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Supreme Court

Division Bench

Hon'ble Justice Balram KC

Hon'ble Justice Kalyan Shrestha

Order

Writ No. 2822 of the year 2062

Case – Mandamus

• On behalf of Pro Public and on his own behalf advocate Prakash Mani Sharma, a resident of ward no. 14, Kuleshwor, of Kathmandu Metropolitan city of Kathmandu district …………………….…………..1

• On behalf of Pro Public and on his own behalf advocate Raju Prasad Chapagai, a resident of Ratnanagar Municipality of Chitwan district and currently residing at ward no. 10, Nayabaneshwar, of Kathamndu Metropolitan city of Kathmandu district…………………………....…….2

• On behalf of Pro Public and on his own behalf advocate Rama Pant Kharel, a resident of ward no. 33, Gyaneshwar, of Kathmandu Metropolitan city of Kathmandu district ….………………………..…….3

• On behalf of Pro Public and on her own behalf advocate Kabita Pandey, a resident of ward no. 34, Baneshwar, of Kathmandu Metropolitan city of Kathmandu district …….………………..………….4

• On behalf of Pro Public and on her own behalf advocate Sharmila Shrestha, a resident of ward no 8, Sankhu, of Pukhulachhi VDC of Kathmandu district ………………….…………….……………………....5

Vs.

• Nepal Government, Ministry of Women, Children and Social Welfare, Singhdurbar…………………………………………………………...…….1

• Nepal Government, Ministry of Labour and Transport Management, Singhdurbar……………………………………………………………..…2

• Nepal Government, Ministry of Home Affairs, Singhdurbar…………………………………………………..…………....3

• Nepal Government, Ministry of Industry, Commerce and Supply, Singhdurbar………….……………………………………………..……..4

• Nepal Government, Ministry of Law, Justice and Parliamentary Management, Singhdurbar……………………………………………....5

• Nepal Government, Department of Cottage and Small Industries, Tripureshwar ……………………………………………………………….6

• Nepal Government, Department of Labour and Employment Promotion, Baneshwar ………………………………………………………………….7

The facts and decision of the present writ petition filed in this court under Articles 23, and 82(2) of the Constitution of the Kingdom of Nepal, 2047 (1990) are as follows:

We the writ petitioners pray for the issuance of an order, whatsoever appropriate, including the writ of mandamus pursuant to Articles 23 and 88(2) of the 1990 Constitution for practical guarantee of the constitutionally guaranteed fundamental human right of hundreds of thousands of working women, who are bound to work at the work places including cabin and dance restaurants and massage parlours, after or without completing the minimum legal age, in extremely hazardous conditions, to lead a dignified, substantial and healthy life utilizing the opportunities of work and employment in a dignified environment and having protection against extreme economic, social and sexual exploitation, sexual discrimination and violence. We the petitioners contend that out aforesaid claim is based on the provisions made in the preamble of the Constitution, Articles 11,12,20,25 and 26 of the Constitution, Articles 1, 6 and 11 of the Convention on the Elimination of All forms of Discrimination against Women, 1979, Articles 1,6,7,8,9,10,16 and 17 of the International Covenant on Civil and Political Rights, 1966, Articles 1 and 6 of the International Covenant on Economic, Social and Cultural Rights, 1966, Articles 1 and 2 of the International Covenant on Protection against Human Sale & Purchase and Exploitation of Prostitution, 1943, Articles 1,2,3,16,19,32 and 34 of the Convention on the Rights of the Child, 1989, all ratified by Nepal, and ILO Conventions approved by Nepal, the preamble and Sections 2,3,4,16,17 and 18 of the Labour Act, 2048 (1991) dealing with the provision relating to protection of the rights of labourers and various judicial principles laid down by the Supreme Court of Nepal for the promotion of gender justice.

It is a matter of the inherent human right of every person to enjoy the opportunities of work and employment in a dignified environment and to lead a dignified life by preserving one's self respect, to have freedom to make a decision about oneself being free from suppression, tyranny, discrimination and threats, and to receive appropriate legal protection against all types of injustice. On the other hand it is also a duty to create a conducive environment for the fulfillment and full enjoyment of such a right. In the event of failure to carry out the duty of creating an environment required for the enjoyment of such a right by the citizens without any discrimination, a citizen's right to lead a dignified life becomes exposed to threat. Due to the failure of the responsible bodies of the State to carry out appropriately their constitutional, international and national duties, the reality of hundreds of thousands of working women, having the fundamental rights to not only equal protection of law but also to special protection of law, becoming the victims of extreme economic and sexual exploitation has come to light in the last few years. There is no denying the fact that the business of becoming rich overnight due to the inactivity of the police and the administration is increasing day by day, forcing innocent and helpless women into undesirable sexual activities and prostitution at the workplaces including restaurants and massage parlours which are growing like mushrooms under different names in a legal or illegal manner in the urban areas including the capital. That those cabin and dance restaurants opened in the urban areas are at present emerging as the platform for trafficking in women is a fact which has been also published and established by the study reports including the study called "Plight of Cabin Keepers, 2004" undertaken by Action Aid Nepal, an INGO and another study titled "Women Exploitation in Dance and Cabin Restaurants: A Case Study of Kathmandu City, 2004" conducted by a researcher Bharat Raj Pant for an organization called "Jeet Nepal".

The study report, 2004 given by Action Aid has pointed out the reality, such as employing mostly young girls in cabin restaurants and the owners forcing them to tolerate any type of sexual misconduct displayed by the customers, the restaurant owners not caring a fig for the sexual exploitation of working women and motivated by the only degrading objective of increasing their business by attracting customers, and the working women feeling compelled to continue in their jobs tolerating extreme sexual and economic exploitation due to the absence of any alternative means for earning their livelihood and other factors like threat and intimidation created by the employers.

Likewise, as shown by that study, the working women are suffering from the plight caused by various evil practices including sexual abuse in cabin and dance restaurants. They are becoming victims of the problem of submitting themselves under compulsion as a sexual object to the customers and indulging in smoking in their company, mortgaging even their human dignity.

That study has further revealed that they are always exposed to verbal, physical and sexual abuse by the customers, misbehavior by the owners, frequent accusations and arrests by the police, and the negative social perceptions of them.

The study report further shows that they are always faced with the danger of expulsion from their job at any time due to the absence of the practice of providing them appointment letters. They do not receive regular remuneration. The minimal human rights of working women are being seriously violated because there arises a coercive situation of having to work and the young women psychologically submit themselves as sex slaves since the determination of their salaries is dependent only on the basis of keeping the customers pleased. Furthermore, the health condition of working women also generally remains extremely miserable mostly due to the absence of a minimum healthy environment compounded further by the presence of dark, cold rooms which do not even allow the entry of fresh air and sunlight; their compulsion to drink and smoke in the company of the customers; and the precarious situation in which they become victims of forced smoking even though they do not have the habit of smoking. Moreover, that study has also cautioned against the truth that such cabin and dance restaurants are opened in an unrestricted manner and developed as a new platform for trafficking in women. Therefore, it has emphasized an immediate adoption of various measures including the formulation of necessary laws and rules and provisions for monitoring, control and supervision, and has also presented various important suggestions.

Another study called "Women Exploitation in Dance and Cabin Restaurants: A Case Study of Kathmandu City, 2004" conducted by Bharat Raj Pant, on behalf of 'Jeet Nepal', has also drawn the attention to the fact that the women working in cabin and dance restaurants are forced to work there in an extremely hazardous situation and that they have been subjected to extreme economic and sexual exploitation.

Taking into consideration, as mentioned above, the serious violations of the right of women working in the cabin and dance restaurants to work in a dignified environment and to lead a life suitable for human beings, this Forum (Pro Public) had been endeavoring variously to make the responsible bodies of Nepal Government accountable and in this course it has drawn the attention of the respondent Department of Cottage and Small Industries on 25 June 2004 to regulate and control the entrepreneurs running the businesses like cabin and dance restaurants and massage centers. Despite these efforts until now no information has been received from the department. This proves that no concrete step has been taken so far to end the exploitation against the working women by bringing the cabin and dance restaurants under the ambit of law and rules.

Since the preamble of the Constitution has emphasized that the practical implementation of the right to equality is indispensable for the realization of social and economic justice, Article 11 has also guaranteed the right to special legal protection for the protection and development of women, in addition to providing them with equal protection of the laws. Therefore, as per the proviso to Article 11(3) of the Constitution for complying with the additional responsibility of the State towards the women, appropriate protection of the women employees working in restaurants including cabin and dance restaurants is essential. Besides, Article 12(1) has granted the right against deprivation of personal liberty. Similarly, Article 11(5) has provided for the right to equal wage for equal work. Likewise, establishing also the freedom of choosing a profession as a fundamental human right, Article 12(2)(e) of the Constitution has guaranteed the right to freedom of profession, occupation or business. Similarly, guaranteeing the right against all types of exploitation, Article 20(1) has prohibited against trafficking in persons, enslavement, bonded labour or forcing someone into any work against one's will in any way. As a directive principle of the State Article 25 of the Constitution has declared that the fundamental objective of the State is to establish a welfare State by providing protection to the life and property of the people.

