Comparative analysis- India v. France

The 21^st century human is not bound by the contours of gender in terms of individuality and way of life. In today’s world men are not the sole bread earner and women are not limited to being house makers. However, such shift in workplace dynamics has resulted in a new challenge of sexual harassment at workplace. In India sexual harassment is considered gender discrimination which violates the right to life and right to equality of a woman guaranteed under Article 14, 15 and 21 of Constitution of India. Unlike Indian take on sexual harassment, France treats sexual harassment as a subset of gender discrimination however defined as a form of sexual violence, not limiting it to the workplace rather extending it to streets, education, housing, medical services and other such places. Indian legislation believes that sexual harassment at workplace creates an unfit environment for women to work, making it hostile and insecure, hence interfering with their performance and affecting their mental and physical wellness. Majority of sexual harassment cases in Indian courts are of women and the legislation established against the evil also reads Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013. On the contrary French sexual harassment law being the product of “feminist activism and legal, political and cultural opportunity and constraint”, promulgates ‘equal gender rights’via establishing gender neutral sexual harassment laws. This still doesn’t make French law the ideal sexual harassment law however the idea behind ‘true equality’ makes it efficacious and non-discriminatory in nature. Though French laws include all genders and puts a liberal front, it contrastingly draws very restrictive silhouette while establishing the law leading to abrogation of the law against sexual harassment under the penal code, leaving the country with only labor laws, contrary to rather accepting Indian laws on sexual harassment at workplace under an act solely established for it. The limitations and flexibilities in the respective laws prove to be both advantageous and harmful in certain cases.

Gender equality is embedded in the preamble, fundamental rights and directive principle of state policy nonetheless it took till 1997 for sexual harassment to be recognised and acted upon. In the case of Bhanwari Devi v. The State of Rajasthan 1997 6 SCC 241, a woman was brutally gang raped because she joined WDP (mainly due to her low caste and financial support) and found the courage to speak against a child marriage of an upper caste family. Even the justice system failed her by passing a bizarre judgment. Owing to such perils of working women and the dire need of protection from the same, women right activists and lawyers filed a PIL in supreme court under the name Vishaka, where for the first-time sexual harassment at workplace was considered a human right violation. Relying on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979 drew Vishaka Guidelines until a proper legislative framework is constituted. After 16 years for a provision to be made which is now known as POSH which defines “sexual harassment” (along the lines of Vishaka Guidelines) as;

“Includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: —

1. Physical contact and advances; or 
2. A demand or request for sexual favours; or 
3. Making sexually coloured remarks; or 
4. Showing pornography; or 
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature”

The act also provides;

“(1) No woman shall be subjected to sexual harassment at any workplace. 

(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: — 

1. Implied or explicit promise of preferential treatment in her employment; or
2. Implied or explicit threat of detrimental treatment in her employment; or  
3. Implied or explicit threat about her present or future employment status; or 
4. Interference with her work or creating an intimidating or offensive or hostile work environment for her; or 
5. Humiliating treatment likely to affect her health or safety.”

Similarly French feminist groups initiated the Sexual Harassment laws and were pushed by the state groups to amend them for a better version. However, with the help of EU, Secretary of Women’s Rights and AVFT, sexual harassment laws were constituted owing to employment retaliation with, addressed in the labor code in 1992 and constituted in the penal code in 1994, which was later revised in 2002 and then in 2012. It was ruled in 2019 that the definition of sexual harassment under Article 222-33 of the French Penal Code lacked clarity, was imprecise and was harassing others, as it facilitated demand of sexual favours in a hierarchal atmosphere. Article 222-33 of the penal code does acknowledge sexual harassment and holds it punishable, however does not define the elements. Sexual harassment is defined under the Labor Code as;

“No employee must be subjected to acts:1 ° Either sexual harassment, consisting of repeated sexual remarks or behaviour which either undermines his dignity because of their degrading or humiliating nature, or creates an intimidating situation against him, hostile or offensive;2 ° Either assimilated to sexual harassment, consisting of any form of serious pressure, even not repeated, exerted with the real or apparent aim of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator. or for the benefit of a third party.”

