Sexual harassment
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This article is written by Amulya Bhatia, currently pursuing BBA.LL.B from Symbiosis Law School, NOIDA. This article talks about laws for women against sexual harassment in Pakistan.

Introduction

Imagine living in a country with no laws to protect its people from the evils of sexual harassment. Such was the case with Pakistan till 2010 after which they enacted the Protection Against Harassment of Women at Workplace Act, 2010 where sexual harassment was defined in depth through this legislative instrument. From a young girl assaulted by a massive crowd of over 400 people, to the horrific gang rape of a woman along the highway, Pakistan has seen a spike in the number of sexual harassment cases against women in recent times, accompanied with an inadequate legal structure. What’s worse is, when the Prime Minister of this country blames ‘vulgarity’ for an increase in sexual violence, reinforcing patriarchal ideas and failing to acknowledge the fallacies.

In light of recent incidents, the citizens of Pakistan took to the streets of the country, demanding from the government a safer atmosphere for all citizens along with an apology from the Prime Minister to apologise for his ludicrous statements, blaming the clothes of the victim and perpetrating the ideology that ‘men will be men’. 

Pakistan Penal Code, 1860

In lay man’s language, sexual harassment involves unwanted behavior, which can offend, humiliate and intimidate a person while creating a hostile environment for them. This can be both verbal or physical. Prior to 2010, there was no clear definition of what sexual harassment would entail after which there were several amendments made to the provisions of the Pakistan Penal Code, 1860 to strengthen the laws. 

Section 354: Assault or criminal force to woman with intent to outrage her modesty

This Section provides for when criminal force is used with the intention of outraging a woman’s modesty and states that punishment for the same shall extend upto two years of imprisonment, or fine, or both.

Section 354A: Assault or use of criminal force to woman and stripping her of her clothes

This Section lays down the punishment of imprisonment for life along with a fine for when criminal force is used to strip a woman of her clothes, exposing her to the public view.

Section 366-A: Procuration of a minor girl

This section is concerned with when a minor girl, below the age of eighteen, is by any means induced to get involved in illicit sexual intercourse, and this offence is punishable with upto 10 years of imprisonment along with a fine.

Section 375: Rape

This Section defines the circumstances in which sexual intercourse would amount to rape which include against her will, without her ‘free’ consent or consent based on misrepresentation, or when the girl is under sixteen years of age.

Section 376: Punishment for rape

This Section provides for punishment of death or imprisonment of either description for a term which shall not be less that ten years or more, than twenty-five years and shall also be liable to fine or the offence of rape, as provided in section 375 

Section 509: Insulting modesty or causing sexual harassment

This Section defines insulting a woman’s modesty as making sounds, gestures, or acting with the intention of intruding upon the privacy of the woman. Sexual harassment has also been defined under this Section for the first time. It also lays down the punishment for these crimes.

Protection against Harassment of Women at Workplace Act, 2010

History has proved that the deep-rooted issue of harassment is not a foreign concept to Pakistan. The country still comprises a patriarchal set-up, with men being given the dominant status, increasing the scope of harassment of women at the workplace. Due to this, the  Protection against Harassment of Women at Workplace Act, 2010 was enacted in Pakistan, with the objective of providing legal protection to women and also reducing the gender gap that exists in the professional environment due to this harassment. Sexual harassment at workplace was finally recognised as not just an issue, but a punishable crime. This Act is based on the principle of providing equal opportunity to men and women without the fear of being discriminated against.

This Act was welcomed with open arms as it was the first time that the term sexual harassment was properly defined in Pakistan and the citizens were safeguarded against this social evil. However, not too long after its enactment, the moral and logical fallacies with the Act started to emerge and the improper methods of implementation began to be questioned. 

Definition of sexual harassment

Section 2(h) of the Act defines sexual harassment as any kind of unwelcoming sexual advances or requests for sexual favors, either physical or verbal, which interfere with work or create a hostile or intimidating environment for one. 

In the recent judgment, Nadia Naz vs. President of Islamic Republic of Pakistan (2021), the Court observed that this definition only covers a small fraction of what harassment is. Sexually coloured remarks, gazing, voyeurism, stalking have not been included, limiting not just the scope of the definition but subsequently invalidating the objective behind the enactment of this Act. With flaws in the definition of the ‘sexual harassment’, the entire Act falls flat.

Definition of workplace

What exactly falls under the ambit of the term ‘workplace’, which has been defined under Section 2(n) of the Act has also faced criticism. The Act defines it as “the place of work or the premises where an organization or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organization or of employer are carried out and including any situation that is linked to official work or official activity outside the office”. This definition fails to take into account grievances faced by domestic workers. Additionally, it would also not include cases of harassment faced by people during the course of travelling to and from workplaces. There are no reported cases based on the above mentioned situations, which leaves it upon the judiciary to interpret the definition as per their discretion.

Definition of complainant

Section 2(e) of the Act states that a complainant can be a man or a woman who has been aggrieved, meaning only the victim of sexual harassment can make a complain. This Section does not take into account the mental trauma that a person who has experienced sexual harassment is going through which has a direct bearing on being able to speak up and talk about such an incident. What makes this worse is that there already exists a difference in power dynamics at a workplace which makes it even more difficult to file a complaint. This Act must take into consideration possible situations wherein a person on behalf of the victim is given the power to file a complaint.