Similarly, under Article 26(7) of the Constitution the State seems to have provided special priority to women in the field of employment with a view to bringing them into the main stream of the national development.

The petitioners thus prayed for the issuance of the following orders, under Article 88(2) of the 1990 Constitution for the protection and promotion of gender justice by taking into consideration the grounds and reasons mentioned in the aforesaid various paragraphs:

• In order to effect actual implementation of the right of women working in cabin and dance restaurants and massage parlours to live a dignified life by working in a safe, secure and dignified environment, to make and implement as soon as possible necessary law and regulations also covering other necessary aspects, besides matters like time limit for work, wages and allowances, necessary standard relating to recruitment and protection of employment, overtime, physical environment of the workplace and the minimum facilities, liability of the employers, control of sexual abuse, legal remedies, regular monitoring and inspection of the workplace, record and details of the employees and registration of the restaurants and the terms and conditions for their operation.

• Pending the enactment of a separate, necessary law and the Rules relating to the regulation of cabin and dance restaurants and massage parlours, to formulate the necessary guidelines aimed at ending all types of sexual and economic exploitation of the women working at such workplaces and also to issue an appropriate order for their implementation.

• Also to implement and cause to be implemented effectively the provisions relating to the protection of the rights of labourers enshrined in the Labour Act, 2048 and the Labour Rules, 2050; to identify the restaurants operating in contravention of the prevailing Nepal law including the Industrial Business Act, 2049, and to impose a restriction on the operation of such restaurants and to allow them to operate only within the terms and restrictions prescribed by the prevailing law.

• In addition, to issue a necessary and appropriate order to constitute a high level study committee including the representatives of all the stakeholders for conducting a study of the problems encountered by the working women employed at the workplaces like cabin and dance restaurants and massage parlours, and to make recommendations for the legislative, executive and administrative measures to be taken immediately for the removal of such problems.

Hearing the writ petition the apex court, seeking explanation from the respondents, asked them to submit their written reply within fifteen days excluding the time consumed 'en route' as to why an order, as prayed for by the petitioners, need not be issued, and also directed them to present the case file as per the rules for further hearing after the receipt of the written reply or after the expiry of the due date.

Responding to the writ petition, the Ministry of Labour and Transport Management contended that it cannot be denied gated that it is the duty and responsibility of every welfare State to provide for the security and welfare of every class of citizens. Sexual exploitation of women and violence against them have emerged as serious problems. Section 5 of the Labour Act, 2048 has provided that the women can be employed in work only from 5 a.m. in the morning to 6 p.m. in the evening. Section 48(a) has laid down that the women may be employed to work also during other times in hotels or travel agencies by providing for their special security on the basis of the nature of their work. Likewise, Rule 4 of the Labour Rule, 2050 has provided that if a woman is to be employed for work during a time other than 6 a.m. in the morning to 6 p.m. in the evening it can be so done on the basis of the mutual understanding of the working woman or employee and the manager. As Nepal Government is cautious and alert in this respect, and as the Labour Act, 2048 is in the process of amendment, it is natural that necessary discussions and deliberations shall take place for making additional legal reforms to provide guarantees for the aforesaid security for the working women. Thus submitting, the Ministry of Labour and Transport Management requested the rejection of the writ petition.

Requesting the rejection of the writ petition, the respondent Department of Cottage and Small Industries, in its written reply, submitted that there was no provision for registering cabin and dance restaurants and massage centers as mentioned by the petitioners in their petition, and there is only a provision for registering, as per the Industrial Business Act, 2049 and the prevailing law, rules and procedure, in its subordinate offices only hotels, restaurants and resorts. And that too, while registering any restaurant, there is the practice of granting such registration imposing conditions that no dance cabin shall be allowed in the restaurant, that the female workers shall not be employed for work after 9 p.m. in the night and that a provision shall have to be made to transport the female workers back to their residence. Since there is no practice of registering businesses like dance bar, cabin restaurants and massage centers etc. there does not arise a question of intimating the opposite party about that. As the attention of the Department has been drawn towards the matter that several cabin, dance and massage centers are operating in the districts of Kathmandu, Lalitpur and Bhaktapur without getting registered, several teams have been constituted on the official level and information and notice have been published in various news magazines asking such unregistered restaurants, which are operating unlawfully, to come under the ambit of law and not to operate illegally. All this shows, the respondent department pleaded, it was conscious of the issues raised by the petitioners and had taken further action in that regard and was proceeding ahead with the process of taking action in accordance with the law and the rules which justified its submission for the rejection of the writ petition.

The Ministry of Home Affairs contended that as nothing had been done by that Ministry which amounted to a violation of the fundamental rights of the petitioners there seemed to be no legal basis for the issuance of the writ and, hence, it must be rejected.

Another respondent, the Ministry of Industries, Commerce and Supply, in its written reply, submitted that there was no provision for getting cabin, dance and massage centers registered under the Industrial Business Act, 2049 as mentioned by the petitioners. Hotels, restaurants and resorts have been registered in accordance with the provision for registration made by that Act. And at the time of their registration, restrictions are always imposed prohibiting the opening of cabins in the restaurants and employing female workers for work after 9 p.m. It further argued that since the writ petition could not even mention which cabin or dance or massage center had been registered as per the Industrial Business Act, 2049 and as nothing had been done by that Ministry which infringed on the petitioners' rights, there was no justification for framing that Ministry as a respondent and, therefore, the writ petition deserved to be rejected.

Likewise, pleading for the rejection of the writ petition, another respondent, the Ministry of Law, Justice and Parliamentary Management, contended that the Ministry had done nothing which amounted to the infringement of any right of the petitioners. The Labour Act, 2049 had provided for the rights of the working employees. As Section 10 of the Industrial Business Act, 2049 has laid down the condition for registration while setting up any industry, and as Section 25 of the same Act has provided for punishment to be imposed by the government if any person operated any industry which required license without obtaining such license, it should be clear that every industry must be registered before it is set up and that the Labour Act has made clear provisions in respect of the workers and employees of any industry, thus registered and established, who have been defined by the Labour Act. Section 4 of the Labour Act has provided for employing the workers and employees for work only after giving them appointment letters; Section 5 has provided that a woman cannot be employed for work, without her consent, beyond the period of 6 a.m. in the morning to 6 p.m. in the evening; Section 16 of the Act has prohibited from engaging any person in work for more than 8 hours everyday and for 48 hours in a week; Section 19 has provided for giving more wages for engaging any person in work for more time. In the context of Nepal government fixing the minimum wages from time to time as per the right granted to Nepal Government by Section 21 of the Act, it is not proper to say that there is no law in regard to the rights and interests of the working women employed in the workplaces like cabin and dance restaurants and massage parlours. Hence, it was pleaded that the writ petition should be rejected.

In its written reply, the respondent Ministry of Women, Children and Social Welfare argued that throughout their writ petition the petitioner had not been able to point out what that Ministry had failed to do which should have been done by it, and similarly what that Ministry should not have done that it had done. Therefore, the Ministry prayed for the rejection of the writ petition.

Similarly, the Department of Labour and Employment Promotion responded with the reply that it could not be denied that it was the duty and responsibility of every welfare State to make arrangements for the security and welfare of every class of citizens. The legal provisions like the one made in Section 5 of the Labour Act, 2048 restricting the employment of women in work only from 6 a.m. in the morning to 6 p.m. in the evening and the one made in Section 48(a) permitting women to be employed for work in hotels or travel agencies also during other times after making a provision for their special security in view of the nature of the work are some of the provisions relating to sensitivity towards women and their security.

As the apex court felt that it shall be appropriate to proceed further by obtaining the suggestions through a committee about the measures to be undertaken, after identifying the problems based on the study of the legal and practical problems raised by the petitioners, it issued an order in the name of the Ministry of Women, Children and Social Welfare on 20 November 2006 to constitute a committee in that connection under the convenorship of a Joint Secretary of the Ministry of Women, Children and Social Welfare which also comprised one representative each of at least Under Secretary level from the Ministry of Labour and Transport Management, Ministry of Home Affairs, the Ministry of Industry, Commerce and Supply, Ministry of Law, Justice and Parliamentary Management, Department of Cottage and Small Industries, and Department of Labour and Employment Promotion and a Deputy Superintendent of Police of the Valley Crime Investigation Section and a representative of the petitioner Pro Public, and also to prepare a report with recommendations within three months of the commencement of the assignment and to submit one copy of the report to the apex court. In pursuance of that court order, the aforesaid report seems to have been produced by the Ministry of Women, Children and Social Welfare and is attached herewith in the case-file.

The apex court went through the case-file, including the petition, and other related documents which were presented before them as scheduled for hearing as per the rules and the learned justices also heard the submissions made by the learned counsels appearing on behalf of the petitioners and the respondents.

