Sexual harassment at workplace

Sexual harassmentMadhvender Chauhan

ABSTRACT

Sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome”. For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.

The purpose of the paper is to provide a holistic and comprehensive picture in regard to the sexual harassment at workplace.

The paper attempts to discuss all kinds of conduct that can come within the purview of the word “sexual harassment”. The paper also brings to light the various tests which can be applied to determine as to whether certain conduct at the workplace can be treated as sexual harassment or not. The paper also focuses on the international instruments and conventions which came into existence to prohibit this evil of sexual harassment in the society. The paper stresses on the preventive and procedural actions that need to be taken by the employers to combat sexual harassment at the workplace. The paper shall also provide for the liabilities and the remedies that are available to the victims of sexual harassment. The paper shall conclude by suggesting the various resorts that are open to the victims to get their grievances redressed.

need of providing the women with the opportunity to plan and make choices for themselves and further, to transform those choices into desired outcomes. The paper will also focus on the various measures which are being taken, both at the national and international fronts, to improve the condition of women and empower them. The paper shall conclude by suggesting measures to sow the seeds of entrepreneurial culture so deep in the society of India that plants of success, prosperity and empowerment of women is bound to reap.

INTRODUCTION:

Sexual harassment is any sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.

As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses “a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands”. Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.

It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place’ or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) may be actuated by sheer lust or sexual stereotyping.

The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:

“While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex.”

DEFINITION:

In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No.19 (January 1992) of the Committee on the Elimination of Discrimination Against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajasthan . The definition is almost parimateria with the one proposed by the CEDAW, United Nations and reads:

“Sexual harassment includes such unwelcome sexually-determined behavior (whether directly or by implication) as: (a) physical contact and advances;(b) a demand or request for sexual favours ; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical,verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium, or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto”.

THE LEGAL TEST FOR SEXUAL HARASSMENT:

1. Unwelcome:To fit in the concept of ‘sexual harassment’ the relevant conduct must be ‘unwelcome’, that is unwelcome to the recipient of that conduct. In this context ‘unwelcome’ means that the advance, request or conduct was not solicited or invited by the recipient, and the recipient regarded the conduct as undesirable or offensive. While definitions of ‘sexual harassment’ abound in various international instruments, declarations and conventions, as also in court decisions, and are largely similar, “the one common element in all these definitions is the unwanted and unwelcome nature of sexual harassment’. The first feature of sexual harassment is the non-consensual practice at or connected with the workplace of the proscribed sexual behavior.

2. Sexual in Nature: The second element of the definition requires the conduct to be ‘sexual’ in nature. Courts, including Human Rights Tribunal, worldwide have recognized a broad scope of conduct that may fall under the definition of sexual harassment, depending on the circumstances. Such conduct may be physical, verbal or non-verbal. The ILO has identified the following “most common forms of sexual harassment” at the workplace:

• Physical harassment (kissing, patting, pinching or touching in a sexual manner);

• Verbal harassment (unwelcome comments about a person’s sex orprivate life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person’s appearance or body);

• Gestural harassment (sending suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);

• Written or graphic harassment(sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);

• Emotional harassment (behavior which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).

3. Persistence and/or Gravity of the Conduct: To constitute ‘sexual harassment’ it is not enough that the impugned conduct be merely unwelcome sexual conduct. The word ‘harass’ implies the installation of fear or the infliction of damage; is indicated by the definition of the term in the Macquarie Dictionary: “1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.2. to disturb persistently; torment, as with troubles, cares, etc.” There must be either unwanted sexual behavior whose main effect is to subordinate the maintenance of conditions and benefits to submission to unwelcome sexual demands, or behavior that creates an “intimidating, hostile or humiliating working environment”. In the context of ‘sexual harassment’ there is unanimity of judicial opinion that the behavior complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient. While it is important to consider the nature and intensity of the unwelcome act itself, its impact on the victim must also be considered.

