When sexual harassment law goes east: feminism, legal transplantation, and social change.

AuthorBarak-Erez, Daphne

Activism around sexual harassment has sparked developments around the globe, but every legal system has its own individualized story of sexual harassment law. This article engages in a comparative study of sexual harassment in India and Israel, which seem to share a very similar development. Both countries introduced reforms in the area of sexual harassment around the same time and have legal systems that share common denominators, such as a British colonial past and a mixture of modernity and tradition. This article follows the processes that shaped the reforms and uncovers significant differences between Indian and Israeli sexual harassment law. In general, Israeli law is more robust in both its substantive scope and its enforcement. Paradoxically, for these very reasons, it is encountering a significant backlash not traced in the Indian context.

  1. INTRODUCTION: SEXUAL HARASSMENT LAW AS A LEGAL TRANSPLANT II. INTRODUCING SEXUAL HARASSMENT LAW IN INDIA AND ISRAEL A. Sexual Harassment Law in India B. Sexual Harassment Law in Israel III. IMPLEMENTATION AND ENFORCEMENT OF SEXUAL HARASSMENT LAW REFORMS A. Implementation in India B. Implementation in Israel IV. THE COMPARATIVE RIDDLE: LEGAL IMPLEMENTATION VIS-A-VIS PUBLIC ATTITUDE V. CONCLUSION I. INTRODUCTION: SEXUAL HARASSMENT LAW AS A LEGAL TRANSPLANT

    "Over the past two decades, activism around sexual harassment has sparked developments around the globe, with differing results as each nation has drawn on its own legal and cultural traditions to fashion its own approach to regulating harassment." Yale Law Professor Vicki Schulz offered these opening remarks to the panel dedicated to the discussion of sexual harassment under the auspices of the Association of American Law Schools in 2004. (1) This Article looks into this process of global-local transplantation more closely by uncovering the differences between supposedly similar case studies.

    Inspiration and borrowing from other legal systems has always been a major technique in the development of law, known also as "legal transplantation." (2) This practice has been criticized by scholars pointing to the danger of imposing foreign notions that do not necessarily conform to domestic culture and needs. At the same time, it is obvious that inspiration from other systems also has its virtues, and, at any rate, is part of modem reality. (3) Sexual harassment law is an interesting example of a transplant that was conceptualized and developed originally in the United States (4) and then adopted by many other systems in different forms and degrees. (5) In fact, it represents the hegemonic mode of legal transplantation today: The impact of American law on law reforms in other countries has often been characterized as the "Americanizatton" of other laws. (6)

    This Article follows and assesses the processes of adoption of sexual harassment law in two case studies: India and Israel. The justification for looking into these two case studies lies in the basic traits of the two systems. Both systems are based on western constitutional traditions but remain very rooted in traditional and multicultural social contexts. The issue of women's rights is a prime example of this ambivalence in both Israel and India. (7) In addition, the legal systems of India and Israel merit comparison because of their common backgrounds (originating from British colonialism around the same period--India in 1947 and Israel in 1948) and the mixture of modem values and tradition. (8) This combination of "new" and "old" in Israeli and Indian society makes analysis of the transplantation of a progressive normative standard such as the prohibition on sexual harassment, and evaluation of its introduction and the level of its acceptance, even more intriguing. Very interestingly, the two countries introduced reform in the area of sexual harassment around the same time--in 1997 the Indian Supreme Court gave the Vishaka decision, (9) which serves the basis for the sexual harassment law in the country, and in 1998 Israel enacted an advanced statute in this area. (10) Both countries introduced these reforms against the background of gender stereotypes and assumptions regarding male privileges that the new legal reforms aimed to uproot. The following discussion evaluates the victories and shortcomings of both reforms and the comparative study will reflect on each of these reforms by juxtaposing them against each other. Finally, this article demonstrates that Israeli law is more robust in both its substantive scope and its enforcement and that, paradoxically, for these very reasons, it is encountering a significant backlash not seen in the Indian context.