The main points of the submissions made by learned advocates Prakash Mani Sharma, Rama Pant Kharel, Sharmila Shrestha and Kabita Pandey whoappeared on behalf of the petitioners are as follows: It is a human right of every person to get an opportunity to work in a safe environment. Article 11(a) of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has guaranteed the right to work as an inalienable right of all human beings. As Nepal has already ratified that Convention, the State must fully abide by all the provisions contained in that Convention. It is an issue of the inherent human right related to the life of an individual to utilize the opportunities of work and employment in a dignified and secure environment, to lead a dignified life preserving one's self-respect and to be able to work in an independent way receiving adequate legal protection, being free from any type of exploitation, suppression, tyranny, discrimination and threat and intimidation. It has been clearly stated in Recommendation No. 22 of the General Recommendations explaining Article 11 of CEDAW: Equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment at the work place. Thus it has ensured the right of the working women to work without being subjected to sexual harassment. Article 11 of CEDAW has accepted, in the following way, that it is also the solemn duty of every State to create an environment conducive to utilization of such rights by the citizens without any discrimination: "State parties shall take an appropriate measure to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights in particular." Likewise, it has been clearly stated that every State must guarantee the right to choose business and employment and the right to the protection of one's work according to one's will as mentioned in Article 11(c), the right to equal wages as mentioned in Article 11(d), and the right to social security as mentioned in Article 11(e). Similarly, describing that it is a human right of every person to work in an easy and conducive environment, Article 7(a) and (b) of the International Covenant on Social, Economic and Cultural Rights has guaranteed the working women's right to justifiable remuneration and equal wages for equal work and the right to work in a safe and secure environment.

Due to the failure of Nepal Government to make an arrangement for an effective complaint procedure aimed at preventing any abuse committed against women at the workplace, penal provisions and suitable compensation and shelter, advice for and rehabilitation of the victims, several women are working in a mentally deranged state having been forced to tolerate the sexual abuse committed against them, and many others are being forced to resign from their employment and stay back at home for the protection of their dignity and self-respect. All this is highly unfortunate for a civilized society. Article 12(2)(f) has also guaranteed the right of every citizen to practise freely any profession or to carry on any employment, occupation or trade; likewise, Article 13(4) has guaranteed the right to equality by providing that no discrimination shall be made between men and women in respect of wages and social security, and Article 20(1) has prohibited discrimination against women only for the reason that they belong to the fair sex. Similarly, Article 20(3) has provided that no physical, mental or any other type of violent act shall be committed against any woman, and that such an act shall be punishable by law. In the context of ensuring the women's right as a fundamental right, Section 4 of the Labour Act has laid a restriction on engaging a female worker and employee in work during night without mutual consent of the female worker or employee and the manager, and has thus also prescribed a specific time duration. Likewise, Rule 4 of the Labour Rules, 2050 has mentioned the time of engaging women in work. Sub-section 2 has also mentioned a manager making appropriate arrangements for the safety of the female workers and employees while engaging them in work. However, the report, submitted in pursuance of the order of the apex court, on all the work places, the plight of the working women working at such places and the problems encountered by them, also throw ample light on the actual condition of the women working in cabin and dance restaurants and massage parlours who are forced to work there tolerating physical, mental and sexual violence.

The report submitted by the committee on 21 June 2007 has clearly shown the reality of physical, mental, financial and sexual exploitation of the women by the businessmen in the name of earning money due to the absence of any special Act and Rules regarding the responsibilities of the workers employed by dance and cabin restaurants and massage parlours and the lack of any provision for a minimum standard to be maintained by the businessmen, customers and workers for working or for employing them to work at such work places. The writ petitioners have prayed for the issuance of an appropriate order, whatsoever, including the writ of mandamus to make the laws as mentioned in paragraph 12(a) of the writ petition with a view to ending all types of sexual and financial exploitation of the working women employed by cabin and dance restaurants and massage parlours, and pending the enactment of such laws, to follow the guidelines formulated by the court.

The main points of the submission made and the written submission made by Acting Deputy Attorney General, Tika Bahadur Hamal, appearing on behalf of the respondents, are as follows: The writ petitioners have failed to point out the actual basis of the accusations as to who has exploited whom in which way in restaurants, cabin restaurants, dance restaurants, massage parlours etc. In order to seek the issuance of an order prayed for by the petitioners, first of all it has to be proved that such an act has been committed but such an accusation has not been established and formally proved. It is not sufficient only to claim that a constitutional right has been infringed; one must show a concrete and actual basis showing the infringement of such a right. Unless it is proved who has violated the constitutional right of which person, it is not considered that a cause of action has arisen. Only a person who has a right or entitlement has got the 'locus standi' for filing a petition. As the violation of the petitioners' right could not be established in the present case, petitioners lacked the 'locus standi' to file such a petition. Moreover, the issue raised by the petitioners is also a question of fact. Therefore, as there was an absence of a cause of action and 'locus standi', and since a question of fact had been raised, and also since the writ petition had been filed on the basis of the so-called survey made by a particular organization in an unestablished manner, the writ petition deserved to be rejected.

The petitioners have claimed for imposing a restriction on the sexual and financial exploitation of the women working in the cabin and dance restaurants and massage parlours where perversions are rampant. Since Article 12(3)(e) of the Interim Constitution of Nepal, 2063 has provided every citizen with the constitutional guarantee of the freedom to practise any profession or to carry on any occupation, industry or trade, it has thus granted the right to undertake any profession or occupation according to one's choice.

The petition seeking a restriction on any occupational activity conducted by someone in a lawful manner, unless proved otherwise, seems to be clearly unconstitutional at the very first sight. The petitioners have mentioned in their writ petition that the cabin and dance restaurants in the urban areas have become a platform for trafficking in women. Whereas there is a legal provision for taking action, as per the Public Offence (Crime and Punishment) Act, 2027, against any unwarranted activity, on the other hand, there is also a provision for initiating legal action as per the Human Marketing and Transportation Act, 2064 in the event of the sale and purchase of any human being in that sector. In spite of the presence of such legal provisions, the petitioners seem to have entered the writ jurisdiction disregarding the means of alternative relief.

The petitioners have not clearly pointed out in their petition as to which working women working in dance and cabin restaurants had become the victims of exploitation, and they have mentioned it only in a subjective and immaterial way. The judicial principle enunciated in the case of Radhe Shayam Adhikari Vs. the Cabinet Secretariat has made it clear that the petitioners lack 'locus standi' to file this writ petition as the women alleged to have been the victims of such acts have not joined the writ petitioners in moving this petition, and for this reason the petitioners do not seem to have a meaningful relationship and fundamental concern with that issue and have thus failed to put forward adequate and justifiable reasons showing such a relationship and concern.

Since the writ petitioners have moved the petition chiefly on the basis of the report given by 'Action Aid Nepal' after making a survey, and as the fact about what is the authoritativeness of that survey and how the acts of sexual abuse were committed have not been established, there is no possibility at all of the issuance of the writ. It also seems that if someone commits an offence declared so by the prevailing law, there is a provision for an alternative legal remedy and no penal action can be taken or investigation of crime made through the writ jurisdiction. The State has expressed commitment in respect of the issue of the rights and interests of the working women in part 4 of the Interim Constitution of Nepal. Hence, the writ petition deserves to be rejected as the petitioners lack 'locus standi', as the writ petition is concerned with an immaterial and unestablished issue, as the alleged victims of the illegal work in the cabin and dance restaurants have not filed the writ petition, and also as the present dispute is not justifiable and since an order cannot be implemented even if the writ is issued.

Thus the main claims of the petitioners seem to be the issuance of an appropriate order including the writ of mandamus to achieve the following goals:

• To implement the right of the women working in cabin and dance restaurants and massage parlours to lead a dignified life through working in a secure and dignified environment; to make and implement as soon as possible necessary law addressing the necessary aspects including the provisions relating to the issues, such as: recruitment of the persons working in such restaurants and parlours; time limit of their working hours; necessary provisions regarding security of employment including matters like salaries, allowances and additional facilities for working overtime; physical environment of the workplace and minimum facilities available there; responsibilities of the employers; control of sexual abuse; legal remedies; regular monitoring and supervision of the workplace; records and details of the workers; registration and terms and conditions of running a restaurant;

• Pending the enactment of a specific law, to prepare the necessary guidelines and enforce its implementation for the prevention of all types of sexual and financial exploitation against women workers working at such places;

• To implement and cause to be implemented in an effective way the provisions relating to the protection of the rights of the workers as enshrined in the Labour Act, 2048 and the Labour Rules, 2050;

• To identify the restaurants running contrary to the prevailing laws, including the Industrial Business Act, 2049, and to impose restrictions on the operation of such restaurants and to allow them to operate only within the terms and conditions and the limits prescribed by the law; and

• Also, to constitute a high level study committee to conduct a study of the problems faced by working women at the workplaces, such as, cabin and dance restaurants and massage parlours, and also to issue other necessary orders as recommended by that committee.