INTERNATIONAL INSTRUMENTS AND CONVENTIONS:

Much of the impetus for the statute law and judicial decisions that prohibit or constrain sex discrimination and sexual harassment stems from the recognition of the equality of the sexes in various international instruments and conventions. The Charter of the United Nations, The Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, all contain statements of a principle against discrimination on the basis of sex. That principle finds fuller expression in relation to women in the convention on the Elimination of All Forms of Discrimination against Women. India ratified the Convention on 25.06.1993 with some reservations, which are, however, not relevant in the present context.

THE INDIAN CONSTITUTION:

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations,admits of no debate. Referring to the incidents of sexual assaults on working women, the Supreme Court said in Vishaka case: “Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity.” Article 42 in Part IV-A of the Constitution which deals with the Directive Principles of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Amongst the fundamental duties of the citizen Article 51-A is relevant which states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”

REASONS FOR COMBATING SEXUAL HARASSMENT:

Sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. Therefore, addressing the issue of sexual harassment is directly linked to the core concerns of improved working conditions and respect for the dignity of workers. ILO says that “there are several good reasons why employers are taking action to prevent sexual harassment”. Legal compliance, business morality and ethics, desire to create a working environment which is conducive to the personal development and high level performance of their employees, litigation costs, desire to protect the company’s image and reducing the health costs and absenteeism of victims suffering from stress caused by sexual harassment are some of the main reasons cited by the ILO in this regard.

PREVENTATIVE AND PROCEDURAL ACTION BY EMPLOYERS:

Sexual harassment “continues to be a major obstacle to equality of opportunity and treatment for women”. Therefore employers are under ‘increased pressure” to tackle this problem. The present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces. Apprehending, and rightly so, that enactment of such legislation would take considerable time, the Supreme Court in Vishaka case thought it necessary and expedient to lay down certain guidelines for observance by employers and other responsible persons in workplaces or other institutions so as to ensure the prevention of sexual harassment of women and to protect their fundamental rights. The Apex Court prescribed the following preventive steps for the employers “without prejudice to the generality of this obligation”:

• Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.

• The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

• As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

• Appropriate work conditions should be provided in respect of work. Leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

“The advantage of workplace mechanisms over legislation”, says an ILO report, “is that their role is primarily preventive. Rather than being confined to responding to sexual harassment, they are intended to ensure that it does not take place. Effective workplace policies protect employees by dissuading potential harassers, and identifying and responding to harassing behavior in its early stages.” The employers should formulate policy statements expressly declaring that sexual harassment at the workplace shall not be tolerated or condoned under any circumstance whatever.

Various other recommendations which are relevant to Indian employers as well, for shaping their policies on sexual harassment, are condensed below:

The policy statement should:

• Make it clear what is considered inappropriate behavior at work. It should also explain that such behavior, in certain circumstances might be unlawful.

• Place a positive duty on managers and supervisors implement the policy and to take corrective action to ensure compliance with it.

• Place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

• Explain the procedure that employees subjected to sexual harassment at work should follow so as to obtain assistance. It should also specify the persons to whom they should complain.

• Contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

• And last but not the least, specify that appropriate disciplinary measures would be taken against employees found guilty of sexual harassment.

LIABILITY ABD REMEDIES:

Nearly all industrialized countries provide some form of legal recourse against sexual harassment at work. However, as pointed out by an ILO publication, the extent to which such remedies are used usually depends on the legal system where they are located. In some countries sexual harassment at work is legislatively or judicially recognized as a legally distinct type of prohibited activity. However, other countries are yet to reach “this level of awareness.” In India, thanks to our Supreme Court, our legal system has reached that level of awareness where sexual harassment at work is recognized as a legally distinct type of prohibited activity. This has been possible not because of some progressive legislation enacted by the Parliament or any State legislature, but “by a rather innovative judicial law-making process” resorted to by the Supreme Court in Vishaka case, “against the growing menace of sexual harassment of women at the workplace.” In Vishaka, a three judge Bench categorically declared, “ The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.”

