A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

A safe working environment is fundamental to women’s enjoyment <strong>of</strong> a range <strong>of</strong>
human rights. In the absence <strong>of</strong> protective legislation, the petitioners argued, the
Court should set guidelines to fill the legislative vacuum.
Decision
The Supreme Court held that the Constitution did protect the rights <strong>of</strong> women to a
safe working environment free from abuse and sexual harassment. The Court came to
this conclusion by interpreting Articles 14, 15, 19(1)(g), and 21 <strong>of</strong> the Constitution,
which guarantee gender equality and the right for both women and men to work with
human dignity, in line with the Protection <strong>of</strong> Human Rights Act 1993 and a number
<strong>of</strong> international norms and conventions.
The Court cited Article 11 <strong>of</strong> CEDAW, which directs the State to take appropriate
measures to eliminate discrimination against women in their fields <strong>of</strong> employment.
This specifically includes the prevention <strong>of</strong> gender specific violence and sexual
harassment in the workplace. The Court also referred to an <strong>of</strong>ficial commitment
made by the Indian Government during the Fourth World Conference on Women in
Beijing to formulate a national policy on women that would continuously guide and
inform action at every level and in every sector, to set up a Commission for Women’s
Rights to act as a public defender <strong>of</strong> women’s human rights and to institutionalise
a national mechanism to monitor the implementation <strong>of</strong> the Beijing Platform for
Action.
The Court held that the primary responsibility for ensuring a safe working
environment lies with the Legislature and the Executive through the creation <strong>of</strong>
appropriate legislation and a mechanism for its enforcement. However, in the
absence <strong>of</strong> domestic laws providing for the effective enforcement <strong>of</strong> the rights <strong>of</strong>
women to a working environment free from sexual harassment and abuse, the Court
was empowered by Article 32 and the combination <strong>of</strong> Articles 73, 51(c) and 253
<strong>of</strong> the Constitution to provide measures to protect those rights. Article 32 gives the
Court the power to enforce any rights protected under the Constitution and Articles
51(c), 73 and 253 give it the power to implement international conventions. It
said that any international convention that is consistent with fundamental rights
and is in harmony with its spirit must be read into the provisions when there is a
void in the domestic law. The judgment cited the Australian case <strong>of</strong> the Minister
for Immigration and Ethnic Affairs v Teoh 128 ALR 353 [“Teoh”] in support <strong>of</strong> its
position. The Court noted that the Teoh case recognised the concept <strong>of</strong> legitimate
expectation <strong>of</strong> an international instrument’s observance in the absence <strong>of</strong> a contrary
legislative provision. Therefore the combination <strong>of</strong> constitutional provisions and
international conventions referred to by the Court empower it to provide guidelines
to protect female workers until such time as legislation is enacted for that purpose.
The Court also referred to the Beijing Statement <strong>of</strong> the “Principles <strong>of</strong> Independence
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Vishaka v State <strong>of</strong> Rajasthan (India)