As the present writ petition has been scheduled for today for the delivery of judgment, after going through the case file, including the petition and other related documents, and in view of the arguments put forward and the written submission presented by both the parties, the following issues need to be resolved in the present writ petition:

• Whether or not the petitioners have got the 'locus standi' to file the writ petition?

• What are the laws under which the cabin and dance restaurants and the massage parlours are operating and what is the state of the protection of the job of the women working at such places and the right against exploitation?

• Whether or not the environment of cabin and dance restaurants and massage parlours allows the female employees to work in a secure and dignified manner?

• Whether or not the writ should be issued as requested by the petitioners?

As regards the first question, the present writ petition seems to have been filed requesting judicial intervention of this court to ensure the practical guarantee of the fundamental right of the women working at recreational work places, such as, cabin and dance restaurants and massage parlors to live a substantive and healthy life by utilizing the opportunities of employment, by ending the economic, social and sexual exploitation of those working women and by providing them protection against gender discrimination and violence and thus by making such type of employment respected and dignified. The petitioner organization appears to be an organization which has remained active to realize the objectives of gender justice through the annulment of the laws discriminatory against women, the enactment of new laws and proper compliance with the existing laws. The petition seems to have been filed not for any personal right and interest but for the protection of the right and interest of thousands of the people belonging to a disadvantaged class working in cabin and dance restaurants and massage parlours. As this petition seems to have been filed 'pro bono publico,' there is no disputing the fact that it is a dispute involving a constitutional and legal question relating to a public interest or concern. Any petition filed by a public spirited person or NGO on behalf of such a disadvantaged class which is overwhelming in number, under Article 88(2) of the then constitution, invoking the extra-ordinary jurisdiction of the court is not an adversarial litigation. It has been comprehensively interpreted in petitioner Bal Krishna Neupane Vs. the then Royal Nepal Airlines Corporation (Writ No. 4026 of the year 2056) and in Sunil Babu Pant Vs. the Cabinet Secretariat and Others (Writ No. 917 of the year 2064) laying down the principle that everyone has got the 'locus standi' in such disputes. Similarly, since a similar judicial principle has been already enunciated in several cases including those of Gopal Shiwakoti and Others Vs. the Finance Ministry and Others and Bal Krishna Neupane Vs. the Cabinet Secretariat and Others, every person has a right to file a petition in connection with a dispute of public interest involving any constitutional and legal issue relating to the rights and economic and social justice for working women forced to work at workplaces like dance and cabin restaurants and massage parlours. Thus, the plea raised by the learned legal practitioners, appearing on behalf of the respondents, in their submission notes (that) the petitioners are handicapped by the lack of 'locus standi' cannot be accepted. Therefore, the petitioner organization is an organization entitled to file this writ petition.

Now as regards the second question, from the written replies submitted by the respondents representing the government it appears that the cabin and dance restaurants and massage parlours currently under operation do not seem to be functioning under any specific law. Some of them seem to have been registered under the Industrial Business Act, 2049. But there seems to be no provision for registering the cabin, dance and massage centers under the Industrial Business Act, 2049. The written reply submitted by the Ministry of Industries, Commerce and Supply shows that as there is a provision under that Act for the registration of hotels, restaurants and resorts, such cabin, dance and massage centers are supposed to be registered, and at the time of such registration restrictions are supposed to be imposed on having cabins in the restaurants and engaging women in work after 9 p.m. during the night.

There is no provision for registering cabin and dance restaurants and massage centers. There is a provision for registering only hotels, restaurants and resorts as per the Industrial Business Act, 2049 and the other prevailing laws, regulations and procedures. That too, while registering the restaurantss registration is made incorporating the conditions that dance cabins shall not be allowed in the restaurants, female workers shall not be engaged in work after 9 p.m. during the night and a provision shall be made for transporting them back to their homes. The Department of Cottage and Small Industries has stated in its written reply that businesses like cabin and dance restaurants and massage parlours are not at all registered and the attention of that department was drawn to the fact that cabin and dance centers and massage centers were being operated in the Kathmandu, Lalitpur and Bhaktapur districts without registration.

It is revealed by the written replies of the respondent government bodies, the report of the committee constituted in pursuance of the order of the apex court under the convenorship of the Joint Secretary of the Ministry of Women, Children and Social Welfare and the report of the committee constituted under the convenorship of the Chief District Officer of Kathmandu that the number of cabin restaurants, 'dohari' restaurants, dance restaurants and massage parlours in the Kathmandu valley alone may be nearly 1200 and there may be nearly 50000 workers employed in those organisations, and out of those 50000 workers 80% seem to be female employees. As there is no law for the registration and regulation of a business having such a large number of employees out of which 80% are female employees, those restaurants do not seem to have any legal status. The reports show that out of those 1200 restaurants some of them have been registered as restaurants at the Office of Cottage and Small Industries under the Industrial Business Act; some of those have been operating after obtaining license under the Local Governance Act; others have been registered as restaurants and resorts under the Tourism Act and yet others seem to be operating without being registered. Even those registered have been registered in the name of ordinary restaurants and seem to be operating illegally as dance restaurants and massage parlours. All this shows that due to the lack of any separate and specific law regarding dance restaurants and massage parlours and the absence of any legal provision for lawful registration, the cabin restaurants, dance restaurants and massage parlours are operating without registration, and even the cabin restaurants, dance restaurants and massage parlours which are said to have been registered have been variously registered with different bodies only for the sake of registration and under different laws, resulting in their operation in an arbitrary and unregulated manner.

According to Article 35 of the previous Constitution of the Kingdom of Nepal, 1990 the executive powers of Nepal used to be exercised by the Council of Ministers constituted under Article 36 of the Constitution. These powers conferred upon the Council of Ministers as per Article 35 were also delegated for running the State administration by the Council of Ministers to the Civil administration set up under Article 124 as per the Rules framed under Article 41(1). The executive powers include the powers like maintaining records and monitoring and supervising whether or not all the State activities are being conducted in accordance with the law. If there is absence of law, appropriate laws should be drafted and presented before the Legislature and made into law for conducting the State administration. The citizens should not suffer from exploitation and insecurity due to the lack of law in our system where the State administration is conducted according to the concept of the rule of law. There seems to be no control by the government at all over the operation of dance bars etc. because most of the 1200 dance restaurants are not registered and even those which are registered have been registered under different laws. There working women are being sexually exploited in the name of operating restaurants, without the recalcitrant facing any legal action. Since there is no governmental control over the operation of dance bars etc., it is but natural that working women are being subjected to sexual exploitation for lack of law.

The citizens' rights granted by Article 12(1) and 12(3)(f), Article 13, Article 16, Article 17, Article 20, Article 21, Article 28, Article 29 and Article 30 of the present Constitution are directly concerned with such dance bars, dance restaurants, cabin restaurants, and massage parlours which are more than 1200 in operation and which have given employment to more than 50000 citizens. The citizens cannot be deprived of such rights except according to the law. Due to the absence of any law relating to dance bars, cabin and dance restaurants, cabin restaurants, massage parlours etc, the rights of more than 50000 citizens working at those places seem to have been directly affected. On the other hand the Council of Ministers constituted under Article 38 also seems to have failed in discharging and exercising its constitutional duty under Article 37.

A study of the study reports presented by the committees constituted by the apex court and the government to identify the reality in this regard shows that the dance restaurants, cabin restaurants and massage parlours are being operated in the absence of law and the employees working there are also exposed to a state of exploitation and insecurity.

On the basis of the study reports, the working environment and the physical conditions of most of the dance and cabin restaurants and massage parlours seem to be as follows:

• In most of the cabin restaurants and dance restaurants the places where the customers sit are neither healthy nor open to fresh air or adequate light; they are in operation with minimum 2 to maximum 15 untransparent cabins in a narrow space.

• Activities like using the light detrimental to health and causing noise pollution by playing songs at a very high volume are frequently indulged in.

• There is no proper arrangement for proper emission of smoke at most places called kitchens and no attention is paid to cleaning and cleanliness.

• Although called restaurants, most of them don't have even dining halls.

• The physical condition of the rooms of the massage parlours is comparatively cleaner than that of the restaurants.

• No standard concerning the health and security of the employees and service users has been fixed nor has such standard been complied with.

• Healthy food and clean water are not used.

• Pornographic pictures are pasted on the walls.

• Informative posters that caution against mistreating employees and explain that such mistreatment is punishable by law are not posted at these workplaces.

• In most establishments there is no appropriate physical condition in the restaurants.

• As some of the restaurants are exposed to risk from the viewpoint of health, cleanliness and physical protection, it also seems to cause adverse effect on the health of the employees and the workers as well as the customers.

• The decoration of the workplaces is made not in a peaceful way but rather in an extravagant and stimulating manner.

