perpetrators beyond the arm of justice, was the caste privilege that her perpetrators enjoyed.
Further, Bhanwari Devi’s case is also representative of the structural violence that props up patriarchy: be it in the police that refused to respect her and accept her complaint without stigmatizing her, or in the hospitals she went to that shamed her and refused to record evidence, and in the judiciary that should have stood by her as a citizen and not reduced her case to a fallacious impossibility by invoking flimsy reasons. For herself, Bhanwari Devi still awaits justice, and lives in poverty. The irony, sadly, is that the law that she paved the way for is now barely used to create, curate, and guarantee safe workplaces for women in the unorganized sector, and in the fields of development and humanitarian work. The fact that she is still waiting for justice is a clear indication that structural violence embedded in institutions that are laced with caste and gender privilege still needs dismantling. Be it the Vishaka guidelines or the current legislative framework comprising the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, implementation remains a distant dream at best.
References
1. Mathur, Kanchan (10 October 1992). “Bhateri Rape Case: Backlash and Protest“. Economic and Political Weekly. Retrieved 25 June 2014.
2. Pinki Virani (4 March 2001). “Long wait for justice“. The Hindu. Retrieved 7 April 2010.
3. Apurva (26 Januar 2010) “Sexual harassment at workplace“. Indian Express.
4. “The Irony Of Iconhood – The Life And Times Of Bhanwari Devi“, The Better India
5. “Attack of Dalit Women: A Pattern of Impunity“, Human Rights Watch
6. Bhanwari Devi: The rape that led to India's sexual harassment law https://www.bbc.com/news/world-asia-india-39265653