02 Mar 2024  |   05:07am IST

Gender Based Legal Violations: Failure to Meet Due Diligence Standards

As yet another International Women's Day approaches, Goa continues to have to hang its head in shame for failing to comply with due diligence standards in addressing gender based violence
Gender Based Legal Violations: Failure to Meet Due Diligence Standards

Albertina Almeida

India is a signatory to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). From time to time, the treaty body under CEDAW makes General Recommendations. They are, in the nature of elaboration, or interpretations of the law of the kind that the Supreme Court of India makes. In CEDAW General Recommendation no. 19, it was explicitly clarified the definition of discrimination as spelt out in Article 1 of the Convention, includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.

 It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.  The State is obliged to take measures to eliminate violence against women by any individual, organisation or enterprise, apart from not committing violations against women itself.

The obligation of the State is an obligation of due diligence, and the State is liable for failure to meet standards of due diligence by taking all appropriate measures to prevent, as well as to investigate, prosecute, punish and provide reparations for, acts or omissions by non State actors that result in gender based violence against women, including actions taken by corporations operating extraterritorially.  The obligation of due diligence requires that States parties must adopt and implement diverse measures to tackle gender based violence against women committed by non State actors, including having laws, institutions and a system in place to address such violence and ensuring that they function effectively in practice and are supported by all State agents and bodies who diligently enforce the laws. 

It is an established fact that when the State fails to take all necessary measures to prevent, protect from and rehabilitate those who have suffered gender based violence against women in cases in which its authorities are aware or should be aware of the risk of such violence, it is in effect embrazening the perpetrators of gender based violence. But this writer has found that there is often complicity of the State in protecting its own who are involved in gender-based violence. 

For instance, last March saw the State confirming and revoking the suspension of a police officer who was on probation, which  the preliminary report had indicated to be seen as doing legal violations against the complaining woman. This even as it dragged its feet in taking further steps pursuant to the preliminary enquiry report. Not only was the officer confirmed, but the same officer was provided plum assignments such as the National Games. This is just an example. In so doing, the State in Goa, has completely abdicated its responsibility to give women a sense of protection and reassurance. Failure of the State in Goa to provide protection to women, from vigilante right wing groups that are on the rise, is another emerging phenomenon.

There has also been failure of due diligence by the State in Goa, in redressing sexual harassment of women at the workplace. We now have a law called Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013. But in State and State supported organisations and institutions itself, after the preliminary inquiry is conducted, the organisations are found dragging their feet in formulating a charge sheet, before the next level of inquiry can be conducted by the Internal Committee, thereby completely defeating the timelines prescribed under the law. 

The State in Goa, seems to lack the will power to redress technology mediated emerging crimes and legal violations against women, and this is reflected in how cybercrimes are committed against women with impunity, and again the State displays lack of due diligence, and drags its feet in corresponding with Interpol or simplifying internal processes for prompt redressal of these violations. This writer has herself closely followed up a case of a cybercrime against a woman, where it is so apparent that the State has simply been negligent, in carrying out the necessary communications, including with the intermediaries and taking necessary steps when Banks or concerned have failed to provide the documents requisitioned, when there is a clear paper trail of the transfer of monies, following the assurance of a fiancée visa.

What is worse, is that women who complain, are kept completely in the dark about the state of the investigations/inquiries, or given vague answers, and are left wondering what has happened to their complaints, even as the perpetrators roam free with their chests out. Women are made to run from pillar to post to even get a whiff of what is the action taken on their complaints, when there should have been a single window to inform them and they should not require to file applications under the Right to Information Act, 2005, to get this information. The latter law was not enacted as a barrier to women, but should have facilitated by auto provision of information of where victims of gender based violence have to turn to, and actions taken. 

This is followed by lack of due diligence by the State in providing women in  institutions, including residential care homes, asylum centres and places of deprivation of liberty, with protective and support measures in relation to gender based violence as required by General Recommendation 35 (GR 35) under CEDAW. The State in Goa has also established but failed to effectively operationalise appropriate multisectoral referral mechanisms to ensure effective access to comprehensive services for survivors of such violence, as required by the said GR 35. The State in Goa has also failed to provide the budgeted resources.

Again, if one were to give an example, the truth of the matter is that lakhs of rupees are still owing to the One Stop Crisis Centres (OSCC’s), one each in North and South Goa for the expenses that they have incurred under provided budget heads. The provided budget heads include salaries (measly as the salaries provided are) for even the skeletal staff to be recruited in these centres for administration, psycho social counselling and security, clothing, medication, transport to escort women to access the legal system. 

 The State has conveniently tried to absolve itself of its responsibility for crisis interventions in cases of gender-based violence by thrusting the same on the shoulders of well meaning NGOs, while not even providing necessary financial support that it committed to provide the NGOs that are running the OSCC’s.  

Lack of due diligence by way of lack of appropriate mechanisms and homes, also led to helplessness in dealing with the confinement  of a trans-woman activist in Goa, who eventually died a few months ago. Who knows how many homes are the sites of similar confinement and compulsion to deny their trans-woman identity? But where will transgender women turn to if they complain?  

As yet another International Women's Day is around the bend, Goa continues to have to hang its head in shame for failing to comply with due diligence standards in addressing gender based violence against women.

(Albertina Almeida is a lawyer and human rights activist)


Iddhar Udhar