PLR 2023 Supreme Court 1

Other citations:

2023 SCP 163 (https://www.supremecourt.gov.pk/downloads_judgements/c.r.p._255_2021.pdf)

PLD 2023 SC 588 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Yahya Afridi, Muhammad Ali Mazhar and

Ayesha A. Malik, JJ

NADIA NAZ and another—Petitioners

versus

The PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN,

ISLAMABAD and others—Respondents

Civil Review Petitions Nos. 255 and 570 of 2021, decided on 14th March, 2023.

       (Review against judgment dated 05.07.2021, passed by this Court in Civil Petition No. 4570 of 2019).

[Per Ayesha A. Malik, J; Muhammad Ali Mazhar, J agreeing; Yahya Afridi, J also agreeing but with his own reasons.]

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)—

—S. 2(h), 2(f) & 2(e)—Harassment—Gender-based discrimination—Expression “sexually demeaning attitudes”—Scope—If the definition of the word sexual is taken to also include the gender, the impact is significant when reading Section 2(h) of the Act as 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—So in the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances—Reading further into the definition of harassment, it appears sex-based discrimination does not have to be limited to sexual activity, rather it is behaviour which is promoted on account of the gender as a result of gender-based power dynamics, which behaviour is harmful and not necessarily a product of sexual desire or sexual activity—Such harassment is motivated to degrade and demean a person by exploitation, humiliation and hostility which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion—Such behaviour in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile or offensive work environment and has the effect of punishing the complainant for refusal to comply with a request or is made a condition for employment—Accordingly, the definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim—If the conduct of the harasser is given a restricted meaning to being of sexual nature or form, it takes away the essence of the meaning of harassment, its purpose and reduces its impact and scope and ignores that sexual harassment is oftentimes less about sexual interest and more about reinforcing existing power dynamics—Such an application of the law limits the protection offered under the Act and effectively excludes many instances where the victim may be harassed but cannot bring action against the harasser since the conduct was not sexual in nature—We also note that the meaning of sexual is relevant when seen in the context of other definitions under the Act—The Act is not restricted to female victims, as the word employee defined in Section 2(f) of the Act means any regular or contractual employee and does not simply state women employees—Furthermore, complainant defined in Section 2(e) under the Act means a woman or man who has made a complaint—Hence, the Act recognizes that harassment is gender-based and that the victim can be a man or a woman. [Para. No. 4]

Per Yahya Afridi, J

‘Harassment’ in form of ‘sexually demeaning attitudes’ is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender-based discrimination—‘Sexually demeaning attitude’ becomes harassment at the workplace, as it causes interference with work performance or creates an intimidating, hostile or offensive work environment for the victim of such attitude. [Para. No. 3]

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)—

—S. 2(h)—Constitution of Pakistan, Art. 14— Inviolability of dignity of man—Harassment—Gender-based discrimination—Scope—Sexual harassment at the workplace affects the dignity and honour of a woman and needs to be eliminated—The purpose of harassment laws is to address gender-based discrimination at the workplace and not to limit it to sexual forms of harassment—It includes a broad range of conduct and behaviour which results in workplace problems with serious consequences, one of the main being gender inequality—Being an issue grounded in equal opportunity and equal treatment of men and women in matters of employment, sexual harassment in any form violates the dignity of a person as it is a demeaning practice that aims to reduce the dignity of an employee who has been forced to endure such conduct—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. [Para. No. 12]

(c) Protection against Harassment of Women at the Workplace Act (IV of 2010)—

—S. (h)—Harassment—Notion of acceptable behaviour—Standard of reasonable woman—Scope—In cases of harassment, the victim’s perspective is relevant as against the notion of acceptable behaviour—The standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile and all relevant factors should be viewed objectively and subjectively. [Para. No. 14]

(d) Interpretation of statues—

—-Purposive approach—Scope—While interpreting statutes, the cardinal rule is to take the purposive approach which means to look at the meaning of the words and the object and purpose of the law, which states the aim and objective of the law—Discovering the aim of the legislature carries significant weight while construing the meaning of the words of the statute. [Para. No. 8]

Dilawar Hussain and others v. Province of Sindh and others (PLD 2016 SC 514) ref.

