We Do Not Need Ornamental Statutes: We Need To Have Practical Solutions To The Problems We Face. Activist Lawyer Flavia Agnes

nitish kashyap

4 March 2017 6:25 AM GMT

  • We Do Not Need Ornamental Statutes: We Need To Have Practical Solutions To The Problems We Face. Activist Lawyer Flavia Agnes

    Her experience as a victim of domestic violence inspired her to enroll to study law at the age of 33. She earned her Masters in Law in 1992 and has an MPhil in family law, and today, Flavia Agnes is one of the strongest voices we have in our country.

    She is popularly known as a women's rights lawyer and activist.

    Flavia Agnes is the co-founder of Majlis legal centre that not only campaigns, for but also provides legal aid and representation to women and children. Over the decades, Agnes has been instrumental in forming and shaping public and legal opinion on women's rights in our country.

    In a free-wheeling interview to Nitish Kashyap, Agnes talks about personal laws in the country, erroneous judgments and media's coverage of Shayara Bano's petition in the Supreme Court regarding triple talaq.

    LiveLaw: How far do you think India has come in terms of gender equality and women’s rights?

    Flavia Agnes: We have succeeded in enacting laws which are good on paper, but not as far as their implementation goes. So with the result we have not made much progress at all and the ground reality for victims of domestic and sexual violence remains the same where access to justice is extremely difficult. There is not much change in the attitude of judges and other stakeholders towards victims and the perception that women who press charges are liars still persists. Though we have laws which are very stringent, we have low conviction rates and victims are afraid to approach the justice delivery mechanisms due to stigma, delay and uncertainty of verdict.

    LiveLaw: It seems like there has been a sharp increase in false rape cases being filed. Many-a-times, it is a case of cheating. How should the judiciary tackle this phenomenon or should the law be amended further?

    Flavia Agnes: Your question just confirms what I have stated earlier. How do we conclude that a case is false … because it ends in acquittal or because the victim retracts. Before arriving at such a conclusion, we need to understand why a case fails. In a study conducted by Majlis as part of our survivor support programme, 74% of cases which we studied were of minors. Now under the Pocso Act, it is mandatory for all stakeholders to report a case of sexual violence. Many-a-times, girls as young as 13 and 14 years were pregnant and the FIR was filed when medical examination revealed the pregnancy. Cases of family abuse were as high as stranger abuse and usually these cases are filed after the abuse has gone on for a few months or even a year or more. Cases fail due to laxity in investigations, negligence in conducting medical and forensic examinations, due to pressure on the girl by the accused or the girl’s own family to retract etc. By this logic, can we presume that just because there was acquittal in the case concerning Salman Khan regarding rash and negligent driving in which poor people sleeping on footpath were killed outside the bakery that it was a “false case” or do we say that the prosecution was not able to prove the case “beyond reasonable doubt”.

    LiveLaw: Why do we adopt different standards when we are addressing issues of rape and other criminal offences? The conviction rate in all criminal cases is very low. Can we then presume that all these were false cases?

    Flavia Agnes: There are several reasons for the increase in reported cases. For instance, the POCSO Act as well as the rape law under S.376 has increased the age of consent to 18 years and all sexual intercourse below this age is today considered as ‘rape’.

    So parents file rape case even when a girl has eloped with her boyfriend in case, the boy is from a lower class or a different religious community, which is not acceptable to the parents. This done to pressurise the girl to break her relationships with this boy so that the family can ‘marry her off’ to a boy of their choice as the prestige and status of the family depends on it. In such cases, we cannot blame the girl for retraction as she never wanted the case to be filed in the first place. We need to place our finger correctly on this social phenomenon and name it as patriarchal control of young adolescent girl by their own families. There are of course cases where the boy sexually exploits a vulnerable girl on the promise that he will marry her and then dumps her.

