Women’s Rights

On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo) filed a petition with the Regional Trial Court for the cancellation of entry of marriage in the Civil Registry of San Juan, Metro Manila, by virtue of a judgment of divorce rendered by a Japanese court. The Philippine court ruled that the petition could not be granted because under Philippine civil law, Filipinos married to non-Filipinos cannot file a petition for divorce in court because they have not right to divorce.

The Supreme Court, on appeal from a decision of the Court of Appeals, reversed the decision of the lower court and ruled that the law cannot be interpreted in ways that discriminate against Filipinos.

“To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective measure to address an anomaly where the Filipino spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. 42 Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in like circumstance as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a distinction. In both instance, it is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the latter's national law.”

The declared State policy that marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State, should not be read in total isolation but must be harmonized with other constitutional provisions. Aside from strengthening the solidarity of the Filipino family, the State is equally mandated to actively promote its total development. 79 It is also obligated to defend, among others, the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. 80 To our mind, the State cannot effectively enforce these obligations if we limit the application of Paragraph 2 of Article 26 only to those foreign divorce initiated by the alien spouse. It is not amiss to point that the women and children are almost always the helpless victims of all forms of domestic abuse and violence.

Moreover, in protecting and strengthening the Filipino family as a basic autonomous social institution, the Court must not lose sight of the constitutional mandate to value the dignity of every human person, guarantee full respect for human rights, and ensure the fundamental equality before the law of women and men.


Gurulingappa Savadi was the head of a Hindu joint (intergenerational) family who died in 2001. In 2002, his grandson brought a suit to partition the family property, alleging that only Mr. Savadi’s widow and two sons were co-owners of the property upon Mr. Savadi’s death. The suit asserted that Mr. Savadi’s two married daughters were not entitled to any share of the property, since they were born prior to the Hindu Succession Act (codified customary/personal law), and therefore could not be treated as coparceners (persons who share jointly with others in an inheritance). The trial court agreed that the daughters had no right to a portion of the family property. The trial court also rejected the alternate contention that with the passage of the Hindu Succession (Amendment) Act, 2005, daughters are entitled to equal shares of property. The daughters appealed until the case reached the Supreme Court.

On 1 February 2018, the Supreme Court reversed the lower court ruling, in particular holding that the 2005 legislative amendment decisively settled the matter in favor of the appellants. The amendment states that any daughter of a coparcener by birth becomes a coparcener and is entitled to the same rights and liabilities with respect to the property as a son. In the present case, suit for partition was filed in the year 2002. However, during the pendency of this suit, the aforementioned amendment came into force, as the partition decree was awarded by the trial court only in the year 2007. Thus, the rights of the appellants became crystallised in the year 2005, and this should have been considered by the lower courts. Though Mr. Savadi died in 2001 and the amendment is not retroactive, it applies to the present case because the partition became final only when the decree was issued from the lower court. The amendment was passed in the interest of gender equality under the law, and daughters now have the same rights as sons with respect to commonly owned property partitioned after the amendment to the Act, regardless of when they were born. The Court noted that the law relating to a joint Hindu family has undergone unprecedented changes. It further elaborated that “[T]he said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener…These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.”

As Mr. Savadi left behind a widow, two sons, and two daughters, the Court held that each of the daughters who appealed the decision is entitled to one-fifth of the family property.


Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three times at once in oral, written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) – were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India (Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.

In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was impermissible under Islamic law.

The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.


This case came before the Supreme Court of India, on appeal, against a Bombay High Court verdict striking down the Maharashtra government’s statewide ban on dance performances in bars. The ban dates back to August 2005, and prohibited ‘any type of dancing' in an "eating house, permit room or beer bar", but made an exception for dance performances in three stars hotels and above, and other elite establishments. The State justified the ban by asserting that bar dancing corrupts morals, fuels trafficking and prostitution, and causes exploitation of women bar dancers. Due to the ban, 75,000 women workers became unemployed. Many did not have other marketable skills. Statistics show that 68 per cent of bar dancers were sole bread earners of their family. While a rehabilitation program was in place, it was not enforced. Unemployment and financial hardship forced several erstwhile women bar dancers to leave the state or resort to prostitution, while many committed suicide.
On July 16th, 2013, the Supreme Court, in a landmark decision, upheld the rights of bar dancers. The judgment affirmed the Bombay High Court decision which found that the prohibition on dancing violated the right to carry on one’s profession/occupation under Article 19(1)(g) of the Constitution, and that banning dances in some establishments while allowing them in others infringed upon the right to equality under Article 14 of the Constitution.