According to the study reports, the environment of the workplaces appears to be as follows:

• There is compulsion to work during the night amidst greater activities and in a more crowded environment than during the day,

• These establishments are decorated in an extravagant and sexually exciting manner,

• There is compulsion to work in an anxiety-creating environment amidst greater noise, cigarette smokes and the smell of intoxicating materials,

• There is greater use of intoxicating drink materials and fast food in the name of food materials in the restaurants,

• There is greater possibility of accidents leading to loss of lives and property at any time due to the present state of the work places,

• The employees also take such a work as an employment which is easily available,

• There are alcohol-induced fights which have an adverse effect on the entire environment,

• There is no fixed time for opening and closing such centers, and

• Some restaurants are also located in the residential areas.

The study reports have shown the state of working women to be as follows:

• Women aged 12 to 30 are involved in this sector.

• Women working in these establishments have to work until late at night.

• In the name of pleasing the customers the managers force or instigate their female employees to bear insulting, indecent and obscene words directed towards them by the customers.

• Freedom for working women to eat and drink with the customers, accompanying them in the cabins and motivating and even forcing them to do such work.

• Working women are forced to engage in unwanted sexual activities, and are also forced to endure verbal, physical and mental abuse from the customers and proprietors.

• There is no uniformity in remunerations or wages and the payments are not made on time.

• There is no guarantee of employment and the working women are made to work for more time on lesser salaries.

• Salaries are paid more on the basis of one's physical beauty and the art of pleasing the customers rather than on the efficiency of work.

• There is greater mobility among the workers in regard to changing workplaces.

• The working period is not fixed.

• The businessmen and the customers used to compel the helpless women to establish immoral and undignified sexual relations during the time beyond their work hours, subjecting them to influence, greed and pressure.

• There is failure to provide facilities for medical treatment in case any working woman suffers from any physical or mental injuries on account of any misconduct of the customers or the businessmen.

• Owners are not required to transport the workers back to their residence if they are made to work till late at night.

• There is a greater possibility of the women working at such places becoming victims of trafficking for sexual exploitation. The people involved in female trafficking used to mislead and entrap 52.05 of these working women by offering them false promises to arrange good jobs for them in countries like Hong Kong, Dubai and Saudi Arabia.

Both the reports submitted by the committee constituted in pursuance of the order of the apex court under the convenorship of the Joint Secretary of the Ministry of Women, Children and Social Welfare and another committee constituted under the convenorship of the Chief District Officer of Kathmandu appear to be almost similar in regard to the description of the environment and physical conditions of these workplaces and the state of the working employees and the working women employed by these establishment.

The study reports show that working women experience serious violations to their basic human rights due to, these establishments, as described in the petition, employing mostly adolescent young girls, the owners making them tolerate any type of sexual misconduct indulged in by the customers, the restaurant owners not caring a fig for the sexual exploitation of the working women, promoting their business by attracting the customers and the customers and even the owners indulging in sexual exploitation and sexual abuse of the working women who are helpless due to poverty and unemployment. The health of the persons working in such massage parlours and dance and cabin restaurants also seems to be adversely affected, and such places are also developing as a platform for trafficking in women. As Because dance and cabin restaurants are operating in considerable number in Nepal and because the profession has become uncontrolled due to the lack of regulation in the absence of the relevant laws, several malpractices and distortions appear to have emerged, and working women seem to have been exploited in every way economically, socially and sexually.

It appears from the report submitted by the study committee constituted as per the order of the apex court that the women employed in the dance and cabin restaurants are generally between the age group of 12 to 30. It also appears that working in these establishments, women are forced to tolerate insulting, uncivilized and obscene words in order to please the customers. It also seems that working women are encouraged and even compelled to drink wine while giving company to the customers. They are also forced to tolerate the verbal and physical abuse and sexual exploitation committed by the customers and the owners. There is no uniformity in regard to salaries and wages; salaries are not paid on time; the remunerations are fixed more on the basis of age, beauty and the art of pleasing the customers than on the basis of efficiency of work; the working women are even forced by the business owners and the customers to establish even immoral and undignified sexual relations. This constitutes infringement of the constitutional right of working women granted by Article 29 of the Constitution.

The study report also shows that there seems to be no provision for any means of transportation to carry the working women back to their respective residences when they are made to work until late at night and also when the duration of the work hour is not fixed. Besides, the working women employed by dance and cabin restaurants seem to be sexually exploited. It also appears that the women working in dance and cabin restaurants do not get an opportunity to work with honour and dignity in an environment free from exploitation. Rather they are forced to work being not only exploited and insulted but also by pledging their honour. In a situation where the Constitution has granted every citizen the right to live a dignified life on the basis of equality, the right to employment and social security, the right to social justice and the right against exploitation in the form of fundamental rights, the women working in the dance and cabin restaurants cannot be subjected to exploitation only because they are working at those places. The government must not be an idle spectator; rather it must be accountable.

The report submitted by the study committee in accordance with the directive of the apex court has shown that the number of the women working in the dance and cabin restaurants and massage parlours in the Kathmandu valley alone is considerable, and not only that the working women are being sexually exploited, such dance and cabin restaurants are also running unrestrictively at any place in such a manner that the physical environment of the work place also causes adverse effect on the health. The women working in dance and cabin restaurants appear to be not only economically and socially exploited and the victims of sexual abuse, but also forced to work in an environment which is harmful to the body. In that regard no minimum standard seems to have been prescribed for compliance by the owners of cabin and dance restaurants, dance bars and massage parlours nor are such places ever subjected to surprise inspections. Because there is no law, such arbitrary and unrestricted activities naturally do happen. Therefore, these matters seem to have been pointed out also by the report submitted by the study committee in accordance with the directive of this apex court. The report has revealed that although both men and women were exploited in these establishments, the women were exploited not only financially but also sexually due to their gender.

Addressing the third question mentioned above, the apex court observed that just as Article 12(2)(e) of the Constitution of the Kingdom of Nepal, 1990 has guaranteed all citizens the freedom to practise any profession or to carry on any occupation, industry or trade, Article 11(5) of the same Constitution has guaranteed the fundamental right to receive equal wage without making any discrimination between men and women. Likewise, Article 18(1) of the Interim Constitution, 2063 has guaranteed every citizen the right to employment as a fundamental right as provided in the law. Similarly, Article 12(e) has provided for the fundamental right of every citizen to practise any profession or to carry on any occupation, industry or trade. Similarly, whereas Article 13(4) has granted the right to equality by providing that no discrimination shall be made between men and women in respect of wages and social security, Article 18(2) has provided that the women, labourers, the old, the handicapped and the disabled and the helpless citizens shall have the right to social security as provided in the law and thus it has also guaranteed the women's right to social security. Article 20(1) of the Interim Constitution of Nepal, 2063 has granted to the women the right against exploitation and discrimination by providing that no discrimination shall be made against women only for the reason that they belong to the fair sex. Article 20(3) of the Constitution has, by providing that no physical, mental or any other type of violence shall be committed against women and such an act shall be punishable by the law, granted the right against any violent act against women as a fundamental right. Similarly, Article 16 has also granted the right to environment and health.

In order to implement the above mentioned provision of the Constitution, even though there are no separate and specific laws, with a view to creating, to some extent, an appropriate and easy environment of work in a dignified manner, the Labour Act, 2048 was enacted. Section 4 of the Labour Act has provided that workers and employees can be employed in work only after giving them appointment letters, and Section 5 has provided that women cannot be engaged in work, without their consent, before 6 a.m. in the morning and after 6 p.m. in the evening. Section 27 of the Act has provided for making health and security related arrangements in the industrial organisations. Moreover, Section 48 of the Act has provided that, by making arrangements for special security on the basis of the nature of the work, the women employees may be engaged in work in hotels or travel agencies also during other times. But the above mentioned law is not adequate and it cannot address the businesses like dance restaurants and massage parlours. There seems to be a provision for granting registration to hotels, restaurants and resorts under the Industrial Business Act, 2049. However, there seems to be no provision for registering the dance and cabin restaurants and massage parlours.

Although the government is required to make and implement immediately a separate and specific Act to regulate dance and Cabin restaurants and massage parlours, it has not done it so far. It appears from the written reply submitted by the Ministry of Industries, Commerce and Supply that the hotels, restaurants and resorts are supposed to be registered as per the provision for such registration incorporated in the Industrial Business Act, 2049, and at the time of such registration restrictions are laid down on having cabins in such restaurants and on engaging working women in work after 9. p.m during night.

The Department of Cottage and Small Industries has, in its reply, contended that there is no provision for registering the cabin, dance and massage centers. There is provision of registering only hotels, restaurants and resorts as per the Industrial Business Act, 2049 and the prevailing laws and procedures. Also, while granting registration, certain terms and conditions are laid down prohibiting having dance cabins in the restaurants and engaging female workers in work after 9 p.m. during night, and also requiring the owners to arrange for the means of transportation to carry them back to their residence. Further the respondent department submitted that there was no practice of registering the occupations like cabin, dance and massage parlours, and that its attention was drawn towards the operation of cabin, dance and massage centers in Kathmandu, Bhaktpur and Lalitpur districts without registration. However, the main problem is that there is a dearth of law, and even the existing law and the conditions laid down by the Government for registration are not being implemented, and there is also no organization for its monitoring.

