NAVIGATING WORKPLACE SEXUAL HARASSMENT: COMPARATIVE ANALYSIS OF LEGAL FRAMEWORKS IN INDIA, CHINA, AND AFGHANISTAN

This article is written by Sahil Mewani of 7^th Semester of ILS Law College, an intern under Legal Vidhiya

ABSTRACT

This paper conducts a comparative analysis of sexual harassment laws in India, China, and Afghanistan, exploring their legal frameworks, historical contexts, and implications for women’s rights. Examining India’s legal evolution, the paper highlights the significance of the 2013 Sexual Harassment of Women at Workplace Act (POSH Act) in creating a more secure and equitable work environment.

In China, the evolving legal landscape, as seen in the 2021 Civil Code and the 2023 Law on the Protection of Women’s Rights and Interests, reflects the nation’s commitment to addressing sexual harassment. However, the absence of specific punishments and reliance on employer actions pose enforcement challenges. Contrastingly, Afghanistan’s legal trajectory is marked by uncertainty, shaped by political changes, including the Taliban regime’s return. Pre-2001 restrictions on women’s rights were followed by post-Taliban legal measures, such as the Elimination of Violence against Women Law, which faced implementation challenges. The current situation remains unclear, with the Taliban’s control impacting women’s rights.

Comparing the three countries, the paper identifies key findings. While India has a comprehensive legal framework with defined punishments, China’s evolving laws lack specificity, relying on employer interventions. Afghanistan’s legal landscape is in flux, with the Taliban’s rule jeopardizing women’s rights. Common challenges include difficulty in proving harassment and the need for enhanced legal processes.

Ultimately, the study emphasizes the importance of global collaboration to create safer workplaces. It calls for refined definitions, stringent punitive measures, and a commitment to diversity to foster a culture of respect and eliminate harassment globally. The findings contribute to ongoing discussions on strengthening legal frameworks to address the persistent challenge of sexual harassment in diverse cultural contexts.

KEYWORDS

Sexual Harassment, POSH Act, Afghanistan, India, China, Elimination of Violence against Women (EVAW) Law, Law of the People’s Republic of China on the Protection of Women’s Rights and Interests

INTRODUCTION

Ever since the 21^st Century, the contribution of women in the workforce has risen considerably. While in the past, women were mostly limited to housewives or minor jobs like making pickles, today they work in almost all fields of employment together with men. Due to the nature of our society, with this change in workplace dynamic from being male dominated to women being smaller but significant portion of the issues regarding the safety and well-being of women arose due to sexual harassment by fellow workmates. Sexual harassment refers to any form of unwanted, inappropriate, and offensive behaviour of a sexual nature towards an individual. It is a form of gender-based which is not merely a national issue but is an issue affecting women worldwide. The existence of workplace sexual harassment not only fosters an environment of insecurity and hostility for women but also acts as a hindrance to their ability to thrive in today’s fiercely competitive world. The culture and religion of a country play a huge role in the laws and rights of women of that nation and this differs in every country.

So, to make workplaces really safe and empowering, we shouldn’t just think about our own country. We need to look at what’s happening globally. Therefore, a comparative analysis of international laws on sexual harassment becomes a crucial exploration in our quest to solve the problem and make workplaces better for everyone.

OBJECTIVES

The main goals of this paper on comparing international laws on sexual harassment are to understand different rules worldwide and find effective ways to create policies. By looking at and comparing these laws, we aim to identify the best practices and address potential issues. This helps us develop policies that work well in various cultural and regional contexts. Ultimately, our objective is to create globally relevant strategies that prioritize eliminating harassment while respecting the diversity of legal contexts. These efforts aim to inform and enhance the development of strong solutions for fostering safer and more respectful workplaces on a global scale.

LAWS RELATING TO SEXUAL HARASSMENT IN INDIA

Sexual harassment has been a longstanding concern in India, even before changes in workforce dynamics occurred. As more women started playing a crucial role in the workforce, it became increasingly necessary to protect their rights within workplaces under the law. However, there was a noticeable lack of specific legislation addressing the crucial issue of sexual harassment in the workplace during the initial stages. This gap highlighted the urgent need for a dedicated legal framework to tackle and prevent instances of workplace harassment, ensuring a safer and more respectful environment for all employees. Recognizing this void, efforts were eventually made to introduce comprehensive measures that address the nuances of sexual harassment, contributing to a more equitable and secure work atmosphere.

