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

to enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee.” 88
The court referred to Article 11 of the Convention on the Elimination of All Forms of
Discrimination Against Women, which obliged states to eliminate discrimination against
women in employment, including the right to protection of health and safety in the
workplace. It pointed out that the Indian government had ratified all the material parts of this
convention and voiced its commitment to ensure gender equality at various fora including the
World Conference on Women in Beijing. In light of this, the court stated, it had “no
hesitation in placing reliance” on the convention “for the purpose of construing the nature
and ambit of constitutional guarantee of gender equality” in the Indian Constitution. 89
Referring to the fundamental rights in the Indian Constitution it added:
“The international conventions and norms are to be read into them in the
absence of enacted domestic law occupying the field when there is no
inconsistency between them. It is now an accepted rule of judicial construction
that regard must be had to international conventions and norms for construing
domestic law when there is no inconsistency between them and there is a void in
the domestic law.” 90
Thereafter the Supreme Court laid down guidelines for sexual harassment in the workplace
and held that until legislation for this purpose is enacted these guidelines would be treated as
law. At present India has not legislated on sexual harassment. The guidelines include duties
on the employer such as prevention and deterrence of sexual harassment in the workplace and
providing resolution mechanisms in the event of complaints. ‘Sexual harassment’ is defined
as direct or implied “unwelcome sexually determined behaviour” such as “physical contact
and advances, a demand or request for sexual favours, sexually coloured remarks, showing
pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.” These guidelines are applicable to the public and private sectors. Onus is placed on
the central government to ensure that they are adopted and implemented by the private sector.
The guidelines require employers to notify and publicise prohibition of sexual harassment.
Further, rules and regulations of private and public sector bodies relating to conduct and
discipline are required to specifically include this prohibition and prescribe penalties for the
same and work conditions are to be appropriately provided in a manner that assures women
of a non-hostile workplace environment. Where sexual harassment amounts to an offence
under the Indian Penal Code, 1860 employers are required to initiate legal proceedings with
the appropriate authority. A complaint mechanism is also prescribed in the guidelines. It
includes setting up of a complaints committee headed by a woman with half membership
being women and third party representation so as to mitigate undue pressure exerted from
senior management. The committee is required to make an annual report of its functioning to
the concerned government department (in the case of public sector enterprises) and the
person in charge of the workplace is also required to submit a compliance report to the
concerned government department.
88 Ibid.
89 Ibid.
90 Ibid.
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