By Sandeep Chachra*
The Census of 2011 estimated that nearly 17 million children in the age group of 10-19 years were married in India. The National Family Health Survey 2019-21 (NHFS)– 5 data sets estimate 23.3 per cent of women aged 2-24 were married before the age of 18 years. A recent report of the National Commission for Protection of Child Rights (NCPCR) has identified more than 110,400 children are vulnerable to child marriage. Civil Society estimates higher numbers and prevalence.
The “India Child Protection” study by the Child Marriage Free India network estimates that three girls were married every minute in the year 2022 in India. However, in the National Crime Records Bureau data only 3,683 cases of child marriage were registered between the years 2018-2022.
While the much awaited new census will provide updated information on the prevalence of child marriage in India and district specific details, it is clear that both for the state and the society, there remains considerable distance to cover in making child marriage history.
The recent judgement by the Supreme Court analysing the issues, existing legal frameworks, gaps and arenas for action is a welcome one to advance action on ending child marriage. Noting that this age-old practice is violative of basic rights of free choice, autonomy and well-being of minors, the Supreme Court prescribed comprehensive guidelines for accelerating various initiatives to curb child marriage.
The apex Court directed convergent and coordinated action from different institutions and implementing authorities meant to translate various existing laws for child protection to grounded substance, beyond papers. Specifically pointing to Juvenile Justice Care and Protection Act, the Protection of Children from Sexual Offences (POCSO) Act, Right to Education (RTE) and importantly the Prohibition of Child Marriage Act (PCMA), it noted that both in letter and spirit the sincerity in implementing laws, particularly the PCMA, seemed missing given the gaps in response mechanisms, processes of rescue and rehabilitation, tracking of vulnerable children, allocation of resources and most importantly the persecution of offenders.
Prolonged trials and poor conviction rates lead to poor persecution and deterrence. Of the 3,563 cases listed for trail courts in 2022 for instance, only 181 cases were successfully concluded with trial completion. At this rate, the India Child Protection study concludes it will take 19 years of clear the backlogs of 2022.
Child marriage is both a symptom and consequence of patriarchy – and the inherent gender inequality. Justified as a custom and social norm obtaining from the past, its practice is often fuelled by economic and safety consideration for girls; and further propelled by the lack of information on real time protection mechanisms and practical support provisions for girls, a lack of knowledge on laws and fear of breaking law. Lackadaisical approach of law enforcement authorities does not help in this regard.
The Supreme Court note considerable differences in the data and information across States, and especially marked the unevenness in deployment of state personnel. The range included Government of Karnataka deploying 58,522 child marriage prohibition officers (CMPO) across various levels in thirty one districts, and the single CMPO per district in Uttar Pradesh. The Supreme Court pointed out that effectiveness of efforts to prevent child marriage would only be possible with adequate deployment of personnel devoted solely to child marriage prohibition duties, free from additional responsibilities.
In the detailed judgement, the Supreme Court observed: “An effective CMPO must make efforts to find their roots in the community, engage with communities and organisations in the area and carry out the painstaking, and sometimes thankless, task of reporting specific factors affecting child marriages in the district, said the court. For a regular review and monitoring, the apex Court has suggested to set up district and state level monitoring units. Age-appropriate and culturally sensitive sexuality education for children in schools, compensation scheme for girls opting out of child marriages, allocation of earmarked budget and establishment of a designated portal for online reporting.” And that the numbers of specific schemes by the Union Government and State Governments available for protection of children needed these officials to reach the last mile through proper planning, execution and making the duty bearers accountable.
In collaboration with UNICEF, ActionAid Association’s efforts together with district administration and state institutions in Odisha, Bihar, Rajasthan and West Bengal to address the issue of child marriage indicates that strengthening of child protection structures, capacities of personnel, and response mechanisms of the district administration can go a long way in creating a child marriage free society. A sustained focus on child protection priorities like safeguarding children from abuse, violence, child labour situations and linking rescued children and adolescents with entitlements and schemes of state and central government through convergent District Action Plan, together with empowerment of adolescent girls powers community ownership and enhances social leadership to address the child marriage and child protection in a comprehensive manner.