The report submitted by the study committee constituted in accordance with the directive of this apex court also shows that currently such dance restaurants, cabin restaurants etc. are generally registered under the Industrial Business Act, 2049 in the Office of Cottage and Small Industries and they are being operated in contravention of the terms and conditions laid down during the process of registration. Besides, while some of the businesses are operated after getting license from the local authorities under the Local Governance Act and some others are registered as restaurants under the Tourism Act but operated as dance and cabin restaurants, a few others are found to be operating without being registered anywhere. Thus, as pointed out by the petitioners, such businesses are being operated as cabin and dance restaurants and massage parlours without having been registered under any law whatsoever. While some of them are running as cabin and dance restaurants and resorts, although registered as per the Industrial Business Act, 2049 as hotels, restaurants and resorts belonging to the tourism industry, some others are found to be running as cabin and dance restaurants although they have been registered under the Local Governance Act as hotels and restaurants. The written reply presented by the Ministry of Labour shows that the Labour Act currently prevalent in Nepal has been unable to prevent effectively sexual exploitation and violence against women working in the labour sector. That reply also talks about the need for an amendment in the law. It is also clear from all this that the present Labour Act is not adequate neither for the professional protection of working women nor for the protection of their fundamental right to occupation and employment by effectively preventing sexual exploitation and abuse committed against them nor for ensuring the right of the women working at such places to practise their profession or occupation in a healthy environment by making their profession dignified and organized and by providing social security to their profession. Thus the Government itself has also felt the need for making a separate and specific law in this regard. Therefore, the Government needs to make, as soon as possible, necessary arrangements for the enactment of law, becoming sensitive to the fact that the people working in the dance restaurants are being subjected to economic, social and mental exploitation, and they are devoid of protection of the environment of the working place. Besides, the working women are additionally subjected to sexual exploitation only on account of being women.

It has become clear from the written reply presented by the respondents that there is no law regarding cabin and dance restaurants and massage parlours and the existing other laws are not effective to address those problems. The Professional protection and professional dignity of women working in such cabin and dance restaurants, dance bars and massage parlours can be enhanced, and the sexual exploitation and abuse against such women can be prevented, only if a law, providing for regular monitoring of the state of observance and implementation of the prescribed terms and conditions and for a mechanism to take immediate effective action in respect of the complaint made by any employee, is made and implemented. Such a separate and specific law must address the various co-related issues and dimensions such as the necessary infrastructure needed for running such cabin and dance restaurants, dance bars and massage parlours, the terms and condition to be observed and the conduct to be displayed by the owners; a clean and healthy environment for the employees and a guarantee of the working women’s right against sexual and other types of exploitation; a provision relating to the protection of the service of the working women; minimum wages; a declaration that any indecent behaviour against working women and other employees displayed by any customer is a crime and a provision for its immediate and effective prevention; the impact of the noise and shouts caused by the customers after consuming intoxicating materials on the inhabitants of the residential area in the vicinity of the places where cabin restaurants, dance restaurants, dance bars and massage parlours are being operated; provisions regarding safeguards against any adverse impact caused by music and other noises coming from such places on the right of the inhabitants living in the vicinity to live in a peaceful environment; provisions the restricting the entry of minors, the time for drinking wine, the places where cabin restaurants, dance restaurants, dance bars and parlours may not be allowed to be opened, the establishment and operation of cabin restaurants, dance restaurants, dance bars and massage parlours, and the service conditions of the workers employed therein; provisions regarding the prevention of exploitation of women in any way; periodical inspection and monitoring of such matters; and ordering closure of such cabin restaurants, dance restaurants and massage parlours which are running without meeting the prescribed standards.

An examination of the existing conditions shows that due to the absence of law it is of no use to talk about monitoring and taking action. There seems to be no law which makes clear provisions regarding discipline and conduct which the owners and the customers are required to display. Moreover, there also seems to lack of any law which clearly specifies where such cabin restaurants, dance bars, dance restaurants and massage parlours, can operate besides clearly mentioning also about the time for opening them. The right of every person to operate in a lawful manner dance bars, dance restaurants, cabin restaurants, massage parlours etc. is a fundamental right guaranteed to every citizen by the right to practise any profession or to carry on any trade or industry. Similarly, it is also a fundamental right of every Nepali citizen who is eligible and willing to have an opportunity to work in dance bars, dance restaurants, cabin restaurants, massage parlours etc. Both the right to practise such a profession or to carry on such an occupation or trade and the citizens' right to work at such places need to be equally protected. Even though it is not written in the law that any profession or any trade or industry must be practised or carried on in a dignified manner, it is self evident and also a matter of self discipline. Cabin restaurants, dance restaurants, dance bars and massage parlours must be operated remaining within the boundaries of law. The operation of such dance restaurants, dance bars and massage parlours, and the right to work in such organizations in an exploitation-free environment, fall under every citizen's rights to practice any profession or to carry on any trade or occupation as guaranteed by the Constitution. An exploitation-free society and the right to practice any profession or carry on any occupation or trade in a dignified manner are the fundamental rights of every citizen. It is the constitutional duty of every State to regulate such a fundamental right through law making. It is against the principles of a lawful State that there exists a legal void in an area where there are more than 1200 dance and cabin restaurants in operation and in which there are more than 50000 citizens engaged in employment. In order to regulate all this, a directive order is hereby issued to the respondent Nepal Government addressing, besides the matters mentioned in the preceding paragraphs, the issues like the establishment and operation of cabin and dance restaurants, dance bars, ''dohari sanjh'' and massage parlours; their area of work and the security of the workers employed therein; the prevention of sexual exploitation against women and provisions for punishment; environmental cleanliness; and the activities causing adverse effect on public health and morality on account of the operation of dance restaurants, cabin restaurants, dance bars and massage parlours.

As regards the question whether or not the order prayed for by the petitioners deserves to be issued, it is an inherent human right of every person to work in a secure, dignified and healthy environment which is also free from exploitation. The right to employment is also a matter interrelated with the life and development of every person. Article 11(a) of the International Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW), ratified by Nepal, too, has guaranteed '' the right to work as an inalienable right of all human beings''. These are the matters of inherent human rights interrelated to the life of an individual to utilize the opportunities of work and employment in a dignified and secure environment free from exploitation, to lead a dignified life maintaining one's self dignity and to work freely, having appropriate legal protection and being free from any type of exploitation, suppression, tyranny, discrimination and fear or threat. This matter has been also included in Recommendation No 22 of the General Recommendations on explanation of Article 11 of CEDAW, ''Equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place". Thus the working women's right to work has been ensured on the basis of international values.

Similarly, Article 11(1) of CEDAW has recognized that it is the solemn duty of every State to create an environment for enjoyment of such rights without any discrimination in the following way: ''State parties shall take an appropriate measure to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights in particular.'' Likewise, Article 11(1) (c) has provided ''the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining including apprenticeships, advanced vocational training and recurrent training''. Thus Article 11(2) (c) has ensured one's right to choose any occupation or employment of one's choice and the right to security of work. Section (d) of the same sub-Article has ensured the right to equal wages by providing for ''the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work''. Sub- Article (e) of the same Article 11 has clearly mentioned the duty of every State to ensure also the right to social security by stipulating ''the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.''

Similarly, according to Section 9 of the Nepal Treaty Act, 2047 and Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which has been also ratified by Nepal, it is the duty of every State to provide to everyone a clean environment and working conditions which are free from discrimination and exploitation. Article 7 has mentioned the following:

'' The State parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work, which ensure in particular:

a) Remuneration which provides all workers, as a minimum with:

i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

ii) A decent living for themselves and their families in accordance with provisions of the present Covenant;

b) Safe and healthy working conditions;

c) Equal opportunity for every one to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay as well as remuneration for public holidays.

Since there is an absence of any law in respect to dance restaurants, dance bars, cabin restaurants and massage parlours, on the one hand the people working at those places have been deprived of their rights and on the other it amounts to a failure of the State in fulfilling its duty towards ICESCR (International Convention on Economic, Social and Cultural Rights, 1966).

Since Nepal has already ratified such treaties by virtue of being a State party, Nepal Government is under an obligation to implement as the law of Nepal the provisions contained therein as per the Treaty Act, 2047. Similarly, Recommendation No. 19 of the Committee for Eradication of Discrimination against Women has also prescribed it as the duty of the State to adopt appropriate and effective measures for the prevention of all types of gender-based violence against women caused by public or individual activities whatsoever, to formulate an effective complaint mechanism and measures against sexual misconduct displayed towards the women at the work place, and to adopt effective legal provisions for the protection of women including penalties, civil measures and compensatory provisions. Not only that, it seems to have also entrusted the State with the duty of providing shelter, consultation, rehabilitation and protective help to women who are the victims of violence or are exposed to the risk of violence.