Article L1153-2 ensures that no one is discriminated or terminated for suffering or refused to suffer under Article L1153-1 and Article L1153-3 provides protection to the one who testifies or reports sexual harassment. Indian laws are silent on the protection of failed claims or testifiers, which is one of the main reasons, cases do not get reported, turning the constituted act ineffective. The provisions for whistleblowers were created via law n°2018-771 and n°2018-703, added under Article L1153-5, obligating companies with employees more than 250, to nominate sexual harassment representative. It also provides a whistleblower hotline which allows the victim to express their grievance via any device with access to internet. Indian laws under section 9 of POSH requires the aggrieved to make a complaint in writing and if cannot be done then they are required to get it written from someone. Also, there stands no provision of being anonymous while filing the complaint. Indian laws do not ease up the process of filling the complaint leading to unreported cases. The government holds no data on sexual harassment as told in July 2019, moreover, 95% women find it difficult to access legal mechanism for filing the complaint. 

Though the definition in POSH is well defined and articulated, better than French labor laws, however the effectiveness of the laws is nominal. The gender acceptance of French has evolved to accommodating same sex harassment under the sexual harassment clause. Nonetheless no system is perfect as due to current insufficiency of regulations on sexual harassment, a recent case on 25^th September 2019 in the French Supreme Court, ruled in favour of a line manager sending inappropriate and pornographic content to one of his subordinates. He was dismissed by the management however believed that he and the aggrieved were indulging in such an act with consent, purely based on a single message reply, which is to mean that correspondence was maintained to certain extent. 

The laws cannot alone help curb the evil; execution is equally vital. Execution is carried on via both implementation at workplaces and interpretation of the courts. Laws should be amended with the changing society, learning from the cases filed and the upcoming plausible challenges. More importantly, laws should be readily accommodating of amendments, prior taking extreme steps of repealing laws from the code entirely, leaving the people remediless. Every jurisdiction seems to have one imperfection or other, which means that constant policy amendments and collection and analysis of data is required to make laws which can provide justice to larger audience. 

References

1. Legal & HR Consideration, Prevention of Sexual Harassment at the Workplace (POSH), Nitish Desai Associates. December 2020; https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf 
2. Abigail C. Saguy, French and U.S. Legal Approach to Sexual Harassment: The pre and post DSK Scandal, Travail, Genre Et Societes, Volume 28, Issue 2, 2012, pg. 89-106; https://www.cairn-int.info/article-E_TGS_028_0089–french-and-u-s-legal-approaches-to.htm 
3.  Isha Sharma, Bhanwari Devi Rape Case: A brief Reflection, Social Science Review, Volume 4, Issue 1, 2018; http://ssr-net.com/issues/Vol_4_No_1_June_2018/3.pdf 
4. Section 2(n), THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
5. Section 3, THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
6. Association Contre les Violences Faites aux Femmes au Travail
7. News Wires, France repeals ‘vague’ law against sexual harassment, France 24, 2 May, 2012;  https://www.france24.com/en/20120504-france-repeals-vague-law-against-sexual-harassment-strauss-kahn-tron 
8. Article L1153-1, Chapter III, Labor Code
9. ILN Labour and Employment Group, Sexual Harassment at Workplace; https://www.ilntoday.com/files/2019/05/ILN-Sexual-Harassment-in-the-Workplace-2019.pdf 
10. Anoop Bhuyan, IndiaSpend.com & Shreya Khaitan, IndiaSpend.com, Eight years on, India’s law to prevent workplace sexual harassment is marred by poor data collection, 23 February, 2021; https://scroll.in/article/987583/eight-years-on-indias-law-to-prevent-workplace-sexual-harassment-is-marred-by-poor-data-collection

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