The Supreme Court noted that “The restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance…”  The decision excoriates the ban stating that the “cure is worse than the disease” given that contrary to its purpose, the ban resulted in many women being forced into prostitution. The Court urged that it would be more appropriate to bring about measures which ensure the safety and improve the working conditions of bar dancers.  Instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach.


This is a petition for the implementation of the order of the Court on August 13, 1997, known as the Vishaka judgment on the prevention of sexual harassment to women. (Vishaka and Others v. State of Rajasthan and Others; [(1997) 6 SCC 241])

Court ruling

16. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place.

(i) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.

(ii) The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in clause (i) within two months.

(iii) The States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and state level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now form adequate number of Complaints Committees within two months from today. Each of such Complaints Committees shall be headed by a woman and as far as possible in such Committees an independent member shall be associated.

(iv) The State functionaries and private and public sector undertakings/organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

(v) The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka guidelines. Similarly, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines and the guidelines in the present order.

We are of the view that if there is any non-compliance or non- adherence to the Vishaka guidelines, orders of this Court following Vishaka and the above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard.



In January 2012, up to 53 women underwent a sterilization procedure in Bihar, India, at a sterilization camp managed by an NGO which had been granted accreditation by the District Health Society, apparently without following any formal, transparent process. The women had not been given any counseling regarding the potential dangers and outcomes of the sterilization procedures. They were operated on in a school rather than a hospital, in an unsanitary and unethical manner, all by a single surgeon, under torchlight on top of a school desk, and without running water or sanitary gloves. Many of the women experienced tremendous physical pain post-operation, and consequently filed police complaints. Subsequent investigation by State authorities found that the camp had largely been a success, save for its use of expired medicine.

Following her own investigation, the petitioner, health rights activist Devika Biswas, claimed before the Supreme Court of India (Court) that these incidents constituted a violation of the Constitution of India (Constitution). The petition requested a full investigation into, and redress for, the 2012 incidents. Further, to prevent similar violations in the future, the petition also requested orders regarding strict implementation of the sterilization procedure manuals previously issued by the Government of India, following the 2005 Supreme Court decision in Ramakant Rai (I) & Anr. v. Union of India & Ors. (Ramakant Rai), in adherence to which the Government had published multiple manuals establishing procedural and substantive guidelines for female and male sterilization under family planning or public health programs, including regarding quality assurance and standard operating procedures (Procedure Manuals).

Setting out the context for these incidents, the petition highlighted other sterilization camps in states across India where similar procedures were conducted in unsanitary and unsafe conditions, and where women were either not provided any information regarding the nature of the procedure or were outright misled, for example being told by government health workers that it was compulsory to undergo sterilization. In addition, the petition focused on the reality that an overwhelming number of sterilization procedures in India - close to 100% - are targeted towards women.

The Court ruled that the respondents had violated two components of Article 21 of the Constitution (Protection of Life and Personal Liberty): the right to health and reproductive rights. The Court held that the freedom to exercise reproductive rights includes the right to make a choice regarding sterilization on the basis of informed consent and free from any form of coercion. In its deliberations, the Court referenced General Comment No. 22 on the right to sexual and reproductive health issued by the UN Committee on Economic, Social and Cultural Rights, which observes that reproductive health is an integral part of the right to health. It also drew on the 2004 decision, A.S. v Hungary, by the UN Committee on the Elimination of Discrimination against Women, which held that fully informed consent to sterilization is essential.

