Sexual Harassment and Elusive Justice

In the light of the recent sharing of lists of alleged sexual harassers in Indian academia, the aim and direction of the feminist movement is being debated anew. Questions of exercise of power, justice, and faith in due process have been asked. The author looks back at the case of Bhanwari Devi and the grain of past feminist struggles to chart ways ahead.

The list of sexual harassers in Indian academia has incited a range of responses. Some of us felt that it was a moment that captured all that was wrong with our university systems. Others argued that while they understood the rationale for such a listing, it was inappropriate to accuse people and not create conditions for them to respond and defend themselves. Some chose to ignore the list. A second list was circulated briefly and made for moments of unease. The most prominent response featured on the blog Kafila and led to bitter and angry exchanges. Throughout this exchange, individual names were foregrounded: Raya Sarkar who issued the call for such a list; Nivedita Menon who posted the statement on Kafila; Kavita Krishnan of All India Progressive Women's Association (AIPWA) and Communist Party of India (Marxist – Leninist) (CPI-ML). These names became the focus of debates to do with Indian feminism’s sins of omission and commission. While some rebuked the young and asked them to know their history better, the latter called that history itself into question.

In all this, the question of sexual harassment became one that had to do with universities and their complaints committees, and the circumstances and individuals whose work rendered sexual harassment a visible political problem were lost sight of. In what follows, I would like to return this moment to its place in a long and uneven history of resistance, so that we might be able to chart ways ahead that keep with but also, in some ways, go against the grain of past struggles. 

 

Sexual Harassment and the Feminist Discourse

Sexual harassment refers to a range of unacceptable and inappropriate acts, which are repeated through words, gestures, or actions. Every repeated instance of such an act is meant to render it “normal.” Banter and innuendos that emerge in everyday conversations along with an admixture of careless intellectualism and sexual preying render harassment “chic” in some social spaces, including universities. People who are uneasy with such exchanges are chided for not having a sense of humour, for not being a “good sport,” and worse, are made to feel that somehow, they have got it all wrong and that perhaps, the problem is really with them. There is also another kind of harassment where a young person is made to feel obliged to their mentor on account of the latter’s avowed brilliance, political wisdom, and rightness; so much so that they are expected to put up with the mentor’s sexual advances and on resistance, are made to feel disloyal, like a “spoiler,” and worse, insensitive to a great mind’s needs.

It is in this sense that harassment appears horrific, since it represents nothing short of betrayal of trust, mentorship, or even friendship.  This is also why it is hard to speak about, and those who want to file complaints only do so after considerable cajoling and assurances that they are not going to be subject to unsympathetic interrogation. In this context, it would be useful to ask ourselves how we came to “name” such harassment in the first place, as a public and legal problem. From the 1970s onwards, an emergent feminist common sense, nurtured in groups and movements that were formed during this decade and after, had rendered the issue visible in rather particular ways. Bhanwari Devi’s case is the fulcrum of all that followed subsequently in a legal context.

The relative “autonomy” of sexual politics, connected though it was to class and caste structures, and the need for women to “report to each other” were matters that occupied feminist attention a great deal at the time. Feminist spaces thus became contexts for sifting through guilt, sorrow, anger, and bewilderment—complex emotions that women experienced in the wake of sexual harassment. Then, as now, the horror and anguish had to do with the fact that harassers were not strangers in all cases, and in some instances, were even fellow political travelers. The progressive forums that some women were part of, even when they recognised the injustice that inhered in male sexual entitlement, did not imagine it as a political issue and were inclined to view it as an instance of individual aberration. Therefore, to be able to speak in safe feminist spaces and not be mistrusted proved cathartic. Further, the sharing of experiences and thinking through them helped many of us view harassment as a structural issue—that women’s sexuality was viewed as eminently transactional and not as something to do with their bodily integrity.

The question of “speakability”—of harassment, abuse, assault—was “resolved” differently in other social contexts. In the context of rural Bihar in the 1970s, for instance, or of Andhra Pradesh, the landlord’s right to the bodies of labouring undercaste women was exercised routinely and in public, as if to affirm their social, economic, and sexual dispossession. Here too, the harasser or abuser was a familiar figure, only his acts were transparent and nameable, and were legitimised by his class and caste status. By the same token, undercaste and labouring women were marked as dependent and “available,” as both sexual and caste–class beings. Those who eventually challenged such control had to, therefore, carry forward their struggle in both domains. The “personal” had to be claimed from the social inferiority and humiliation to which it was subject, and then redefined in and through a politics of self-sovereignty. The “speech” that women had recourse to (or which was available to them) in these contexts helped them to connect their cause to wider political concerns. In the event, sexual harassment and abuse might or might not have been directly addressed, but the conditions that gave rise to either—social and economic bondage, and caste-based labour—were, and this helped end class- and caste-based sexual control.  Between the 1970s and 1990s, militant groups, peasant struggles, and community-based campaigns focused on local issues pertaining to life and livelihood concerns, and rural feminist networks worked on matters to do with sex-selective abortions, child marriages, or women’s health. Each, in their own way, catalysed women’s speech and in some cases, action against sexual injustice.

