Bangladesh National Women Lawyers Association (BNWLA) vs Government of Bangladesh and Others
Citation: 2009 29 BLD 415 (Writ Petition No. 5916 of 2008)
Jurisdiction : Bangladesh
Petitioner: Bangladesh National Women Lawyers Association (BNWLA)
Respondents: Government of Bangladesh and Others
Facts :
The Bangladesh National Women Lawyers Association (BNWLA) brought a crucial petition before the High Court Division of the Supreme Court of Bangladesh, addressing a serious social and legal concern. In this application under 102, a Rule Nisi was issued calling upon the respondents to show cause as to why the respondents failed to adopt guideline or policy or enact legislation to address the abuse of sexual harassment for protecting and safeguarding the rights of the women and girl children at work place, educational institutions, universities and other places wherever necessary which had been regularly reported in many national dailies. Light was shed on a few of such incidents in the judgment. Harrowing tales of repression and sexual abuse on women at their workplaces, educational institutions, non-government and government institutions were discussed briefly. The women were mostly harassed by their male colleagues and superiors as well. There were as many as 19 respondents on whom notices were served.
Issues :
1. Whether the court can take elements from the international law in cases of vacuum in the domestic laws.
2. Whether women’s constitutional rights to equality, dignity, and legal protection were being violated due to lack of laws against sexual harassment.
3. Whether the High Court Division could issue interim guidelines under Article 111 to address the legal gap.
Arguments :
Petitioner’s Arguments:
The petitioners argued that women in workplaces and educational institutions were facing severe harassment due to the absence of any specific law addressing sexual harassment. This situation resulted in a violation of the fundamental rights guaranteed under Articles 31 and 32 of the Constitution, which ensure the right to equal protection of law and the right to life and liberty.They further contended that although international conventions are not directly enforceable unless incorporated into domestic law, courts may rely on them as interpretative tools. In this regard, reliance was placed on HM Ershad vs Bangladesh [2001 (AD) 69], where it was held that international instruments can be used to interpret fundamental rights. Accordingly, the petitioners relied heavily on: Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Universal Declaration of Human Rights (UDHR) to argue that sexual harassment is a violation of women’s dignity and equality. They also drew support from comparative jurisprudence, particularly the landmark case of Vishaka v State of Rajasthan [AIR 1992 SC 3011], where the court formulated guidelines to prevent sexual harassment in the absence of specific legislation. Thus, the petitioners urged the court to frame necessary guidelines to protect women’s fundamental rights until proper legislation is enacted.
Respondent’s Arguments:
Only one respondent, Respondent No. 3, the Ministry of Women and Children, represented by its Secretary, responded. They submitted that there are many laws in the country for protecting the women folk including Nari O Shishu Nirjatan Daman Ain and as such no guidelines are necessary in this regard. They also cautioned against judicial overreach, asserting that lawmaking is the primary function of Parliament. Furthermore, they also brought up the case of respondent no. 7 in accordance with the Affidavit-in-Opposition. The contention was that University of Dhaka was not made a party and only impleading the Vice Chancellor is not enough. Subsequently University of Dhaka was added as respondent no 9. But these new respondents did not appear and even the learned advocate for respondent no. 7 did not appear as well.
Decisions :
The High Court Division ruled that sexual harassment infringes women’s constitutional rights to equality, dignity, and life, recognizing it as a form of sex discrimination. In the absence of specific legislation, the Court issued binding guidelines under Article 111 to safeguard women in workplaces and educational institutions. These guidelines will remain in effect until Parliament enacts appropriate legislation.
Directives :
1. Extent
These guidelines shall apply to work places and educational institutions within the territory of Bangladesh
2. Aims and objectives
a) To create awareness about sexual harassment and its consequences.
b) To create awareness that sexual harassment is a punishable offence
3. Duties of employers and authorities
Since the Constitution guarantees gender equality and protection against discrimination, it is the duty of employers and educational institutions to prevent sexual harassment and ensure effective measures for its punishment using all available legal and institutional means.
