Written by Priyanshu Rani

ABSTRACT

The intersection of international law and gender justice has evolved as a critical area of jurisprudence in recent years, and this is happening mainly in countries like India, which is a developing nation. This research paper specially talks about how the supreme court of India integrates principles of international law to advance gender justice within the domestic legal framework by analyzing some landmark judgements which basically highlights the how the supreme court of India relied on international treaties, conventions and customary norms like CEDAW, ICCPR, ICESCR, UDHR to which India is party in order to address systematic gender inequalities and uphold constitutional rights and obviously to fill the gap in domestic laws as well. Traditionally, the relationship between domestic and international law is examined from the binary of monism and dualism. The Indian Constitution adopts dualism as its framework. However, the practice of the Supreme Court of India has gone beyond this traditional binary and upheld and expanded the content of human rights and environmental issues.

This study revolves around the transformative role of the judiciary in order to harmonise the international obligation, hard law, soft law, with domestic realities, balancing cultural pluralism with the universal principles of equality and non-discrimination.  The court used its interpretative power to uphold women’s rights in India and made them a direct subject of international law.

 Through this crucial study, this paper will highlight the challenges and potential of judicial activism in filling the gap between international obligations and domestic laws by offering a detailed view of how the Supreme Court of India plays an activist role by using international law in gender related issues.

Keywords: Gender Rights, Supreme Court, International Law, Monism, Dualism, Women’s Rights

INTRODUCTION

Gender justice is considered one of the important aspects of human rights, which reflects the commitment to equality, dignity, and the abolition of discrimination. International law plays an important role in advancing this cause, with conventions such as CEDAW, the Beijing Declaration, and the UDHR setting global standards for gender equality.  Talking about the domestic law perspective, the relationship between international law and domestic law is presented by the two theories, i.e. Monism and Dualism. According to Monism, domestic law and international law are from one single legal order. International law can be applied directly within the municipal legal order. According to dualism, domestic law and international law are separate and independent legal orders. International law can be applied in the municipal legal order by transformation. The framework adopted by the Indian Constitution is dualism. This mandates that international law should be transformed into domestic legislation for its enforcement[1].

 Article 51(c), Article 246(1), Article 73(1(a) and Article 253 of the Indian Constitution deal with international law. Once an international treaty is signed by India, it will not be directly applicable in the Indian legal system. Legislation has to be enacted. Article 253 of the Indian Constitution gives power to the Parliament to make laws for the implementation of international law. The Article makes it clear that for the implementation of international law in India, it has to be transformed into municipal legislation. Despite this framework, there are instances where the Supreme Court of India has applied international law without transformation in order to fill gaps in the domestic law. The reliance on international law is particularly in areas where domestic legislation is insufficient.

So, this paper explains the intersection between international law and gender justice through the lens of the Supreme Court of India. It basically examines how the Supreme Court of India interprets international laws within the Indian domestic laws or Indian contexts, navigating cultural, social, and legal complexities to create transformative jurisprudence.  By analysing important landmark judgments, the study highlights the challenges and potential of leveraging international law to achieve substantive gender equality in a diverse and pluralistic society like India[2].

UNDERSTANDING GENDER JUSTICE

“Gender refers to the characteristics of women, men, girls and boys that are socially construed. This includes norms, behaviors and roles associated with being a woman, man, girl or boy… (World Health Organization, Gender and Health https://www.who.int/health- (accessed on 17th Sep 2024)”[3] The theory of justice is based on equality. The idea of equality advocates fair treatment in society and sovereignty over oneself. A person who experiences unfair treatment because of their gender is a victim of gender injustice. (Anca Gheaus, Gender Justice, Journal of Ethics & Social Philosophy Vol6 no.1 pg. 4) Gender justice means that no person should have an advantage or disadvantage merely because of gender, until and unless fair compensation is provided. Gender justice is based on the principles of equality of access and the promotion of human choice, which are central to liberal egalitarian justice. (Anca Gheaus, Gender Justice, Journal of Ethics and Social Philosophy, Vol., 6 No. 1, 2012, pg2) Gender justice is an essential element of social justice and human rights. Despite being a basic human right, discrimination based on gender still exists throughout the world. When an individual suffers any harm due to their sex, gender, gender identity is referred to as ‘Gender-based violence’[4].

INTERNATIONAL LAW AND THE INDIAN CONSTITUTION

Article 51 (c) of Indian Constitution provides: “The State shall foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration.”[5] Article 51 (c) requires the Indian State to respect for ‘international law’.

