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

“equality in employment can be seriously impaired when women are subjected to gender
specific violence, such as sexual harassment at the workplace and educational institutions.” 46
Apart from guaranteeing a general right to equality, Sri Lanka’s Constitution of 1978 also
prohibits discrimination on the grounds of race, religion, language, caste, sex, political
opinion, place of birth “or any such grounds”. 47 It also prohibits any restriction to access
public spaces on the same grounds. Similar to Constitutions of the other research countries,
Sri Lanka’s Constitution permits the creation of special laws for the advancement of women,
children or disabled persons.
The Interim Constitution of Nepal, 2007 48 , apart from stipulating the right to equality further
recognizes women’s right to reproductive health “and other reproductive rights” 49 ;
prohibition of “physical, mental or any other form of violence” on women 50 and equal rights
to ancestral property for sons and daughters. 51 Some of these rights are available to citizens
only. Interestingly, as compared to other Constitutions, such as India’s, where such rights are
available against the “State”, which is defined therein, the fundamental rights under Nepal’s
Interim Constitution are not circumscribed as actionable only against the State (which is not
defined) unless stated specifically. Nepal has also legislated an omnibus law – the Act to
Amend Some Nepal Acts for Maintaining Gender Equality, 2006, which addresses a gamut of
issues (those relevant to this paper are discussed at different stages below) including on
marital relations, sexual offences, inheritance etc. in order to remove long-entrenched genderbiased
provisions in Nepal’s Country Code (“Muluki Ain”) and other laws. This law has also
amended the Country Code to introduce prohibitions on sex identification of the foetus with
the intention of terminating pregnancy and carrying out such termination of pregnancy. 52
To take an example from Nepal on the use of guarantees of equality by the Supreme Court, a
public interest litigation was filed challenging the practice of chaupadi, where women were
placed in solitary and unhygienic places like cowsheds during their menstrual and delivery
periods. The petition contended that the practice that is pervasive in some areas was
fundamentally degrading and put women at grave health risk. The Supreme Court directed
the government to declare chaupadi illegal through the immediate enactment of a law. 53
The Constitution of Thailand also adopted in 2007 states that the Thai people, irrespective of
their origins, sexes or religions, shall enjoy equal protection under the Constitution. 54 It
prohibits unjust discrimination against a person on the grounds of differences in origin, race,
language, sex, age, disability, physical or health condition, personal status, economic or
46 See Bangladesh National Women Lawyers Association (BNWLA) v. Government of Bangladesh and Others,
Writ Petition No. 5916 of 2008, High Court Division of the Supreme Court of Bangladesh, (Date of Decision:
14 th May 2009. For further discussion on sexual harassment see sub-section 1.6 below.
47 Article 12, Constitution of Sri Lanka, 1978
48 In 2007 Nepal’s Interim Constitution replaced its previous Constitution of 1990. The Interim Constitution was
changed through three amending Acts in 2007. It is to remain in force until a new Constitution is made by the
people of Nepal through the Constituent Assembly. As of this writing the Interim Constitution of 2007
continues in force as the supreme law of Nepal.
49 Article 20, Interim Constitution of Nepal, 2007
50 Ibid.
51 Ibid.
52 Sections 28C & 28D, Country Code (Nepal)
53 The authors did not have access to the original text or an English translation of this judgment and relied on an
unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law &
Development, which was made available to the authors.
54 Section 5, Constitution of Thailand, 2007
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