In these contexts, the personal and the political were linked in ways that challenged as well as extended our canonical sense of the personal as political. In feminist circles, it is “normal” to reference ideas and practices that denaturalise sexual and intimate experiences, and show them to be sustained by structures of control, possession, and authority. Importantly, we also note that these structures impinge on our consciousness, direct behaviour, and work to seal our sexual and gendered fates. In this view of women’s lives, sexual and bodily integrity—freedom from loveless marriages, violent relationships, familial restrictions, compulsory heterosexuality—are central to our sense and experience of autonomy and freedom, as well as our feminist politics. 

Undercaste women’s sense of bodily integrity foregrounded the claims of the body and self in other ways. Persistent hunger, social stigma, and community decrees that limit and erode female autonomy; anxious care work that has to do with holding the family together; labour that is both exhausting and value-creating; the specific tensions that attend any conjugal or familial existence: in all these instances, the personal is always already political, and the body, constantly claimed by public and political structures, has to be reclaimed. Bodily integrity has to do with survival with dignity, and with not being marked permanently by vulnerabilities of various sorts, including the sexual. 

How much of this latter sense of the personal and political informs our shared feminist political imagination? I would like to return to Bhanwari Devi’s life and work to pursue this question, from the point of view of how we may take forward speech about sexual harassment and abuse. 

 

Justice: The Case of Bhanwari Devi

Bhanwari Devi, as we all know, was a saathin, a development worker with the Rajasthan government’s Women’s Development Programme. Her tasks included consciousness raising efforts in her village and neighbourhood with respect to child marriage, dowry, and sex selection. This meant that she entered people’s homes or addressed them in public spaces on these issues. In undertaking to educate local communities about women’s rights and persuading them to give up on time-honoured practices, Bhanwari Devi and other saathins played a critical role, but they did so from a rather precarious location. They were state employees, but were not accorded state protection or support by way of transport or job security (Sood 2006). Despite this, many of them doggedly kept up with the mandate assigned to them. Part of the reason for this was also that they had been politicised by women’s groups working with them, and by being present at all-India conferences of women’s movements. Bhanwari Devi, for instance, like others, had married her daughter off early, but after joining the Women’s Development Programme and coming into contact with ideas of women’s freedoms and rights, she and others in the village had agreed to postpone the post-pubertal ritual which signalled sexual cohabitation (Kannabiran 2012: 394). 

Child marriage was practised across communities in the region, and Bhanwari was deeply aware of the importance of persuasion rather than confrontation in abolishing the practice. For one, her own extended family was wrathful that she had persisted working at this issue—her father-in-law had called a caste panchayat and excommunicated her. Secondly, even those who accepted the need for abolition of the practice could not practise what they preached. Persuasion, however effective, had to reckon with the state’s desire to obtain tangible and enumerable results, and when Bhanwari’s efforts were backed by police action (which was resented by elected MLAs, among others), the lines of battle in the village came to be clearly drawn. The issue assumed the contours of a bitter caste conflict which proved disastrous for her. For asking to stop child marriage in the Gujar community, she incurred the latter’s wrath and was subjected to sexual assault (Kannabiran 2012: 354-99). 

Her case went to court, only to be dismissed three years later, with all five of the accused acquitted. Bhanwari Devi still awaits justice, but meanwhile, her experience became the basis for a petition that was filed in the Supreme Court demanding protection for women in their workplaces. This led to the passing of a landmark judgment, comprising what has since come to be known as the Vishaka Guidelines, which in turn became the basis for the Sexual Harassment of Women at the Workplace Act, 2013 and also helped to frame certain sections in the Criminal Law (Amendment) Act, 2013, in the wake of the Nirbhaya case. The Vishaka judgment, while referencing Bhanwari Devi’s case, does not dwell on it, since it was “the subject matter of a separate criminal action” (Vishaka & Ors v State of Rajasthan & Ors 1997). However, her story is inextricably tied to the judgment and it would be useful to see exactly how this happened. 

Naina Kapur, a Delhi-based lawyer, was asked to attend the criminal trial involving the five accused. This was to fulfill the requirement of a female lawyer’s presence during the proceedings. She was deeply troubled by the entire process. Subsequently, along with a local lawyer, she met the saathins to get a sense of their experience of harassment and the remedies they considered pertinent. The women’s descriptions, Kapur later noted, were not unlike what was defined in the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee’s General Recommendation No 19 (Sood 2006: 58).

Meanwhile, Kapur had also learnt that months before she was gang-raped, Bhanwari Devi had reported to local authorities that she was exposed to exhibitionism and had been continually harassed (Kannabiran 2012: 394-95). They did not take cognisance of her complaint and her employers, the state in this instance, did nothing to protect her. These details appeared significant to Kapur, who said,

You could make a causal link between [the government] doing nothing and the gang rape that she eventually had to experience. It was important to make the employer accountable; she was acting on their behalf. […] I filed the case using the logic that the local authority had betrayed her, let her down, left her vulnerable, and as a result, she was raped. [Then] I expanded it, saying it was a phenomenon that was affecting all women at work, and that we had to make the employer responsible for upholding their rights to dignity and equality (Sood 2006).[1]

Eventually, five women’s groups: Vishaka, Mahila Purnvas Samou, Rajasthan Voluntary Health Association, Kali for Women, and Jagori filed the petition, and Kapur and other lawyers worked on the case. Bhanwari Devi’s commitment to the judicial process, the hard work put in by the petitioners, the fact that the judges were not resistant to their arguments though they initially demurred from drawing on international law, helped make this landmark judgment. 