(e) Interpretation of statues—

—-Court can refer to Parliamentary debates and the Statement of Objects to deduce the intent of the law. [Para. No. 8]

Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 SC 11) and Pepper (Inspector of Taxes) v. Hart (1993 SCMR 1019) ref.

(f) Interpretation of statues—

—The object of the law is seen from the entire scheme of the law and its preamble and also subsequent legislative developments. [Para. No. 8]

Irshad Ahmad Shaikh v. The State (2000 SCMR 814) ref.

(g) Constitution of Pakistan—

—-Art. 188—Review of judgments or orders by the Supreme Court—Scope—Every judgment of this Court is presumed to be a solemn and final decision on all points arising out of the case and if the Court has not taken a conscious and deliberate decision on point of facts or the law, then this results in a material irregularity, which makes for an error apparent on the face of the judgment and has a bearing on the fate of the case—In such circumstances, a review petition lies. [Para. No. 13]

Sikandar Hayat v. The State (PLD 2020 SC 559) and Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363) ref.

(h) Words and phrases—

—-Sexual—Meaning.

Relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between     individuals. [Para. No. 4]

Feelings or activities are connected with the act of sex or with people’s desire for sex. [Para. No. 4]

Having or involving sex. [Para. No. 4]

Relating to the differences between male and female people. [Para. No. 4]

Concise Oxford English Dictionary, Twelfth Edition; Collins English Dictionary and Merriam-Webster Online Dictionary rel.

Per Yahya Afridi, J

(i) Constitution of Pakistan—

—-Art. 188—Review of judgments or orders by the Supreme Court—Scope—Non-consideration of an important aspect of the matter, which if it had been considered the decision of the Court would have been otherwise, amounts to an error apparent on the face of the record and is a well-established ground to exercise review jurisdiction. [Para. No. 4]

Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335-Per Kaikaus, J); Suba v. Fatima Bibi (1996 SCMR 158); Abdul Ghaffar v. Asghar Ali (PLD 1998 SC 363) and Barkat Ali v. Qaim Din (2006 SCMR 562) ref.

Petitioner in person (in CRP. 255 of 2021).

       Barrister Shehzad Ata Elahi, Attorney General for Pakistan assisted by Miss Marium Rashid and Mr. Aitzaz ul Haq, Advocates for Petitioners (in CRP. 570 of 2021).

       Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents No.4 and 5.

       Agha Muhammad Ali, Advocate Supreme Court for Respondent No. 6 (in CRP. 255 of 2021).

       Agha Muhammad Ali, Advocate Supreme Court for Respondent No. 7 (in CRP. 570 of 2021).

       M. Nazir Jawwad, Advocate Supreme Court for PTV.

       M. Irfan Arjumand, Deputy Director for Ministry of Information.

       Date of hearing: 14th March, 2023.

JUDGMENT

       AYESHA A. MALIK, J.—Civil Review Petition No.255 of 2021 by Nadia Naz and Civil Review Petition No.570 of 2021 by the Attorney General for Pakistan are directed against judgment dated 05.07.2021 passed by this Court in Civil Petition No. 4570 of 2019. The Petitioners pray for review and recall of the judgment due to its interpretation of the definition of harassment in Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 (Act).

