Pakistan enacted “The Protection Against Harassment of Women at Workplace Act” in 2010. This is the first time that sexual harassment has been defined in Pakistan through a legislative instrument. Before this enactment, there was no clear definition of harassment, whether at public, private or workplaces. Section 509 of Pakistan Penal Code 1860, talked about “insulting the modesty” of a woman but there was no clear definition of “modesty”. Moreover, there was no law to prohibit harassment at workplace.

1. Key Definitions:

Section 2(h) of the Act defines ‘Harassment’ as:

“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.”

On the face of it, the definition of harassment is broad and seems to encompass all forms of harassment in addition to sexual harassment. The Pakistani Act clearly talks about ‘retaliation’ which the Indian Law does not. In one of the cases, while analyzing whether the words jahil (illiterate) and badtameez aurat (uncivilized woman) constitute harassment, it was clarified that in order for an action to constitute harassment, the action should be severe and persuasive enough to alter the working conditions of the victims’ employment or render the workplace atmosphere intimidating, hostile or offensive.

Section 2(n) of the Act defines ‘Workplace’ 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.

In contrast, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, (hereinafter referred to as ‘POSH’ Act) enacted in India, is wider in scope than this law. The language used in the Indian Act with regards to the definition of an aggrieved woman and workplace is more precise, clear and wide in contrast to the Pakistani Act. Under the Indian law, an aggrieved woman includes any woman, whether employed or not. Hence, she can be a visitor too. A workplace includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey. Under Indian law, domestic worker is also included in the category of an aggrieved woman and can file a complaint. However, the Pakistani law does not seem to cater to complaints of domestic workers or those who may not be employees of an organization.

2. Who is the Aggrieved?

As per Indian Law, aggrieved can be women only. Under Pakistani law, even though the name of the Act suggests it is for women, Section 2 (e) defines complainant to mean a woman or man who has made a complaint.

3. Who must have a committee?

The POSH Act provides that every organization that has 10 or more employees, must constitute an internal committee (“IC”) to receive and redress complaints on sexual harassment at workplace while, in Pakistan each and every organization shall constitute an Inquiry Committee within thirty days of the enactment of this Act to enquire into complaints under this Act; where “organization” is defined as a Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semiautonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed a commercial or an industrial establishment or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of 1984) and includes any other registered private sector organization or institution.

4. Written & Oral Complaints:

The Indian POSH Act specifically states that only written complaints of sexual harassment will come under the purview of the Act. In contrast the Pakistani Act has a provision for an oral/ informal complaint which states that – A complainant may report an incident of harassment informally to her supervisor, or a member of the Inquiry Committee, in which case the supervisor or the Committee member may address the issue at her discretion in the spirit of this Code. The request may be made orally or in writing. If the case is taken up for investigation at an informal level, a senior manager from the office or the head office will conduct the investigation in a confidential manner. The alleged accused will be approached with the intention of resolving the matter in a confidential manner.

5. Inquiry Committee and Punishments

Section 3 of the Act requires all organizations, including federal and provincial government organizations, private institutes as well as educational institutes to have an Inquiry Committee. The Inquiry Committee consists of three members where at least one member has to be a womanand a complaint can also be made against any member of the Inquiry Committee itself. The members of the Committee are required to make sure that the environment of the inquiry process is not intimidating and to decide cases without any bias.

Under this act, all the members of the Inquiry Committee are members of the organization whereas Section 4 of the POSH Act in India makes a provision of an External member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment to be a part of Internal Complaints Committee to ensure a neutral and impartial inquiry without any bias or prejudice against any party.

The powers of the Inquiry Committee are described in Section 5 of the Act, which include the power to summon and enforce attendance of any person and examine them on oath, to require the discovery and production of any document, to receive evidence on affidavits, and to record evidence.The Inquiry Committee has the power to medically examine the complainant and to make recommendations to the Ombudsman for appropriate action. Furthermore, the Committee has the power to keep the proceedings confidential.The Inquiry Committee upon its findings can award minor or major penalties to the accused.

Minor penalties mentioned are (a) censure; (b) withholding, for a specific period, promotion or increment; (c) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; (d) recovery of the compensation payable to the complainant from pay or any other source of the accused; Major penalties mentioned are: (a) reduction to a lower post or time-scale, or to a lower stage in a time-scale; (b) compulsory retirement; (c) removal from service; (d) dismissal from service (e) Fine. A part of the fine can be used as compensation for the complainant. In case of the owner, the fine shall be payable to the complainant. This is very similar to the Indian law.

6. Role of the Ombudsman

If the complainant or the accused is not satisfied with the decision of the Inquiry Committee, they can always appeal to the Ombudsman. An Ombudsman has the same powers as are vested in a civil court under the Code of Civil Procedure 1908 (Act V of 1908). Furthermore, a complaint can also be filed by the management of an organization in case it believes that the complainant has made a mala fide attempt to intentionally defame someone. The essential purpose of the Federal Ombudsman, as noted in Saleem Javed v Federal Ombudsman,is to provide speedy and inexpensive justice to the aggrieved parties and thus any decision made by the Federal Ombudsman cannot be challenged in any other court. However, a representation can be made to the President of Pakistan or Governor of the relevant province, as the case may be, in accordance with Section 9 of the Act.

While Pakistani Act provides for Ombudsman; Section 18 of the POSH Act in India has a provision of appeal which states that any person aggrieved from the recommendations of Internal Committee can prefer an appeal to the court or tribunal.

7. Duty of Management and Employer of the Workplace

The entire responsibility for protection of women against harassment has been laid on the management of an organization, indicating that an employer is responsible for implementing the relevant provisions of the Act successfully in their workplace. According to Section 11 of the Act, employers are responsible for the effective incorporation of the Code of Conduct for protection against harassment as part of their management policy to form an Inquiry Committee referred to in Section 3, and to designate a competent authority referred to in Section 4 of the Act. Moreover, it is the responsibility of the employer to display the Code of Conduct in English as well as in the language understood by majority of the employees at conspicuous places to increase familiarity to the rules.

8. Penalty for non-compliance:

If an employer fails to comply with the provisions of this section any employee of an organization may file a petition before the District Court and on having been found guilty the employer shall be liable to fine which may extend to one hundred thousand rupees but shall not be less than twenty-five thousand rupees.

The employer’s responsibility does not end with the display of the Code of Conduct and formation of an Inquiry Committee, it also extends to making temporary adjustments so as to ensure that the accused and the complainant do not have any interaction with each other during the investigation period (which appears to be similar to section 12 of Indian law on interim measures). As already noted, this Act has been accompanied by a Code of Conduct which lays down the minimum standards of behavior which can be improved upon by an organization itself.

The Act must be appreciated since it applies to both men and women, private and non-private institutions including educational institutions, and because complaints can be brought against employees, management of an organization and even members of the Inquiry Committee of an organization. Though the Pakistani Act provides for employer being the accused; there are no separate provisions in the Act to deal with it whereas under POSH act if the complaint is against the Employer himself; then the Local Committee constituted under Section 6(1) of the POSH Act handles the complaint.

– Vaishali Jain, Advocate & Associate