The judgment is interesting as much for what it could not include as for what it did: it makes it clear that harassment amounts to discrimination, and to a threat to life and liberty. In this sense, it is expansive. It holds the employer accountable in no uncertain terms, which is significant. However, it does not use the details of Bhanwari Devi’s situation to call attention to what is stark in the Indian context—that the female worker is consistently marked in terms of both her caste and gender and that this is consequential when it comes to how she is treated. The “invisibility” of caste as a marker of female identity in this instance perhaps had to do with the nature of the petition that was filed in court. The petitioners had, after all, framed the issue as pertaining to the state’s lapses. They had called attention to the “utter disregard and failure [on the part of the state] to recognise” the sexual harassment experienced by women “while performing functions for [its] benefit and on [its] behalf” and also the state’s failure to “administer prompt and efficient medical and legal redress,” which violated the constitutional rights to life, personal liberty, equality, and right to practice any profession (Sood 2006). Implicit in this argument was the notion that the violations in question were essentially gender-based. This was not untrue, but the fact remains that Bhanwari Devi’s vulnerability stemmed from a complex configuration of caste and familial interests as well.  

It is not that feminists who engaged with her case were blind to the play of caste. They were keenly aware of the tricky ground she had to tread, being from a caste deemed low in the village hierarchy, and yet holding all castes, including her own and those above hers, accountable on the question of child marriage. Many feminists had also stood by Bhanwari Devi and supported her efforts to renegotiate a dignified place for herself in the village and caste contexts after the case went against her. Interestingly, she did not wish to have her support group be part of these negotiations (Kannabiran 2012: 394-95).  However, this understanding did not lead to a rethinking of harassment and abuse as also being related to civic impunity, with the social hold of caste on our consciousness, behaviour, and judgment. 

Ironically, the trial court did not demur from referring to caste. It expressed disbelief at the purported act of assault and observed that “Indian culture has not fallen to such low depths that someone who is brought up in it, an innocent rustic man, will turn into a man of evil conduct, who disregards caste and age differences” (Kannabiran 2012:399). The court clearly understood caste status as important in defining appropriate or inappropriate social behaviour. So, whatever exonerated the Gujar men in the court’s eyes, indicted Bhanwari Devi. She was not only “reaffirmed” in her caste status, but her hard-won gender autonomy and social dignity, which had led her to do what she did in the first place, stood compromised on account of this adverse verdict. 

In Conclusion

In our understanding of sexual harassment and legal redressal, we seldom recall the details of Bhanwari Devi’s long march towards an elusive justice. Many of us remain trapped by the “unspeakability” of it all and by an interiorised sense of trauma and hurt. When we do “come out” as political actors, we take to legal redressal (as indeed we must); sometimes we foreground our experiences of hurt to claim the attention of an indifferent civic culture. However, there are other ways of engaging with trauma and this is what Bhanwari’s life demonstrates: here is a model of dogged resistance which has survived the failure of legal redressal, the end of collective struggles, and the alienation and inner corrosion this results in. Besides, it is a life that had to be led alongside those who tormented it and Bhanwari has done that, sustaining her desire for justice all along. 

As much as those who have taken feminist struggles ahead through their visible intellectual and legal labour, Bhanwari and her countless comrades are equally makers of feminist meaning and action. It is women in movement, as Sheila Rowbotham (1992) wrote years ago, who are a force in history, and the rest of us follow where they lead. Renewing feminist memory is useful in this context, and also helps us move beyond the burdened present, which presses on all of us ever more insistently because we seek to mirror its urgencies in and through instant social communication. In this context, to step back and spend time on the past, could prove a relief, and also help us balance the measure of anguish and anger we feel, with an equal measure of quiet and rational thought.

 

Notes

[1] Kalpana Kannabiran’s account (2012: 394-95) notes that Bhanwari had preferred not to go official with her problems until the day when she was assaulted.

References

Kannabiran, Kalpana (2012): Tools of Justice: Non-Discrimination and the Indian Constitution, New Delhi and Oxford: Routledge.
Rowbotham, Sheila (2012): Women in Movement: Feminism and Social Action, London: Routledge.
Sood, Avani M (2006): “Litigating Reproductive Rights: Using Public Interest Litigation and International Law to Promote Gender Justice in India,” New York: Centre for Reproductive Rights, pp 58-59, www.reproductiverights.org/sites/crr.civicactions.net/files/documents/me....
Vishaka & Ors v State of Rajasthan & Ors (1997): Writ Petition (Criminal) No-000666-000670 of 1992, Supreme Court judgment dated 13 August.

 

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