Ratified treaties;¹ Work of international supervisory bodies²

Sexual harassment/ Lacuna in national legislation/ Use of international law as a guide for intepreting domestic law/ Use of international law as a guide to interpret constitutional rights and determine the rules applicable to sexual harassment

A group of social activists and non-governmental organizations filed (as a class action) a petition under article 32 of the Constitution of India 1950 (“Constitution”) invoking the Supreme Court’s powers to issue directions for the enforcement of fundamental rights enshrined in the Constitution. Under article 32, any guidelines issued by the Court have the status of binding law until such time as legislation was enacted for that purpose. The claimants asserted that fundamental rights of women were being violated by alleged practices of sexual harassment in the workplace in India.

The Court observed:

“The fundamental right to carry on any occupation, trade or profession depends on the availability of a ‘safe’ working environment. The right to life means life with dignity. The primary responsibility for ensuring such safety and dignity is through suitable legislation, and the creation of the mechanism for its enforcement is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum”.

The Court determined that:

“In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.”³

In order to explain its reliance on international law, the Court stated the following:

“Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”

“(…). The government of India ratified the above Resolution on 25 June 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the government of India also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will 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 of women’s human rights; and to institutionalize a national level mechanism to monitor the implementation of the Platform For Action. We have therefore no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in our Constitution.”

The Court added:

“It is now 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.”

The Court then referred to Australian decisions and concluded:

“There is no reason why these international conventions and norms cannot therefore be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.”

Once justified the reference to international instruments, the Supreme Court of India closely relied on the General Recommendation of the United Nations Committee on the Elimination of Discrimination against Women in order to define the actions and situations that shall be qualified as sexual harassment. Besides, the Supreme Court followed the guidelines issued by the United Nations Committee when elaborating the measures to be taken in order to protect women against harassment and the judicial remedies to be granted to sexual harassments victims. 

¹ Convention on the Elimination of All Forms of Discrimination against Women, 1979.

² UN Committee on the Elimination of Discrimination against Women.

³ Art. 14: the right to equality before the law; art. 15: prohibition of discrimination; art. 21: the right to life; art. 19(1)(g): the right to practise any profession, or to carry on any occupation, trade or business.