       2.    Mr. Shehzad Ata Elahi, Attorney General for Pakistan (AGP), argued that while interpreting the definition of harassment under Section 2(h) of the Act, the judgment under review interpreted harassment in a very restrictive manner, one that overlooks the plausible and purposive interpretation of the section and is not in sync with the objectives of the Act. He argued that the given interpretation is not in accordance with the preamble and the Statement of Objects of the Act which is evident from the Parliamentary debates with reference to this Act. He emphasized that the given interpretation of harassment was made without considering the meaning of the word sexual which is used several times in the definition and has a significant impact on the interpretation of Section 2(h) of the Act. Consequently, the given meaning of harassment has effectively curtailed the scope of the Act and frustrated its very purpose. He argued that had the meaning of sexual been considered, it would have changed the outcome of the decision. The basic argument by the AGP is that the word sexual as contained in Section 2(h) of the Act should have been interpreted as being related to the gender in this context, which meaning significantly changes the interpretation of Section 2(h) of the Act. He argued that the Court adopted one meaning of sexual which means physical contact of sexual nature, or related to physical attraction or intimacy between individuals and failed to consider that there is another meaning given to the word sexual in the dictionary. He explained that the interpretation given in the judgment results in an incorrect understanding of the law which is not in consonance with its purpose. He argues that the word sexual or sexually when used as an adjective has two meanings, of which one meaning is related to the gender. As per his contention, had this meaning been considered, harassment under Section 2(h) of the Act also includes sex-based discrimination at the workplace and is not merely about behaviour or conduct of a sexual nature. He further argued that of the two possible meanings, the Court should have given to the word sexual, the more appropriate and plausible meaning in the instant cases, which is in accordance with the mandate of the Act, to protect against sex-based discrimination at the workplace. As per his arguments, the alternate meaning of sexual escaped the attention of the Court, which resulted in an erroneously narrow interpretation of Section 2(h) of the Act. Furthermore, the error in the judgment is so significant that it completely changes the outcome of the decision. His contention is that sexual harassment is not limited to behaviour of a sexual nature and also relates to the gender where the employees are subjected to harassment on account of their sex. So far as the Respondents are concerned, they argued in support of the judgment and stated that no new interpretation was necessary.

       3.    What is in issue before us is the definition of harassment under Section 2(h) of the Act, which reads as follows:

“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”

The impugned judgment dated 05.07.2021 interpreted this Section in the following terms:

12. The title and the preamble of “Protection Against Harassment of Women at the Workplace Act, 2010” hold out assurance to provide a legal regime for the “protection of women against harassment at workplace”. When the Act, 2010 is examined as whole, it does not live up to expectation as title and preamble of the Act suggest. In its present form, surprisingly the harassment against which a woman is provided an assurance of protection is just another piece of cosmetic legislation; it is blinkered in its application. The Act, 2010 caters to grievance of the complainant [section 2(e)], may it be ‘men’ or ‘women’, against the act of misdemeanour defined as ‘harassment’ [under section 2(h)] on the part of an ‘accused’ [section 2(a)], who may either be an ‘employee’ or ‘employer’ of an organization, against whom a ‘complaint’ to the ‘Ombudsman’ [under section 8] or to the ‘Inquiry Committee’ [under section 4] is made.

13. 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 organization 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 issue of harassment in all its manifestation, as noted above, in a holistic manner, is a myopic piece of legislation that focused only on a minute faction of harassment. The Act, 2010 confines or limits its application to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization. It may be observed that 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 w.e.f. 02.02.2010.

15. As could be seen from the definition of harassment as reproduced above, any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer, in any organization, may it be generically classifiable harassment, is not actionable per-se under the Act, 2010, unless such behavior or conduct is shown to be inherently demonstrable of its ‘sexual’ nature. Any other demeaning attitude, behavior, or conduct which 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 and thrashed out in paragraph 10 of the judgment rendered by the Islamabad High Court in the case of Shahida Masood (supra) which needs no further elaboration.

