The amendments proposed to the anti-child marriage law defines a child as someone under the age of 21 years and contradicts laws where the legal age of competence is recognised as 18 years.
The Prohibition of Child Marriage (Amendment) Bill, 2021 , which seeks to raise the age of marriage for women to 21 years , amends the definition of child to mean “a male or female who has not completed twenty-one years of age”. It over-rides personal laws of Hindus, Christians, Muslims and Parsis, as well as the Special Marriage Act, 1954 .
The Lok Sabha has referred this Bill to the Standing Committee after MPs demanded a deeper scrutiny and wider consultations.
Senior advocate Indira Jaising tweeted: “How patronising and patriarchal to call someone over the age of 18 a ‘child’, ready and fit to vote but not to marry, is this constitutional morality.”
The 61st Constitutional Amendment Act of 1988 defines the voting age for elections to the Parliament and Legislative Assemblies as 18 years.
The Majority Act, 1875 , defines the age of majority as “"the age of eighteen years and not before”, and as 21 years if a guardian is appointed. Under the Indian Contract Act, 1872 a person should have attained the age of majority in order to be able to enter into a contract. The law to punish sexual crimes against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012 too recognises a child as someone under the age of 18 and thereby implies that the age of consent for sex is also 18 years. The law that deals with juvenile offenders (or children in conflict with law) and children who need care and protection, that is, the Juvenile Justice (Care and Protection) Act, 2015 does the same.
Under the Right of Children to Free and Compulsory Education, 2009 that guarantees access to education, a child is someone between the ages of six to 14 years. Whereas under the anti-child labour law or the Child Labour (Prohibition and Regulation) Amendment Act, 2016 , which prohibits the engagement of children in all occupations and bans adolescents in hazardous occupations, a child is “a person who has not completed his fourteenth year of age” and an adolescent means “a person who has completed his fourteenth year of age but has not completed his eighteenth year”.
“At one level, we say that the age to enter into contracts and to vote is 18 years. We are recognising that a person has the mental capacity to make decisions that will affect her life commercially or as a citizen, but at the same time when it comes to her personal life, she doesn’t have the right to make decisions. The proposed law makes an artificial distinction. By making marriages under 21 years invalid, we are criminalising those who marry under this age and depriving them of protections under law,” says Divya Balagopal, senior advocate, Mundkur Law Partners.
“The term child has a lot connotations in terms of levels of protection required, and capacities and abilities to take decisions. Does the government want to bring young people in the age group of 18 years to 21 years into that category?” asks Kavita Ratna, convenor, Young Voices, which made a representation to the task force on the age of marriage led by Jaya Jaitley.
She adds that the UN recognises adolescents as a unique group in terms of life choices, sexual identity, political thoughts, decision making, etc.
In its “General comment No. 20 (2016) on the implementation of the rights of the child during adolescence”, the United Nations Convention on the Rights of the Child says that “any investment in young people risks being wasted if their rights throughout adolescence do not also receive adequate attention...investment is needed to address the societal drivers serving to exclude and marginalize them [adolescents]”.
Tweaking the definition of a child by amending the age criteria should be done only when it enables, and not when it deprives someone of their rights, warn experts.
“It is necessary to have differential age in terms of determining children’s capacities, but it should be for the advancement of their rights and not to take them [their rights] away. In the context of sexuality, we have to look at the age of consent in a more nuanced manner and recognise that if there are children above 16 years who are sexually active, and it is a normal part of their development, they shouldn’t be criminalised for it. Age doesn’t have to be the same for everything,” says Swagata Raha, head of research and co-head of restorative practices at Enfold India.