BNWLA vs Government of BD and Others

14 BLC 2009 694

Facts:
The petitioner draw the attention of the court under Article 102 of the Constitution showing the inadequacy of
law dealing with sexual harassment of women and girls, in public place, work place and educational
institutions. A rule nisi was issued calling upon the respondents to show cause as to why the respondents failed
to adopt guidelines or policy or enact proper legislations to address the issue of sexual harassment for protecting
and safeguarding the rights of women and girls at work place, educational institutions or universities and other
places wherever necessary.

Issue:

Whether there is inadequacy of law regarding sexual harassment or not?

Arguments of the petitioner:

It was argued that the government is constitutionaly bound to make adequate legislation in this field as it
necessary to protect the fundamental rights enshrined in the Constitution.

Arguments of the respondents:

It was submitted that there are many laws in the country for protecting the women and girls, no new guidelines
are necessary in this regard.

Decision:
While addressing the need to address sexual harassment in these spheres, the Court relied on the provisions of
the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). It stated that as a
party to CEDAW, Bangladesh is obligated to formulate laws specifically tackling sexual harassment at
workplaces and educational institutions. In the progressive judgment, the Court also issued a set of guidelines
that are to be followed by the government and relevant institutions until a law has been passed.

Reasoning:
The responsibility of the court under Article 102 of the Constitution for the enforcement of the fundamental
rights enumerated in chapter iii of the Constitution in the absence of legislation must incline to issue certain
directive It was held that there is inadequacy of measures regarding sexual harassment of women and girls and
the court issued certain directives in the form of guidelines to be followed and observed at all work places and
educational institution until the respondents make effective legislation in this regard.
 s in the form of guideline, in absence of effective and adequate legislative provisions.
 It is the constitutional obligation of the government to enact law to protect the women and girls from
sexual harassment at their work places and educational institutions in order to preserve their
fundamental rights enshrined in the Constitution.
 Reliance to a greater extent was put upon the Convention on The Elimination Of All Forms Of
Discrimination Against women (CEDAW) to which Bangladesh acceded in 1984 and the Optional
Protocol of CEDAW signed by Bangladesh the Millennium Summit in 2000,Beijing Statement
Principles Of The Independence Of Judiciary In The Law Asia Region 1995, accepted by the then CJ
ATM Afzal and Universal declaration of human rights.
 In Micari v Mann 481 NYS 2d 967 (Sup, Ct 1984) according to which sexual harassment was defined
to be an abuse of trust in educational institutions being inloco parentis.
 Encouraging the related authorities to adopt guidelines, reliance was put upon the landmark case of
Vishakha v State Of Rajasthan AIR 1992 SC 3011 in light of which’s judgment, National
Commission For Women, a statutory body has formulated a code of conduct for workplaces putting
down the supreme court guidelines of 1998.

 The court defined sexual harassment which are as follows:

 i) Sexual Harassment includes

 a. Unwelcomed sexually determined behaviour (whether directly or by implication) as

physical contact and advances;
b. Attempts or efforts to establish physical relation having sexual implication by
abuse of administrative, authoritative or professional powers;
c.Sexually coloured verbal representation;
d. Demand or request for sexual favours;
e. Showing pornography;
f. Sexually coloured remark or gesture;
g. Indecent gesture, teasing through abusive language, stalking, joking having
sexual implication.
h. Insult through letters, telephone calls, cell phone calls, SMS, pottering, notice,
cartoon, writing on bench, chair, table, notice boards, walls of office, factory,
classroom, washroom having sexual implication.
i. Taking still or video photographs for the purpose of blackmailing and character
assassination;
j. Preventing participation in sports, cultural, organizational and academic activities
 on the ground of sex and/or for the purpose of sexual harassment;
k. Making love proposal and exerting pressure or posing threats in case of refusal to
love proposal;
l. Attempt to establish sexual relation by intimidation, deception or false assurance

Preventive Steps:
All employers and persons in charge of work places and authorities of all educational
institutions shall take effective measures for prevention of sexual harassment. To discharge
these obligations, they shall take, amongst others. the following steps:
a. Prohibition of sexual harassment and sexual torture as defined in clause 4 above
should be notified, published and circulated widely and in an effective manner.
b. Constitutional and statutory provisions against gender discriminations and sexual
harassment and punishment for the offences of sexual harassment and torture
should be widely circulated:
c. To ensure that there is no hostile environment towards women at workplaces and
educational institutions, and to engender confidence and trust in women workers
and students that they are not placed in a disadvantaged position in comparison to
their male colleagues and fellow students.

Principle:
Where there is inadequate law regarding any fact or emerging grounds for certain legislation, the court can give
directives which are binding.
The fundamental rights guaranteed in chapter III of the Constitution of Bangladesh are
sufficient to embrace all the elements of gender equality including prevention of sexual
harassment or abuse. Independence of judiciary is an integral part of our constitutional
scheme. The international conventions and norms are to be read into the fundamental rights
in the absence of any domestic Law occupying the field when there is no inconsistency
between them. It is now an accepted Rule of judicial construction to interpret municipal Law
in conformity with international Law and conventions when there is no inconsistency
between them or there is a void in the domestic Law.

Our courts will not enforce those Covenants as treaties and conventions, even if ratified
by the State, are not part of the corpus juris of the State unless those are incorporated in
the municipal legislation. However, the court can look into these conventions and covenants
as an aid to interpretation of the provisions of Part HI, particularly to determine the rights
implicit in the rights like the right to life and the right to liberty, but not enumerated in the
Constitution. In the case of H.M. Ershad V. Bangladesh, 2001 BLD (AD) 69, it is held: "The
national courts should not...............straightway ignore the international obligations which a
country undertakes. If the domestic laws are not clear enough or there is nothing therein the
national courts should draw upon the principles incorporated in the international
instruments."

Comment:
This is a landmark case where international laws were incorporated in the directives regarding sexual
harassment. In this case court gave directives which has binding power as laws until new laws are made. Here
the court exercise judicial law making power.