16. The Act, 2010 above has specifically been legislated to protect not only working women but men as well only against “harassment having sexual nature” at the workplace and, therefore, any conduct amounting to harassment of any other kind and nature, as noted in paragraph 13 above, despite howsoever 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 being 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, which includes both the potential ‘harasser’, the potential victims, and the responsibility for avoiding instances of harassment on workplace regulators. Such an approach is not unique to Pakistan and is in fact similarly followed in India. The Indian Supreme Court formulated the guideline known as Vishaka Guideline which made it mandatory for institutions across the country to put in place measures to prevent and redress sexual harassment at the workplace. The Vishakha Guidelines laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

“Section 2 (n) of the Act 2013 reads as follows:

(n) “sexual harassment” includes any one or more of the following unwelcome acts or behaviour

(whether directly or by implication) namely:

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;”

21. While our version of the legislation to protect women at workplaces against harassment is titled “The Protection against Harassment of Women at the Workplace 2010’, however, when the scheme of the enactment is carefully examined, its contents and application has been restricted to harassment of a purely sexual orientation and nature. It must be noted that under the Pakistani legislation on the subject, not only in the Preamble but also in the title of the Act, the term ‘harassment’ is used and not ‘sexual harassment’, but contrarily to the apparent intent, the meaning of the term ‘harassment’ has been explicitly given a restrictive meaning under clause (h) of Section 2 of the 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.”

[Emphasis     Added]

On review of the afore-noted paragraphs, we find that the emphasis of the judgment on defining harassment under the Act has been such that the word sexual has been considered as an act of a sexual nature which becomes actionable due to its sexualized nature and form, and sexual overtones. In other words, the judgment specifically states that the nature or the kind of harassment covered under the Act is limited to sexual forms of behavior or conduct meaning that harassment is limited to actions having sexual intent or overture, which is evident from behaviour and conduct. Furthermore, harassment in this form has to affect the victim’s work or performance at the workplace for it to be actionable under the Act. On considering the AGP’s arguments, we find that the Act does not define the word sexual and the judgment under review did not examine the meaning of sexual even though this word has been used four times in the definition of harassment, which deficiency must be made up to do complete justice.

       4.    We have examined the definition of sexual in the following manner. In terms of the Concise Oxford English Dictionary, Twelfth Edition[1] the word sexual is an adjective, which has two meanings:

“1 relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.

2 relating to the two sexes or to gender.”

Similarly, definitions are also found in Collins English Dictionary[2] which also gives two meanings to the word sexual:

“1. feelings or activities are connected with the act of sex or with people’s desire for sex.

2. Relating to the differences between male and female people.”

As per Merriam-Webster Online Dictionary[3], sexual means:

“1. relating to, or associated with sex or the sexes

2. having or involving sex”

As per the dictionaries consulted, there are two meanings to the word sexual, which becomes relevant to the interpretation of the term harassment. The judgment under review did not consider these meanings, rather assumed that sexual only means relating to the act of sexual nature. As a result, the meaning relating to the gender was never considered and entirely excluded gender-based discrimination and harassment faced at the workplace. If the definition of the word sexual is taken to also include the gender, the impact is significant when reading Section 2(h) of the Act as 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. So in the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances. Reading further into the definition of harassment, it appears sex-based discrimination does not have to be limited to sexual activity, rather it is behaviour which is promoted on account of the gender as a result of gender-based power dynamics, which behaviour is harmful and not necessarily a product of sexual desire or sexual activity. Such harassment is motivated to degrade and demean a person by exploitation, humiliation and hostility which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion. Such behaviour in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile or offensive work environment and has the effect of punishing the complainant for refusal to comply with a request or is made a condition for employment. Accordingly, the definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim. If the conduct of the harasser is given a restricted meaning to being of sexual nature or form, it takes away the essence of the meaning of harassment, its purpose and reduces its impact and scope and ignores that sexual harassment is oftentimes less about sexual interest and more about reinforcing existing power dynamics.[4] Such an application of the law limits the protection offered under the Act and effectively excludes many instances where the victim may be harassed but cannot bring action against the harasser since the conduct was not sexual in nature.[5] We also note that the meaning of sexual is relevant when seen in the context of other definitions under the Act. The Act is not restricted to female victims, as the word employee defined in Section 2(f) of the Act means any regular or contractual employee and does not simply state women employees. Furthermore, complainant defined in Section 2(e) under the Act means a woman or man who has made a complaint. Hence, the Act recognizes that harassment is gender-based and that the victim can be a man or a woman. The impugned judgment overlooked the inclusion of men in the definition of complainant which is relevant when seen in the context of the protection given to employees under the Act. If the present definition of harassment, as given in the judgment under review is considered, its application on employees and complainants who are not women becomes questionable and its applicability may become redundant. We find that this aspect of the matter was not considered in the judgment under review as its interpretation of harassment has rendered the Act ineffective for employees or complainants who are not women. This error is so manifest and evident that it cannot be ignored.