Having noted that the present civil and penal laws in the country do not adequately provide for specific protection of women from sexual harassment at work and that enactment of such a legislation would take a considerable time, the Supreme Court laid down certain “guidelines and norms” for “due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.” The Court emphasized that this would be treated as the law declared by it under Article 141 of the Constitution. Also, there are two other statutes which may be of particular help to victims of sexual harassment, viz., the National Commission for Women Act, 1990, and the Protection of Human Rights Act, 1993.

CONCLUSION:

Sexual harassment is a serious and real problem for various working women in large number of occupations, employments, jobs, trades and businesses, and economic sectors. It is an affront to the dignity and self-respect of the victims. It may have disastrous consequences both for the victims and the employers. It is the legal duty of the employer to take appropriate affirmative action to combat sexual harassment at work. Notwithstanding the absence so far of any statute in India that specifically deals with the problem of sexual harassment at work, victims of sexual harassment have remedies under different types of law such as the Indian Constitution, Labour Laws, Criminal Laws, the National Commission for Women Act, 1990, Protection of Human Rights Act, 1993, as also Torts Law.

 

 

Domestic Implementation of Human Rights

Human RightsKAUSHIK DHAR

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND INDIAN CONSTITUTION

India was a signatory to the Universal Declaration of Human Rights. The Indian constitution was adopted by the constituent Assembly on Dec 26, 1949, which came into force from Jan 26, 1950. Our Indian constitution was greatly influenced by the Universal Declaration of Human Rights, 1948. Provisions of Part III which stands for Fundamental Rights and Part IV for Directive Principles of State Policy bear a close resemblance to the Universal Declaration of Human Rights. As a result, a number of fundamental rights guaranteed in Part III of the Indian Constitution are similar to the provision of Declaration.

Name of the Rights Universal Declaration Indian Constitution

Equality before law Art. 7 Art. 14

Prohibition of discrimination Art. 7 Art. 15(1)

Equality of opportunity Art 21(2) Art. 16(1)

Freedom of speech and expression Art. 19 Art.19(1)(a)

Freedom of peaceful assembly Art. 20(1) Art. 19(1)(b)

Right to form association or unions Art. 23(4) Art. 19(1)(c)

Freedom of movement within the border Art. 13(1) Art19(1)(d)

Protection in respect of conviction for offencesArt.11(2) Art. 20(1)

Protection of life and personal liberty Art. 9 Art. 21

Protection of slavery and forced labour Art. 4 Art. 23

Freedom of conscience and religion Art. 18 Art. 25(1)

Freedom of enforcement of rights Art. 8 Art. 32

The above chart shows that the Universal Declaration which was adopted just before the Indian Constitution widely held to have provided the model for Indian Constitution human rights guarantees. It appears that the founders of the Constitution were conscious about the contents of the Declaration and therefore they gave due recognition to its provisions.

In Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of the Human Rights at the time the Constitution was adopted. Thus, although the Supreme Court has stated that the Declaration cannot create a binding set of rules and even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the Declaration.

In Chairman, Railway Board and others v Mrs. Chandrima Das (AIR 2000 SC 988), the Supreme Court observed that the Declaration has the international recognition as the “Moral code of Conduct” having been adopted by the General Assembly of the United Nations. In a number of cases the Declaration has been referred to in the decisions of the Supreme Court and High Courts.

DOMESTIC IMPLEMENTATION OF HUMAN RIGHTS

India has ratified the International covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights on March 27, 1979. By ratification it has established on the international plane its consent to be bound by them. It has an obligation to provide to the individuals the rights contained in the two Covenants.

3. COVENANT ON CIVIL & POLITICAL RIGHTS AND THE INDIAN CONSTITUTION

The Indian constitution provides a number of rights which are called ‘fundamental rights’. The expression ‘fundamental rights’ denotes that these rights are inherent in all human beings and they are required for blossoming of the human personality and soul. These rights have been given a place of pride in the Constitution. These rights are therefore necessary to protect the dignity of individual and to create conditions in which a person can develop to the fullest extent.

