A larger bench of the Supreme Court has released its recent judgment in review petition, C.R.P.255/2021, wherein the Court has adopted purposive and expansive approach of interpretation to enlarge the scope of sexual harassment to that of gender- based harassment. The Court has heard this case in review jurisdiction and overturned its earlier judgement in Civil Petition No. 4570 of 2019 (given at the end) by holding that the Court had previously erred in construction of the word sexual. The Court underpinned the concept of sexual harassment and opined that the word sex is used in two connotations: one of which is physical intimacy or intimate physical contract between two individuals and the second is which indicates difference between sexes or genders. Hence, the Court emphatically says in the judgment that the word sexual cannot be restricted to physical intimacy or sexual harassment alone. It must embody discrimination on the basis of sex/gender. If any person harasses another at workplace whether such harassment is sexual or it is based on gender difference, this act will attract will fall under the preview 2(h) of the Protection of Women Against Harassment at Work Place Act, 2010. However, this is to be mentioned here that the legislature has amended the said provision of the definition of harassment through an Amendment in 2022. Here is the text of the amendment:
The Protection against Harassment of women at the Workplace (Amendment) Act, 2022, § 2(d), No. V of
2022 (Pakistan) substituted namely “(h) “harassment” means– (i) any unwelcome sexual advance, request for
sexual favours, stalking or cyber stalking or other verbal, visual or written communication or physical conduct
of a sexual nature or sexually demeaning attitudes, including any gestures or expression conveying
derogatory connotation causing interference with work performance or creating any 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; or (ii) discrimination on basis of gender, which may or may not be sexual
in nature, but which may embody a discriminatory and prejudicial mind–set or notion, resulting in
discriminatory behavior on basis of gender against the complainant;”
The new amendment has embodied discrimination on the basis of gender in the definition of harassment. This was missing in the erstwhile definition of sexual harassment but the Court still opted to read such interpretation into the erstwhile definition and gave it retrospective effect from 2010 to 2022.
c.r.p._255_2021Click to Download the Judgment under Review
c.p._4570_2019