The Court emphasized the need for coordination among State governments and the Union of India, noting that the Union of India must ensure strict adherence to the Procedure Manuals. Further, the Court gave additional specific guidance, for example: directing that the checklist prepared pursuant to Ramakant Rai, as well as the impact and consequences of the sterilization procedures should be explained to each patient in a language they understand and with sufficient time for consideration; requiring data collection to strengthen monitoring and supervision of the practices; and ensuring transparency and accountability (with increased levels of compensation) with respect to any deaths or complications connected to such procedures.

In relation to the informal system of fixing sterilization targets at the State level, the Court directed each State Government and Union Territory to ensure that no such fixed targets exist, so that health workers and others do not compel persons to undergo what would amount to a forced or non-consensual sterilization merely to achieve the target. The Court also considered "the impact that policies such as the setting of informal targets and provision of incentives by the Government can have on the reproductive freedoms of the most vulnerable groups of society whose economic and social conditions leave them with no meaningful choice...and render them the easiest targets of coercion." On this issue, the Court held that "the policies of the Government must not mirror the systemic discrimination prevalent in society but must be aimed at remedying this discrimination and ensuring substantive equality [and that] the policies and incentive schemes are made gender neutral and the unnecessary focus on female sterilization is discontinued."

The Court ordered the Union of India to ensure the discontinuation of the sterilization camps as early as possible but in any case within three years, emphasising that such action must be accompanied simultaneously by measures by the Union of India and the State Governments to strengthen Primary Health Centres both in terms of infrastructure and accessibility of health care to all persons.


This case was brought by six pregnant or lactating women who lived in poverty in a Delhi slum. The women were denied food rations, as well as prenatal and children health benefits which they were entitled to under several national benefit programs. This can be attributed to the failure of the Delhi government to make ration cards available, and to implement certain maternal health programs. Earlier proceedings showed that 55% of the poor in Delhi were "un-carded." The Court issued an interim order requiring the government to set up "camps" where the petitioners and others living in the slum could obtain new or renewed ration cards, and to provide access to a grievance hotline. The order also provided for the payment of damages to the individual plaintiffs.

In the course of the case, the Court was informed that no new ration cards were being issued by the Delhi government because the governments of India and Delhi had set a maximum limit on the amount of such cards, a "cap." As a result, millions of Delhi residents were denied access to life-saving rations. The Court was highly critical of such limits, stating, "This Court is unable to appreciate how .....Delhi, with a growing population and constant influx of new migrants can abide by a 'cap' on [ration] cards...there cannot be any 'caps'... Denial of a ration card to a [person] is virtually a denial of his or her right to food and thereby the right to life under Article 21 of the Constitution (right to life)." This provision has been interpreted broadly in the past by Indian courts to encompass and guarantee many rights including the right to human dignity, the right to livelihood, the right to health, the right to pollution-free air and many others. Here, the court reaffirmed Article 21's guarantee of the right to maternal health and explicitly connected the necessity of sufficient nutrition to that right.

The Court ordered further proceedings to ensure the government followed through with improving ration card procedures.
This order of the Court, dated May 13th 2011, is one of a series of interim orders issued by the Court with regard to the original petition. The final ruling in the case was delivered on December 13th, 2011.


The plaintiff applied for and obtained employment as a Guru Sandaran TidakTerlatih (‘GSTT’). After receiving her placement memo informing her of he rposting, she was asked to attend a briefing on the terms of her service of employment. At this briefing, the plaintiff was questioned as to whether she was pregnant. When the plaintiff admitted that she was three months pregnant, her placement memo was withdrawn. The plaintiff demanded that her employment as GSTT be restored but received no written reply. The plaintiff thus filed the present originating summons application against the education officers of the education office that was in charge of employing her (‘the first and second defendants’), the state director of the education department of Selangor at the material time ('the third defendant'), the Ministry of Education and the Government of Malaysia. The gist of the plaintiff's complaint was that the GSTT post was revoked and withdrawn by the defendants on the sole ground that she was pregnant. The plaintiff argued that this act of the defendants was tantamount to gender discrimination andthus against art 8(2) of the Federal Constitution ('the Constitution').