There are some inherent fundamental rights of every individual to utilize the opportunities of work and employment in an environment which is dignified and free from exploitation, to lead a dignified life preserving one's self respect, to be able to make decisions about oneself free from any type of exploitation and fear or threat and to receive suitable legal protection against all types of injustices. There are no two opinions about the fact that every civilized State recognizes that such inherent rights must be given proper protection. All civilized societies have provided in the law and the Constitutions of their State for the rights of the citizens to live with dignity eradicating all types of discrimination and have thus guaranteed such rights. And rightly so! Similarly, in the course of ensuring such rights, the Interim Constitution of Nepal, 2063 has also, in Article 12 (1), provided that every person has the right to live with dignity and in sub- Article 3(e) of the same Article it has further provided that every citizen has the freedom to practise any profession or to carry on any occupation or trade.

Article 13 of the Interim Constitution of Nepal has provided for the right to equality and ensured in sub Article (4) that no discrimination shall be made in regard to remuneration and social security between men and women. Likewise, Article 18 of the Constitution, providing for the right to employment and social security, has recognized in Section 1 of the same Article, the right to employment as a fundamental right as provided in the law. Likewise, Article 20 devoted to the right pertaining to women has forbidden in Section (1) any type of prohibition upon women only because of their sex. Thus the right against discrimination against women has been recognized as a specific fundamental right of women and special protection has been provided in Section 3 that no physical, mental or any other type of violence shall be committed against any woman. Moreover, Article 29 has provided for the right against exploitation and ensured in Section (1) of the same Article that every person shall have the right against exploitation whereas Section (4) has, by providing that no one shall be engaged in work against one's will, provided protection against doing any work against one's will. There can be no two opinions about the fact that it is a major duty of the State to provide full protection to those fundamental rights of the people granted by the Constitution.

It appears from the study report given by the study committee constituted according to the directive of this apex court that, as mentioned in the paragraphs above, at present in Nepal cabin and dance restaurants, dance bars and massage parlours are being operated and 70 to 80 percent of the employees working at these places are women. That report also shows that the state of employment and social security of the women working at those places is highly deplorable and exploitative, and they are becoming victims of sexual exploitation and abuse both inside and outside the workplace which means that the fundamental rights guaranteed by the Constitution are being violated.

Among the three organs of the State, it is chiefly the duty of the Executive to create an environment for easy enjoyment of the fundamental rights of the people by protecting and promoting the legal and constitutional rights of the people belonging to all classes and categories. The Executive is also entrusted with the duty of making necessary laws and creating a suitable mechanism in order to guarantee the enjoyment of the fundamental rights of the people. If the human rights or legal rights of the citizens or any class of citizens or any class or caste or race are exposed to violation due to the lethargic inactivity and failure of the Executive to discharge its constitutional or legal duties, the court must be proactive to protect and assert the rights of such people. Guided by this principle, the court becomes proactive and decides the disputes of public interest involving any constitutional or legal question. Thus the court displays a proactive role for the enforcement of the human rights of the citizens or the people belonging to any class or race or tribe who have been deprived of such rights due to the inactivity of the Executive. However, if the Executive itself becomes active there is no need of the judiciary becoming proactive.

It seems that, as described in the paragraphs above, the dance bars, cabin restaurants and massage parlours being operated in Nepal are operating without any law and the women working at such places are bound to work there without getting any appointment letter and are unable to enjoy the minimum facilities relating to their profession and employment. The employees, especially the working women, are bound to face not only verbal, physical and sexual abuse and exploitation by the customers, owners and the administrative bodies but are also even sexually exploited. It is required of the State to make such a profession and occupation systematic and dignified by making law relating to the rights of working women, the duty of the employers towards their employees and the legal remedies against economic, social and sexual exploitation, and also by creating a legal mechanism for constant monitoring and control. But the State does not seem to have paid proper attention to it.

The main contention of the petitioners seems to be the request for the issuance of a directive order for making a law in accordance with their demand and also the issuance of the writ of mandamus including an appropriate order for formulation and implementation of the Guidelines by the court pending the enactment of such a law. Now on the basis of the facts analyzed above it needs to be considered whether or not such Guidelines need to be formulated and issued by the court. There cannot be two opinions about the fact that, systematizing the fundamental rights of the workers and the employees working in the dance bars, cabin restaurants, dance restaurants and massage parlours and also taking in to consideration social morality and social security, such businesses need to be operated in a systematic and dignified manner. As mentioned above, no law seems to have been made in this regard. There is no disputing the fact that no business or occupation can run in a dignified and systematic manner in the absence of law, nor can the fundamental rights and human rights of working women be protected in such a situation. The court cannot itself make any law. Nevertheless, as the guardian of the fundamental and human rights of the citizens, this apex court is competent to issue appropriate orders for the enforcement of the infringed rights which have been granted to the citizens by the Constitution, the law and the recognized principles of justice, and the various International Conventions on human rights to which Nepal is also a party and which have the force of law. Article 88 of the Constitution of the Kingdom of Nepal, 2047 (1990) and Article 107(2) of the Interim Constitution of Nepal, 2063 (2006) have conferred on the Supreme Court of Nepal the extra-ordinary jurisdiction to issue appropriate orders for imparting full justice. It is also the extra-ordinary jurisdiction inherent in this court to issue necessary orders for ensuring the effective access of the justice seekers to justice.

In a similar case of Vishaka Vs State of Rajasthan (AIR 1997 3011), the Supreme Court of India has held that if other political organs fail to discharge their duty of making law it shall be the duty of the court to fill in such a lacuna. In this leading case, in order to prevent sexual harassment at the workplaces, the Indian Supreme Court has issued the Guidelines including various provisions relating to the definition of sexual harassment, the preventive measures, specifying the bodies for undertaking criminal prosecution and disciplinary action and hearing the complaints raising awareness about the rights of working women, protection of the rights of the third party etc. This also shows that in a situation where the fundamental rights of different classes and communities of the society are being infringed on due to the failure of the concerned Organs of the State to make and implement laws on time, this apex court seems to be competent to issue an appropriate order, pending the enactment of a law for the enforcement of such rights, for the protection and enforcement of the rights of the employees working in the dance bars, dance and cabin restaurants and massage parlours.

Even though a directive order is issued to the respondent Nepal Government for making law relating to the operation of dance bars, dance restaurants, cabin restaurants and massage parlours, since it shall take some time for making the law and its implementation, it seems necessary to issue the Guidelines in this regard for the prevention and control of sexual exploitation and abuse committed against women working at such places. Therefore, since it also appears from the study report that, as described above, as the fundamental rights of women workers and employees working in the dance restaurants, cabin restaurants, dance bars and massage parlour which seem to be operating without being registered under any specific law, are being violated; as there are no physical infrastructures required for running such a business; as also the women workers and employees are subjected to economic and sexual exploitation due to the absence of the minimum discipline and a code of conduct to be complied with by the owners, the employees and the customers; and since working women are virtually forced to bear with sexual harassment; the Guidelines as mentioned below are hereby issued as requested by the petitioners until a law is made in this regard. It is hereby directed to submit the Guidelines along with the verdict to the Office of the Attorney General and deposit the case file with the Archive Section after deleting its number from the registration roster.

(The verdict was written by Hon'ble Justice Bala Ram K.C. with concurrence from Hon'ble Justice Kalyan Shrestha.)

Delivered on: November 26, 2008

Procedural Guidelines Issued for the Prevention of Sexual Harassment against Working Women at Workplaces like Dance Restaurants, Dance Bars etc. 2065 (2008).

Preamble

Since no law has been made so far in Nepal relating to prevention of acts of sexual harassment at workplaces against women employees working in dance bars, dance restaurants, cabin restaurants, 'dohori sanjh', massage parlours etc.,

Considering it essential to create an environment where working women and other employees working at workplaces may work in a dignified, self-respectful and safe environment,

The Supreme Court has framed and issued the following Procedural Guidelines pending the enactment of a relevant law by the Parliament (Constituent Assembly).

Chapter 1

Preliminary

1) Short Title and Commencement

I) These Guidelines shall be called "the Procedural Guidelines for the Prevention of Sexual Harassment of Working Women at Workplaces, 2065 (2008).

II) These Guidelines shall come into force throughout Nepal from Poush 1, 2065 (Dec. 16, 2008).

2) Definitions

Unless the subject or the context otherwise requires, in these Guidelines-

a) 'Working Woman' means a woman working full time or part time in a restaurant, massage parlour etc. with or without remuneration. This term also includes other employees.

b) 'Workplace' means a restaurant, massage parlour etc. where a working woman works.

c) 'Restaurant' means a dance restaurant, dance bar, cabin restaurant etc. This term shall also suggest 'dohari sanjh'.

d) 'Massage Parlour' means a place where massage service is provided on payment or without payment. This term also includes massage service provided by the restaurants.

e) 'Sexual harassment' means all acts of teasing, talking or displaying or causing to display any type of sexual suggestion with a view to creating sexual excitement among the women working at workplaces or making oneself sexually excited. This term also includes any conduct aimed at forcing a woman to be engaged in prostitution, charging fee or without fee.

f) 'Owner' means the founder, manager or director of a restaurant, massage parlour etc.

g) 'Service user' means a person who comes to seek the services provided by the restaurants or massage parlours.

h) 'Committee' means a Monitoring and Action Committee constituted pursuant to Section 14.

