Ms. Flavia Agnes is a lawyer who has worked in the field of women’s rights for over two decades. She is a co-founder of Majlis Legal Centre, Mumbai, that provides socio-legal support to women and children on issues of matrimonial rights, domestic violence, sexual abuse, etc. She has several publications to her credit and is a regular contributor to the newspapers. She kindly agreed to have a chat with us [Avani Chokshi, Editor and Mansi Binjrajka, Associate Editor] in Mumbai. Following are the excerpts from the interview.
Q. Could you give our readers a brief history of Majlis? In your opinion, what was the crucial turning point in its history? Where does its future lie?
A. Some of us were part of the women’s movement in Mumbai for about a decade before Majlis was set up. I was part of a campaign group, which worked for rape law reforms in the early eighties, and also worked on providing support to women victims of domestic violence. My friend Madhusree Dutta was a theater director from Kolkata who had recently moved to Mumbai and was engaged with arts, cultural performances, etc. and was trying to evolve a new feminist language in this field and wanted to make socially relevant films. Others were also from different disciplines such as architecture, literature etc. We wanted to be innovative, relevant, creative and consistent so we came together and set up Majlis in 1990 and registered the organization in 1991 as a Public Trust and Society. I was keen to shift from protest and campaign to more sustained ground level intervention at a professional level as a lawyer.
Q. Many women’s rights organizations, especially NGOs, have shifted from rebellious organizations to bodies that are considered experts in the field. They now have a role to play in government consultations and policy decisions. How do you view this change? Does this amount to a co-optation of the radical edge that the women’s rights organizations had? Or is it simply a feminist victory?
A. I don’t view it as a negative trend. It is a mature and sustainable move. Though we claimed to be ‘activists’ we were not working at the grassroots; the protests were sporadic. It was important at the initial stage to focus on the issue and create public awareness through protests. But once we were able to get the necessary reforms in law, we needed to work on a more sustainable level. Providing long term litigation support for victims of domestic violence was a priority. I was convinced that we must work within the main stream and make our presence relevant in order to bring in changes in courts, in legal academics, and build a knowledge base of feminist legal theory. We had to change the perception of the government authorities from being mere trouble makers who are constantly holding protests, to serious lawyers and scholars.
Q. One of the objectives of Majlis Legal Centre has been to ensure that no discriminatory laws against women are passed by initiating public interest litigation and through policy level interventions. Can you tell us about this process? Have there been any unintended consequences to Majlis’ work in this respect?
A. No, I don’t think so. We initiated campaigns around some important concerns – like opposing the government’s move to introduce the Uniform Civil Code (“UCC”), particularly in the wake of the demolition of Babri Masjid and the Bombay riots of 1992-93 and a right wing tilt in politics, the rise of Shiv Sena in Bombay, the rise of BJP at the national level, etc. and also to counter the women’s movement’s demand regarding the same which we felt was short sighted and not politically grounded. So writing articles and interventions in conference was important and we did succeed. For reforms from within, we campaigned for reforms in Christian personal laws both through litigation as well as campaigns. We negotiated with the Church and the State to bring amendment to the Indian Divorce Act so Christian women can secure the right of divorce on the ground of cruelty. We worked within the area of Muslim law to counter the anti-Muslim propaganda and highlighted the positive rulings within the Muslim Women’s Act, 1986 and how they could be beneficial in ensuring the rights of Muslim women. We took up the issue of rights of bar dancers in Mumbai and launched a campaign and when the government brought a ban, we challenged it in court by representing an association of bar dancers. We also initiated smaller campaigns like challenging the fraudulent marriage registrations through ‘vivaha karyalayas’ and highlighted how women’s rights are defeated when the marriage is held invalid. We also took up the issue about a woman having to pay charges of imprisonment of her husband for non-payment of maintenance which is called “jail butta” charges and got a circular issued to abolish this by working with the High Court and the State Government. When in 2001 the ceiling of Rs.500 under S. 125 of the Code of Criminal Procedure (“CrPC”) was removed, our magistrates’ courts failed to take note of it. So we urged our High Court Registry to issue a circular to all magistrate courts and family courts to ensure that this is followed. These are significant interventions at a policy level.
Q. What are the difficulties you faced to set up Majlis as a non-governmental human rights organization involved with rights and culture?