    When the girl goes to the police station to complain, the police file a rape case along with a case of cheating to exert pressure on the boy to marry the girl. The criminal law offers no other effective remedy. These are the cases that get highlighted in the media especially if the parties are from affluent background, but we do not pause to think of the injury caused to a young vulnerable girl from a marginalised community who gets exploited and is then left carrying the baby … literally.

    It is important that we do not club all rape cases and judge them by a single yardstick. We need to examine the cases which belong to different categories and work out remedies which are appropriate for each category.

    LiveLaw: Justice Mridula Bhatkar’s reasoning in an order granting bail to a man accused of murder of Muslim youth and said the “accused was provoked in the name of religion”

    Is this order bad in law? What do such orders do to jurisprudence in general?

    Flavia Agnes: Yes the order is bad in law. While bail is the right of the accused, it is burdened with class characteristics due to the concept of pecuniary surety which the rich can afford but is beyond the reach of the poor. Now we have added other peculiar characteristics, that of religion, as the judge seems to indicate that being a Muslim, wearing a pastel green shirt or sporting a beard are sufficient provocations to mitigate the charge of murder, which can be considered while granting bail to the accused. But if the situation was in the reverse, the person would not be granted bail as the crime would be considered grave. Introducing such principles within the jurisprudence of bail is extremely dangerous within a secular and democratic nation. The judge seems to have forsaken caution in her over-eagerness to grant bail to the accused. Judicial discretion while granting bail cannot be arbitrary, or based on flippant grounds, it has to be guided by sound principle of law and governed by rules.

    We have recently witnessed another judge passing derogative comments about a victim while granting bail to the accused charged with sexually abusing his adoptive daughter. According to the judge, Justice Sadhana Jadhav, an abandoned orphaned child, who was asked to write in her own handwriting at the time when she was given in adoption that she is used to “doing dirty things”, provides sufficient justification for granting bail to the accused. Due to quick action by Majlis as part of its survivor support programme for rape victims, the police were pressurised into moving the court for expunging the derogatory comments. [later the remarks were removed]

    These two judgments bring out the urgent need to evolve sound jurisprudential principles which a judge must adhere to while granting bail. In the limited latitude available to the judge, only relevant issues need to be considered such as enormity of charge, nature of evidence, severity of punishment, relations of the accused to the victim, vulnerability of victim and danger to her if the accused is released on bail, the status of the accused and the risk of intimidating victims / witnesses which will hamper the prospect of a fair trial, etc.

    LiveLaw: As someone who has practised in the Bombay HC for almost three decades, what would you say about the calibre of judges today? Has there been a big change since you started?

    Flavia Agnes: This is not something I can comment on since I still practice. All I can say is that we have always had some very bright, confident and innovative judges who go beyond the letter of law in order to “do justice”, some very scrupulous judges who follow the law to the letter and some who are hasty and take quick decisions without weighing all aspects of a case. On the other hand, there are judges who are very thorough and try to grasp the matter in its entirety before passing orders but they are very slow and the cases in these courts do not proceed. As lawyers, it becomes our duty to study the judge’s mannerisms and disposition and fit our arguments to suit what the judges expects.

    LiveLaw: Are you in favour of the current system of designation of lawyers?

    Flavia Agnes: I am not in favour of this system which is archaic and feudal. Contacts and family connections matter a lot. We need to make the system more democratic.

    LiveLaw: What are your views on triple talaq? Do you think the Centre’s stand in the apex court on Shayara Bano’s petition is significant?

    Flavia Agnes: It is surprising that no one has referred to the various Supreme Court and high court judgments which have already laid down the procedure for pronouncing valid talaq. The undue media hype around this case is also disturbing. This entire discourse is used as a stick to tarnish the entire community. I have written extensively on this issue and hence, do not wish to elaborate it here. I am glad that the Supreme Court has narrowed the scope of the litigation and given a time frame for deciding the issue. While doing so, the Supreme Court will have to take note of its past rulings on the issue and lay guidelines as to the correct procedure for pronouncing talaq. 

