Apparel Export Promotion Council v A.K. Chopra (1999)

Vishaka said what a court should do when there is no domestic law. This case says what a court should do when there is domestic law: apply the international norms alongside it, provided there is no inconsistency. Between them the two cases state the whole Indian rule, and neither is complete without the other.

It is also, on its facts, the case that confirms that sexual harassment at the workplace is a violation of human rights and not merely a disciplinary matter or a question of the sufficiency of evidence.

A superior officer was charged with the sexual harassment of a woman member of staff. On the facts as found, he was held guilty in the first proceedings. The matter came to the Supreme Court on the sufficiency and characterisation of the conduct, and on the approach the High Court had taken to it.

The Court stressed the importance of an international human rights approach and, in a passage that should be memorised for this paper, laid down the rule of judicial method:

In cases involving the violation of human rights, "the Courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field." Of the judgment under appeal it added that "the High Court appears to have totally ignored the intent and content of the International Conventions and Norms while dealing with the case."

Four elements, and each does work.

Cases involving violation of human rights. The rule is not a general canon for all litigation. It is directed at the class of case in which a human right is in issue - which, on the definition in section 2(1)(d) of the Protection of Human Rights Act 1993, means rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

Must for ever remain alive. The obligation is continuous and it is on the court itself. It does not depend on counsel having cited the convention. That is why the criticism of the High Court is expressed as a failure to notice, not as an error of law in the ordinary sense.

Apply the same to a given case. Not merely refer to; apply. This is stronger than the Kesavananda formulation of the instruments as an aid to construction.

When there is no inconsistency between the international norms and the domestic law occupying the field. This is the limit, and it is the same phrase as in Vishaka. Where a domestic statute says the opposite of the convention, the statute governs, because India is dualist and Jolly George Varghese remains good law. The convention operates in the space the domestic law leaves.

| | Vishaka (1997) | A.K. Chopra (1999) | |---|---|---| | State of the domestic law | No law occupying the field | Law occupying the field, not inconsistent | | What the Court does with the convention | Reads its content into Articles 14, 15, 19(1)(g) and 21 and issues binding guidelines | Applies it alongside the domestic law in construing the conduct complained of | | The output | Interim legislation-substitute | A rule of judicial method binding on all courts | | The limiting condition | Until suitable legislation is enacted | So long as there is no inconsistency |

An answer that treats the two cases as saying the same thing has lost the distinction that carries the marks.

A.K. Chopra is the case to cite for the proposition that the Indian judiciary has adopted a monist practice within a dualist constitution. The formal position is unchanged: a treaty is not part of Indian law until Parliament legislates under Article 253, and Jolly George Varghese says so. But the practice of the courts is to reach for the convention in every human rights case and to apply it unless a statute forbids. The gap between the formal position and the practice is one of the best essay topics this syllabus offers, and the three cases that define it are Jolly George Varghese, Vishaka and A.K. Chopra.

The sequel confirms the same movement. The guidelines in Vishaka were eventually replaced by legislation; the Convention on the Elimination of All Forms of Discrimination against Women, which Indian courts had been applying for years without an implementing statute, thereby acquired domestic statutory form in the field of workplace harassment. Judicial application first, legislation afterwards.