One forgets the human story of ‘Vishakha’, a Saathin, a friend, a grass root worker employed with the Women’s Development Project (WDP) run by the Government of Rajasthan was gang raped by five upper caste men as an act of revenge for Saathin trying to stop child marriage. This was the year 1992, during the festival of Akha Teej, a time considered auspicious for marriages. With children as young as one year old were married, WDP members were engaged with the community to stop child marriages. The angered family thought it was beneath them to be told by a lower caste woman to end a practice they fiercely thought otherwise. The marriage was prevented that day, but the family went ahead with the marriage at midnight. Saathin and her family witnessed social boycott. On September 22, 1992 while she and her husband were working in their field, five men attacked her husband. She went to her husband’s rescue, when two men raped here, while the other three men kept her pinned down to the ground.
The double victimization followed with apathetic display of inaction by the police. Male doctors refused to medically examine her, as no female doctor was present. The Medical Jurist at Jaipur refused to conduct any tests without orders from the Magistrate. The Magistrate refused to give the orders until the next day, as it was way past his working hours. The vaginal swab was taken more than 48 hours after the alleged rape, even though Indian law requires this to be done within 24 hours of the act.
The court hearing was long drawn out, with five judges being changed, and the sixth Judge ruled the accused as “not guilty” stating that ‘Saathin‘s husband couldn’t have passively watched his wife being gang-raped’, further adding that, “Since the offenders were upper-caste men and included a brahmin, the rape could not have taken place because she was from a lower caste.”
The outrage, public opinion and civil society upraise saw number of NGOs, women’s rights activist and lawyers file a Public Interest Litigation (PIL) in the Supreme Court of India under the collective platform called Vishakha, against the State of Rajasthan and the Union of India.
The court read out: “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, are of great significance in the formulation of the guidelines to achieve this purpose.”
This definitive judgment was distinctive in as much as it acknowledged that the international Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), along with the Articles 14, 19 and 21 of the Indian Constitution was an enforcement of the fundamental rights of working women was binding on the State:
“In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein…”
The onus for a safe working environment was on the employer. It was the duty of the employer or other responsible persons in work places 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.
The Vishakha judgement helped strengthen the Sexual Harassment of Women at Workplace, Act 2013, filling the gap until then for women who faced sexual harassment and violence at workplace (whether public or private).
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