Christine Forster

Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience

Public interest litigation [‘PIL’], typically defined as proceedings in which the public or the community at large has some pecuniary or legal interest, demonstrates an ability to foster human rights compliance. It does this by enabling broader community or ‘public’ interests to be recognised and enforced through the judicial process, thereby revealing greater potential than private rights litigation in addressing the systemic nature of many human rights violations. This in turn has presented greater opportunities domestically to monitor each states accountability to international human rights standards. This paper compares and contrasts the emergence and development of PIL in two jurisdictions - India and Australia. India was chosen for its remarkable and extensive development of PIL unparalleled in Commonwealth jurisdictions to date, and Australia, for its adoption of a much more restrained and traditional trajectory in line with other members of the Commonwealth. Although PIL has developed differently in the two countries, inevitably shaped by differences in culture, economic development, law and politics, both provide illustrations of PILs potential (and limitations) in facilitating the development of human rights norms in domestic legal systems.

Recognising the Human Rights of Female Sex Workers in India: Moving from Prohibition to Decriminalisation and a Pro-work Model

This article sets out a women’s human rights approach to the legal regulation of sex work developed through an analysis of feminist perspectives, international human rights standards—in particular, the approach of the Committee on the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)—and the voices of female sex workers within India. It categorises sex work into four legal models, namely, prohibition which criminalises all aspects of the sex trade, partial decriminalisation which criminalises only those who force women into sex work and those who trade in under-age sex workers, social control legalisation which decriminalises but regulates the sex trade with the aim of containing through (often punitive) restrictions, and finally pro-work which approaches sex work as valid employment by extending the legal and human rights of other workers to sex workers. The article places India’s current regulatory framework into the prohibition model and argues that the legal response to sex work that most closely accords with a women’s human rights approach is partial decriminalisation coupled with a pro-work model. Although the introduction of this model in India poses considerable challenges, it has the greatest capacity to first, reduce the crime and corruption that surrounds the sex trade; second, to enhance, promote and protect public health and third, provide appropriate legal and human rights protection to sex workers as international obligations require.