Court ruling:

The word ‘gender’ was incorporated into art 8(2) of the Constitution inorder to comply with Malaysia’s obligation under the Convention on the Elimination of all Form of Discrimination against Women (CEDAW), to reflect the view that women were not discriminated. It is settled law that the CEDAW had the force of law and was binding on member states,including Malaysia. In interpreting art 8(2) of the Constitution it was the court's duty to take into account the government's commitment at an international level. As such, there was no impediment for the court to refer to CEDAW in interpreting art 8(2) of the Constitution. Applying arts 1 and 11 of CEDAW it was found that pregnancy in this case was a form of gender discrimination. It was a basic biological fact that only women had the capacity to become pregnant and thus discrimination on the basis of pregnancy was a form of gender discrimination. Hence it was found that the plaintiff should have been entitled to be employed as GSTT even if she was pregnant (see paras 20, 24, 28 & 32).

The defendants’ act of revoking and withdrawing the placement memo because the plaintiff was pregnant constituted a violation of art 8(2) of the Constitution. It was the contravention of the plaintiff's rights by the defendants as agents of the executive. However, there was no order as to costs because this was a public interest case (see paras 38–39).


The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.


A Tuvalu court rejected the argument that CEDAW and CRC could be relied on in deciding suits involving children. Although the Tuvalu government had ratified CEDAW and CRC, the court held that the Tuvalu legislature must enable the conventions locally through legislation. If the conventions are not enabled through domestic legislation, the court said, they will only apply when ambiguities or inconsistencies in domestic law arise. The court held this, despite the Constitution allowing for the use of human rights conventions in the appropriate situation.


There existed in Pakistan the custom of swawa, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.


A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

(NOTE: this is a High Court case. The High Court is not the highest court in Kiribati (the highest court in Kiribati is the Court of Appeal). Nevertheless, this case can be helpful in deciding where Kiribati courts might go in the future, given the deficit of Court of Appeal cases from Kiribati citing international human rights standards.)

The former Director of Public Prosecutions tried to use CEDAW, which was unratified in Kiribati, to challenge discriminatory domestic law (the gender discriminatory corroboration warning in rape cases). Kiribati had not ratified CEDAW at the time of this judgment (but it has since been ratified). However, the Supreme Court of Kiribati was not persuaded, and the argument failed. Nevertheless, the Court at least considered CEDAW, and it was probably an influence, direct or indirect, on the outcome of the case.


In at least some of the above cases, the Court drew support from international covenants, including CEDAW. The Court relies on CEDAW to be able to interpret personal laws in a way that bolsters women's equality.

(''The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards [sic] the promotion of equality between men and women etc.'')

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 593)
The Court, in interpreting the Hindu Succession Act, gave women the absolute right to property even when a will would ostensibly have limit the woman's right to the property. (found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 592)

Municipal Corp. of Delhi v. Female Workers, A.I.R. 2000 S.C. 1274. The Court interpreted the Maternity Benefit Act to authorize maternity benefits to women who were essentially day laborers. Id.

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 591-592)

Ara v. Uttar Pradesh, A.I.R. 2002 S.C. 3551; Singh v. Ramendri Smt., A.I.R. 2000 S.C. 952; Satpathy v. Dixit, A.I.R. 1999 S.C. 3348; Sesharathamma v. Manikyamma, (1991) 3 S.C.R. 717; Kaushal v. Kaushal, A.I.R. 1978 S.C. 1807. The Court did this when interpreting the Code of Criminal Procedure: ''The brood presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it [is] to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause - the cause of the derelicts.'' Singth v. Ramendra Smt., A.I.R. 2000 S.C. 952 (quoting Kaushal v. Kausha, A.I.R. 1978 S.C. 1807)

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 590-591)

(holding that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty).

A supervisor allegedly sexually harassed an employee. The Supreme Court restored the supervisor's removal. In doing so, it relied on international instruments to find that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty.

A man sucked a 16-year-old woman’s breasts. The High Court of Fiji rejected the notion that the defendant’s sentence should be reduced for his good behavior after the incident and because there was no penetration. The Court cited the CRC in so doing.


