The Supreme Court (SC) of Pakistan ruled on Tuesday that for a case to be tried under the Protection against Harassment of Women at Workplace Act (2010), an intention of sexual nature needs to be proved against the defendant.
The top court pronounced its judgment as it dismissed the case filed by a female employee of the Pakistan Television (PTV) against her male colleagues. Even as the court dismissed the case, it recognised that the law under which the case was being tried has limited understanding of harassment of women at workplaces, which is more than that of sexual nature. The court observed that harassment of women at workplaces also manifests itself in creating an intimidating, humiliating or hostile environment.
“Even though anyone may be subject to sexual harassment, in a culture and society like Pakistan, women are the distressing majority of victims. Harassment in any society or organisation is a testament to regressive behaviour that creates an intimidating, hostile, degrading, humiliating, and offensive environment which has a devastating effect on any society or organisation by adversely affecting its overall performance and development,” the judgement read.
The court harshly criticised the act and remarked, “the Act, 2010, rather than addressing the issue of harassment in all its manifestation in a holistic manner, is a myopic piece of legislation that focused only on a minute fraction of harassment”.
The court observed that relying upon the case Shahina Masood etc. vs Federal Ombudsman Secretariat for Protection of against Harassment at Workplace, wherein it was held that “when the definition of a particular expression has been given in a statute then its ordinary meaning becomes irrelevant nor, can it be considered”. Hence the apex court could not expand the meaning of the harassment to include anything other than sexual harassment as the statute of 2010 explicitly equates harassment with a sexual form of harassment.
“harassment means any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes,” reads the 2010 act.
The court observed that any other demeaning attitude, behaviour, or conduct that may amount to harassment in the generic sense of the word, as it is ordinarily understood, howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of “harassment” under section 2 (h) of the Act, 2010.
“Giving such restricted meaning to “actionable” harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act, 2010 was promulgated. The impact of harassment, as generically understood, and how restrictive its application has been made is very well articulated,” read the 12-page judgment authored by Justice Mushir Alam.
The same act has been at the centre of another legal battle — one that has received considerable media attention and has been the target of misinformation — the Meesha Shafi vs The Governor of Punjab case (which is an offshoot of the Meesha Shafi vs Ali Zafar case).
In October 2019, Meesha’s plea in the court was dismissed on technical grounds. The court decided that it could not hear the case under the Protection Against Harassment of Women at Workplace Act, 2010, as it does not cover instances outside of the employer-employee relationship within the workplace.
Shafi then appealed to the Governor of Punjab against the competent authority to review any decisions made by the ombudsperson. The Punjab Governor reiterated the ombudsperson’s determination in July 2018, still citing the legal loophole as the reason to dismiss the plea. The case subsequently was taken up at the Lahore High Court and then the Supreme Court of Pakistan.
After hearing the plaintiff’s arguments, the Supreme Court noted that the arguments raised by the petitioner must be reviewed and took up the case, which will define sexual harassment for the Pakistani law.
The Protection against Harassment of Women at Workplace Act (2010) was created to protect women against harassment; however, the legislation is so poorly drafted that it has denied women access to justice over technical grounds, whether that be the nature of the contractual relationship between the victim and the harasser or the technical definition of harassment.