    Following this introduction (which serves as Part I of the Article), the discussion starts by reviewing the basic structure of sexual harassment law in both India and Israel (in Part II). An analysis of the actual implementation and enforcement of sexual harassment law in the two countries (in Part III) complements this review. Based on this discussion, the Article juxtaposes the legal developments against the prevailing attitudes in the two countries towards the new legal regulation of sexual harassment (in Part IV). Lastly (in its concluding Part V) the Article evaluates the factors that promote feminist reforms such as the introduction of sexual harassment law.

  2. INTRODUCING SEXUAL HARASSMENT LAW IN INDIA AND ISRAEL We start our analysis by presenting the basic reforms that introduced sexual harassment law in Indian and Israeli law, respectively.

    1. Sexual Harassment Law in India

      Sexual harassment law in India began in 1997 with the landmark Vishaka decision, which for the first time defined sexual harassment at work and recognized it as a violation of women's fundamental rights to dignity and equality. (11) Prior to this decision, there was no law preventing sexual harassment at the workplace in India. Sexual harassment was not regulated by any of the labour or employment legislations. To some extent, traditional criminal law provisions under the Indian Penal Code (IPC) criminalized some forms of sexual harassment with the aim to preserve women's modesty. For example, section 509 of the Indian Penal Code states that any word, gesture or act intended to insult the modesty of a woman is an offense (12) and section 354 creates an offence out of any act that outrages the modesty of a woman, (13) but these were not actually used to address the problem of sexual harassment in the workplace. They were not effectively enforced, and at any rate, were not understood as aimed at promoting gender equality.

      A well-known case was that of Rupan Deol Bajaj v. K.P.S. Gill (14), in which the then-Chief of Police in Punjab slapped a senior administrative services officer on the bottom at a dinner party. The general public opinion was that the officer was blowing the case out of proportion, and top officials in the state tried to suppress the case. (15) Despite this attitude, the Supreme Court found the officer guilty of offences under section 354 (assault or criminal force to a woman with intent to outrage her modesty) and section 509 (an act intended to insult the modesty of a woman) of the Indian Penal Code. (16)

      Another well-known case was Radha Bai v. Union Territory of Pondicherry, (17) in which the appellant was a government officer who was sexually harassed and molested by the Home Minister of Tamil Nadu when she exposed his illegal involvements with the inmates of a shelter home for women. (18) When she complained, she was removed from service. Following additional complaints, the Supreme Court intervened in the investigation of the case almost seventeen years after the incident. Ultimately, the Supreme Court held that although the complainant was terminated from service, she would be entitled to full retirement benefits and directed the State and the harasser to compensate her for lost reputation and honor. (19)

      The Vishaka decision (20) resulted from a public interest petition filed in the Supreme Court that arose out of the gang rape of a woman employee of the state government and the failure of officials to investigate her complaints. (21) As part of her work, the employee was engaged in advocating against child marriage. In the course of her advocacy, members of the upper caste harassed her and when she reported the occurrence to the local authority, it did nothing. That negligence led to her rape by five upper caste men. A women's fights organization then filed a writ in the Supreme Court requesting it to direct the state to form a committee to frame guidelines for the prevention of sexual harassment and abuse of women at the workplace.

      The Supreme Court recognized that sexual harassment in the workplace violated women's fights to equality and that employers were obligated to provide a mechanism for the prevention of sexual harassment and for the resolution, settlement, or prosecution of sexual harassment. (22) Accordingly, the Court framed guidelines on sexual harassment in the workplace and declared the guidelines as law of the land until the legislature took further action. (23)

      More specifically, the Supreme Court held that incidents of sexual harassment violate women's fundamental rights to life and liberty guaranteed under Article 21 of the Constitution, equality under Articles 14 and 15 of the Constitution, and the right to "practice any profession or to carry out any trade or business" protected under Article 19(1)(g) of the Constitution. (24) The right to life was interpreted to mean a "right to life with dignity." (25) The Supreme Court held that "gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right." (26) Keeping these principles in mind, the Supreme Court framed detailed guidelines for the protection of these rights to fill the legislative vacuum. In giving such a finding, the Court relied not...

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