Introduction
Harassment laws in Pakistan have been through quite a journey over the past few years. The Protection against Harassment of Women at the Workplace Act, 2010 is one such piece of legislation which aims to safeguard women in workplaces. The statute, however, is not free of loopholes.
This article highlights a landmark judgment by Justice Ayesha Malik (Civil Review Petitions No.255 and 570 of 2021) which has brought attention to the evolving interpretation of harassment laws. The judgment demonstrates a more progressive and liberal approach to statutory interpretation, fostering optimism for enhanced protection against harassment.
At the same time, it raises the question of whether the judiciary, in using this approach, has encroached upon Parliament’s role while interpreting the law. There is a further need to identify whether the judgment has done a satisfactory job in interpreting the word ‘harassment’ by striking the right balance between judicial activism and Parliament’s legislative duty.
Narrow vs. Broad Interpretation of Harassment
The crux of the matter lies in the interpretation of Section 2(h) of the Act, which defines harassment. Traditionally, this section has been narrowly construed to encompass only ‘sexual harassment’, overlooking other forms of behaviour that cause discomfort for women in workplace settings and contribute to a hostile work environment for women.
This limitation was subject to scrutiny in Justice Malik’s judgment, where it was argued that harassment was being viewed in a very restrictive manner through the statute which “overlooks the plausible and purposive interpretation of the section and is not in sync with the objectives of the Act.”
It is submitted that Section 2(h) of the Act, which contains the term “sexual”, has indeed been misconstrued, neglecting alternative interpretations that could significantly impact the section‘s meaning in line with the Act’s aims and objectives.
The adjudicators have traditionally adopted only one basic meaning of the word ‘sexual’ to mean “physical contact of sexual nature, or related to physical attraction or intimacy,” while completely disregarding other valid meanings that warrant consideration and which can bring significant changes to the meaning of the said section of the Act thereby augmenting the Act’s effectiveness through various dimensions of the word ‘harassment’.
Justice Malik’s judgment takes a more expansive and progressive approach, advocating for a broader understanding of harassment that includes gender-based discrimination beyond just sexual nature.
Potential Dual Meaning of the Word “Sexual” in Section 2(h)
It is pertinent to note that the term ‘sexual’, in addition to its conventional connotation as “pertaining to physical attraction or intimacy”, can also encompass a meaning “related to gender.”
With the application of a broader interpretation, Section 2(h) of the Act can also include sex-based discrimination at the workplace transcending mere behaviour or conduct of a sexual nature. Accordingly, harassment need not solely have a sexual nature to fall within the purview of the Act. Any discrimination based on one’s gender should also rightfully be covered under the law’s protective framework. This alternative possibility has also traditionally been overlooked, neglecting the main aims and ambitions of the Act i.e. to shield women from gender/sex discrimination in all its forms.
It must be acknowledged that harassment can manifest in various ways, including through gender-based discrimination, whereby women face various forms of ill-treatment at the workplace. For the Act to live up to its expectations, it is only fair that a correct and purposive approach be applied in its adjudication.
In connection to this interpretation, it is crucial to mention the case titled 2013 MLD 198, wherein the use of terms such as “jahil” and “badtameez aurat” did not meet the threshold of harassment under the Act. The phrases were considered sufficiently offensive and enough to cause discomfort to a woman, however, as per the Act, they were found to not interfere with the alleged victim’s work performance. Furthermore, the sexual nature of such harassment could not be proved. The derogatory words were indeed disrespectful but, unfortunately, could not amount to harassment for the purposes of the law. Such interpretations can leave women in an uncomfortable and difficult position, which means that behaviours adversely affecting their work experience have not been covered by the said Act, failing to provide the requisite protection women need and deserve.
Additionally, a meticulous examination of the title of the Act, “The Protection against Harassment of Women at the Workplace 2010” shows that there is no explicit mention of the term “sexual”. This means that the Act is intended to protect women from all kinds of harassment. The restrictive approach to interpretation only arose from the narrow definition laid down in section 2(h) of the Act. However, it has been argued more recently that various definitions of harassment from the Oxford Dictionary and other sources hold a separate meaning of the term ‘sexual’ when taken as an adjective:
“…the word sexual is an adjective, which has two meanings:
- relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.
