Gender disparity is a globally existing phenomenon. According to the Global Gender Gap Report, 2022, India is ranked 143rd out of 146 countries showing extreme gender imparity in economic participation and opportunity. Pakistan stands at the 145th position out of 146.[1] One of major reasons for this disparity is the division of public and private spheres of work, restricting especially women to private spheres only.[2] Other reasons including patriarchy, societal expectations, imbalance of power in the workplace, gender bias and employer policies have disproportionately affected women in India and Pakistan. The World Bank data shows that out of the total labour force, only 19.3% of women are employed in India and only 21% in Pakistan at the end of 2021.[3] Such a low percentage of participation of women in the labour force contradicts the right of equal opportunity to work enshrined in the Constitutions. One of the major factors contributing to this contradiction is the existence of sexual harassment in the workplace.
With the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by both India and Pakistan, the constitutional values of equal access to employment opportunities and no discrimination based on sex became easier to realise, at least on paper. CEDAW further defined sexual harassment and workplace. As India and Pakistan have both ratified the Convention, a domestic legislation needs to be enacted to give effect to the provisions of CEDAW.
Laws revolving around Sexual Harassment at Workplace and their evolution
● India
The provisions of CEDAW regarding sexual harassment at workplace were given effect in India through the guidelines laid down in the case of Vishaka & Ors. v. State of Rajasthan (1997). In this case, the complainant was brutally raped by 5 men for stopping a child marriage as a part of her employment duty. The Supreme Court through this judgment emphasised on the need to enact a legislation to deal with sexual harassment to provide women a safe environment to work in. The Court laid down guidelines that highlighted the role and responsibility of an employer to provide a safe working environment and mandated organisations to provide a time bound redressal mechanism to redress the complaint filed by the victim (Guideline 6).[4] Besides this, the Supreme Court also set the definition of sexual harassment and the term "unwelcome behaviour" in accordance with CEDAW's criteria.
Following this, noting the poor implementation of the Vishaka guidelines, the Supreme Court in the case of Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012) observed that to enable women to work with decency, respect and dignity, implementation of the Vishaka guidelines is vital.[5] The Court reiterated the need of a domestic legislation specifically targeted to address sexual harassment of women at workplace.
This led to the enactment the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 with Vishaka guidelines as its basis. Sexual harassment and workplace are specifically defined under the Act as opposed to the definition of sexual harassment under the Indian Penal Code that is limited to public spaces.
According to Indian law, the most crucial component of sexual harassment is ‘unwelcome behaviour or conduct’ that has a sexual undertone, including favours and remarks, and can be either physical, verbal, or non-verbal. The perception of the conduct is more significant than the intent. In India, according to the law sexual harassment is subjective, and intention is not an essential ingredient.
● Pakistan
The first-time sexual harassment at workplace was defined in Pakistan was with the enactment of the Protection Against Harassment of Women at Workplace Act, 2010 (the 2010 Act). This legislation was enacted with the aim of reducing gender disparity that exists in the workplace as a result of this harassment and to provide women with legal protection. Before the enforcement of this Act, sexual harassment was covered under the Penal Code of the country. However, there was no proper definition given under the law. With the 2010 amendment to the Penal Code, sexual harassment was defined and extended to workplaces for the first time.
In the recent past, the Supreme Court of Pakistan in the case of Nadia Naz v. President of Islamic Republic & Ors. (2021) highlighted that to create safer workspaces, the definition of harassment within the law needs to be expanded. Currently, the law includes only sexual harassment and leaves out any other form of harassment.[6] It laid down that any act or behaviour that is rooted in gender based discrimination and creates a hostile working environment or interferes with one’s work performance should be brought within the purview of harassment under the law. The Court further stated that to have a valid claim for sexual harassment, the victim must prove underlying ‘sexual intention’ in the conduct or behaviour of the perpetrator. However, the Court has failed to provide an understanding of ‘sexual intention’ or what constitutes behaviour that conveys ‘sexual intention or overture’.
In an earlier judgment passed by the High Court of Lahore in the case of Imran Maqbool v. Federation of Pakistan (2019), the High Court emphasized that the 2010 Act is based on the premise of the constitutional right to equal opportunity. It was reiterated that the intent of the 2010 Act was to impose upon the employer the responsibility to provide a safe working space where women can contribute significantly. This judgment also opined that while deciding upon a case of sexual harassment, one should focus on the perspective of the victim.
The guidelines given in the above-mentioned judgments play a crucial role in justifying that harassment is rooted in gender-based discrimination and disproportionately affects women. It is vital to understand sexual harassment in light of the history of gender disparity. Nonetheless, putting the burden of proof on the victim to establish sexual intention and not punishing the perpetrator defeats the purpose of the law.
The Protection Against Harassment of Women at the Workplace (Amendment) Act, 2022 (the 2022 Act)
With the 2022 amendment, the scope of definition of ‘harassment’ was expanded. The definition now includes discrimination on the basis of gender, which might or might be sexual in nature but is likely to embody a prejudicial mindset. It also includes ‘visual’ forms of harassment in addition to physical and verbal. The definition further includes cyber stalking, acknowledging that harassment can happen on virtual platforms as well.[7]
What will be considered as a ‘workplace’ is expanded to include any place where services are rendered or performed by professionals. Earlier, the 2010 Act only included the physical office of the organisation.[8] [9] With the 2022 amendment, a ‘workplace’ now includes any situation that is linked to work or activity outside the office.
An “employee” within the 2022 Act includes domestic and informal workers. It further includes gig workers, temporary, part-time, freelance employees, trainees, domestic workers, home-based workers, and apprentices.
One of the most important amendments is the gender-neutral definition of a ‘complainant’ under the 2022 Act. It acknowledges and addresses the fact that anyone can be subject to harassment in a workplace, including sexual harassment. India is yet to amend/enact a legislation which is gender-neutral in its application and provides protection through law against harassment, including sexual harassment to all.[10]
The 2022 Act marks a huge step towards addressing and preventing all forms of harassment in the workplace. The amendment reflects a commitment to creating safer and more inclusive work environments for all.
Extent of protection provided against sexual harassment under Labour Laws
In India, under the Industrial Employment (Standing Orders) Act and the Industrial Employment (Standing Orders) Central Rules, 1946, sexual harassment has been defined in line with the Vishaka guidelines and protection against the same has been provided to the employees. Moreover, it is interesting to note that under rule 14(3)(1), protection provided is NOT specific to only women employees.
In Pakistan, no specific mention to sexual harassment in workplace can be found under the labour laws.
Conclusion
Due to its prevalence, sexual harassment calls for robust domestic legislation that is effectively enforced. However, to combat a social evil like sexual harassment, legislation alone cannot suffice. In terms of implementation, a milestone is yet to be achieved by both India and Pakistan. Eliminating the societal stigma associated with sexual harassment is the first step. There is a dire need for a stringent accountability mechanism for companies as in Pakistan, there is no provision for government checks to confirm that all organisations have adopted such a code of conduct. This must be done to implement the 2022 Act in its spirit.
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