As a result of these efforts for instance, 13,936 villages in Odisha have been declared Child Marriage Free by Department of Women and Child Development, with prevention of 3,753 child marriages across state. A remarkable achievement of the programmatic interventions has been that the “Advika” a programme for adolescent empowerment, initially a civil society initiative in the form of Balya Bibaha Pratirodh Manch (A forum of adolescent have said no to child marriage) was adopted by the state and is now a full funded scheme of the State of Odisha with a separate allocation of budget of 50 crores for five Years. “A Day for Children – Fixed Day Meeting on Children’s issues” is another key step to improve coordination among various departments and enhanced the implementation of services and schemes for children, including ending children marriage and adolescent empowerment.
The importance of Supreme Court’s suggestion for making villages child marriage free, bringing back the children to schools and vocational education, capacity building of stakeholders, increase community engagement and interdepartmental coordination is borne out on the ground for these collaborative interventions over the last few years in the above states.
While the guidelines set out by the Court for grounding action around adolescent empowerment and ending child marriage are important, there is also a need to ensure compliance for their implementation on the ground. In this regard implementation and financial allocation accountability need to be ensured. Apart from regular review and monitoring at district and state level, there is need for a national portal, available in public domain which puts out the district level monitoring and progress reports. The essence is to encourage public accountability.
In giving out these directions, the Supreme Court did not deal with important issues like expanding the Right to Education to 18 years. Also the Court chose not to enter in important arena of conflict with personal laws, POCSO and PCMA, age of consent versus the age of marriage, issue of teenage pregency leaving resolution of these confusions and conflicts for Parliamentary decision making, each of these have considerable bearing on child marriage and protection.
The Right to Education for instance is violated by child marriage. Under Article 28 of Convention on the Rights of the Child (CRC), to which India is a signatory the child (defined as one below 18 years) has the right to education. However, our national obligation on Right to Education is currently limited to the age of 14 years. Majority of the child marriages happen in the age group of 14 to 18 years and children and in particular girls are then deprived of their right to education – of free and compulsory education. Similarly, opportunities for skill training before the age of 18 are also lacking. This void exists.
While the Supreme Court also directed to consider the victim of child marriage as “a child in need of care and protection (CNCP)” under the Juvenile Justice Act and given necessary support in order to protect the best interests of the child. However, children who are married off are required to be produced before the Child Welfare Committee (CWC) so that they may be rehabilitated and taken care of. In PCMA, however, boys below the age of 21 years are defined as children and Juvenile Justice Act does not have the mandate to consider children above the age of 18. There are several instances where the CWCs are denying producing boys above the age of 18 who are victims of child marriage.
The apex Court said the centuries-old trajectory of child marriage in India was “threatening” modern laws like the Protection of Children from Sexual Offences Act (POCSO). “The intent of the POCSO Act is to protect children from sexual advances. Child marriage on the other hand is an institution which puts minor girls directly in harm’s way. The institution of child marriage, directly than any other institution, stipulates for the sexual abuse of child brides by design,” the Chief Justice of India said.
The emphasis on POCSO makes a man liable to punishment for having sex with his minor wife, whereas PCMA provides legitimacy to such marriages. Similarly, self-initiated informal unions of minors are not being considered as marriage though these are forms of marriage in different castes and tribes. Hence, they are losing the scope of legitimacy of their marriages are being criminalised using the provision of POCSO.
Given these contradictions, teenage pregnant and adolescent mothers are afraid of approaching formal systems for rescue and rehabilitation even though most of them are children in need of care and protection. They remain invisible from all support, including emergency medical support.
While the issues of autonomy, agency and individualised dignity of a woman was dealt in length in the judgement, but these confusions have remained unresolved.
A rights-based approach, which includes free choice, dignity and autonomy, right to education, right to health and ensured through translation and coherent action on the ground would be that right path to address the challenge of child marriage and make it history.
*The author is a leading member of ActionAid who often contributes to Prensa Latina English News Service.
mh/sch