Before the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, India addressed sexual harassment through various laws:

1. Indian Penal Code (IPC), 1860:
   • Section 354 of the IPC punished the assault or criminal force to a woman with the intent to outrage her modesty.
   • The Criminal Law Amendment Act, 2013, added provisions, including Section 354A, defining and penalizing “sexual harassment,” and Section 509, addressing insults to a woman’s modesty.
2. Industrial Employment (Standing Orders) Act, 1946:
   • This labor law required employers with over 100 employees to establish standing orders, including rules against sexual harassment.
   • The Industrial Employment (Standing Orders) Central Rules, 1946, defined “sexual harassment” and mandated a Complaints Committee for workplace harassment inquiries.
3. Indecent Representation of Women (Prohibition) Act, 1987:
   • This Act prohibited harassment through indecent representation of women in various forms, holding companies and individuals involved in the offense liable for punishment.
4. The Constitution of India, 1950:
   • Article 14 of the Indian Constitution ensures that every citizen is equal before the law, a principle articulated in the Preamble. Consequently, women possess a legal entitlement to a secure workplace. Notably, Articles 14, 15, and 21 of the Indian Constitution specifically deal with the notions of equality and liberty. These provisions collectively guarantee equal treatment under the law for all, freedom from discrimination based on any grounds, and the right to lead a life that is both free and independent

Despite these safeguards, there was no specific legislation dedicated to workplace sexual harassment until the Supreme Court’s 1997 Vishaka v. State of Rajasthan guidelines. These guidelines led to the enactment of the Sexual Harassment of Women at Workplace Act in 2013.

Sexual Harassment of Women at Workplace Act, 2013:

• Commonly known as the Prevention of Sexual Harassment (POSH) Act, it aims to protect women at the workplace and prevent and address complaints.
• The Act defines employers and employees comprehensively, covering various employment scenarios.[1]
• It addresses behaviours like promises of preferential treatment or threats of detrimental treatment, creating a hostile work environment.
• It places the onus on employers to adopt a proactive stance against sexual harassment, emphasizing the implementation of preventive measures such as awareness programs and sensitization workshops
• The Act provides for creation of Internal Complaints Committees (ICCs) and Local Committees based on the number of employees.in organizations, providing a structured mechanism for addressing complaints and fostering a culture of accountability.[2]
• The Act extended its protective reach to encompass various work-related environments, showcasing its inclusivity and comprehensive approach beyond the confines of traditional office space

Through stringent provisions and penalties, the POSH Act sends a clear message about the seriousness with which India addresses issues of sexual harassment, fostering a culture of accountability and respect. By placing the rights and dignity of women at the forefront, the POSH Act contributes significantly to creating a more equitable and harassment-free work environment across the diverse landscape of India’s workplaces.

LAWS RELATING TO SEXUAL HARASSMENT IN CHINA:

In recent years, China has witnessed significant advancements in addressing the critical issue of sexual harassment within various societal domains, including the workplace. As the country continues to experience rapid socio-economic changes and an increased awareness of individual rights, the need for legal mechanisms to combat sexual harassment has come to the forefront. China’s legal landscape has responded to this imperative by evolving and enacting measures aimed at preventing, addressing, and redressing instances of sexual harassment.

Chinese Civil Code, 2021

Under the Chinese Civil Code 2021[3], the term sexual harassment is defined. The article states that a person who has been sexually harassed against his will by another person through oral words, written language, images, physical acts, or the like, has the right to request the actor to bear civil liability in accordance with law. The Employers have specific and clear—although still quite general—obligations to be proactive in preventing sexual harassment, implement procedures for handling complaints and take disciplinary action where appropriate. There is no specific punishment and power is given directly to the employer to take necessary actions to ensure safety of women in workplace.

The Civil code does not provide for any punishment but merely states that in any event of sexual harassment, the employer, school, state, company etc shall have to use their authority over the others to enforce any punishment against the wrongdoer.

Law of the People’s Republic of China on the Protection of Women’s Rights and Interests, 2023

Due to lack of separate and proper legislation regarding women’s rights, the PRC has enacted Law of the People’s Republic of China on the Protection of Women’s Rights and Interests, 2023 to solidify the rights of women everywhere, including in the workplace. The act provides women with a large range of rights encompassing their personal rights, legal enforceability rights, employment rights, marriage rights etc. The rights afforded to women relating to employment are as follows:

Labor Rights and Employment Policies (Articles 41-44):

• The state ensures equal labour and social security rights for women as for men.
• Measures are in place to prevent and correct gender discrimination in employment.
• Employers are prohibited from discriminatory acts during recruitment, such as gender-based restrictions or inquiries into marital and childbearing status.
• Special protection clauses for female employees, including those related to marriage and childbirth, should be included in labor contracts.
• Collective contracts between employers and employees should address gender equality and protection of female employees’ rights.

Equal Pay and Non-Discrimination (Articles 45-46):

• Equal pay for equal work between men and women is mandated.
• The principle of equality extends to promotion, advancement, evaluation of professional titles, and training without discrimination against women.

Workplace Safety and Health (Article 47):

• Employers must protect women’s safety, health, and right to rest at work, with special considerations during menstruation, pregnancy, childbirth, and lactation.