Lack of inclusion of transgender people

Deeply embedded homophobic and transphobic attitude combined with an inadequate legal structure to protect the LGBTQ+ community has continued to grossly violate the basic human rights of people belonging to this community. Pakistan, however, was the first Asian country to legally recognise a self-perceived gender identity. The Parliament of Pakistan recognised transgender persons as a third gender in 2009 and passed the Transgender Persons (Protection of Rights) Act, 2018 on May 8, 2018. While this Act appears to be unique and progressive in several aspects, and rightly so, it lacks implementation, failing to provide to this community the protection they need. 

Section 2(e) of the Protection against Harassment of Women at Workplace Act, 2010, defines a ‘complainant’ as a man or woman, disregarding the existence of transgender persons. This is violative of the basic Right to Equality and also comes across as a shock because of the progressive legislation that Pakistan has passed to safeguard transgender persons.

Cybercrime

The advent of technology and the internet has brought major changes in how the world operates with multifaceted advantages. However, it would be naïve to ignore the misuse of the internet maliciously. Sadly, what was meant to improve communication has become a platform for sexual harassment. 

Pakistan has enacted the Prevention of Electronic Crimes Act, 2016 to protect its citizens from the plethora of cybercrimes but does not explicitly define ‘sexual harassment in context of the online world.

Sexual harassment at the workplace can also take place through online modes which have not found a place in the Protection against Harassment of Women at Workplace Act, 2010 and have the potential to be a possible loophole, enabling sexual offenders.

Functioning of an inquiry committee 

Section 3 of the Act provides for all organisations to set up an Inquiry Committee. Such a committee must consist of three members, with at least one female member. The purpose behind this committee is to ensure that when a complaint is received, the inquiry process is conducted fairly, without any bias.

While this Section in itself is commendable, the role of the committee cannot be limited to conducting the enquiry process fairly, but also to direct regular assessments of the workplace. The Section must also allow for there to be anonymous complaints keeping in mind the mental trauma that a victim of sexual harassment experiences, making it difficult to speak up about such incidents. Moreover, there also exists the fear of not being taken seriously, losing their job, social retaliation, or just being tagged as a trouble maker which can more often than not prevent people from reporting cases of sexual harassment. A provision for daily checks within the workplace can make the atmosphere safer and also tackle the problem of lack of reporting.

Problem with implementation 

Is the enactment of legislation enough to tackle a social evil like sexual harassment? The aim behind any legislation is to create a peaceful and just society by way of establishing discipline through rules and regulations. Unfortunately, the laws hold no value if there is a lack of implementation. It is only when the implementation of the laws is carried out with utmost sincerity that the objective behind introducing laws is fulfilled.

Pakistan may have taken a huge leap and enacted The Protection against Harassment of Women at Workplace Act, 2010, but is yet to work on its execution. Section 11 of the Act requires an employer to display and circulate a code of conduct on sexual harassment, both in English and Urdu. However, there is absolutely no provision for checks on behalf of the government, to ensure that such a code of conduct has been established by all organizations. Similarly, the law might mandate the creation of an inquiry committee. 

Recommendations

While changes in the legal structure are not adequate to change the reality that persists in Pakistan and there is a requirement to mould the social stigma attached with sexual harassment and victims of sexual harassment, there are some recommendations that can improve the state of existing laws, making the state of the country better:

  1. Sexual harassment is an extremely sensitive topic and it is imperative to understand the nuances and impact that such incidents can have on the mental health of the person who experiences it. Thereby, it is essential that such matters are dealt with utmost care which creates a need to sensitise the citizens. At school level as well as the workplace, there is a requirement to actively and openly  converse about these issues. 
  2. Along with sensitising, training sessions regarding expected and acceptable standards of male-female interaction at the workplace should be made an integral part of the Act. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act), 2012 in India makes such trainings mandatory.
  3. Discrimnation in terms of who can complain of sexual harassment shouldn’t exist at all and every law in the country must be based on the principle of equality.
  4. For the purpose of formation of an inquiry committee, it would be appreciable if there is inclusion of at least one member who may have prior experience of dealing with sexual harassment cases and understands the complexities that come along with it to ease the entire process.
  5. There is an immediate need to educate the citizens of the country of the rights that they have. It is essential to create awareness from the root level because it is only when there is awareness that the citizens will be able to exercise their rights.
  6. The most important recommendation would be to ensure that all laws in places are genuinely and fervently followed. None of the laws or any of the above recommendations hold any significance if they are not implemented. Lack of implementation gives liberty to the people to disobey the law and do as they please.

Conclusion

A country or society’s legal framework and its cultural ethos aren’t incongruous but are tethered together in a dialectical relationship; a relationship in which both of these forces afflict and influence the other. Even if the state has laws set in place that do, on paper, protect women from sexual violence, but the cultural and social disposition these laws exist in, blatantly brutalizes women, the laws don’t hold much weight and the social malady of sexual harassment continues to persist and plague the state.

Beliefs that about the onus of sexual assault and violence falling upon the victims of the act owing of what clothes they wear and how much skin they exhibit, and not the men who commit these atrocities is an indication of a society in which the laws and the cultural and social consciousness aren’t in consonance with each other. This is bound to not only fester but they encourage the growth of the societal tumour that is sexual assault. The first step is to do away with the social stigma attached to sexual harassment.

References


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