A. Post Bombay riots we faced a lot of problems because of our name ‘Majlis’ which is associated with Muslims and Muslim fundamentalists. Every time we had to seek a registration there was pressure on us to change our name. But we stood firm and fought for our right because the name reflected our secular ideology and sensitivity towards minorities. It has taken around two decades for us to get acceptance from various government bodies.
The idea of an organization which is engaged with law and cultural initiatives was novel at the time and many experts from these fields were doubtful as to how it would work. But the work of the legal centre and the cultural centre was complementary during the initial years. Also secularism and a rights discourse were integral to our functioning that served as a common thread between the two units.
Q. The proponents of UCC in India often base their case solely on the apparent plight of Muslim women in India. In this one-sided argument, what issues do you think are being overlooked?
A. The demand for a UCC was first articulated from women who were politically active in the nationalist struggle who realised that all personal laws are based on a patriarchal structure. But after independence, the same women realised that it is important to bring changes for Hindu women as they lagged behind their Muslim and Christian counterparts as they did not have a right of divorce and a right to property. So we got a series of Hindu family laws in the fifties despite the Constitutional mandate of equality and non-discrimination on the basis of religion. No one seemed to mind this and it was considered progressive. In 1976 only Hindus marrying under the Special Marriages Act were taken out of the purview of the more egalitarian Indian Succession Act and were placed under the Hindu Succession Act so that the men could retain their right to ancestral property. This move was both anti women (strengthening male dominated HUF property concept) as well as anti minority (only Hindus were given this benefit and not minorities). No one, even from the women’s movement, opposed this. But when divorced Muslims were taken out of the purview of S.125 CrPC and were placed under a special ‘Muslim’ Law of maintenance post the Shahbano controversy there was a huge furor in the country from women’s groups as well as secular human rights groups. Since The Muslim Women (Protection of Rights on Divorce) Act, 1986 (“MWA”) was passed amidst a great deal of controversy and since it was viewed as “appeasement” of Muslims, this law was challenged for its constitutional validity by these groups. But meanwhile when divorced Muslim women were approaching the courts for their right of maintenance and post divorce settlement, the courts were giving a positive interpretation of this law, and granting women lump sum amounts. These path breaking judgments of the lower courts did not get any publicity in the media. This is due to an inherent bias against Muslims in civil society, media and even legal scholars. Though there is polygamy among Muslims, each wife is entitled to maintenance. Among Hindus widespread polygamy still prevails but Hindu women are denied maintenance when their husbands deny that they are ‘wives’ and plead that they are mere concubines or ‘kept’ women. Even this issue is not sufficiently publicised.
Since, as litigating lawyers, we notice these issues when we litigate on behalf of women, we feel very strongly about the way Muslim law is negatively portrayed. If legal scholars and activists believe that Muslim women have no rights until a UCC is enacted, they will pass on this negative projection to local NGOs, budding lawyers and to women who approach them for help. This results in a great disservice to Muslim women. If there were more lawyers like Majlis’ lawyers who are able to effectively guide women and litigate for their rights, instead of spreading negative propaganda, many Muslim women would have benefitted.
The media highlights only negative aspects like the Imrana case where a local qazi issued a fatwa at the instance of a journalist that the marriage of a Muslim woman raped by her father-in-law is dissolved, though this may be an isolated incident with no legal validity, only to sensationalise the issue that Muslim law is barbaric and archaic and to argue for a UCC. On the other hand, even the 2001 constitutional bench ruling in Danial Latifi case, which upheld the constitutional validity of the Muslim Women’s Act and secured the right of fair and reasonable settlement for life did not get much publicity. Another important SC ruling of 2002, Shamim Ara which invalidated triple talaq has also not been publicised. A woman from no other community is humiliated in court the way a Hindu woman is humiliated when her husband states that she is a mistress and not a wife and hence not entitled to maintenance. These instances have a political context.
Q. Have Majlis’ collaborations with the government, in the form of RAHAT and MOHIM, facilitated Majlis’ work in other areas?
A. For about 20 years from 1991 to 2011 we had made significant contribution to women’s rights through litigation, scholarly writings and public campaigns. In 2003 we also started a programme of awarding fellowships to women lawyer in district towns so that our work can spread to district towns. We had handled around 50,000 cases. Since we were able to use the law effectively and get positive results there were constant demands on us to scale up and start “Majlis” elsewhere. But we knew that this is not a workable model because we were dependent on foreign funding. If the funds did not come the work would stop. For instance, after 7 years our very effective programme of district lawyer fellowship had to stop since we did not get funding for it. Also despite our sustained work, our outreach was limited and we were not making structural changes within the system.