Protection Against Discrimination (Article 48):

• Employers are prohibited from reducing wages and benefits, restricting promotions, or terminating female employees due to marriage, pregnancy, maternity leave, breastfeeding, etc.
• If a female employee is pregnant and on maternity leave, the labor contract automatically extends until the end of the maternity leave.

Government Oversight and Social Security (Articles 49-52):

• Human resources and social security departments oversee and address gender discrimination in various employment aspects.
• The state ensures women’s rights to social insurance, social assistance, and social welfare.
• A maternity insurance system is implemented, and maternity-related security systems are established.
• Special support is provided to poor women, elderly women, disabled women, and other women in need, including life assistance, employment support, and entrepreneurial assistance.

Except for the Chinese Civil Code, the national framework of China also provides the following provisions/laws on sexual harassment:

• National Human Rights Action Plan (2016-2020): This plan mentions the rights accessible to women and the goal of this plan is to prevent and protect women from sexual harassment.
• The Protection of Women’s Rights in PRC law: It expressly prohibits sexual harassment against women, granting them the right to file complaints within their own workplace.[4]
• Special Provision on Labor Protection for Female Employees(State Council Order No 619): Article 11 stipulates that within the workplace, employers must prohibit and prevent any form of sexual harassment against women.
• Criminal Law of the PRC: Under article 237 the immoral assault of a woman is held as a crime to which the punishment is Maximum fixed-term of 5 years imprisonment to the offenders.
• China Women’s Development Program (2011-2020): Under this program, the prevention of sexual harassment is the duty of employers in the workplace.

In summary, China is actively addressing sexual harassment through evolving laws and ongoing efforts. The development of these legal frameworks is a crucial step in acknowledging and tackling challenges in workplaces. Their effectiveness depends on enforcement and societal dialogue, showcasing China’s navigation of legal reforms and cultural shifts towards fairer workplaces. Ongoing efforts and awareness campaigns contribute to creating a just and respectful society, highlighting China’s dedication to evolving societal norms.

LAWS RELATING TO SEXUAL HARASSMENT IN AFGHANISTAN

The issue of law relating to sexual harassment and protection of women’s rights in Afghanistan is complex and uncertain in nature. Afghanistan has been subject to numerous changes in government due to presence of Taliban.

Period from 1996-2001:

Initially during the period of 1996 to 2001, the Taliban government imposed strict and harsh rules on women and their rights were kept to a bare minimum. There was no protection under the law for sexual harassment of women. Women were not allowed to go to schools or colleges to get educated nor allowed to do any jobs so the question of workplace harassment is moot as they were forbidden from working any jobs.

Period from 2001-2021:

Post-2001, following the fall of the Taliban administration, women’s involvement in various sectors in Afghanistan increased. Unfortunately, Afghan women who advocated for their rights faced significant risks, including assault, especially when being visible outside the home, traveling without a male chaperone, or having connections with foreigners. Gender-based violence, such as domestic abuse, sexual harassment, and rape, remained prevalent. Despite growing public awareness, the Afghan government did not take effective measures to prevent and address these issues. Although the government enacted certain laws, they were left in limbo and women’s access to justice was limited.

In terms of legal advancements, after ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) without reservation, Afghanistan introduced the Elimination of Violence against Women (EVAW) Law in 2009. This law addressed forced and early marriages, polygamy, harassment, and various forms of violence against women. However, it initially lacked clear definitions for key terms. Subsequently, a regulation was drafted to clarify these terms and provide detailed definitions. The EVAW Law prescribed penalties, including imprisonment for assaulting a woman, criminalizing child marriage for the first time, and imposing penalties for forcing underage girls into prostitution

Despite these legal measures, the government struggled to enforce the EVAW Law effectively. Only a small percentage of accused individuals faced punishment, with many cases being settled through mediation or resulting in no action. The law faced opposition, being considered un-Islamic, and its approval by the parliament was delayed until 2016. Some legal experts argued that the EVAW Law violated the constitution[5]. In response, the Law on the Prohibition of Harassment against Women and Children was enacted in 2016. This legislation, aligned with Sharia Law, passed both houses of parliament but was not explicitly approved by the President.

In 2018, when the Afghan Penal Code was to be reviewed, the EVAW was largely overlooked and only a few provisions relating to protection of virginity of women were included. The status of law relating to sexual harassment at workplace was essentially non-existent.

Post 2021-Present

With the Taliban taking control in 2021 and expressing adherence to Islamic laws over democracy, the state of Women’s rights in Afghanistan right now is uncertain due to lack of any formal law or act in force in the country. In a particular instance, a woman approached the court to lodge a complaint against her husband. The individual responsible for security at the court entrance ruled that the woman must either reside with her husband while maintaining her dignity or face imprisonment. Consequently, women are now unable to report instances of abuse. This restricted access to the criminal justice system has heightened the vulnerability of women. Additionally, safe houses, perceived by the Taliban as contributors to family breakdowns, have been shut down. The fate of the earlier laws remains uncertain and women are not even allowed to work any jobs under the Taliban Rule.