APPLICATION OF INTERNATIONAL LAW BY THE SUPREME COURT OF INDIA

The Sexual Harassment and Workplace Rights

“Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)”

CEDAW aims to end discrimination against women globally. On 30th July 1980, India signed the Convention and ratified it on 9th July 1993 with some reservation. India claimed reservation of Article 5(a) “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view of achieving the elimination of prejudices and customary and all other practices which are bases on the idea of the inferiority or the superiority of either sexes or on stereotyped roles for men and women 16(1) and 29 of CEDAW”[6]. In Vishaka v. State of Rajasthan, Bhanwari Devi, a social worker was brutally gang raped in Rajasthan. As India had no specific law dealing with protection from sexual harassment in the workplace, the Supreme Court referred Article 11 and 24 of CEDAW, in order to fill the gap. The Supreme Court of India taking a proactive step by referring the provisions of CEDAW irrespective of the fact that India follows the dualism theory. By applying the provisions of CEDAW in Vishaka case, the Supreme Court made it clear that international conventions can be applied in shaping the domestic legal system, in areas where domestic laws are insufficient[7].

The Vishaka case is a notable progress of the Indian Judiciary, as it used international norms to bring reforms and recognise women’s rights as human rights, thereby reinforcing gender justice. The Supreme Court established the ‘Vishaka Guidelines’ to address sexual harassment at the workplace. The Supreme Court, addressed the vulnerability faced by women at workplace in this case and the guidelines given by the Court, signifies a step towards gender justice. Based on the guidelines, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) 2013 was enacted by the legislature. The Vishaka judgement is a step forward in achieving gender justice in India. It recognizes women’s right to work with dignity and freedom for harassment.

Rights of Transgender Persons

“In National Legal Services Authority v. Union of India (National Legal Services Authority v. Union of India & Ors (2014) Writ Petition (Civil) No. 604 of 2013), the Supreme Court of India recognized the rights of transgender as a third gender and granted legal protection. In recognizing the third gender, the court referred various international provisions like Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) (para 21 case)”[8]. The court stated that “unfortunately we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles”[9](para 49) The Court also stated “if the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law”[10] (para 53) The court cited “Article 6 of UDHR and Article 16 and 17 of ICCPR to expand the interpretation of Article 14, 15 and 21 of the Indian Constitution to incorporate the rights of third gender as the international convention as it is not inconsistent with fundamental rights”[11].

To uphold the rights of transgenders, “the Court also cited the Yogyakarta Principles, relating to sexual orientation and gender identity”. (para 21) even though the Yogyakarta Principles are not binding in Indian law, the use of these principles shows that in addressing issues of human rights, international law can be used to fill the gaps in the domestic laws. The Yogyakarta Principles recognizes gender identity as a fundamental right. The Supreme Court, adopted these principles as a framework to interpret the constitutional rights and stated that transgender persons have right to self-identity, dignity and non-discrimination and the rights must be protected legally.

Protection of Children’s Rights

Independent Thought v. Union of India (AIR 2017 SC 4904), (case brief)[12]. The Supreme Court of India referred various international conventions  (United Nation Convention on the Rights of the Children, 1989; Convention on the Elimination of All Forms of Discrimination Against Women, 1979; International Covenant on Civil and Political Rights, 1966) in order to protect children’s rights. The court refereed the United Nations Convention on the Rights of the Child, 1989 (UNCRC). In 1992, India ratified the UNCRC. According to Article 1 of the United Nation Convention on the Rights of the Children, 1989 (UNCRC) “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”[13]. The Convention lays down the protection of the child without discrimination by the “State Parties”. (“Article 2 States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”.) The court while referring this convention contended that “children under the age of 18 years is entitled to protection from discrimination”. Exception 2 to Section 375 of Indian Penal Code, 1960 “creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child” (para 1). The court stated that “the exception of marital rape of minor wife is in violation of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)[14]. Article 16 of CEDAW states that the “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relation to marriage and family relations and in particular shall ensure, on a basis of equality of men and women.” Therefore, Exception 2 to Section 375 of Indian Penal Code is inconsistent with Article 16 of CEDAW. Marital rape of minor violates the right to dignity, the Supreme Court stated that “it violates Article 7, 24 and 29 of the International Covenant on Civil and Political Rights, 1966 (ICCPR)”. Martial rape exception (Exception 2 to Section 375 of Indian Penal Code) is inconsistent with Article 7 of ICCPR which prohibits “degrading treatment”. Article 24 of the Convention guarantees “protection of children without discrimination (Article 24), India has an obligation to protect the children from abuse as it is the state’s duty to provide protection as per the convention. “Distinction between a married girl child and an unmarried girl child” violates Article 26 of the ICCPR. Apart from the above international conventions, the Supreme Court of India also referred Goal 5 of the United Nations Sustainable Development Goals, which focuses on achieving gender equality and empowering all women. Considering the above international obligations. The Supreme Court of India held Exception 2 in Section 375 of the IPC inconsistent with international law and POCSO Act.