       5.    In order to further examine the meaning of sexual and to understand the purpose of the Act, we also examined the Report of the National Assembly Standing Committee on Women Development dated 29.09.2009, the debates of the National Assembly of 21.01.2010 and of the Senate of 25.02.2010. These documents all show that the intent and purpose behind the enactment of the Act was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment. The debates show that the intent was to inter alia, give effect to Articles 11 and 13 of the Convention Against the Elimination of Discrimination Against Women (CEDAW) and International Labour Organization (ILO) Convention Nos.100 and 111 on Worker’s Rights and to eliminate all forms of discrimination in the workplace, including gender-based discrimination and sexual harassment. CEDAW was actively discussed in the debates and considered such that there should be no constraint on women when they enter the workplace. The Parliamentary debates also show that wherever the word harassment was used, it was intended to include harassment in the form of discrimination at the workplace. Furthermore, the Statement of Objects of the relevant bill is as follows:

“The objective of the Bill is to create a safe working environment for workers, which is free of sexual harassment, abuse and intimidation with a view to enable higher productivity and a better qualify of life at work. Sexual harassment is one of the biggest hurdles faced by working men and women preventing many from working to get themselves and their families out of poverty. This Bill will open the path for employees to   participate more fully in the development of this country at all levels. This Bill builds on the principles of equal opportunity for men and women and their to earn a livelihood without fear of discrimination as stipulated in      the Constitution. This Bill complies with the Government’s commitment to high international labour standards and empowerment of women. It also adheres to the Human Rights Declaration, the United Nation’s Convention on Elimination of all forms of Discrimination Against Women and ILO’s convention 100 and 111 on worker’ rights. It adheres to the principles of Islam and all other religions in our country.”

This again confirms the view that sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender.

       6.    As for the documents considered by the Parliament, we find that, in addition to CEDAW and ILO, there are other conventions as well such as Discrimination (Employment and Occupation) Convention (No.111) of 1958 (1958 Convention), prohibiting sex-based discrimination, which was adopted by the international community and was ratified by Pakistan on 24.01.1961. The Committee of Experts on the Application of Conventions and Recommendations, ILO confirmed that as per the 1958 Convention, sexual harassment is a form of sex discrimination.[6] CEDAW also affirms women’s right to be protected against sex-based discrimination and the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights 1993 emphasizes that women’s rights are inalienable, integral and indivisible parts of universal human rights and women are entitled to full and equal participation in political, civil, economic and social, and cultural life and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.[7] Moreover, the Vienna Declaration 1993 clearly states that gender-based violence, all forms of sexual harassment and exploitation are incompatible with dignity and worth of human person and must be eliminated[8] and the Beijing Declaration and Platform for Action states that the term violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women including physical sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work.[9] If we look at these conventions and affirmations, it is clear that the understanding is that sexual harassment means and includes sex-based discrimination.[10]

       7.    During the course of the arguments, the AGP clarified that the Act has been amended in June 2022 vide the Protection against Harassment of Women at the Workplace (Amendment) Act, 2022 (Amendment Act) and in that the definition of harassment in Section 2(h) has been substituted[11]. However, he states that the applicability of this definition shall be prospective in nature and that too limited to the federal law as the definition of harassment has not changed under the provincial laws to the best of his knowledge. Therefore, he argued that the purposive interpretation of the word harassment under the Act will benefit the complainants who have suffered harassment from 2010 to 2022 when the Amendment Act was promulgated. There is merit in this argument because whilst an attempt has been made to widen the scope of the definition of harassment, complaints from 2010 to 2022 will have to be seen in the context of the judgment under review.