So from 2011, we changed our strategy and started working closely with the government. With this our outreach expanded greatly. For instance we could monitor the implementation of the Domestic Violence Act in the whole state, bring out a document of procedures and guidelines to be followed under the seal of the Chief Minister, the Chief Justice, and other concerned high level officials from all stake holder departments. I personally cannot take the credit for this shift. This was the vision of our programme coordinator, Ms. Audrey D’Mello, who joined the organization in 2007 and since then we worked gradually but systematically towards this goal.
We were entering new terrain, but fortunately we had some very good officers and we received their full cooperation. Our aim has been to work closely with the government but not take any government funding, so that we remain autonomous and the government cannot twist our arms. This has worked well for us.
Q. Majlis has conducted many police and judicial trainings over the years, relating to the Protection of Women from Domestic Violence Act, 2005 (“PWDVA”), Protection of Children from Sexual Offences Act, 2012 (“POCSO”), and sexual violence against women and children. What types of issues arise during the course of these trainings? Have you noticed any improvement in the practices of the police as a result of these trainings?
A. We were lucky that we started our police trainings after the newer laws like POCSO and Criminal Law Amendment, 2013 were enacted and the police were receiving a flak for not following the newer provisions. So we were invited to conduct skill training and explain the new provisions. It was a great moment for us because then not only could we set the terms and conduct the training, but also gauge its impact while helping victims of sexual violence when we went to meet them for providing support. When we noticed lapses we were able to immediately communicate this to the Police Commissioner giving specific details of the case like date, FIR No., name of the police station and name of the concerned officer so that it could be verified and immediate action could be taken. So this kind of end-to-end scheme of training and monitoring has brought in tremendous results.
Earlier most NGOs were complaining that the police do not register cases of domestic and sexual violence. But today, most NGOs tell us that the police do register the case and the attitude of the police towards the victim has changed. This was shared by NGOs at the recent consultation that we had held on the issue of mandatory reporting. We felt really good when we heard these comments.
During training we avoid what is generally referred to as “gender sensitization”. Our focus is on laws, procedures and lapses. It is focused on skill training and the police learn a lot and appreciate the sessions. We also have a helpline so that when the officers who are trained are in doubt about the sections to be applied in a particular case, they call us for clearing their doubts. This has helped in improving conviction rate in our courts.
Beyond this there are attitudinal problems. For instance, when we started the police used to say all rape cases are false, mostly “affair gone sour” type. But when we presented statistics and judgements and adverse comments of the judiciary on lapses in investigations etc. they started respecting our knowledge, because they had never seen court judgement and least of all comments about investigations. Initially they questioned our credibility and doubted our competence and knowledge of criminal law. But soon their attitude towards us changed and our team of young women lawyers were highly valued and respected.
Q. It has been almost two years since the Maharashtra government introduced the Manodhairya scheme for financial support for survivors of sexual violence and acid attacks. As a body which oversees the implementation of the scheme in Mumbai, what are Majlis’ findings on its effectiveness?
A. We consider this as our most innovative intervention because it has greatly helped the victims. The District Compensation Boards have been set up under the District Collector and senior officers from health, prosecution, police etc. and a member from a local NGO with District Women and Child Development Officer (“WCD Officer”) as its member secretary. The financial support is given immediately after the incident. The burden of submitting the FIR and medical report to the WCD Officer is on the police and not on the individual victim or her parents.
A meeting has to be convened within a fortnight and the money has to be disbursed within a week. It does not depend on the end result of the trial. If the medical report discloses that sexual abuse has taken place, the committee cannot dismiss the claim. The amount will be deposited directly into the victim’s bank account and if she does not have one, the WCD officer must help her to start one. A part of the amount can be used for the child’s education.
Most victims belong to lower socio-economic strata, when she receives the amount, her confidence level rises as she knows that she now has some financial security. So we feel it is a well formulated scheme. But deep-seated patriarchal biases still persist and Board members try to stall the process of disbursement by discrediting the victim. The NGO member has to be very strong to argue against this trend.
