The Supreme Court (SC) of Pakistan has recently made a groundbreaking ruling that has far-reaching implications for addressing the issue of workplace sexual harassment.
This landmark judgment sets a new precedent, emphasizing the significance of combating all forms of discrimination based on gender and fostering safe and inclusive work environments.
Expanding the Definition of Sexual Harassment
In this crucial decision, the Supreme Court unanimously ruled that sexual harassment in the workplace extends beyond physical intimacy or overtly sexual behaviour.
It now includes discrimination based on gender. This broadened interpretation signifies a significant shift in how sexual harassment is understood and addressed under the law.
Revisiting a Previous Case
This judgment builds upon a previous ruling in 2021, which stated that cases pursued under the Protection against Harassment of Women at Workplace Act, 2010 required proof of sexual intention by the perpetrator. However, the recent judgment challenges this requirement, recognizing that sexual harassment can occur without explicit sexual advances but can still be rooted in gender-based discrimination.
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The Role of the Aggrieved Party
The 12-page judgment authored by Justice Mushir Alam clarifies the responsibility of the aggrieved person under the provisions of the Act. It highlights that the burden of proof lies with the individual experiencing harassment to demonstrate that the perpetrator’s actions, behaviour, or conduct were accompanied by a gender-related intention or had a discriminatory impact based on gender.
The Case of a Female Employee at Pakistan Television
The Supreme Court’s decision stemmed from a case involving a female employee at Pakistan Television (PTV) who had filed a complaint against her male colleagues. The court dismissed the case, with one of the accused being represented by Agha Muhammad Ali Advocate. The ruling emphasized the need for a precise interpretation of the Protection against Harassment of Women at Workplace Act, 2010, taking into account its explicit charging clause (h) of section 2.
Constitutional Considerations
While delivering the judgment, the court acknowledged the concerns raised by the then attorney general of Pakistan, Khalid Javed Khan. He argued that the court should have sought legal assistance from the Attorney General’s office when interpreting the PAHWWA. Subsequently, a review petition was filed, contending that both the Islamabad High Court and the Supreme Court had failed to notify the Attorney General’s office as required under Order XXVIIA of the Code of Civil Procedure, 1908.
A Critical Review and Redefinition
A three-judge special bench, led by Justice Yahya Afridi and comprising Justice Muhammad Ali Mazhar and Justice Ayesha Malik, conducted a comprehensive examination of the case. They concluded that the previous judgment erred in its interpretation of harassment, contrary to the provisions of the Act and its Statement of Objects.
Considering the Victim’s Perspective
The Supreme Court emphasized the relevance of the victim’s perspective when determining whether harassment had occurred, instead of solely relying on conventional notions of acceptable behaviour. To assess harassment accurately, the court advocated for adopting the standard of a reasonable woman and carefully considering all objective and subjective factors. The order of the President and the judgment of the High Court were criticized for not giving due emphasis to the harm suffered by Nadia Naz, the petitioner, and her perception of the events.
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A Gender-Inclusive Approach
In its ruling, the Supreme Court highlighted that both the President and the Islamabad High Court had failed to consider gender-based discrimination and harassment in the workplace. The court clarified that the word “sexual” in the context of harassment pertains to gender-based discrimination and goes beyond explicit sexual activity.
It encompasses behaviour rooted in gender-based power dynamics, aimed at demeaning and degrading individuals through exploitation, humiliation, and hostility. This expanded understanding of harassment extends protection to all genders and acknowledges that men can also be aggrieved parties in cases of workplace harassment.
Creating a Hostile-Free Work Environment
The court reinforced that behaviour amounting to harassment in the workplace interferes with work performance, creates an intimidating or offensive environment, and may result in punishing the complainant for refusing to comply with demands or making compliance a condition for employment. It recognized that workplace harassment has detrimental effects on individuals’ well-being, job satisfaction, and overall work culture.
Setting Aside Previous Orders
Considering the errors in the previous judge’s interpretation, the Supreme Court set aside the previous orders and emphasized the need for a gender-inclusive approach when examining cases of workplace harassment. The court underlined the importance of recognizing and addressing all forms of gender-based discrimination and harassment to foster equal and safe work environments.
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