LGBTQ+ Rights

In Navtej Singh Johar v. Union of India (AIR 2018 SC 4321)[15], homosexuality was decriminalized by the Supreme Court of India. The court ruled that Section 377 of IPC unconstitutional. The court relied on international principles and conventions to decriminalize homosexuality. The Court referred Yogyakarta Principles to interpret constitutional rights of LGBTQ+ individuals. Even though the Yogyakarta Principles are non-binding, the use of soft law by the Supreme Court of India is significant in shaping human rights laws. Though the soft law is not binding it provides a guidance on interpretation and application of human rights laws.

The Court referred Article 1[16] and Article 12 of the UDHR and Article 17 of ICCPR[17]. Relying on the international principles, the judgement expanded the scope of gender justice, by affirming the rights of sexual minorities and protecting their dignity. Relying on the international principles,

The application of International law in India has expanded the scope of Gender Justice in India. There is a distinction between international law and municipal law under the dualism theory of International law, which India adheres. International treaties signed by India must be incorporated into the municipal law through legislative enactments by the Parliament for its enforcement in the Indian Court. Despite the dualist framework, we can see from the above case laws that the Supreme Court of India has used International law directly to promote respect for International law. (as laid down in Article 51(c) of the Indian Constitution (footnote)). In order to fill the gaps in domestic laws, the court have taken a dynamic approach in application of international laws directly. A pivotal role has been played by the Indian judiciary in expanding the scope of gender justice by applying international law.

Conclusion

Women are entitled to enjoy the same human rights and fundamental freedoms as other individuals. International human rights treaties require State parties to take proactive steps to ensure that women’s human rights are respected by law and to eliminate discrimination, inequalities, and practices that negatively affect women’s rights. International obligations outline a number of the key elements which non-discrimination and gender equality laws must include in order to guarantee compliance. Its focus is on legal provisions, usually found in the areas of civil, administrative or constitutional law, which are designed to offer express and specific equality and non-discrimination protection. Under international human rights law, women may also be entitled to specific additional rights such as those concerning reproductive healthcare. As a particularly vulnerable group, women have special status and protection within the United Nations and regional human rights systems. International human rights treaties prohibit discrimination on the basis of gender and also require States to ensure the protection and realization of women’s rights in all areas from property ownership and freedom from violence, to equal access to education and participation in government.

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[1] International Human Rights Law and Gender Equality and Non-Discrimination Legislation, Requirements and

Good Practices, ICJ Briefing paper, April 2014.

[2] International Justice Resource Center, Women’s human rights, https://ijrcenter.org/thematic-research-

guides/women’s-human-rights/, retrieved on 2nd Sept, 2021, 10:34 PM.

[3] World Health Organization, Gender, WORLD HEALTH ORG., https://www.who.int/health-topics/gender (last visited Sept. 17, 2024).

[4] Anca Gheaus, Gender Justice, Journal of Ethics & Social Philosophy https://www.jesp.org/PDF/gender_justice_finalized.pdf

[5] The Constitution of India, 1950, art. 51(c).

[6] Convention on the Elimination of All Forms of Discrimination Against Women art. 5(a), Dec. 18, 1979, 1249 U.N.T.S. 13

[7] https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/cedaw.pdf

[8] https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf

[9] Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 SCC 438, 73 (India).

[10] Id.

[11] https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf

[12] https://www.scobserver.in/cases/independent-thought-union-of-india-exception-to-rape-within-child-marriages-case-background/

[13] Convention on the Rights of the Child art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3.

[14] https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/cedaw.pdf

[15] https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf

[16] https://www.ohchr.org/sites/default/files/UDHR/Documents/UDHR_Translations/eng.pdf

[17] https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/ccpr.pdf