After the last election, our government changed and many officers were transferred. In the hands of the new government we do not know how the fate of this scheme as the government is planning to review the scheme since the assured funds from the Center have not come in. This is a very disturbing development.
Q. Can you tell us your views on S. 19 of POCSO which mandates reporting of child sexual abuse?
A. Mandatory reporting has its pros and cons. But it is now here to stay. So there is no point in debating it now. While there are some instances where mandatory reporting may have some adverse impact, we need to understand the context in which it was brought about. Several studies had highlighted that a large number child sexual abuse cases remain unreported and even when they are reported, they are not registered. The hospitals do not report, the family or the school authorities do not report, the neighbours do not report. So this provision was included to bring a social consciousness and collective responsibility so that a child is protected. But such a move requires a great deal of ground support which is totally lacking even after three years of implementing POCSO. Unless a socially relevant legal provision has the necessary infrastructure and skilled personnel to implement it, merely adding it in a statute does not help. This is where we are lagging.
Q. What are your views on gender-neutral laws relating to rape, sexual harassment, etc.?
A. A gender-neutral law will take away the specific patriarchal context in which these crimes take place. Let’s take the case recently in the media, the Aruna Shanbaug case. She was strangled with a dog chain. The crime is gender neutral, but the context is gendered. The abuser wanted to rape her, instead he sodomised her, and left her to die, and she was reduced to a vegetative state and she lived in this state for 42 years. Since we live in a gendered society, a gender neutral law will rob it out of its social context. The crime of rape revolves around the notion of sexual purity of women. It is not that young boys, gay men or transgendered are not sodomised. But the social context of a crime of rape is different and very specifically gendered than the other crimes. The context must always be kept in view within the legal domain.
Q. Recently, you have spoken out against the inclusion of marital rape in criminal anti-rape law in India. Can you elaborate on the viable alternatives through which a victim of marital rape can seek a similar remedy?
A. This is because I believe that rape within marriage is very different from rape outside marriage. Within marriage, sexual violence forms part of a continuum of violence including physical, sexual etc. within a marriage contract which is sexual in nature in the first place. According to me this needs a special treatment and a woman needs different kind of support including shelter, maintenance and protection. Sending the person for seven years of imprisonment is not the answer, because the woman may not even want this. Also how is the crime of assaulting a wife with an iron rod any different from having forcible sexual penetration? I feel that by placing sexual violence on a higher pedestal within marriage, we are subscribing to the same old patriarchal notions that sexual violence is a higher degree of violation than physical abuse which paralyses her, breaks her limbs or damages her internal organs. In the eighties we made one mistake by treating dowry related violence as a special category. Now once again we are making another mistake by treating sexual violence as a special category, and very soon there will be articles in the press about how women are misusing this provision, and the entire rape law will get diluted because of this.
Q. Do you believe that S. 498A of the IPC is, today, still an effective mechanism? How do you think that the public as well as judicial misconception of S. 498A, as a law much abused and misused, can be rectified? What do you think of the government’s proposal to make this offence compoundable?
A. S. 498A is overburdened with its projection as an anti-dowry law and it has not received sufficient emphasis as an anti domestic violence law. This is the major problem. The blame for it lies squarely with the women’s movement of the early eighties when there was so much emphasis on dowry related violence and a demand for a specific law to curb dowry related violence, with the result other types of violence was not considered serious. This is the major problem. I had opposed this move even then and had written my own autobiography, “My Story … Our Story of Rebuilding Broken Lives”, to highlight that domestic violence is not always related to dowry. It took the women’s movement 20 more years to reframe the issue as domestic violence and to get a civil law on domestic violence that is relief oriented. But this definition of domestic violence was not projected on to cruelty under S. 498A. The media, the lawyers, the courts and even legal scholars constantly re-emphasized that it is a dowry related law, to the extent that every woman who goes to the police station to complain about severe domestic violence is forced to add a dowry allegation by the police, because of their own ignorance about S. 498A. They refused to consider that cruelty of any kind not related to dowry can be brought within it purview. But the explanation (a) of this act is very clear. If there are sufficient cases filed under it, a sustained media campaign and judiciary takes note of it, it is still not too late to change the perception.
Q. This month, the 257th report of the Law Commission of India was submitted. It clearly states, “we are not in favor of the law placing a presumptionin favour of joint custody”. It proposes: “we are of the view that joint custody must be provided as an option that a decision-maker can award, if the decision-maker is convinced that it shall further the welfare of the child”. What are your views on this system? How effective do you feel this system would be in the Indian context? Do you feel that such a system in India would undermine the authority of either guardian – custodial or otherwise?
