THIS refers to the news ‘Govt moves review petition against SC judgement on anti-harassment law’ (Sep 4), according to which the federal government has filed the petition against the Supreme Court judgment of July 6, 2021, which had held that the Protection against Harassment of Women at the Workplace Act of 2010 was a cosmetic legislation that was blinkered in its application.
The said judgment, in my view, was pragmatic and realistic wherein the SC had pointed out glaring limitations of the act. The government’s review petition banks more on the theoretical aspect and seeks to adopt a wider interpretation of ‘harassment’ as defined in the act. The petitioner has observed that the act was enacted primarily to provide protection and relief to women at the workplace.
The SC judgment does not undermine the prime objective of the act, as one of the judges had observed that anyone could be subject to sexual harassment though in a culture and society like Pakistan, women were the distressing majority of victims.
According to the judgment, any other demeaning attitude, behaviour or conduct, which might amount to harassment in the generic sense of the word, as it was ordinarily understood, howsoever grave and devastating it might be on the victim, was not actionable within the contemplation of actionable definition of harassment under the act. Giving such restrictive meaning to “actionable” harassment by the legislature in its wisdom impinges the very object and purpose for which the act was promulgated.
Besides the above observations of judges in this case, the employers face difficulty while implementing the act of 2010. The enquiry committee constituted under the act to investigate the harassment complaints consists of three members. One of the members should be a woman, one representative of the senior management and should be a senior employee. If there is a collective bargaining agent (CBA) union in the organisation, one of the three members is to be nominated by it in place of the senior employee.
The purpose of having a separate enquiry committee than the one constituted for holding domestic enquiry for other misconducts committed by employees is the sensitive nature of sexual harassment cases. However, the procedure for holding enquiry prescribed under the act is similar to that of other misconducts.
On receipt of the complaint, the accused is issued a charge-sheet. Thereafter, a formal enquiry is held after the submission of explanation by the accused. Both the complainant and the accused are entitled to cross-examine the witnesses produced during the enquiry. There is no issue in adopting this procedure of cross-examination during enquiries for other misconducts. However, it is unrealistic to expect a female victim of sexual harassment to put questions to the man against whom she has filed a complaint.
In most cases of sexual harassment, women are reluctant to lodge a written complaint, as they do not want their friends and colleagues to know about the incident. If on persuasion of her superiors, the victim lodges a complaint, she prefers to be part of an investigation that is conducted only by women.
In order to make the act more pragmatic, the confrontation between the complainant and the accused even in the presence of the members of the enquiry committee should be avoided. The female complainants should only be enquired by a sub-committee comprising women, and another sub-committee consisting of men should interrogate the male accused.
Members of the two sub-committees may formulate their recommendations based on the evidence recorded and documents exhibited during the separate investigations so conducted and forward them to the competent authority for final decision.
Published in Dawn, September 12th, 2021