By Hina Hafeezullah Ishaq
“The fact that a girl old enough to look after herself decides to walk in a public place without someone to look after her and without purdah can never be a ground for a miscreant to tease or annoy her for that reason”
In 1957, a five-member bench of the honourable Supreme Court of Pakistan gave a landmark judgment, which sadly has sat in the archives of case law for more than half a century, without being cited much in recent years. In 1954, a group of girls from a college in Lahore went to the Hiran Minar, Sheikhupura, for a picnic, with the permission of their principal. Whilst they were there they were hounded and followed by a group of boys, who uttered obscene words and made indecent gestures at them. The girls reported the incident to the Sheikhupura police, who, after investigation, filed a report, among others, under Section 509 PPC. The additional district magistrate convicted three boys under Section 509. An appeal was preferred to the learned additional sessions judge, Sheikhupura, who acquitted them, holding that no offence had been committed. He also held that boys had an equal right to be in the park and that the girls were ‘rowdy’, unaccompanied and without purdah (veil) and the college administration had been imprudent in letting them go unsupervised.
The government appealed to the high court where the matter was heard by a division bench. The order of acquittal was set aside and that of the trial court restored. The boys then appealed to the Supreme Court of Pakistan.
The honourable Supreme Court observed: “The learned additional sessions judge displayed a serious lack of judicial equilibrium in preaching a sermon to the management of the college that girls should not be permitted to go unescorted and without purdah and that the conduct attributed to the young men who followed and pestered them was perfectly natural.”
The honourable judges also held that “girls are as much entitled to fresh air as boys and that by permitting them to go unescorted and without purdah they are fostering in them a feeling of independence, confidence and self-reliance. The fact that a girl old enough to look after herself decides to walk in a public place without someone to look after her and without purdah can never be a ground for a miscreant to tease or annoy her for that reason. If the learned judge thought that the appearance of educated girls in public places furnishes excusable provocation to young men who come or happen to be in that place, then he was propounding an extremely pernicious doctrine.”
The convictions were upheld.
Harassment of women has been cropping up as an issue, forcing the government to introduce The Protection Against Harassment of Women at the Workplace Act 2010 and also to make amendments in Section 509 of the Pakistan Penal Code.
‘Harass’ in the legal lexicon is defined as “injure” with its synonyms being “to weary, tire, perplex, distress, tease, vex, molest, trouble, disturb”, relating to mental annoyance and troubling of the spirit. In the context of the Workplace Act, harassment has been defined 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. The above is unacceptable behaviour in the organisation and at the workplace, including in any interaction or situation that is linked to official work or official activity outside the office.”
Sexual harassment at the workplace has been covered as abuse of authority, creating a hostile environment and retaliation. Also, the definition of ‘complainant’ includes men as well as women, despite the title of the act. Sexual harassment, as explained in the Pakistan Penal Code, is almost the same as above but in addition to the workplace, it also covers public places like parks, markets, streets, public transport, as well as private places, including homes.
What the amendment to Section 509 PPC has failed to specifically address is the issue of harassment at educational institutions (though covered in the Workplace Act 2010) and cyber-stalking (previously covered in the Prevention of Electronic Crimes Ordinance 2008, currently lapsed). A substantial number of incidents of harassment occur in schools, colleges, universities and academies, as well as on the Internet. Second, the amendment has failed to address the issue of procedure and its accessibility for women in relation to the offence. As regards educational institutions, stricter laws with committees within the institutions, maybe with an independent member, possibly a female lawyer or a psychologist, need to be put in place. Also, stricter punishments need to be implemented against aggressors who are in a position of duty, protection or care including, but not limited to, guardians, educators, trainers, health providers and public officials. Further, the fact of non-availability of independent evidence in such cases needs to be kept in mind and a confidence-inspiring sole testimony of the victim taken into account.
There appears to be no application of mind in amending Section 509 of the Pakistan Penal Code. First of all, sexual harassment included therein is a non-cognizable offence, which means that an FIR cannot be registered without the permission of the magistrate, nor can the offence be investigated without the same, nor can the accused be arrested without a warrant. The law fails to address the hurdles and impossibility of women getting relief under the said provision as well as the probability of re-victimisation upon complaint by the police, the aggressor as well as our lower judicial system. If a woman is harassed in a public place or transport, first she has to locate the police station, which can exercise jurisdiction in order to make a report; further, no procedure has been laid down how unknown persons would be identified and taken to task. One possibility is to make a prompt call to 15, the police emergency, but again our cultural biases and attitudes may come into play, resulting in further hardship for the complainant.
If we were to sincerely address the miseries of women in our country and also uphold the protection of equality given to them by our constitution, the first step would be easy and speedy access to justice. Special laws for protection against harassment in all spheres need to be made instead of practically unenforceable amendments. The law protecting women against harassment at the workplace and the mandatory code of conduct need to be strictly enforced. Prevention of retaliation by the aggressor needs to be implemented in letter and spirit.
Most of all, we need to educate the masses, the law enforcement agencies, our legal practitioners as well as the judiciary. We need to empower our girls to use their rights not in a slipshod manner, but to exercise prudence and make informed choices. We urgently need to stop blaming the victim and instead focus on the aggressor so that such acts are not repeated. It needs to be remembered that the most vulnerable are girls from the middle and low socio-economic status, who have limited choices in life, travel in public transport, and do not have the luxury of relying on their background and contacts to be able to take a stand or make a complaint. We need to ensure that such victims do not suffer in silence. There is a need for a sustained collaborative effort by all segments of society and not just a temporary hype.
The writer is an advocate of Pakistan high court.
Source: The Daily Times, Lahore