Why The Latest Supreme Court Verdict On Child Marriage Falls Short
Studies have shown that criminalisation of child marriage and the excessive use of force to prevent have not been effective solutions to the problem. Questions around poverty, education and the adolescent agency also need to be addressed
On October 18, 2024, a three-judge bench of the Supreme Court of India issued guidelines on the prevention and prosecution of child marriage in a seven-year-old public interest litigation filed by a petitioner organisation, the Society for Enlightenment and Voluntary Action. In recent times, this is a significant apex court ruling on children and young persons’ rights.
This piece argues that while the Supreme Court has rightly recognised the prevention of child marriage as the way forward, it has failed to question the growing reliance on harsh criminal laws which impede the agency and self-determination of young persons.
State’s Obligation for Prevention
Based on international law and Article 14, 15, 19(1)(a) and 21 of the Indian Constitution, the court declared that every child has the ‘right to development’ which creates a positive obligation on states to “create conditions feasible and resources necessary for the full development of children”. Expanding on this positive obligation, the court thus declared that: “The State’s role is not limited to merely punishing offenders but extends to creating an enabling environment where children can exercise their rights freely. This includes the responsibility to not only to legislate against child marriage but also to address the underlying socio-economic factors—poverty, lack of education, and gender discrimination—that perpetuate this practice.”
Taking the rights-based approach, the court added: “The focus on penalisation reflects a harms-based approach which waits for a harm to occur before taking any steps. This approach has proven to be ineffective at bringing about social change.”
As we explain later, research by grassroot activists and organisations have shown that more than prosecution, prevention is the key to deterring child marriages. In the last 15 years, India has noticed a steep decline in child marriages, show official data. Up to 23.3% girls and 17.7% of boys were married under-age, according to the data collected by the National Family Health Survey-5 (2019-2021). In the same survey conducted in 2005-2006, these numbers stood significantly higher at 47.4% and 32.3% for girls and boys respectively.
Law is not the key actor in this advancement. For instance, the number of cases registered under the Prohibition of Child Marriage Act (PCMA) 2006 in the years between 2017 and 2021 were merely 395, 501, 523, 785, and 1050 though the absolute number of child marriages were higher. The court is thus right in identifying and emphasising prevention as the central strategy beyond mere reliance on law.
Research shows that child marriage is closely linked with material inequalities of parents and children: UNICEF found that poverty is a key driver for child marriage with girls from the poorest families being 1.5 times more likely to married under-age. In recent years, Covid-related economic insecurities have put 10 million more girls at the risk of child marriage. Crop cutting, availability of labour, and climate change are other growing reasons.
Anandi, an organisation working with young persons and adolescents in Gujarat, in its analysis of 731 first information reports and in-depth interviews with young girls found a co-relation between early marriage and the education of young girls. They found that around 41% of girls at secondary level had dropped due to lack of schools in accessible distance from their villages.
Against Excessive Criminalisation
The court’s guidelines include (a) frequent reporting and development of standard operating procedures and follow-ups, (b) training and capacity building for various stakeholders, (c) recognising the children at risk of child marriage as children in need of care and protection and developing an individual care plan (ICP) for them (d) compensation for girls who opt out of marriage upon reaching the age of majority under section 3, (E) active action by child marriage prohibition officer, an office which has otherwise become defunct or occupied with other jobs and tasks, and (f) suo-moto action and injunction by the magistrate to prevent child marriages under section 13.
Notably, the court has also read the positive obligation of the State to ensure comprehensive and accessible sex education to children and young persons. Previously, the Justice JS Verma Committee report on amendments to criminal law had recognised the importance of sex education in developing a culture of consent.
However, the judgement leaves a lot more to be done because the underlined premise of criminalisation remains intact. The court could have engaged more robustly with civil society experiences, which have frequently questioned whether reliance on criminal law furthers rights of children and young girls. PCMA 2006 defines child marriage as a marriage where the male is below 21 years of age and/or the female is below 18 years of age. The law punishes any kind of participation, promotion, or solemnisation of child marriage as a criminal offence.
