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Branded a criminal for following custom

The District Legal Services Authority of Kerala created a short film, Inja, in the Paniya language to educate the people about the POCSO Act.

The District Legal Services Authority of Kerala created a short film, Inja, in the Paniya language to educate the people about the POCSO Act. | Photo Credit: Special Arrangement

The Nilgiris district of Tamil Nadu has a substantial tribal population. Tribal communities in the region include the Todas, Kotas, Irulas, Paniyas, Kattunayakas, and Kurumbas, each with distinct practices, cultures, and ceremonies. Tribal people practise customs that “civilised” society finds difficult to accept. Child marriage, for instance, is common in some of these communities. There are ceremonies attached to each practice, sanctified by religion. Due to the conflict between some of these traditional practices and the law of the land, tribal people often unwittingly end up in jail.

Customs and laws

The Protection of Children from Sexual Offences (POCSO) Act is a landmark legislation, enacted in 2012, to protect children from sexual offences. One provision in the law mandates hospitals to report to the jurisdictional police station when girls below 18 years of age are admitted for delivery. On receipt of such reports, police authorities are mandated to register an FIR against the person responsible for the pregnancy. This provision clearly intends to punish males who have forced sexual intercourse with girls below 18 years of age. However, the law fails to make room for consensual relationships or validated marriages in some communities. Most tribal people do not keep records of their date of birth. Most of them marry when they come of age and usually have children before they reach the legal age of marriage. As a result, tribal boys are arrested and prosecuted.

Hindu laws are the products of the unification and codification of the customs of a majority of people who follow Hinduism, but they are not inclusive or universal. The law recognises that there are customs and traditions followed by different groups of people, beyond what is codified, and provides that they are equally legal. India is a diverse nation and it is difficult, even improbable, to have a uniform law for the whole country.

Tribal communities in India follow diverse practices, some of which are for survival and adaptation. For example, polyandry is practised by the Gallongs of Arunachal Pradesh, where the brothers of a family who cannot afford a high bride price marry the same woman. This gives them an economic advantage. Similarly, it is natural and logical for tribal communities with a lower life expectancy to marry before they are 18 years old. To treat those who engage in such practices as criminals is to be averse to the tenets of social justice enshrined in our Constitution.

Many tribal communities in the Nilgiris usually get girls married off early, that is, when their daughters attain puberty. Many tribal people are hardly aware of the existence of a law, or the age of majority, or the legal age for marriage. This being the case, arresting the husbands of girls who have happily welcomed the arrival of a baby is cruel. Till date, about 50 such criminal cases have been filed against tribal youth in Nilgiris district. Tribal women are mostly self-sufficient; it is only in recent times that they have started to utilise medical services. If there are unfortunate incidents of prosecution, they may be discouraged to seek proper medical care.

Also read | Tribal girls told to resist practice of early marriage

Codified Hindu laws provide statutory recognition to the customs of Hindus, while also equally recognising customs not dealt with thereunder. Polyandry, child marriage and divorce among tribal communities, practised by them in their own unique ways, are recognised as customs. By being placed on the same pedestal as mainstream custom, polyandry cannot be treated as adultery, nor can child marriage be punished using a standard that the tribal people do not relate to.

The hardships faced by the tribal youth who are arrested under the POCSO Act are manifold. The youth are remanded to judicial custody often without even knowing why they are being arrested. Bail is granted almost two weeks after their arrest, which means they are incarcerated as undertrials. Legal assistance is often beyond their reach. This detention, which is beyond their comprehension, is sometimes viewed by them as ill luck brought by the newborn, leading to the abandonment of the child and a breakdown of marital life. Custodial interrogation in these cases is unnecessary and should not be adopted as routine practice. If at all, police authorities can issue notice under Section 41A of the Code of Criminal Procedure and ask the person charged to appear before them for interrogation instead of arresting and remanding him.

At the outset, while child marriages must be dissuaded, a blanket and rigid law that fails to address multiple factors such as tribal customs, religious validation, adolescent consent and elopement, and criminalises males who engage in sexual intercourse with consenting females, cannot be the solution. The Madras High Court recently quashed cases under the POCSO Act against teenagers for elopement. It held that the Act cannot be invoked in such cases. In Arnab Manoranjan Goswami v. The State of Maharashtra (2020), the Supreme Court reiterated that the basic rule of criminal justice system is ‘bail’ and not ‘jail’ and urged the High Courts and District Courts to enforce this principle. Prosecution cannot be made the norm in child marriage cases, especially when the act is valid in the eyes of personal custom that a person subscribes to.

Child marriages solemnised in violation of upper age limits are voidable under the Prohibition of Child Marriage Act, 2006. After the couple reaches the eligible age, the marriage is ratified and legalised. Criminal cases registered under the POCSO Act against tribal boys eventually end in acquittal for want of evidence or because of compromise. So, no purpose is served with these arrests.

Tools to create awareness

Tribal populations have made substantial headway in education thanks to a targeted campaign to create awareness. Such tools can be employed in the implementation of the POCSO Act. The tribal communities of Wayanad district in Kerala face similar issues as those in the Nilgiris. In response, the District Legal Services Authority of Kerala created a short film, Incha, in the Paniya language to educate the people about the POCSO Act when more than 250 cases were registered against tribal men who had married girls under the age of 18. However, how far a blanket law can make incursions into the cultural practices of a tribal group remains a question.

A provision intended to protect children from sexual abuses/offences is threatening the lifestyle of certain people to whom this country promises social justice. To be branded a criminal for following cultural practices and to be stripped of dignity is cruel. A law that seeks to protect a vulnerable group should not be allowed to strip yet another vulnerable and marginalised group of its rights and practices. India is a nation of diversity and has always managed to balance the interests of diverse groups to ensure democracy and equality to all. An amendment to the POCSO Act is required so that we continue celebrating the cultural chaos that we call our country. After all, law is for its people.

M. Santhanaraman is an Advocate at the Madras High Court


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Printable version | Jun 9, 2022 6:33:49 pm | https://www.thehindu.com/opinion/op-ed/branded-a-criminal-for-following-custom/article65315450.ece