The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.


Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

In 2007, petitioners brought a case seeking mandamus to enforce obligations of women’s reproductive health rights under Article 20 (2) of the Interim Constitution and international human rights treaties to which Nepal is party. Petitioners argued that despite budgetary allotments by the government, no meaningful or effective programs had been initiated by the State to address the problem of uterine prolapse, as evidenced by the hundreds of thousands of women suffering from the condition.

The case was brought against the Prime Minister and Council of Ministers, the Ministry of Population and Health, the Ministry of Women, Children and Social Welfare, the Nepal Women’s Commission, and the Nepal National Human Rights Commission. Each of the five petitioners was given 15 days to submit a rejoinder explaining why the mandamus need not be issued. The respondents’ rejoinders challenged the order on the grounds that no State actions had violated individual rights, rights arising under human rights treaties created no justiciable private right or standing, the Court had no power to order the legislature to create law, and there were already budget allotments to address the issue. The questions presented were whether the orders sought by petitioners needed to be issued and whether the issue of uterus prolapse was one of fundamental legal rights, justiciable before the Court.

The Court noted women’s right to reproductive health was recognized in international instruments to which Nepal is party including the UDHR, ICCPR, ICESCR, CRC, and CEDAW. The Supreme Court held the right to reproductive health contained in the constitution to be fundamental, non-derogable, non-restrictive,  and not subject to any conditions for its execution. Such right requires meaningful implementation by the State, including through legislation and infrastructure., and although the State had allocated funds to address the issue, the budgetary allotments alone were insufficient since no plans or services had been implemented. The Court understood that there was a need to assess “how active the State was”, “what positive programs did the State launch for the enjoyment of this right” and “whether or not practical benefits were provided for [a specific] class of individuals”.

The Court found the case to be one of public interest, not requiring personal harm for standing or jurisdiction, and held that the State had failed to execute its responsibility regarding protection of fundamental rights. The Court also established, in regard to the principle of separation of powers, that “where the Legislature does not perform well pursuant to the provision of the Constitution, or fails to execute its responsibility with regards to the protection of the fundamental rights of the people, the Court in this regard can call for attention for the execution of the States responsibility.” The Court ruled mandamus necessary and ordered the Ministries of Women, Children and Social Welfare and of Population and Health to provide free services and facilities to affected women and initiate effective programs for raising awareness of the issue. It further ordered the Prime Minister and Council of Ministers to consult with experts and draft a bill for submission to the legislature.


This was a public interest litigation. A woman had been raped by five men in front of the woman's husband. Though she sought justice, she encountered obstacles: the police inadequately responded to her complaint and government doctors refused to properly conduct a medical examination. A public interest lawyer took up the woman's case.

The Court used international law (CEDAW) in enacting guidelines for combating sexual harassment in the workplace. ''Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.'' Using CEDAW as a guideline, the Court ensured that women would be better protected in the workplace, as to violate the Court's standards protecting women would be a breach of the law.

(found in ''Gender Justice through Public Interest Litigation: Case Studies from India'' by Avani Mehta Sooc, Vanderbilt Journal of Transnational Law, Volume 41, Number 3, May 2008, pp. 836-837, 863, 866-867)

This was a class action by social activists and NGOs responding to the gang rape of a social worker. The Court looked to international law and designed rules to combat sexual harassment: ''Any International Convention not inconsistent with the fundamental right and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.'' Thus, in India, in the absence of domestic law, gender equality should be interpreted in light of international conventions and norms. The Court looked to CEDAW when it said that ''[g]ender equality includes protection from sexual harassment and the right to work with dignity.'' The Court then drafted a detailed sexual harassment code and imposed a duty on employers (ostensibly both public and private) to prevent sexual harassment in the workplace and to provide a grievance option for employees.

For these above cases, the Supreme Court of India relied on international law and saw the issue of gender violence as an equality issue. It found that freedom from gender violence was a constitutionally protected right. (found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, pp. 560, 609-613)