Prakash Mani Sharma v. Ministry of Women, Children and Social Welfare & Ors., SCN, Writ No. 2822 of 2062
Supreme Court order requiring State enforcement of international and constitutional protections of women in the workplace; International and constitutional protections of women's rights; Employment law; Positive obligations; Sexual harassment and dangerous/hostile work environment; Judicial review; Standing.
The petition was presented by advocates of the Nepalese organization, Pro Public, to protect the international and constitutional rights of thousands of women employees working in cabin and dance restaurants and massage parlors. These businesses have spread throughout urban areas in Nepal over the last ten years with women compromising more than 80% of all employees. Although many suffer from hostile and unsafe working conditions resulting in their economic, sexual, and social exploitation, women workers often feel compelled to stay due to a variety of socio-economic and cultural factors that create barriers to other sources of employment.
In ruling for petitioners, the Court noted that the operation of these businesses is not covered by any domestic laws, leaving women workers vulnerable to abuses of their rights. The Court also concluded that the Nepalese government had failed to enact legislation that would guarantee women a safe and healthy work environment, and other employment protections, as required under international law, including CEDAW (article 11), ICESCR (article 7) and the Interim Constitution (articles 11, 12, 13, 18 and 20) and ordered the government to enact the necessary laws for monitoring, controlling and supervising "cabin and dance restaurants" in Nepal. In the interim, the Court issued guidelines to protect women workers including the establishment of a monitoring mechanism to ensure there registration of these businesses, the payment of a minimum wage, as well as protecting women from sexual harassment. On the latter, the Court cited CEDAW Recommendation n. 22, stressing that: "Equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place.
Keywords: Prakash Mani Sharma v. Ministry of Women, Children and Social Welfare & Ors., SCN, Writ No. 2822 of 2062, Equality, Nondiscrimination, Labor, Women, Rights
After the decision, several ministries including the Ministry of Women, Children and Social Welfare began establishing work plans in accordance with the provisions of the Court's guidelines. It was also reported that Pro Public would work with the Supreme Court to publish the guidelines and ensure their distribution to all interested stakeholders including local governmental and non-governmental entities who would coordinate efforts to ensure the guidelines implementation.
Advocates argued that this judgment added a new dimension to the role played by the Supreme Court in terms of ensuring the full implementation of constitutional and human rights mechanisms. For example, this decision highlighted a new tactic for Court of issuing guidelines concerning important rights issues where the Nepalese Parliament has failed to act, including using the provisions of international instruments like the CEDAW as a template. It also led to discussions between business owners and women working in cabin and dance restaurant with regard to implementation issues.