In A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), Beg J. Observed that the object of making certain rights as fundamental as to guarantee them from the illegal invasion by executive, legislature and judicial organ of the state. The Supreme Court of India has recognised these fundamental rights as ‘natural rights’ or ‘human rights’.

Fundamental rights guaranteed under the Indian Constitution may be divided for the sake of convenience in two categories, i.e. specified fundamental rights and other fundamental rights. The specified fundamental rights are those rights which are there in the Covenant as well as these rights are specifically enumerated in the Indian constitution. This division is helpful in order to make them comparable with the human rights guaranteed to the individuals under the International Covenant on Civil and Political Rights.

Name of the Rights Covenant on Civil and Political Rights Indian Constitution

Forced Labour Art. 8(3) Art. 23

Equality before law Art.14(1) Art. 14

Prohibition of discrimination Art. 26 Art. 15(1)

Equality of opportunity Art. 25(c) Art. 16(1)

Freedom of speech and expression Art. 19(1) & (2) Art. 19(1)(a)

Freedom of peaceful assembly Art. 21 Art. 19(1)(b)

Right of freedom of association Art. 23(4) Art. 19(1)(c)

Right to life and liberty Art. 6(1) &9(1) Art. 21

Freedom of conscience and religion Art. 18(1) Art. 25

However, there are a number of rights which, though are not specified in Part III of the Constitution by name as fundamental rights have been regarded as fundamental by the Supreme Court by enlarging the meaning and scope of the fundamental rights.

Although in A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), the Supreme Court held by a majority of 4:1 that the Constitution of India did not recognise any natural or common law rights other than that expressly conferred in the Constitution, the trend of the Supreme Court has changed especially after 1978. The Courts on many occasions, by accepting the rule of judicial construction, that regards must be paid to international conventions and norms for constructing domestic law, held that the rights which are not specifically mentioned in the constitution may be regarded as fundamental rights if it is integral part of the fundamental right.

The following are the rights which are contained in the Covenant on Civil and Political Rights are available to the citizens of India in spite of their not being specifically mentioned in the Constitution.

1.1. Right to privacy

By the expression right to privacy we mean the right to be left alone to live one’ s own life with minimum degree of interference. The right to privacy is stipulated in the Covenant on Civil and political Rights under Art. 17(1) which says that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. But this right is not guaranteed in the constitution.

However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme Court that the domiciliary visits is an infringement of the right to privacy and is violative of the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution.

In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by stating that although the right to privacy is not explicitly provided in the Constitution, it is ingrained in the fundamental right of life and personal liberty.

In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly known as telephone tapping case, the Supreme Court held that right to life and personal liberty includes telephone conversation in the office or home and thus telephone tapping is violative of Art. 21.

1.2. Right to travel abroad

The right to travel abroad is a guaranteed right under Art.12 Para 2 of the Covenant; however it is not specifically recognised under Part III of the Constitution as a fundamental right. The Supreme Court in Satwant Sing v Asst. Passport Officer, New Delhi [AIR 1967 SC 1836] held that the right to go abroad is a part of the person’ s personal liberty within the meaning of Art. 21.

In Maneka Gandhi v Union of India [AIR 1978 SC 597] the Supreme Court upheld the decision of the Satwant Sing’s case.

1.3. Right to speedy trial

The Covenant on Civil and Political Rights laid down under Art. 9 Para (3) that anyone arrested or detained on a criminal charge shall be brought before judge….and shall be entitled to trial within a reasonable time or to release. But the Constitution has got no provision for a person to be tried without undue delay.

In Hussainara Khatun v Home Secretary, State of Bihar(no.1) [(1980) 1 SCC 98] it was held by the Supreme Court that though the right to speedy trial is not directly mentioned in the fundamental right but is implicit in the broad sweep of Art.21 which deals with right of life and personal liberty.