       8.    While interpreting statutes, the cardinal rule is to take the purposive approach which means to look at the meaning of the words and the object and purpose of the law, which states the aim and objective of the law. Discovering the aim of the legislature carries significant weight while construing the meaning of the words of the statute as held in the case reported as Dilawar Hussain and others v. Province of Sindh and others (PLD 2016 SC 514). This Court has also held that the Court can refer to Parliamentary debates and the Statement of Objects to deduce the intent of the law in the cases reported as Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 SC 11) and Pepper (Inspector of Taxes) v. Hart (1993 SCMR 1019). This Court has also held that the object of the law is seen from the entire scheme of the law and its preamble and also subsequent legislative developments in the case reported as Irshad Ahmad Shaikh v. The State (2000 SCMR 814). In the instant case, the Amendment Act changed the definition of harassment to clarify that harassment can be physical, sexual or gender discrimination, which may not be sexual but is discriminatory behaviour against the gender. Consequently, the definition under review has been expanded to include physical and discriminatory behaviour which also testifies to the purposive meaning of Section 2(h) of the Act.

       9.    The judgment under review finds in para 16 that 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, which includes both the potential harasser, the potential victims; and the regulators which are responsible for avoiding instances of harassment at the workplace. The judgment under review finds that such an approach is not unique to Pakistan and is in fact similar to that followed in India. On examining the legal literature on the issue, it appears that the legal view is very different. Catharine A. MacKinnon[12] defined sexual harassment as a form of sex discrimination and required some form of legal remedy be made available for it.[13] As per her theory, there are two broad types of sexual demands in the workplace. The first is the “quid pro quo” theory in which a person in a position of authority demands attention in exchange for an employment benefit and while the impugned judgment mentions this theory, however, it fails to contextualize the same and also fails to acknowledge it in the context of MacKinnon’s actual theory. The second pertains to the conditions of work that one is subjected to, which may include repeated insults or invitations that are unaccompanied by an offer of employment benefit.[14] In both cases, this form of harassment is initiated on account of the gender and hence, it is referred to as sexual harassment. Sexual harassment, therefore, includes a form of sex-based discrimination, which hinders equal opportunity for employment performance and advancement of women. MacKinnon’s writings have embedded the understanding that sexual harassment is a form of sex-based discrimination,[15] which reduces a woman’s potential for social equality and reduces her participation in the workplace. As a phenomenon, sexual harassment is gender specific[16] and the majority of victims are women.[17] Sexual harassment at the workplace means that the presence of women at the workplace triggers this gender-based harassment, which in turn undermines a women’s right to public life, her right to dignity and most important, her basic right to be treated equal. Sexual harassment compromises these rights of a woman which entails being economically and financially independent and being able to make independent decision and more importantly to be considered as a productive member of society.

       10.  Now, with reference to the case law relied upon in the impugned judgment, the Vishaka case[18] which has been mentioned in the judgment under review, the Indian Supreme Court found that gender equality includes protection from sexual harassment and the right to work with dignity which is a universally recognized basic human right. While looking at CEDAW, which also prescribes for equality in employment and sexual harassment as being gender-based discrimination, the court went on to direct that guidelines be made to protect the workplace from sex-based discrimination. In another case from the Indian Supreme Court, the Apparel Export Promotion Council[19] case the court again considered the meaning of sexual harassment in the context of harassment at the workplace and concluded that an act of sexual harassment is discriminatory as it is a form of gender-based discrimination projected through unwelcomed sexual advances, request for sexual favours and other verbal and physical conduct with sexual overtones whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee will affect the employment of that female and will interfere with her work performance. The judgment finds that sexual harassment creates a hostile working environment for women. So again, it goes to the very genesis of gender equality, the right to life and liberty and the right to dignity.