    LiveLaw: Apart from imposing costs, are there any other methods of tackling frivolous litigation?

    Flavia Agnes: The problem is who is to judge what is frivolous and what is serious? Sometimes serious matters get treated as “frivolous” and costs are imposed.

    At other times, judges give a long rope in cases which I might consider “frivolous” but and the entire court is entertained by frivolous arguments, especially if anti-women comments are being made in the course of the arguments.

    I have been a witness to such type of litigation. During such times, not only the valuable time of the court is wasted but also the dignity and decorum of the court is tarnished. Judges must be very careful while hearing matters that this does not happen. There is a need for clear guidelines based on which a matter can be judged as “frivolous”.

    But the guidelines cannot be used to screen litigation at the time of filing. That would be undemocratic.

    LiveLaw: Trying minors as adults in serious cases like murder and rape, how effective do you think this law will be in the long run?

    Flavia Agnes: I am concerned about the class characteristics of criminal litigation and how young children from marginalised sections of society will become scapegoats when this law gets unfolded in our courts and will suffer great injustice.

    LiveLaw: How would you describe the judiciary’s role in shaping of the law in today’s times?

    Flavia Agnes: Judiciary has a great role to play. As the saying goes, “Law is what the law does”. The complex terrain of statutes, sections and clauses come to life when the legal provisions are contested and adjudicated in our trial courts and in appeal courts and then become “case law” to be relied upon in subsequent cases. This is where the law gets formulated. Rather than a statute, the manner in which a legal provision gets interpreted during litigation is critical in shaping our understanding of law. Today court news has become such an important aspect of our daily news. People are curious as to what transpires in our courts on a day-to-day basis, beyond the routine stuff about courtroom delays and judicial corruption.

    LiveLaw: Should there be an age limit for studying law? What are your views on Rule 28 of BCI’s Legal Education Rules?

    Flavia Agnes: I don’t think there should be an age limit for studying law. The study of law is important to people of all ages and there are many who wish to study law after their retirement, sometimes just out of interest. So there should be no age bar to study law. If an age restriction is brought about, there are many from disadvantaged sections as well as women who are housewives who wish to study law later in life will be affected. Even I studied law much later in life. We cannot presume that those who wish to study law later in life are not serious. 

    LiveLaw: What are the changes that you would want to see in personal laws in the country?

    Flavia Agnes: That is a complex question which needs a complex answer. It has been proved time and again that by enacting new laws we are not able to change mindsets, values, customs and traditions. We had a child marriage restraint Act in 1929 and the child marriage prohibition Act of 2006. The Hindu law also stipulates a minimum age of 18 years for girls. Yet a recent news report stated that 12 million children in our country are married before they are 10 years and 84% of these are Hindus. Similarly, the Dowry Prohibition Act was enacted in 1960. During the eighties, when the issue of women being burnt for dowry hit the headlines, we enacted laws to specifically address dowry murder, dowry harassment, etc. But despite this year after year, the number of women who are killed for dowry or driven to suicide is increasing. An informal study conducted by us of cases of dowry murder which had reached the Supreme Court and the Bombay High Court revealed that over 90% were from the Hindu community. Despite this, there is a feeling that prevails that Hindu law is more progressive than laws governing minorities. Hindu women were given rights in ancestral property only in 2005 (other communities do not have the concept of “ancestral property” or “Hindu Undivided Property”), but has it transform the pattern of property inheritance among Hindus?

    We do not need ornamental statutes. We need to have practical solutions to the problems we face.

    LiveLaw: Your organisation Majlis has worked for women who suffered in the Post-Godhra riots. Do you think the judicial process helped these women or others who suffered in these riots?

    Flavia Agnes: No it has not helped. When the entire constitutional machinery breaks down, the statutory provisions become meaningless. We have observed this at a very close quarters during the post-Gujarat relief and rehabilitation work and while following up proceedings before various enquiry commissions etc.

    Image from here.

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