In the case Raj Deo Sharma v State of Bihar [(1998) 7 SCC 507] the Supreme Court after having recognised that the speedy trial is the right of the accused, issued certain directions for effective enforcement of this right. The Court directed that in cases where the trial is for an offence punishable with imprisonment for a period not exceeding two years and if the offence of the under trial is punishable with a period exceeding 7 years, the court shall close prosecution evidence on completion of 3 years from the date of recording of the plea or framing of the charge. The whole idea was to speed up the trial in criminal case to prevent the prosecution from becoming a persecution (harassment).

1.4. Right to provide legal assistant

The Covenant on Civil and Political Rights provides under Para 3(d) of Article 14 that everyone shall be entitled to be tried in his presence, and to defend himself in person or through his legal assistance of his own choosing, to be informed, if he does not have legal assistance assigned to him, of this right; and to have legal assistance assigned to him, in any case where the interest of justice so requires, and without payment by him in any such case if he has no sufficient means to pay for it.

In M.H. Hoskot v State of Maharashtra [(1978) 3 SCC 544] that the right to free legal service is an essential ingredients of reasonable, fair and just procedure for a person accused of an offence and is implicit in Art.21 of the Constitution.

In Khatri v State of Bihar [AIR 1981 SC 928] the Supreme Court directed the state of Bihar that it cannot avoid the constitutional obligations to provide free legal services to a poor by pleading feeding financial and administrative inability.

1.5. Right of prisoners to be treated with humanity

Article 10 of the Covenant on Civil and Political Rights under Para (1) lays all person deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. But the Indian Constitution there is no such provision in Part III which can safeguard the brutal treatment given to the prisoners.

However, the Supreme Court in Charles Shobraj v Suerintendent, Central Jail, Tihar, New Delhi recognised that ‘right to life’ is more than mere animal existence. Even iin prison person is required to be treated with dignity and enjoy all those right mentioned in Art.19 and 21.

In Francis Coralie Mullin v The Administrator, Union Territory of Delhi [(1981) 2 SCR 516], it was again observed by the Supreme Court that even a convict is entitled to the protection of the precious right guaranteed by the Art 21 of the Constitution.

In Sunil Batra v Delhi Administration (no 1) [1979 SCR (1) 392], the practice of keeping under trials with convicts in jail was regarded by the Supreme Court as inhuman and violation of Art 21.

In Bandhua Mukti Morcha [1992 AIR SC 38] case, the Supreme Court held that the right to life guaranteed by Art. 21 included the right to live with human dignity free from exploitation.

In D.K. Basu v State of West Bengal [AIR 1997 SC 610], the Supreme Court held that the precious right guaranteed by the Constitution of India cannot be denied to convicts, under trials, detenues and other prisoners in custody except according to the procedure established by law.

1.6. Right to compensation

The Covenant on Civil and Political Right under Art 9 Para 5 laid down that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ This right has not been specifically guaranteed by the Constitution but the court ruled that a suit for compensation against the state is maintainable and the state has no right to take any action which may deprive the citizen of the basic fundamental rights except in accordance with the law which is reasonable, just and fair.

In Rudal Shah v State of Bihar [AIR 1983 SC 1086] the Supreme Court held that Art 21 which says about right to life will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.

1.7. Right to information

The Covenant on Civil and Political Rights laid down under Art 19, Para 2 that everyone shall have the right to freedom f speech and expression. The Indian constitution under Art 19(1) (a) guarantees the right to free speech and expression as fundamental right, the right to information is not specifically mentioned in Part III of the Constitution.

In S.P.Gupta v Union of India [AIR 19S2 SC 149], Justice Bhagwati stated that the concept of open government is the direct emanation from the right to free speech and expression. Therefore disclosures of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest is required.

Therefore it may be concluded that a number of rights which are not specifically provided in the Constitution in Part III as ‘fundamental rights’ have been regarded as fundamental and are available to the individual because of the bold interpretation given by the Supreme Court of those rights which are specifically provided in the Constitution. We can say the judiciary has been a zealous guardian of the human rights.

4. COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND INDIAN CONSTITUTION

Economic, Social and Cultural Rights of human beings are contained in the Economic, Social and Cultural Rights. The Covenant has significant feature which makes it different from the Covenant on Civil and Political Rights. Under the Covenant on Civil and Political Rights the states are under an obligation to respect and to ensure to all the individual the rights stipulated therein, but under the Covenant on Economic, Social and Cultural Rights the states are not bound to do so. Rights stipulated in the Covenant on Economic, Social and Cultural Rights do not find place in Part III of the Constitution but they are provided in Part IV of the Constitution which stands for the Directive Principles of State Policy. This Part contains a list of directives and instructions to be followed by the present and future governments irrespective of their political complexion. The directive principles are fundamental in governance of the Country. Thus Part IV cast upon the states the duties which they are required to follow. The directive principles which broadly incorporate the economic and social rights are as much as a part of human rights. Many rights enshrined in the Covenant on

Economic, Social and Cultural Rights are incorporated in the directive principles.

Thus we can see that all rights like right to equal pay for equal work for both men and women, the right to protect the childhood of work and for maternity work, the right to work, right to adequate standard of living, etc are recognised in the Covenant as well as in our Indian Constitution. However, these rights being stated in Part IV of the Constitution are not enforceable in the court of law. But recently some of these rights are considered as fundamental by the Supreme Court by enlarging the scope of the ‘fundamental rights’ stipulated in Part III of the constitution. This has done by broadening the ambit of the ‘right to life’ under Art.21 of the Constitution. Some of these rights are as follows:

4.1. Equal pay for equal work

The Covenant of Economic, Social and Cultural Rights under Art 7(a) lays down that fair wages and equal remuneration fro work of equal value without distinction of any kind in particular women being guaranteed conditions of work not inferior to those enjoyed by men. Under the Indian constitution clause (d) of Art.39 of the Directive Principles of State Policy states about the equal pay for equal work for both men and women.

In Randhir Sing v Union of India [1982 AIR 879], the Supreme Court held that the principle of equal pay for equal work though not a fundamental right is certainly a Constitutional gaol and capable through enforcement through Constitutional remedies available under art 32 of the Constitution.

4.2. Right of workmen to medical benefits

‘Safe and healthy working conditions and the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ are the rights which are stated in Art.7, Para (b) and Article 12, Para 2(d) under the Covenant on Economic, Social and Cultural Rights. Right to workmen to medical benefits under the Indian Constitution finds place under Art.38 and Art.39 which is not enforceable. But the Supreme Court in the Regional Director, ESI, Corporation and another v Francis De Costa and another [1996(6) SCC 1] held that under Art. 21 read with Art. 38 and 39 the right to medical and disability benefit to workmen is his fundamental right.

4.3. Right to livelihood

Art. 6 of the Covenant of Economic, Social and Cultural Rights says right to work including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. The right to livelihood has been incorporated in Art 39(a) and Art 41 of the Indian Constitution.

The Supreme Court in Olga Tellis v Bombay Municipal Corporation [(1985) 3 SCC 545], popularly known as the pavement dwellers, held that right to livelihood is an integral facet of the right to life guaranteed under Art 21 of the Constitution.

4.4. Right to shelter

The Covenant on the Economic, social and Cultural Rights under Art 7 Para (a)(ii) lays down that the States parties recognise the right of everyone for decent living for themselves and their families and Art. 11 they recognise the right of everyone to an adequate standard of living for himself and his family including housing. It shows that right to shelter finds a place in the Covenant but it has not been enumerated specifically in the Indian Constitution. However, the Supreme Court in Chameli Sing v State of U.P. [AIR 1996 SC 1051] it was held that by the Supreme Court that the right to live includes the right to food, water, decent environment, education, medical care and shelter. As of right to shelter is concerned the court held that it includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity and other civil amenities like roads, etc.

BIBLIOGRAPHY

i. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint 2009, LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur

ii. Prof. Narendra Kumar, CONTITUTIONAL LAW OF INDIA, 5th edition, 2006, Allahabad Law Agency

iii. V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY(COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House, Hyderabad