In the evolving jurisprudence of gender-based protections, the Supreme Court of Pakistan’s decision in *Nadia Naz and another v. The President of Islamic Republic of Pakistan and others* (PLR 2023 SC 1; 2023 SCP 163) marks a pivotal hermeneutic shift. Delivered on March 14, 2023, this review judgment, authored primarily by Justice Ayesha A. Malik with concurring opinions from Justices Muhammad Ali Mazhar and Yahya Afridi, reinterprets the definition of “harassment” under Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 (the Act). By broadening the scope beyond mere sexualized conduct to encompass gender-based discrimination, the Court not only rectifies an interpretive error but also aligns Pakistani law with global feminist legal theory and international human rights norms.
Case Background and Procedural History
The case originated from Civil Petition No. 4570 of 2019, where petitioner Nadia Naz alleged workplace harassment. The initial Supreme Court judgment of July 5, 2021, narrowly construed “harassment” as limited to “sexualized forms” of behavior, emphasizing overt sexual intent or overtones. This interpretation, as critiqued in the review petitions (Nos. 255 and 570 of 2021), effectively eviscerated the Act’s protective ambit, rendering it “cosmetic legislation” that failed to address broader gender inequities.
The review petitions, argued by the Attorney General for Pakistan (AGP) and the petitioner herself, contended that the 2021 judgment overlooked the polysemous nature of “sexual” in Section 2(h), which 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.”
The AGP posited that “sexual” encompasses not only coital or intimate connotations but also gender-based dimensions, drawing on dictionary definitions (e.g., Oxford, Collins, Merriam-Webster) that bifurcate the term into relational (physical attraction) and categorical (differences between sexes). The Court, invoking its review jurisdiction under Article 188 of the Constitution, found an “error apparent on the face of the record” in the prior judgment’s failure to consider this dual meaning, warranting reversal.
Doctrinal Analysis: Purposive Interpretation and the Gendered Essence of Harassment
At its core, the judgment exemplifies a purposive interpretive approach, as articulated in precedents like *Dilawar Hussain v. Province of Sindh* (PLD 2016 SC 514) and *Mehr Zulfiqar Ali Babu v. Government of the Punjab* (PLD 1997 SC 11). Justice Malik meticulously excavates legislative intent through parliamentary debates, the Act’s preamble, and the Statement of Objects, revealing an aim to eradicate gender-based barriers to employment. The debates underscore alignment with international instruments such as CEDAW (Articles 11 and 13), ILO Conventions 100 and 111, and the Vienna Declaration (1993), which frame sexual harassment as a subset of sex discrimination—rooted in “gender-based power dynamics” that exploit, humiliate, and hostileize.
Critically, the Court’s expansion of “harassment” to include “sex-based discrimination” resonates with feminist legal scholarship. Drawing implicitly on Catharine MacKinnon’s seminal work, *Sexual Harassment of Working Women* (1979), the judgment reconceptualizes harassment as an inequality-producing mechanism. MacKinnon’s “inequality approach” bifurcates harassment into *quid pro quo* (conditional demands) and hostile environment (pervasive demeaning conduct), both predicated on gender asymmetry rather than mere libido. The Pakistani Court’s emphasis on “sexually demeaning attitudes” as gender-motivated degradation mirrors this, rejecting the 2021 judgment’s myopic focus on “sexual nature or form” as antithetical to the Act’s telos.
Justice Afridi’s concurring note sharpens this by dissecting the syntactic structure of Section 2(h), highlighting how “sexually demeaning attitudes” logically demands the gender-based reading of “sexual” to avoid semantic incoherence. This linguistic precision underscores a post-structuralist insight: statutory language is not monolithic but contextually fluid, demanding interpretation that advances substantive equality under Article 25 of the Constitution and the inviolability of dignity under Article 14.
Comparatively, the judgment aligns with global precedents. In India’s *Vishaka v. State of Rajasthan* (1997) 6 SCC 241, sexual harassment was deemed a violation of gender equality, mandating protective guidelines. Similarly, the Canadian Supreme Court’s *Janzen v. Platy Enterprises Ltd.* [1989] 1 SCR 1252 framed it as sex discrimination rooted in power imbalances. By contrast, the Pakistani Act’s original definition, post-review, now parallels these without necessitating amendment (though noting the 2022 Amendment Act’s prospective expansion), bridging a doctrinal gap in South Asian jurisprudence.
Theoretical Implications: Harassment as Structural Violence
This case invites interrogation through intersectional feminist theory. Harassment, as reconceived, is not aberrant behavior but structural violence—embedded in patriarchal norms that perpetuate gender hierarchies. The Court’s inclusion of male complainants (via Sections 2(e) and 2(f)) acknowledges that while women are disproportionately victimized, harassment’s gendered logic can ensnare men, challenging essentialist binaries. Yet, this universality risks diluting the Act’s feminist origins, potentially obscuring women’s unique vulnerabilities in a context where, as per ILO data, sexual harassment impedes economic participation.
Moreover, the judgment’s victim-centric standard—”the standard of a reasonable woman” to assess hostility—echoes objective-subjective tests in U.S. Title VII cases (e.g., *Meritor Savings Bank v. Vinson*, 477 U.S. 57 (1986)), prioritizing the complainant’s perspective over “acceptable behavior” norms. This epistemic shift empowers marginalized voices, countering epistemic injustice where women’s experiences are dismissed as hypersensitive.
However, critiques persist: the remand to the President for reconsideration risks procedural delays, and the judgment’s reliance on dictionaries (lexicography) over socio-legal empirics (e.g., prevalence studies) may underplay harassment’s intersection with class, ethnicity, and religion in Pakistan. Future research could empirically test the judgment’s efficacy in reducing workplace gender disparities.
Broader Ramifications and Conclusion
This decision fortifies Pakistan’s commitment to CEDAW and ILO norms, potentially catalyzing provincial harmonization and enhanced enforcement. It signals judicial activism in gender justice, urging regulators to foster inclusive workplaces free from discriminatory power plays.
In sum, *Nadia Naz* transcends mere correction; it reimagines harassment law as a tool for dismantling gendered oppression. As scholars and advocates, we must monitor its implementation, ensuring it translates doctrinal progress into lived equality. For in the words of the Vienna Declaration, eradicating gender-based violence is indispensable to human dignity—a mandate this judgment boldly advances.