An IAS Officer, a Grassroots Worker, and a Law to Prevent Sexual Harassment at the Workplace

Political scientist Swarna Rajagopalan gives an insight into the cases that led to the POSH Act, a law to prevent sexual harassment of women at the workplace.

Her Right to Equality: From Promise to Power (Penguin India, ₹699) edited by economist Nisha Agrawal, is the fifth in the ‘Rethinking India’ series. Launched on Women’s Day 2021, the book of essays looks at the reality of gender equality in India against the promises made in the Constitution of India of a just and equal country.

What it finds is that even today, India remains a very unequal country and that women control, at best, about 10-15 per cent of economic and political resources. An excerpt from the book’s chapter titled, ‘Safe, Equal Workplaces: A Journey towards Rights and Justice’:

By Swarna Rajagopalan

The women walked past the contractor’s shed to the rows of tea bushes. They fanned out to their accustomed spots and started picking their daily quotas. As they walked by, several pairs of male eyes followed them speculatively. The women had become desensitised to the heat of that gaze on their bodies. You cannot survive if you react to everything.

As she picked her way through her patch of the tea garden, she felt a pat on her bottom. “It’s such a shame for a beautiful woman like you to work so hard.” A hand grabbed her palms and traced a line on them. “So rough with work. I see struggle in your palm. As long as I am around, you always have a way out.” These words were delivered with a twirl of the moustache. Choose one of the following endings:

• She snatched her hand away and said, “You creep, stop bothering me!”

• She gently disengaged her hand and went on working. He saw her silence as permission to keep trying.

 • She let him hold her hand, afraid to pull it back. He saw this as foreplay and ventured further every day.

• He looked about him and pulled her to a nearby clump of trees, where he raped her.

Modesty, Privacy and Impunity

On screen, India watched lecherous contractors and moneylenders freely prey on hapless female workers, or debtors and evil corporate bosses seduce their secretaries, before it saw the first widely reported sexual harassment suit.

It was shrugged off as the inevitable cost for women working outside the home, either by choice or circumstance. The oppressors were powerful men, the victims desperate and downtrodden.

Rupan Deol Bajaj changed our perceptions by filing a first information report (FIR) against KPS Gill in 1988. An Indian Administrative Service (IAS) officer herself, she was special secretary, finance, to the Punjab government, while Gill was the director general of police.

At a gathering which he attended in uniform, he harassed Bajaj all evening, culminating in slapping her bottom. At the party, in Gill’s presence, and thereafter, she spoke with senior IAS and police officials. No action was taken then or when she filed an FIR, or when her husband lodged a complaint with the magistrate.

The complaint and a plea by Gill for its dismissal went back and forth until the latter came up before the Punjab and Haryana High Court. In 1989, the court quashed the complaint against Gill, saying that “the nature of harm allegedly caused to Mrs Bajaj did not entitle her to complain about the same” and that the complaint was unnatural and improbable; it raised questions about the 11-day delay in filing the original FIR.

In 1995, the Supreme Court directed that Gill be prosecuted under Sections 354 and 509 of the Indian Penal Code, both of which deal with ‘outraging the modesty of women’; the latter also mentions privacy.

In 1998, the Punjab and Haryana High Court found Gill guilty on both counts. He was asked to execute a bond for good behaviour and pay Bajaj a compensation of ₹2 lakh. In 2005, the Supreme Court upheld this verdict, bringing the case to a close after 17 years.

When Bajaj filed her complaint, she had only the Indian Penal Code to draw on, and a discursive environment in which women who chose to work outside the home were meant to be taking a calculated risk.

She filed a police complaint against the police chief, and one with an outsized reputation for his part in dealing with the insurgency in Punjab. Running in the same social and professional circles, she could not expect and did not receive much support from official or unofficial quarters.

What Indian women learned by reading about her complaint was that any working woman could expect to be harassed by male colleagues and seniors. The Bajaj v. Gill case showed that education, economic independence and social status are no protection against the impunity granted to men by patriarchy. But by persisting with the case, Bajaj set the stage for the landmark verdict in the Vishaka case.

On September 22, 1992, five men gang-raped Bhanwari Devi. On May 5 that year, she had stopped one of them from performing the wedding of his nine-month-old daughter. This was her job, as a saathin (grassroots worker) in the Rajasthan government’s women’s development programme.

In the months leading up to the rape, Bhanwari Devi and her family had faced harassment and intimidation by members of the village’s elite families. Bhanwari Devi filed an FIR. From the FIR to the medical examination, every mandatory step in the investigation was carried out carelessly, even negligently.

In late 1992, the National Commission for Women intervened to order that the district administration prosecute the case. In 1995, all five accused were acquitted, and one of the arguments in their favour was that upper-caste men could not have raped a lower-caste woman.

There has been one hearing of the appeal against this by the Jaipur High Court, and more than 25 years later, Bhanwari Devi has not received justice. Stunned by the verdict, a collective of women’s organisations filed a PIL in the Supreme Court.

In 1997, the Supreme Court, in the Vishaka & Ors. v. State of Rajasthan case, stated unequivocally that sexual harassment at the workplace was a fundamental rights violation, and listed equality (Articles 14 and 15), life and personal liberty (Article 21), freedom of occupation (Article 19(1)(g)) and in the absence of a law, the right to constitutional remedies (Article 32). The judgement laid out enforceable guidelines in the absence of a law.

A Law to Prevent, Prohibit and Redress Workplace Sexual Harassment of Women

Bajaj had filed a criminal case against her harasser, as did Bhanwari Devi. It took Bajaj 17 years to receive justice, and Bhanwari Devi is still waiting. However, the Supreme Court’s response to the civil petition in 1997 in the form of the Vishaka Guidelines transformed women’s workplace rights in India.

The guidelines placed responsibility for the safety of women workers in the hands of their employers. They defined workplace sexual harassment.

They also required all employers to set up complaints procedures and awareness trainings. The court declared the guidelines to have the force of law until a specific law came into force.

It took 16 years for the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Like the Vishaka judgement, the law too opens by linking workplace sexual harassment to fundamental rights.

Swarna Rajagopalan trained as a political scientist and now works as an independent scholar. She is the founder of Prajnya Trust, a Chennai-based nonprofit that undertakes public education in the areas of gender equality and peace-building.

Read also: “After #MeToo, India’s Private Sector Is Finally Taking Action Against Sexual Harassment at Workplaces”

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