Revisiting (sexual) harassment

In a 2021 case titled “Nadia Naz vs The President of the Islamic Republic of Pakistan and others” (PLD 2021 SC 784), the Supreme Court of Pakistan (SC) adopted a narrow interpretation of the term “harassment”, as defined in Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 (the “2010 Act”). Essentially, the judgment excluded gender-based harassment from the application of the Act, restricting it only to harassment having a “sexual orientation”. Review petitions were filed against this judgment by Nadia Naz and the Attorney-General’s office.

These review petitions came up for hearing before a three-member bench of the SC in March 2023 where, as the Attorney-General for Pakistan, I made the following submissions:

(a) Section 2 (h) of the 2010 Act (prior to amendments made in 2022) defines “harassment” as “any unwelcome sexual advance, request for sexual favours 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”.

(b) While the 2021 judgment had interpreted this to mean only harassment having a “sexual orientation” and excluded gender-based harassment, the meaning of the words “sexual” and “sexually” had not been considered by the SC.

(c) When used as an adjective, the word “sexual” was defined in the Concise Oxford English Dictionary as “1. Relating to instincts, physiological, processes, and activities connected with physical attraction or intimate physical contact between individuals. 2. Relating to the two sexes or to gender”.

(d) In Section 2(h), the word “sexual” has been used in “sexual advance”, “sexual favours” or “physical conduct of a sexual nature”. In the above context, the first definition of “sexual”, i.e., relating to physical attraction or intimacy between individuals may be appropriate. However, the word “sexually” (which is an adverb derived from “sexual”) has been used in “sexually demeaning attitudes”. “Demean” is defined in the Concise Oxford English Dictionary (Twelfth Edition) as, inter alia, “cause to suffer a severe loss of dignity or respect”. In this context, it is the second definition of “sexual”, i.e., relating to two sexes or gender, which is more appropriate.

(e) Consequently, if an employee is subjected to demeaning attitudes at the workplace on account of his or her gender, it would amount to harassment within the definition given in Section 2(h).

(f) Since the different definitions of “sexual” as well as the specific connotations or significance of the term “sexually demeaning attitudes” as relating to gender-based discrimination had escaped the attention of the SC, it had resulted in an erroneously narrow interpretation of Section 2 (h) of the 2010 Act.

(g) While the 2010 Act had been amended in January 2022 vide the Protection against Harassment of Women at the Workplace (Amendment) Act, 2022 and, inter alia, the definition of “harassment” in Section 2 (h) has been substituted (perhaps in response to the 2021 judgment), the said amendment was prospective in nature and that too limited to the Federal law. This amendment would neither benefit the complainants who had suffered harassment between 2010 and 2022 (and whose cases under the 2010 Act may be pending before various forums/courts of law), nor benefit the complainants under the various provincial laws where the definition of “harassment” remained unamended.

(h) If the narrow interpretation of “harassment” in terms of the 2021 judgment was not reviewed, it would disadvantage/exclude all such complainants who may have suffered gender-based harassment or suffered interference with work performance or an intimidating, hostile or offensive work environment, which was not sexual in nature. Therefore, review of the 2021 judgment to the aforementioned extent would avoid a serious miscarriage of justice.

The review petitions were allowed, and the 2021 judgment was set aside, vide the review judgment, also titled “Nadia Naz vs The President of the Islamic Republic of Pakistan and others” (PLD 2023 SC 588). The SC observed that the second meaning of “sexual” as being related to “gender” was not brought to its attention earlier, and it held that the only comprehensible meaning of the term “sexually demeaning attitudes” in Section 2 (h) was demeaning attitudes on the basis of gender, as demeaning attitudes on the basis of physical attraction would make no “rational sense”.

Unfortunately, in a recent case titled “Usman Shahid vs Nadia Sarwar”, the 2023 review judgment in Nadia Naz’s case was not considered by the Federal Constitutional Court of Pakistan (FCC) while examining the erstwhile definition of “harassment” in the 2010 Act. This has resulted in a repetition of the 2021 SC judgment, whereby the FCC has adopted a restrictive interpretation of the term “harassment”. By virtue of Article 189, as amended by the Constitution (Twenty-Seventh Amendment) Act, 2025, it is this FCC judgment, which will now be binding on all courts in Pakistan, including the SC.

While SC judgments are not binding on the FCC, they nevertheless have “great persuasive value”, as recently held by the FCC in a case titled “Shahbaz Masih vs Additional Sessions Judge and others”.

The FCC further stated that “judicial discipline demands that precedent be reconsidered, not ignored and disregarded in silence, and that continuity be preserved except where departure becomes a constitutional necessity. Therefore, this Court would ordinarily respect and follow our earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values.

Any departure from earlier Supreme Court precedent would be reasoned, express, and principled.” Since the 2023 review judgment of the SC in the Nadia Naz’s case was never discussed, distinguished or expressly overruled by the FCC; in my opinion, this is sufficient reason for the FCC to reconsider and review its judgment in “Usman Shahid vs Nadia Sarwar”.

Copyright Business Recorder, 2026