SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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Constitutions of Bangladesh 31 , Nepal 32 , Sri Lanka 33 and Thailand 34 . Article 15 of the Indian Constitution specifically provides that the State shall not discriminate against any citizen “on grounds only of religion, race, caste, sex, place of birth or any of them.” 35 It further allows the State to make special provisions for women, children, socially and educationally backward classes of citizens and for Scheduled castes and tribes. Several Indian laws reflect the guarantee of equality based on sex including laws on maternity benefits, equal remuneration, domestic violence, etc. India has also enacted a law related to sex-selective abortions citing sex discrimination concerns. Thus, the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 prohibits sex-selection and regulates the use of diagnostic techniques that detect generic abnormalities to prohibit their use for pre-natal sex determination in order to prevent female foeticide. In 2002, an amendment to the Act to include pre-conception sex selection technologies noted that, “the pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders, etc. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female. Techniques are also being developed to select the sex of child before conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the women.” The Act does not aim to ban the use of pre-natal diagnostic techniques but regulates their use for limited purposes. 36 The written consent of the woman after she has been informed of all the side effects is required for the use of these techniques. 37 The law expressly prohibits the advertising 38 and conducting of these procedures for the purposes of sex selection or sex determination and prohibits any persons conducting these procedures from communicating the sex of the child to the family of the pregnant woman. 39 31 Article 27, Constitution of Bangladesh, 1972 32 Article 13, Interim Constitution of Nepal, 2007 33 Article 12, Constitution of Sri Lanka, 1978 34 Section 5, Constitution of Thailand, 2007 35 Article 16 of the Constitution of India guarantees non-discrimination in public employment on the same grounds. 36 These techniques may be used only for the detection of certain abnormalities in the foetus. The use of such techniques is permissible only on pregnant women above 35 years of age or if she has had a history of two or more spontaneous abortions or foetal loss, or has been exposed to potentially teratogenic drugs, radiation, injections or hazardous chemicals, or has a family history of mental retardation or physical deformity. India’s Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 also prohibits all persons from encouraging the pregnant woman from undergoing the test except for the prescribed purposes. 37 Section 5, Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (India) 38 Section 22, of the Indian Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.prescribes punishment for such advertising with imprisonment that may extend up to 3 years and a fine of up to 10,000 rupees. 39 Under Sections 5(2) and 6 of the Indian Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, any person who provides services in contravention of the Act is punishable with imprisonment for a term that may extend up to 3 years (5 years in the case of subsequent conviction) and a fine up to 10,000 rupees (50,000 rupees in the case of a subsequent conviction). A person seeking such services, including the woman herself, unless under coercion would, upon conviction attract the same sentence. Policy and enforcement matters are looked after by various bodies constituted under this law, such as the Central Supervisory Board, Appropriate Authorities for the States and Union Territories as well as Advisory Committees constituted to assist such Authorities. 18
The centrality of women’s rights to the right to equality has been expounded by the Indian Supreme Court in successive judgments. 40 Thus, in Valsamma Paul v. Cochin University, 41 the Supreme Court held that, “Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are inter-dependent and have mutual reinforcement. The human rights for women including the girl child are inalienable, integral and indivisible parts of the universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social and economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.” The Bangladesh Constitution of 1972, apart from articulating a general fundamental right to equality for all citizens also specifies that the State shall not discriminate against any citizen on grounds only of sex 42 . It further states that women shall have equal rights with men in all spheres of State and public life 43 and that the State shall not discriminate based on sex in matters of employment or office. 44 These provisions do not prevent the State from making special provisions or reservations. But they also permit the State to reserve for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. 45 The High Court Division of the Bangladesh Supreme Court, in issuing directives on sexual harassment, has used the guarantees of life and equality in the Constitution and noted that, 40 In India, the Supreme Court has accordingly found provisions of various laws in relation to employment, sexual harassment, property and some aspects of personal laws discriminatory. The Supreme Court has held that, the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality. Vishaka and Others v. State of Rajasthan and others 1997 (6) SCC 241 41 AIR 1996 SC 1011 42 Article 27, Constitution of Bangladesh, 1972 43 Article 28 of the Constitution of Bangladesh, 1972 states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. (2) Women shall have equal rights with men in all spheres of the State and of public life. (3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.” 44 Article 29 of the Constitution of Bangladesh, 1972 provides for equality of opportunity in public employment and reads: “(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. (2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic. (3) Nothing in this article shall prevent the State from – (a) making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; (c) reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.” 45 Article 29 (3) (c), Constitution of Indonesia, 1945 19
Page 1 and 2: THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4: 6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6: ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8: in the regional reviews. This is a
Page 9 and 10: provide for information and distrib
Page 11 and 12: B. METHODOLOGY In keeping with the
Page 13 and 14: elevant and key laws and judgments;
Page 15 and 16: The inability of many sexually stig
Page 17: Equality irrespective of a person
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69 and 70:
female who has not attained 12 year
Page 71 and 72:
Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
Page 75 and 76:
immovable property. The above propo
Page 77 and 78:
consummation of marriage. The incap
Page 79 and 80:
Violence, especially sexual violenc
Page 81 and 82:
gender norms which many remand home
Page 83 and 84:
female or a female to a male. It in
Page 85 and 86:
from other forms of inequality as w
Page 87 and 88:
c. Whereas victims of violence in h
Page 89 and 90:
courts. 350 According to the Commis
Page 91 and 92:
The Act provides for the appointmen
Page 93 and 94:
Rani 383 it was held that a shared
Page 95 and 96:
The Act specifies imprisonment of 6
Page 97 and 98:
property jointly or separately held
Page 99 and 100:
upees or the amount of the dowry wh
Page 101 and 102:
however, is that, of the 10,000 dea
Page 103 and 104:
Addararachchi 439 the court conside
Page 105 and 106:
harassment, the Indian Supreme Cour
Page 107 and 108:
doer’s sexual desire by using doe
Page 109 and 110:
In holding that there was no justif
Page 111 and 112:
coerce or induce female inmates to
Page 113 and 114:
material or detain any person for t
Page 115 and 116:
consensual sexual activity with you
Page 117 and 118:
The fined amount is to be given to
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the State and its citizens is one o
Page 121 and 122:
every person “the right against e
Page 123 and 124:
The law also includes the right of
Page 125 and 126:
eing committed. 570 While prosecuti
Page 127 and 128:
Broader provisions related to child
Page 129 and 130:
in order to engage the child in suc
Page 131 and 132:
her.” 631 A person is deemed to h
Page 133 and 134:
that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
Page 139 and 140:
With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
Page 155 and 156:
The exchange of information through
Page 157 and 158:
community.” 727 In each case, the
Page 159 and 160:
Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
Page 163 and 164:
“...any interpretation of 'obscen
Page 165 and 166:
“1 (a) Condones or extenuates act
Page 167 and 168:
In Thailand, places of entertainmen
Page 169 and 170:
8. SEX WORK This section examines h
Page 171 and 172:
The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
Page 181 and 182:
as parent or guardian has given his
Page 183 and 184:
with one) on the charge that it was
Page 185 and 186:
for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
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