Naina Kapur (University of California, Berkeley – Berkeley Center on Comparative Equality & Anti-Discrimination Law) has posted Breathing Life into Equality: The Vishaka Case (In: Rebecca J. Cook, ed., Frontiers of Gender Equality: Transnational Legal Perspectives, University of Pennsylvania Press, 2023) on SSRN. Here is the abstract:
This chapter tells the story behind the landmark Vishaka judgment on workplace sexual harassment in India through the lens of the petitioner, "BD." It explores how BD's experience illuminates the complexities of advocating for women's equality and sexual harm issues within a legal system shaped by gender bias and stereotypes. BD was a rural women's worker who was gang raped by upper caste men as revenge for trying to prevent child marriages. She faced barriers in reporting the crime and was ultimately not given justice in criminal proceedings. The author, a legal activist, began working on issues of sexual violence from an inequality and human rights perspective. She saw that criminal law focused on individual cases rather than structural inequality. BD's case highlighted the hostile work environment faced by rural women workers. It formed the basis for a public interest litigation arguing workplace sexual harassment violated women's constitutional equality rights. The CEDAW Convention, recently ratified by India, also recognized sexual harassment as discrimination. The author invoked CEDAW to strengthen the equality argument. The Vishaka judgment recognized workplace sexual harassment as a violation of women's constitutional equality and dignity. Prioritizing prevention, it mandated Internal Committees to address sexual harassment within workplaces. However, BD's full story and context were not given prominence. The judgment used moralistic language around sexual harm at odds with equality. The author argues that addressing stereotypes and gender bias within the legal profession is crucial to advancing equality. While Vishaka was groundbreaking, more progress is needed in implementing its principles and transforming unequal structures. Internal Committees have transformative potential if implemented through an equality approach. But true change requires embracing equality as a birthright rather than an aspiration. Telling stories from the ground up and being "equality junkies" can expedite individual and structural change. That's the legacy of BD's case and Vishaka.
Recommended.