- relating to the two sexes or to gender.”
Reading into the definition with this meaning shows that that sex-based discrimination does not have to be limited to sexual activity. Behaviour can also be harmful if it is a result of gender-based dynamics and not necessarily a product of sexual desire or sexual activity. Such behaviours aim to degrade and demean a person by way of exploitation, humiliation and hostility, which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion.
Purposive Approach and Judicial Reasoning
Justice Malik’s judgment is necessary not only because it has been able to widen the scope of harassment for women but also for how the judiciary has applied the purposive approach. In substantiating the use of the purposive approach, certain cases have been cited, such as Mehr Zulfiqar Ali Babu and others v. Government of Punjab and others (PLD 1997 SC 11) and Pepper (Inspector of Taxes) v. Hart (1993 SCMR 1019) which state that the court can refer to Parliamentary debates and the Statement of Objects and Reasons preceding laws to deduce the intent of laws. This enables the judiciary to glean the true essence of a law for an equitable application of the same.
In a case reported as Irshad Ahmad Shaikh v. The State (2000 SCMR 814), the court has aptly determined that the object of the law is seen from the entire scheme of the law, its preamble and any subsequent legislative developments. In application of the purposive approach in the judgment under discussion, the learned court has diligently scrutinized the traditional meaning of the term ‘sexual harassment’ and cited relevant case-law to show how sexual harassment in the workplace affects the dignity and honour of a woman and needs to be eliminated. It is imperative to reemphasize that the fundamental purpose of harassment laws lies in eradicating gender-based discrimination, extending beyond sexual forms, to encompass various other forms of gender-based prejudice.
It has further been argued that, “…sexual harassment as gender-based discrimination is gender-based hostility, which creates a hostile work environment. It is a reflection of the unequal power relations between men and women, which translates into a form of abuse exploitation, and intimidation at the workplace, which makes it a violation of a basic human right.”
Concerns About the Separation of Powers
The judgment also prompts a reflection on the separation of powers between the judiciary and the legislature. While embracing the purposive approach is a welcome move, its application must be executed judiciously and with caution. Others believe that the courts need to reach even further with such interpretations in order to ensure justice.
Having said that, the burden of addressing societal issues should not rest solely on the judiciary’s shoulders. Instead, a collaborative approach between the judiciary and the legislature is essential to enact robust and effective legislation that upholds the rights of women and fosters a conducive work environment.
Ambiguity of “Gender-Based Harassment” and Potential for Misuse
Critics suggest that while the judiciary’s intent to fill the gaps in legislation is commendable, it underscores the need for lawmakers to adopt a more proactive stance in drafting laws that reflect evolving societal norms and challenges and the nuances of workplace harassment. The ambiguity surrounding the interpretation of terms like “sexual” and “gender-based” harassment underscores the importance of clear and precise legislative language.
According to section 2(h) of the Act, “harassment” means any:
- unwelcome sexual advance,
- request for sexual favors or
- other verbal or written communication or physical conduct of a sexual nature or
- sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment…”
It is argued that sexual harassment also means gender-based harassment. However, the word “sexual” has been used repeatedly before each phrase and only in the last instance may it be referring to gender. This opens up a window of argument, albeit small, regarding what will be considered gender-based harassment, what criteria needs to be fulfilled to prove gender-based harassment and whether gender-based harassment of women can occur at the hands of other women. The judgment seems vague in this regard and whether sexual, non-sexual, or gender-based harassment has taken place will have to be left to the particular facts of a case, especially in the absence of clear legislation by Parliament.
Conclusion
Justice Malik’s judgment is significant in enhancing crucial protection for women against harassment and aligns with what the law should rightfully provide. It also highlights the need for a more coherent and proactive approach from both the judiciary and the legislature in their approach to safeguard the rights of women. By working collaboratively, they can ensure that laws are not only interpreted liberally but also drafted comprehensively, thereby safeguarding the rights and dignity of women in the workplace.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