Chapter 2

Registration and Operation of Business

3) Business Not to be Conducted without Registration

i) A business like a restaurant, massage parlour etc. shall not be allowed to be conducted without registration.

ii) The restaurants, massage parlours etc. operating, without registration shall be required, for the first time, to get registered within three months in accordance with Section 3(1) after the issuance of these Guidelines.

iii) After the issuance of these Guidelines the restaurants, massage parlours etc operating as per sub-Section (2) shall have to be registered at a District Administration Office.

3) Details and Description Need to be Presented

i) Three copies of personal description including name, surname and address of the working women and the men engaged in the professions shall be prepared and one each of the copies shall be presented before the nearest Police Office and the Chief District Officer, besides keeping one copy in one's own possession.

ii) The description prepared as per sub-Section (1) shall remain confidential.

4) Terms and Conditions of Conducting a Profession and Its Duration

i) The business of restaurants, massage parlours etc. shall be conducted without causing any impact on the neighbouring houses and their inhabitants.

ii) While conducting the business of restaurants, massage parlours etc. arrangements shall be made for preventing the sound emanating therefrom going out.

iii) The business hours for conducting business at restaurants, massage parlours etc. shall be as fixed by the Government of Nepal.

iv) It shall be the responsibility of the concerned owner to ensure the safe return of the working staff to their respective residences after the completion of their work.

v) The environment of the professional workplace of every restaurant, massage parlour etc. must be neat and clean.

vi) The power of monitoring whether or not the occupation is being conducted within the prescribed terms and conditions shall be vested in the police, Chief District Officer and the Monitoring and Action Committee.

vii) If any work is found to have been done in contravention of the prescribed terms and conditions, the committee may order the closure of the business, such as restaurants, massage parlours etc. or may issue any other appropriate order.

5) Prohibition on Employing Anyone without Remuneration

Except in the circumstances agreed upon by mutual consent between the working staff and the owner, following the promulgation of these Guidelines no one shall be employed without giving the minimum wage prescribed by the Nepal Government. While thus fixing the wage through mutual consent, the payment of wage less than the minimum wage fixed by the Nepal Government shall not be permissible.

6) Displaying a Notice Board

A notice board listing the activities not permissible shall be displayed at a restaurant, massage parlour, etc. at a place where it is easily visible to all on entry.

Chapter 3

Forbidden Activities

7) Sexual Harassment

Any of the following acts performed or caused to be performed at a workplace shall be treated as an act of sexual harassment of women:

a) A proposal or demand for physical relation,

b) Use of sexual and provocative language and provocative dance or song,

c) Posting or display of, or causing to have, post or display any pornographic literature, posters, pamphlets etc. easily visible to the working women,

d) Indulgence in sexual teasing,

e) Display of physical, oral, or sexual conduct,

f) Display of any other conduct which may cause sexual perversion, and

g) Forcing someone to dance or sing a song wearing provocative dress.

8) Sexual Exploitation

Any of the following activities done or caused to be done at the workplace shall be deemed as sexual exploitation:

a) Forcing or causing to force anyone to establish sexual relation with someone, with or without offering financial inducements,

b) Establishing or causing to establish sexual relations with any working woman by offering or causing to be offered inducement of additional financial facilities or promotion,

c) Having or trying to have sexual relations with a working woman by offering fee or money,

d) Touching any organ of a working woman or making her touch one's organs with or without an intention of having sexual relations, and

e) Having sexual relations under duress without one's consent.

9) Indecent Behavior Not to be Allowed

None of the following activities causing harm to working women shall be undertaken or allowed to be undertaken at the workplace:

a) Taking or causing to take narcotic drugs including wine in the company of service users,

b) Forcing any working woman to smoke in the company of service users,

c) Addressing or causing to address a female employee by using words of indecent and sexual connotation,

d) Indulging or causing to indulge in sexual jokes and laughter in the hearing range of working women or with the intention of making them hear it, and indulging in jokes and laughter or trying such jokes and laughter with the women with a similar intention, and

e) Causing the working women to display their body or to make nude display or to force them to make such display.

Chapter 4

Functions, Duties and Powers

10) Functions & Duties of an Owner

The functions and duties of an owner conducting any profession including restaurants, massage parlours etc. shall be as follows:

a) To prevent the activities causing harm to working women at a workplace,

b) To provide and cause to provide protection to the working women in case any service user indulges in or causes to indulge in indecent, improper, and sexual activities towards any working woman,

c) To provide or cause to provide proper arrangements for the protection of working women,

d) To prevent physical and mental exploitation of working women at the workplaces, and to eradicate any unprofitable situation whatsoever relating to the women,

e) To solve and cause to solve immediately any grievances made by the working women,

f) To prevent from committing, speaking of or hinting, at the activities of sexual conduct and other misconduct towards working women, whether verbally, physically or mentally,

g) To make arrangements for security guards to protect working women against those service users who commit such an activity in any restaurant, massage parlour etc. which is forbidden by these Guidelines or the prevailing law, or to drive such service users out of the restaurants or the massage parlours, and

h) To abide fully by the labour law and other laws.

11) Functions & Duties of Service Users

The duties of the service users visiting any restaurants, massage parlours etc. shall be as follows:

a) To act in a dignified manner towards the working women,

b) No activity or treatment shall be resorted to in dealing with the working women which might cause damage to their dignity,

c) Making noise after consuming intoxicating substance and displaying indecent behavior towards women shall be prohibited.

d) No activities prohibited under Chapter 3 shall be done.

e) The activities mentioned in Chapter 3 shall not be done or caused to be done or abetted.

12) Functions, Duties and Powers of the Committee

The functions, duties and powers of the Monitoring and Action Committee constituted under Section 15 shall be as follows:

a) To investigate and cause to investigate the complaints lodged with the committee.

b) The committee may conduct from time to time surprise inspections of the workplace of working women such as restaurants, massage parlours etc. While thus inspecting, if any activity forbidden under Chapter 3 is found being committed or likely to be committed or if there is a possibility of its being committed, such activities shall be at once controlled and the process of necessary action shall be initiated.

c) To perform the activities considered necessary for making the workplace of working women more systematic and dignified.

d) The committee may issue necessary directives regarding the issues relating to these working women. It shall be the duty of all the owners to abide by such directives.

e) To monitor and cause to monitor whether or not any activity is being conducted at the workplaces including restaurants, massage parlours etc. in contravention of the Guidelines or the prevailing law.

f) If it is found that the Guidelines have not been complied with, to issue a warning for the first time and to order the closure of such businesses thereafter.

g) If any activity is found being committed in any restaurant or massage parlour in contravention of the law or if any complaint is filed in that connection, to forward it to the concerned body for necessary investigation and action.

h) The concerned body is also required to start immediate investigation upon the complaint thus received and to take further action on the basis of the evidences thus collected.

i) To publicize and advertise the activities not permissible in the restaurants and massage parlours.

Chapter 5

Complaint and Action

13) Complaint

i) If any working woman becomes a victim of or is afraid of becoming a victim of any act prohibited under Chapter 3, the victim herself or any person having information about the act may lodge a complaint with the committee constituted under Section 15 or with the nearest police office stating all the facts in his/her knowledge.

ii) In case such a complaint is lodged with the police office the concerned police office shall be required to make immediate arrangements for the health and security of the victim and to present such complaint immediately before the committee. The committee shall also be required to start immediately necessary action.

iii) All the action and proceedings undertaken as per these Guidelines shall remain confidential. In case any fact is to be published, it can be done so only after securing permission from the committee and only by using a changed name.

iv) If an investigation into a complaint reveals that anything prohibited under these Guidelines has been committed against a working woman, a necessary directive may be issued to the owner for preventing such an activity. It shall be the duty of the concerned owner to comply with the directive thus issued.

Chapter 6

Committee

14) District Monitoring and Action Committee

i) For the purpose of these Guidelines there shall be a committee in every district. The name of such a committee shall be "District Monitoring and Action Committee".

ii) The Committee shall be constituted as follows:

|a) Chief District Officer |— Chairperson |

|b) Chief of the District Police Office |— Member |

|c) Chief of the District Women Development | |

|Office or the Local Development Officer in | |

|the district where there is no provision of |— Member |

|the former | |

iii) The committee shall be a permanent committee.

iv) The committee shall prescribe itself its procedure.

15) Other to be Done According to the Prevailing Law

i) The activities other than those provided in these Guidelines shall be performed in accordance with the prevailing law.

ii) The matters mentioned in these Guidelines shall not affect any victim's right to seek action in accordance with the prevailing law.

(Kalyan Shrestha) (Bal Ram KC)

Justice Justice

Bench officer who assisted in the preparation of the Guidelines—

Rajendra Kumar Acharya

Manshir 13, 2065 (Nov. 28, 2008)

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Petitioners

Respondents

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iii

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vii viii

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