In summary, the state of Sexual Harassment Law relating to women in Afghanistan is unclear and essentially non-existent, causing great harm and injustice to women all over the country. With advent of time, Afghanistan may adopt the EVAW but as of now, the Taliban has not taken any steps to provide women these rights

COMPARATIVE ANALYSIS AND FINDINGS:

• It is an indisputable reality that sexual harassment can occur irrespective of gender, affecting males, females, or transgender individuals. However, Indian laws specifically provide protection against workplace sexual harassment for women, as evident from the preamble of the POSH Act, 2013. Whereas, under the Chinese Civil Code, men employees also can bring an action against sexual harassment at the workplace. Under Chinese laws, a harasser does not need to be of the opposite sex which means that the victim and harasser can belong to the same sex also.
• In India, the punishment is not that severe with punishment up to 50,000 rupees while China has no specific punishments for such acts in their present law but the criminal law has rigid punishment. But only the violent crimes are punishable under the Chinese Criminal Law with up to 5 years in prison. For other smaller acts, the onus lies on the employer to take any action against the harasser. In Afghanistan, there are presently no clear laws regarding any punishment for sexual harassment in workplace.
• In India, the definition of Sexual harassment is very wide and includes a wide variety of acts which lower women’s dignity while in China, the definition of sexual harassment requires further clarification and elaboration to explicitly convey that it constitutes a manifestation of gender discrimination. This expansion should encompass the understanding that sexual harassment can involve creating a hostile environment without being specifically targeted at an individual. In Afghanistan, only violent sexual crimes have a scope of punishment while other harassment types have no legal protection under the Taliban regime.
• In India, workers get same protection under law regardless of the nature of the workplace be it traditional office type or household workers while in China, workers not in a traditional employment relationship receive inadequate legal protection from work-related sexual harassment. In Taliban, there is no protection afforded as of now to women in relation to sexual harassment in workplace.
• In all three countries, the difficulty of proving sexual harassment in litigation remains unsolved and many cases of sexual harassment get disposed off while the harassers go unpunished freely. The process in India is a bit smoother compared to China and Afghanistan but nonetheless, it is inadequate compared to developed countries and needs reform.

CONCLUSION

In conclusion, the comparative analysis of sexual harassment laws in India, China, and Afghanistan reveals a spectrum of legal approaches and challenges. India showcases a robust legal framework with comprehensive protection for women. China demonstrates evolving laws but lacks specific punishments, raising concerns about enforcement. Afghanistan, amid uncertainty, currently lacks clear legislation, leaving women vulnerable. Despite differences, common themes of improved legal definitions, punitive measures, and global collaboration emerge. Crafting effective solutions requires a harmonized approach that respects the rights and dignity of individuals, transcending borders and given the current trend of development of law in these countries, it won’t be long till the day these countries shall have a proper law protecting women in workplaces against sexual harassment.

REFERENCES

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Adv. Sonali Satpathy, LEGAL PROVISIONS FOR SEXUAL HARASSMENT AT WORKPLACE, (last visited Jan. 11,2024) https://www.linkedin.com/pulse/legal-provisions-sexual-harassment-workplace-analysis-satpathy/

Giulia Interesse and Qian Zhou, China Passes New Women’s Protection Law: Key Takeaways for Employers, (last visited Jan. 11,2024) https://www.china-briefing.com/news/china-passes-new-womens-protection-law-key-takeaways-for-employers/

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Shivangi Prasad, Legislative and judicial responses to workplace sexual harassment in mainland China: Progress and drawbacks,(last visited Jan. 11,2024) https://poshatwork.com/sexual-harassment-taliban-afghanistan-an-analysis/#:~:text=under%20this%20law%2C%20assaulting%20a,to%2015%20years%20in%20jail.

Fahima Sirat, Violence Against Women: Before and After the Taliban, (last visited Jan. 11,2024) https://ohrh.law.ox.ac.uk/violence-against-women-before-and-after-the-taliban/

Sebghatullah Qazi Zada, Legislative, institutional and policy reforms to combat violence against women in Afghanistan, (last visited Jan. 11,2024) https://link.springer.com/article/10.1007/s40901-020-00116-x

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[1] Section 2 of Sexual Harassment of Women at Workplace Act, 2013

[2] Section 10 of Sexual Harassment of Women at Workplace Act, 2013

[3] Article 1010 of Chinese Civil Code, 2021

[4] Article 40 of PRC Law

[5] Article 79 of the Constitution of Afghanistan

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