4. Definition
i) Sexual harassment includes:
a) Unwelcome sexually determined behavior ( whether directly or by implication) as physical contact and advances.
b) Attempts or efforts to establish physical relation having sexual implication by the abuse of administrative, authoritative or professional powers.
c) Sexually colored verbal representation, remarked or gestures
d) Demand or request for sexual favors
e) Showing pornography
f) Indecent gesture, teasing through abusive language, stalking, jokes having sexual implication
g) Insult through letters, telephone calls, sms, pottering, notice, cartoon, writing on bench, chair, table, notice boards, walls of office, factory, classroom, washrooms having sexual implication.
h) Taking still or video pornographies for the purpose of assassinating character or blackmailing.
i) Preventing participation in sports, cultural, organizational and academic activities on the ground of sex and/or for the purpose of sexual harassment.
j) Making love proposal and exerting pressure or posing threats in case of refusal to love proposal.
k) Attempt to establish sexual relation by deception, intimidation or false assurance.
such conduct mentioned in clause A to K can be humiliating and may constitute a health and safety problem at workplaces or educational institutions; it is discriminatory when the woman has reasonable grounds to believe that objection would disadvantage her in connection with her education or employment in various ways.
ii) Concerned authority means an authority of an educational institutions or workplace in both public and private sectors, which is authorized under the relevant disciplinary rules to take action in case of misconduct.
iii) Disciplinary Rules mean rules prescribed by any act or ordinance or any other sub ordinate legislations and includes any rules framed for maintenance of discipline in any public or private Institutions, organizations and workplace.
5. Creating awareness and public opinion
a) In Order to deter and eliminate sexual harassment and torture and to create a safe environment for work and education, the employers / management of all workplace and the authorities of all educational institutions will attach prime importance to publicity and publications against sexual harassment and gender discrimination.
b) There must be arrangement for proper counseling for the concerned persons, if necessary.
c) The educational institutions and the employers will maintain regular communication and effective consultation with the administrative authorities to create awareness among the personnel in law enforcing agencies in this regard.
d) To prepare and publish booklets and guidelines containing these guidelines and provisions of the constitution and the statutes regarding gender equality and sexual offences.
e) To create awareness regarding fundamental rights guaranteed in the constitution.
6) Preventive steps:
All employers, persons in charge of workplaces, and authorities of educational institutions shall take effective measures to prevent sexual harassment. To discharge these obligations, they shall, among others, take 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 prohibitions against gender discrimination and sexual harassment and torture should be widely circulated.
b) To ensure that there is no hostile environment towards women at work places 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
7) Disciplinary action:
Appropriate disciplinary action must be initiated in case of any falling within the definition of sexual harassment and torture in clause 4 of these guidelines
8) Complaints:
Where such acts do not constitute misconduct under the disciplinary rules, appropriate and effective mechanism must be evolved at the work places, and educational institutions, in both public and private sectors for records and redress of the complaints made by the victim.
The following measures must be included in the complaint mechanism:
a) It must be ensured that the identity of the complainant and also that of the accused will not be disclosed until the allegation is proved.
b) Security of the complainant will be ensured by the concerned authority.
c) Complaint can be lodged by the victim or through her relatives, friends or lawyers and it can be sent by mail also.
d) A complainant can file the complaint with a female member of the complaint family separately
e) The compliant will be lodged with the complaint committee to be constituted as provided in the clause 9 below
9. Complain committee:
a) In all workplace and educational institutions in both public and Govt. sectors the concerned authority will constitute a complaint committee in order to receive complaints and to conduct investigations and make investigations recommendations
b) The complaint committee will have minimum 5 members and majority of the member will be women the head will be women if available.
c) The complaint committee should have at least two members from outside the organization concerned preferably from organization working on gender issue and sexual abuse
d) The complaint committee will submit annual report to the Govt. on the compliance of these guidelines.
10) Procedure of the complaint committee:
The complaint must generally be filed with the Complaint Committee within 30 working days of the incident. For minor cases, the committee may resolve the matter with the consent of the parties and report to the authority, while in other cases it will conduct a full investigation. The committee has the power to issue notices, hold hearings, collect evidence, and examine documents, with emphasis on both oral and circumstantial evidence. It must ensure confidentiality of the parties, record testimony in camera, and avoid any insulting or harassing questioning. If a complaint is withdrawn, the reasons must be examined and recorded. The committee must submit its report with recommendations within 30 days (extendable to 60 days if necessary). If a complaint is found to be intentionally false, appropriate action may be recommended, and decisions are taken by majority opinion.
11) Punishment:
The concerned authority, may suspend temporarily the accused persons (other than students) and in case of students, may prevent them from attending their classes on the receipt of the recommendation of the Complain Committee. They direct the above guidelines will be strictly followed and observed in all educational institutions and work places in both public and private sectors until adequate and appropriate legislation is made in this field.
Relevant Legal Principles :
Doctrine of In Loco Parentis (Educational Institutions): Institutions have a duty of care towards students and any sexual harassment is treated as abuse of trust.
Relevant Laws :
- The Constitution of the People’s Republic of Bangladesh
- Article : 27, 28, 29, 31, 32
- Nari O Shishu Nirjatan Daman Ain, 2000
Author :
1. Fatema Jarin Habiba
2. Md. Fuad Hasan
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