India
Sakshi v. Union of India & ORS, (May 26, 2004)
Supreme Court of India
Keywords: Sexual Violence-Sexual Abuse, Rape
Brief Summary: The case involved public interest litigation by a welfare organization concerning the India Penal Code's classification of various sexual offenses (namely those other than penile/vaginal penetration) as lesser offenses. The Court ultimately refused to strike down the provision but suggested that the legislature ought to respond to the problem.
CEDAW: The appellants referred to several conventions, including CEDAW, which were ratified by the state. Such ratification had "created a legitimate expectation" that the State would adhere to its international commitments. The existing interpretation of rape, sought to be imposed by the respondent authorities, was in complete violation of such International commitments as have been upheld by the court.
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Municipal Corporation of Delhi v. Female Workers (Muster Roll), (March 8, 2000)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Female workers of the Corporation sought maternity leave under the Maternity Benefit Act 1961 which was denied because they were not "regular" employees. The court held that nothing "contained in the Act . . . entitle[d] only regular women employees to the benefit of maternity leave."
CEDAW: As India is a signatory of CEDAW, Article 11 of the Convention which governs marriage and maternity must "be read into the contract of service" between the Corporation and the women employees; "and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act 1961."
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Githa Hariharan & Anor v. Reserve Bank of India & Anorand, (February 17, 1999)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Marital Status, Religion
Brief Summary: Challenge to Hindu law which held that a mother could be the guardian of a child "after" the father. The court resolved the situation by holding that "after" did not exclusively mean death but could include a variety of situations.
CEDAW: The court stated, "India is a signatory to CEDAW...[t]he interpretation...placed on s6(a) gives effect to the principles contained in these instruments. The domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them."
Vishaka & Ors v. State of Rajasthan & Ors, (August 13, 1997)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: Following a brutal gang rape of a publicly-employed social worker in a village in Rajasthan, a group of activists and NGO's filed a class action under Art 32 of the Constitution seeking the court's enforcement of the fundamental rights provisions relating to working women, and India's international obligations under Arts 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
CEDAW: Any international convention not inconsistent with the fundamental rights guaranteed in the Constitution and in harmony with its spirit must be used to construe the meaning and content of the constitutional guarantee and to promote its object; this is now an accepted rule of judicial construction. It follows that Arts 11 and 24 of CEDAW, General Recommendations Nos 22, 23 and 24 of the CEDAW Committee, relating to sexual harrassment in the workplace, may be relied upon to construe the nature and ambit of the gender equality guarantee and, since the guarantee includes protection from sexual harassment and the right to work with dignity, to formulate preventive guidelines. The court issued a series of guidelines to be observed at all workplaces or other institutions for the preservation and enforcement of the right to gender equality of working women.
Apparel Export Promotion Council v. A K Chopra, (January 20, 1999)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Sexual harassment case. Appellant alleged attempted sexual molestation, but because no actual molestation had occurred, appellant was dismissed. The court held that this was error and any distinction between attempted and actual molestation "rebel[led] against realism."
CEDAW: The court stated that the message of CEDAW and other international agreements was to direct state parties "to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour [sic] and dignity of women." Such international agreements must be applied when there is no inconsistency between the conventions and the "norms and the domestic law occupying the field."
Masilamani Mudaliar & Ors v Idol of Sri Swaminathaswami Thirukoil & Ors, (January 30, 1996)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: A Hindu man bequeathed certain property to his wife S and his cousin's widow J, for whom he was duty-bound to provide maintenance. The property was to be shared equally by S and J but not sold during their lifetimes. His will further provided that, should one predecease the other, the survivor would have the right to enjoy the property 'in its entirety' and that it should be held in trust after both their deaths for religious and charitable purposes. After J died, a power of attorney holder appointed by S arranged for the property to be sold to the respondents. This was challenged by beneficiaries of the trust on the basis that, at the time of sale, S had only limited rights to the property under s 14(2) of the Hindu Succession Act. Section 14, which provides that 'Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner,' is limited by s 14(2) which provides that, inter alia, 'Nothing contained in sub-section (1) shall apply to any property acquired by way of gift, Will or other instrument.' The High Court held that S did not have full ownership of the property. The respondents obtained special leave to appeal.
CEDAW: In allowing the appeal, the court held that, amongst other things, the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) obliges India to prohibit all gender-based discrimination (Art 2) and makes specific mention of property issues (Art 16).
Valsamma Paul v. Cochin University & Ors; Kerala Public Service Commission v. Dr. Kanjamma Alex & Anor, (January 4, 1996)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: Apellant, a member of the "forward class", married a member of a "backward class." The Constitution of India permits the State to make special provisions for members of any "backward class" despite the provisions of non-discrimination. Appellant applied for and obtained a lecturing post reserved for members of the "backward classes." Appellant's post was challenged on the theory that appellant did not assume her husband's class status and was therefore not entitled to the reserved post. Appellant argued that the reservation violated the guaratees of non-discrimination and equal opportunity.
CEDAW: Appeal dismissed. Affirmative action is necessary to assist those suffering from social and economic inequality. CEDAW protects the right of the State to enact measures enabling a woman's social mobility and integration.
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