       11.  The Supreme Court of Canada in the case of Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 held that sexual harassment is a form of sex discrimination. It is unwelcome conduct that detrimentally affects the work environment or leads to adverse job-related consequences for victims of harassment. In the case before the Supreme Court of Canada waitresses at a restaurant alleged sexual harassment by the employer and the Supreme Court found that the sexual harassment suffered by the appellants constituted sex discrimination which was a practice or attitude related to the gender. It also found that sexual harassment is about power and abuse connected to the gender.

       12.  The cited case law shows that sexual harassment at the workplace affects the dignity and honour of a woman and needs to be eliminated. Further that the purpose of harassment laws is to address gender-based discrimination at the workplace and not to limit it to sexual forms of harassment. It includes a broad range of conduct and behaviour which results in workplace problems with serious consequences, one of the main being gender inequality. Being an issue grounded in equal opportunity and equal treatment of men and women in matters of employment, sexual harassment in any form violates the dignity of a person as it is a demeaning practice that aims to reduce the dignity of an employee who has been forced to endure such conduct. 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.

       13.  In view of the above, there appears to be an error in the judgment owing to the interpretation of harassment displayed by the Court, which definition is patently against the Act and its Statement of Objects. We have no doubt that if the word sexual as used in the definition of the word harassment was assessed for its true meaning, as given in the dictionaries, then the conclusions drawn by this Court would have been different; and this makes valid grounds for review as was seen in Pakistan Bar Council v. Federal Government (2018 SCMR 1891). Additionally, the effect of the definitions of complainant and employee were not examined by this Court in looking at the case, thus, the interpretation of harassment as given in the judgment, if taken at face value, makes the Act redundant for men. Again, this goes against the object of the Act which allows both women and men to bring a case against harassment at the workplace. Every judgment of this Court is presumed to be a solemn and final decision on all points arising out of the case and if the Court has not taken a conscious and deliberate decision on point of facts or the law, then this results in a material irregularity, which makes for an error apparent on the face of the judgment and has a bearing on the fate of the case, reliance is placed on the case of Sikandar Hayat v. The State (PLD 2020 SC 559). In such circumstances, a review petition lies as was held in the case reported as Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363). In the instant case, since the Court did not give the word sexual harassment its due deliberation, it lacked the understanding of the scope of the law to draw a proper conclusion, therefore, interference by this Court in its review jurisdiction is warranted and this review petition is maintainable.

       14.  The second part of the judgment under review finds that the judgment of the Islamabad High Court dated 11.10.2019 is well reasoned as is the order of the President, against the decision of the Federal Ombudsperson for protection against harassment of women at the workplace. However, both the President and the Islamabad High Court decided the case of Nadia Naz on the understanding that harassment means sexual harassment having a sexual nature and form and did not examine the facts in the context of Nadia Naz’s perspective and her understanding of the injury caused. In cases of harassment, the victim’s perspective is relevant as against the notion of acceptable behaviour. The standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile and all relevant factors should be viewed objectively and subjectively. In doing so, the order of the President and the judgment of the High Court failed to give due emphasis on the injury claimed and the harmful nature of the events to Nadia Naz. Under the circumstances, since harassment was understood in a limited context, both the order as well as the judgment decided the cases on a mistaken understanding of the law.

       15.  In view of the aforesaid, review petitions are allowed, the impugned judgment passed by this Court dated 05.07.2021 is set aside. The judgment passed by the High Court dated 11.10.2019 and the order passed by the President dated 05.01.2018 are also set aside and the matter is remanded to the President to decide the representation against the Ombudsperson’s order dated 16.10.2017.