A. In India it will be used as an instrument to harass the wife and to make her submit to the husbands demands and as a means of getting away from payment of maintenance. Even in the West there are several studies which have brought out the fact that how women are humiliated, intimidated and threatened during matrimonial proceedings so that they give up their claim for maintenance to retain sole custody of their children. But these countries have state support for single women, shelter homes and also division of matrimonial property, so they are more secure than women of our country who do not have any of this protection. Also the demand for custody is made by a very few urban upper class husbands while a vast majority of litigating husbands are happy to give up custody and not bother to even pay maintenance. Even those who seek custody or regular access, once the divorce has come through, don’t bother to meet their children and this causes them great mental anxiety and trauma. While women are punished for not obeying orders of access, there is no punishment for men, who abandon their children or do not comply with the order of access or maintenance. This is a cause for concern in future matrimonial litigation and will result in great hardship to already burdened women.
Q. It is today accepted that women are not always passive victims, but are sometimes actively involved when it comes to violence, as instanced by the 2002 Gujarat riots and innumerable other instances of caste atrocities. While this is accepted even by most feminists, these same feminists reject the possibility of women being vindictive and misusing the law in the context of S. 498A. Do you think of this as a contradiction? How do we address this?
A. It is like saying, it is the mother-in-law who is most abusive to her daughter in law and not the husband or the father-in-law, and arrive at a conclusion that women are against women and men have nothing to do with it. They are the innocent bystanders caught in this war of supremacy between his mother and his wife, both fighting for his love and affection! It is not men that we are talking about, it is patriarchy, and men and women are both caught in this web. Even children become part of it. Even women prefer to have male children. We live in a male preference society which awards special privileges to men right from birth.
When women attack other women from the opposing communities, during communal and caste riots, we are dealing with identity politics of caste or minority identity in which both men and women are entrapped. We have seen this even during Bombay riots. But the same woman may also get beaten by her husband or even get raped by other men from her own community. There the patriarchy operates.
We have also seen anti-women attitudes even with women judges, as they fear that they will be labeled ‘pro-women’ and they want to prove to their colleagues that they are ‘neutral’ which in factually means being ‘anti women’. In fact many a times, male judges are more sympathetic towards women. Same is also with the women police who can be very brutal with women accused or during protests etc. Gender is not homogenous. It is always linked to power politics and structures of dominance. We cannot have a linear understanding of gender or even patriarchy.
Q. Why, in your opinion, is society hostile towards women who stand up for their rights as opposed to women who portray themselves as victims?
A. It challenges the very basis of patriarchy so men get threatened by such women and want to cut them down to size to restore their own confidence in male superiority.
Q. What do you think India needs at the moment – more laws, better implementation agencies, or more social support structures?
A. I don’t think we need more laws. We need better implementation, better access to justice especially for the poor and the marginalized and better social and legal support for victims in order to rehabilitate them. But the movement has emphasized mainly on campaigns for legal reform and very little on implementation and socio-legal support for victims.
Q. Lastly, what are your views on India’s growing body of scholarship on the law produced by social science and humanities scholars? Do you think this body is actively contributing to substantial knowledge creation or does this scholarship merely scratch the surface and simply turn law into an obscure academic exercise?
A. I am not an expert on this subject. My engagement is primarily with law – sociology of law, legal history and/or feminist jurisprudence. There has been some important scholarship in this area by legal and feminist scholars. The law texts by themselves are devoid of a social context and hence are very limiting. So we are not exposed to the social milieu within which the law was formulated. It is important to place law reforms in their historical context. So such scholarship has an important place in the study of law.
But I also find some of the work in this field, very limiting, as the language used is difficult for a law student to grasp and also it approaches the issue from the perspective of other disciplines and not through the discipline of law. If we approach it from the perspective of law, then it would be necessary not just to follow up a handful of cases or a single case as an anthropological study, we would have to examine it in its totality which would include the general legal trends, the views of the higher judiciary etc. by citing legal authorities in this field. Very often I find that this is not happening.
(Special thanks to Mr. Saptarshi Mandal, Assistant Professor at Jindal Global Law School)
Image courtesy here.