Law Used To Regulate Relationships: Study
Studies have found that law is not necessarily the best tool to curb child marriages, as we said earlier. Enfold Health Trust and Civic Data Lab, in their analysis of 174 cases in three states (Assam, Maharashtra, and Tamil Nadu) registered and disposed between 2015 and early 2023 under PCMA, found that rather than curbing child marriages, the law is often used to regulate relationships. They found that around 49.4% cases under the act were related to self-initiated marriage involving elopements or the victim leaving home to marry a person of their choice. It found that 60% of the victims were between 15 to 17 years of age.
Similarly, another study by Partners for Law in Development of all cases (civil, criminal or otherwise) decided between 2008 and 2017 involving PCMA across High Courts and District Courts, found that elopement or self-arranged marriage are the primary cause of action under PCMA at around 65.06% of cases whereas forced marriages are the least cause at around 4.82% of total cases. It further found that parents have the greatest access to law with around 67.4% cases being initiated by parents whereas girls themselves have the least access to law with mere 3.5% cases being initiated by girls.
This use of PCMA has to be read along with the use of Protection of Children from Sexual Offences (POCSO), 2012 and Indian Penal Code (IPC), which have also come in handy to control consensual adolescent relationships disapproved by family and community. Haq Centre for Child Rights in their study of cases of POCSO in Delhi and Mumbai between 2012 and 2015, found that a significant number of cases registered under POCSO involving children between 16 and 18 years of age are of romantic relationships. In Delhi, for instance, 97% cases under the act involving 16 and 18-years old that ended in acquittal were of romantic relationships.
This demonstrates that contrary to the popular imagination of the law, the law is used often not to curb child marriages, but against adolescents and young persons. Of the cases of adolescents coming in contact with the criminal justice system, a significant number are related to adolescent sexuality and choices. Their ultimate acquittal implies that the criminal process is used as a tool to punish assertion of choice.
The existence of consensual adolescent relationships and their challenges has been recognised in a small but significant way by the Supreme Court in X v. NCT Delhi, where the court, for the limited purposes of access to abortion, read Section 19 POCSO Act and Medical Termination of Pregnancy Act, 1971 harmoniously. Section 19 of the MTP Act creates a mandatory obligation on a registered medical practitioner (RMP) to report any sexual activity below the age of majority which is treated as statutory rape irrespective of consent. The court, in this case, reasoned that the requirement of mandatory reporting means that adolescents in consensual relationships and resultant pregnancy are left with only two options – one, approach a registered medical practitioner and possibly be involved in criminal proceedings under the POCSO Act, or, approach an unqualified doctor for a medical termination of the pregnancy.
The court held that while consent remains irrelevant in the factual sense, it cannot be denied that adolescents and young persons indulge in consensual sexual relationships. The court thus held that for limited purposes of the MTP Act, the identity of minors need not be disclosed by the RMPs under section 19.
There is a general trend of reactive criminalisation and excessive punishments when it comes to violence against women without engaging with the structural reasons behind the violence. Behanbox has reported on this (here). In recent years, there has been a doubling down on such harsh measures.
Need Concrete Strategy
Despite evidence to the contrary, the government has pushed to increase the age of marriage to 21 years and also given an overriding effect to the PCMA over all customs and personal laws under the PCMA Amendment Bill, 2021. States like Haryana, Karnataka have made child marriages void ab initio. The worst of these tendencies are visible in Assam where the chief minister has selectively targeted minority communities for child marriage and has promised to ‘eradicate’ it by all means. This also comes along with proliferation of so-called the “love jihad” laws in states based on right-wing conspiracy theories of Muslim men “luring” Hindu women into marriage
As a judicial authority, the court cannot legislate or go beyond the prayers of the petitioners. However, judicial engagement and recognition of civil society voices and research would have gone a long way in opening a conversation. Worldwide there has been a debate about adolescents and young persons’ capacity to make up their own mind “on the matters requiring decision” in certain contexts. The Indian Parliament has not yet engaged substantially with these questions despite the push from the civil society.
The National Coalition Advocating for Adolescent Concerns, an umbrella civil society group, has called for recognising ‘adolescents’ as a distinct category between childhood and adulthood and sought the development of legal responses according to adolescents’ evolving capacities. Till this happens, prevention will remain a euphemism and not a concrete strategy.
(This piece is a case comment based on the scholarship of various civil society organisations like Anandi, Haq, Enfold, and Partners for Law in Development. The author is thankful to all of them for their scholarship).
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