Accuser will now have to prove ‘sexual intention’ of defendant in workplace harassment cases

According to recent media reports, the Supreme Court (SC) of Pakistan 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’. While explaining the judgment, the top court said:

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.

Justice Mushir Alam presented the verdict in a 12-page judgment document. In the final document, the three-judge bench of the apex court led by Justice Alam adjudicated the questions:

• whether the actionable “harassment”, as defined in section 2(h) of the Act, 2010, was of restricted application or applied to all manifestations of harassment;
• whether the federal ombudsman had the jurisdiction and/or authority to reinstate the petitioner into service under the provisions of the Protection Against Harassment of Women at Workplace Act, 2010.

According to details, the court also 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. 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.

Read the 12 pages judgment by the court here:

The court further added:

To our great regret, all such acts of harassment that fall beyond the pale of the 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 constraints 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. It 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.

The ruling has further complicated reporting workplace harassment cases. Experts believe that the requirement to prove the sexual intention of the harassers will push victims further away from asking for help. Only time will tell how this judgment impacts the working-class residents of Pakistan.

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