The Supreme Court has ruled that sexual intention must be proved in the cases that are proceeded under the Protection against Harassment of Women at Workplace Act, 2010.
"The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct," read a 12-page judgment authored by Justice Mushir Alam.
Justice Alam was presiding over a three-judge bench that dismissed a case filed by a female employee of the Pakistan Television (PTV) against her male colleagues. One of the accused was represented by Agha Muhammad Ali Advocate.
The order said the Protection against Harassment of Women at Workplace Act, 2010 itself limits the protection it offers to victims of sexual harassment and the court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010.
“Any other interpretation advanced by this court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution," it added.
The bench also adjudicated the questions if the actionable “harassment”, as defined in section 2(h) of the Act, 2010, is of restricted application or applied to all manifestations of harassment and if the federal ombudsman had the jurisdiction and/or authority to reinstate the petitioner into service under the provisions of the act.
The verdict said harassment, in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age-related, an arrangement of quid pro quo, and/or sexual harassment etc, affects and violates the dignity of a person, as guaranteed under the Constitution of Pakistan, 1973.
"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 behavior that creates an intimidating, hostile, degrading, humiliating, and offensive environment which has a devastating effect on any society or organization by adversely affecting its overall performance and development."
"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 focuses only on a minute fraction of harassment".
It said the act confines to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization.
It said insulting modesty or causing sexual harassment at work place or public place etc has been criminalized under Section 509 of the Pakistan Penal Code, 1860, which is punishable for a term which may extend to three years, or with fine up to five hundred thousand rupees, or both.
The court said any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer may be generically classifiable harassment, is not actionable per-se under the act unless it is shown to be inherently demonstrable of its “sexual” nature.
The court observed that any other demeaning attitude, behavior, 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"
The court observed that the act has specifically been legislated to protect not only working women but men as well only against “harassment having sexual nature” at the workplace.
“Therefore, any conduct amounting to harassment of any other kind and nature, despite however distasteful and injurious, is not made cognizable before the federal ombudsman.
"The meaning of the term ‘harassment’ as given in Section 2 (h) of the Act, 2010 cannot be stretched to other conduct not of sexual orientation.
“Apparently, the reason for limiting the actionable offence of ‘harassment’ could possibly be for the reason it may have a serious impact on all those involved – both the potential ‘harasser’ and the potential victims – and the responsibility for avoiding instances of harassment on workplace regulators.”
It said this approach is not unique to Pakistan and is in fact similarly followed in India.
The verdict said the legislation is titled as ‘The Protection against Harassment of Women at the Workplace Act 2010’; however, when the scheme of the enactment is carefully examined, its contents and application has been restricted to harassment purely of sexual orientation and nature.
It said under the legislation, not only in the preamble, but also in the title, the term “harassment” is used and not “sexual harassment” but contrarily to the apparent intent, the meaning of the term “harassment” is explicitly given a restrictive meaning under clause (h) of Section 2 of the Act, 2010.
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Meanwhile, other acts of harassment, as noted in para 13 above, cannot be taken cognizance of by the ombudsman, in view of the limitation of authority and jurisdiction, to punish the harassment of the kind defined under the Act, 2010 and in a manner as provided under section 4 ibid.
"To our great regret," the court added, "all such acts of harassment that fall beyond the pale of restricted definition of actionable harassment under section 2(h) ibid; can neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman, in view of the fetters placed under Article 12 of the Constitution of Pakistan, 1973.
"The act, demeanor, behavior, and/or conduct that has been made cognizable is of limited application and, has been nailed down in the definition clause of section 2 (h) of the Act, 2010 and not as generically reflected either from Preamble or the title of the Act, 2010.”
It said the aggrieved person under the provisions of the act has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct.
Since the act itself limits the protection it offers to sexual harassment, the verdict said, the court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010.
"There is no cavil to the proposition that sexual conduct is cognizable under the provisions of the Act, 2010. However, as held by the president in its order, and as upheld through impugned judgment of the Islamabad High Court, the petitioner has failed to establish that the conduct on the part of respondents 4 & 5 actually amounted to sexual harassment within the contemplation of Act, 2010."
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