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

the 1990 Constitution and Article 107 of the Interim Constitution and precedents established
by it and borrowing from similar precedents of the Indian Supreme Court. 85 The guidelines
provided for the protection by investigating, judicial and implementing bodies of all personal
introductory information of women and children involved in criminal cases in relation to
sexual violence, trafficking or abortion or involved in criminal litigation before a juvenile
court respectively and persons affected by HIV in any lawsuits. All parties involved in the
cases were liable to maintain the privacy of such information. The guidelines also prescribed
a procedure for maintaining confidentiality of the information through sealing, coding etc.
and stipulated that violations would be subject to contempt of court proceedings and
departmental disciplinary action as applicable.
Apart from a few exceptions described above, issues related to HIV, discrimination and
mandatory testing in the research countries are left largely as articulations of policy or to be
decided by the courts (as the above examples from Nepal and India illustrate), on a case by
case basis. Indeed, courts have applied constitutional guarantees to equality to discriminatory
acts based on HIV status. However, such constitutional guarantees apply mainly to the
public/state sector, leaving the private sector outside their purview and therefore potentially
free to discriminate unlawfully against persons living with HIV. To cover this vast gap in the
law, the Indian and Nepali Governments are presently considering anti-discrimination Bills
relating to HIV aimed at covering the private sector. 86
1.5 Sexual Harassment
The research countries have adopted different routes to address the issue of sexual
harassment. While in India and Bangladesh, the Supreme Courts have laid down extensive
guidelines, in Thailand and Nepal the emphasis has been on the use of labour laws and in Sri
Lanka through the use of laws related to bribery.
India does not have legislation, which addresses the issue of sexual harassment. However,
the Supreme Court of India has passed a few significant judgments in this regard. The Indian
Supreme Court has evolved principles related to sexual harassment, which were first
articulated in Vishaka and others v. State of Rajasthan 87 and followed subsequently. This case
is significant being among the first instances where, in the absence of clear statutory law, the
Supreme Court used international treaty commitments to elucidate Indian law. In this case a
public interest petition was filed seeking directives from the court in relation to sexual
harassment in the workplace in the aftermath of an alleged gang rape of a social worker.
The court anchored its views in the fundamental rights of equality (Article 14), life and
liberty (Article 21) and the right to carry on a profession or occupation (Article 19(1)(g)) as
provided in the Indian Constitution. It referred to Article 51, a Directive Principle of State
Policy, which stipulated that the state endeavour to “...foster respect for international law and
treaty obligations...” It also relied on Article 253 of the Indian Constitution which empowers
the Parliament to make laws to implement treaties or conventions that India is party to. The
court pointed out that in the absence of domestic legislation covering the issue of sexual
harassment, the contents of international treaties become significant in interpreting the
aforementioned fundamental rights. It held: “Any International Convention not inconsistent
with the fundamental rights and in harmony with its spirit must be read into these provisions
85 The Nepal Supreme Court cited Vishaka v State of Rajasthan AIR 1997 SC 3011
86 The HIV/AIDS Bill 2006 (India) and the National AIDS Bill 2066 (Nepal), drafts on file with authors.
87 1997 (6) SCC 241
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