I agree. However, I have added a separate note.

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JUDGE

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JUDGE

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JUDGE

       Yahya Afridi, J.—I have had the privilege of going through the judgment authored by my learned colleague, Justice Ayesha A. Malik. I concur with the conclusion. However, I am adding this brief note to underline three points: first, that the error pleaded by the petitioners and accepted by the Court to exercise its review jurisdiction does not require lengthy arguments or detailed re-examination of the record as it is apparent on the face of the record; second, that had the second meaning of the word ‘sexual’, which has now been brought to the attention of this Court, been then agitated and considered by the Court, its decision in the judgment under review on the meaning and scope of the word ‘harassment’, as defined in the Act, would have been otherwise; and finally, that the reference in the judgment of my learned colleague to the definitions of ‘harassment’ made in international Declarations and Conventions, as well as in existing legal literature is, as I understand, only for the purpose of elaboration, while the meaning and scope of the word ‘harassment’ is to be interpreted on the basis of the definition given in the Act. In this regard, I reiterate the statement of law referred to in the judgment under review, that when the definition of a particular expression has been given in a statute, then its ordinary meaning becomes irrelevant and cannot be considered.

       2.    The error apparent on the face of the record has rightly been pointed out in paragraph 4 of the judgment of my learned colleague, which I want to restate for precision, though at the cost of some repetition. Before doing so, I will cite here the definition of the word ‘harassment’, as given under the Act, which is under interpretation:

“harassment” means any [i] unwelcome sexual advance, [ii] request for sexual favors or [iii] other verbal or written communication or physical   conduct of a sexual nature or [iv] 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;

(Numbers and emphasis are added)

The ordinary dictionary meanings of the word ‘sexual’, cited in paragraph 4 of the judgment of my learned colleague, show that it has two meanings: (i) relating to physical attraction between individuals, and (ii) relating to gender. The word ‘sexual’ highlighted as number (i), (ii) and (iii) in the definition cited above has been used in the first meaning, as held in the judgment under review. But the word ‘sexually’ highlighted as number (iv) has been used in the second meaning, that is, demeaning attitudes on the basis of gender. This meaning of the word ‘sexually’ is justified by the words ‘demeaning attitudes’ that follow it. All three words ‘sexually demeaning attitudes’, when read together make the expression clear, as intended to be conveyed by the legislature. The word ‘demeaning’, which ordinarily means belittling and depreciating, is instructive in this regard. If the word ‘sexually’ is not understood in the context of ‘relating to gender’ in that expression, it will not produce any comprehensible meaning, as demeaning attitudes on the basis of physical attraction makes no rational sense. It is only when the second meaning of the word ‘sexually’ in the expression ‘sexually demeaning attitudes’ is applied that the expression conveys logic and understandable meaning.

       3.    ‘Harassment’ in form of ‘sexually demeaning attitudes’, as very rightly observed by my learned colleague, is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender-based discrimination. ‘Sexually demeaning attitude’ becomes harassment at the workplace, as it causes interference with work performance or creates an intimidating, hostile or offensive work environment for the victim of such attitude.

       4.    The second meaning of the word ‘sexual’ was not brought to the notice of the Court, and thus, escaped its attention, while delivering the judgment under review, which resulted in misconstruction of the definition of ‘harassment’ as given in the Act. The non-consideration of an important aspect of the matter, which if it had been considered the decision of the Court would have been otherwise, amounts to an error apparent on the face of the record and is a well-established ground to exercise review jurisdiction.1

       5.    I have, therefore, concurred in the conclusion reached by my learned colleague, allowing the review petitions and remanding the matter to the worthy President of Pakistan for deciding afresh the representation of the petitioner, Nadia Naz, which shall be deemed as pending before him, and be decided in accordance with the law, in view of the meaning and scope of ‘harassment’ as discussed and explained above.

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Judge