India's personal laws are going through a topsy-turvy time of late, with the judiciary re-interpreting their scope radically, leading to seismic shifts in the public perception of certain deeply entrenched social evils, though not always for the better. But let's begin with the good news.
Towards the end of last month, a nine-member bench of the Supreme Court of India ruled privacy to be a fundamental right, deriving from Articles 19 and 21 of the Indian Constitution, and provided a ray of hope to several issues that are currently tangled up in a legal quandary. On the heels of this ruling came another historic judgment, calling triple talaq — the instant unilateral oral divorce granted to Muslim men by sharia law — unconstitutional.
The recognition of the right to privacy is likely to make the mandatory imposition of the Aadhaar scheme more difficult than the Centre had anticipated. It would also give a renewed boost to the demand for the repeal of Section 377 of the Indian Penal Code (IPC), which criminalises sexual minorities in the country. But, so far, it hasn't been able to shake the patriarchal status quo, which refuses to acknowledge marital rape. The judiciary's failing in doing so has, in turn, opened a Pandora's box.
Apart from its resistance to calling rape within marriage a criminal offence, a bench of the Supreme Court, comprising two male judges, has also decided that girls between the ages of 15 and 17 cannot claim to be victims of rape if the accused is their husband.
By making this exception to the law, or rather expanding the scope of 'legitimate rape', the judges upheld the supremacy of Section 375 of the IPC, which states that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape", even though the same counts as rape, "with or without her consent, when she is under sixteen years of age" and unmarried. An analysis in HuffPost India has already explained the dangerous implications of such a law, especially its ability to dilute the scope of child rights in India.
But now, according to reports, in the latest twist to the case, the prosector on behalf of the NGO that is challenging the law pointed out to the bench that minors in India are protected under Section 42A of the Prevention of Children Against Sexual Offences (POCSO) Act, which overrides other sections of the IPC. But to no avail. The court reiterated its stand, refusing to consider sexual intercourse between a woman who is 15-17 years old and her husband, with or without her consent, as rape.
The Centre, in its turn, justified the exception in the law by pointing out the high incidence of underage marriage in India. Child marriage is an inescapable reality in the country, the government argued, so any legal modification will not only be impractical but also inappropriate under the circumstances.
Nobody debates the fact that India has a severe problem of child marriage, an institution that has lasted for centuries. According to a UNICEF report, cited by The Times of India in April, 47% of girls in India are married by the age of 18 and 18% by the age of 15. There are roughly 2.3 crore minor brides in India, TOI adds. Clearly, the rot in the system goes profoundly deep, with the police, lawmakers and the public carrying on such illegal activities hand in glove with one another and getting away with serious legal breaches.
The Centre has also admitted to the apex court that at least 899 cases of child marriage were registered in the last three years and 136 people convicted in those cases. So, a high incidence underage marriage does not make it legal or acceptable, though it may be informally practiced by sections of society, who are not enlightened or aware of its pitfalls. But the justification of such an evil by an elected government, on the other hand, amounts to nothing but a nefarious cover-up of a systemic failure that has plagued successive governments for decades.
The argument that a practice is part of social reality, or has been for ages, doesn't immediately bring legitimacy to it. By that logic, discrimination on the basis of caste should also be legitimised because millions of Indians are unabashedly casteist in their beliefs.
The only way to root out evil is to be ruthlessly clear-headed about the priorities. Child marriage must go because the futures of millions of minor boys and girls are at stake, even though it may alienate a sizeable vote bank from the government. The age of consent must be raised to 18, instead of allowing for nebulous exceptions, because the Centre, and the courts, are truly invested in gender justice — for no other reason at all.
The argument that a practice is part of social reality, or has been for ages, doesn't immediately bring legitimacy to it.
Such expectations may be premature, even in 21st century India, which is trying to edge its way into the league of superpowers, if we are to go by the recent hullabaloo over a prime-time television drama that had an underage marriage at the core of its plot. It took several public petitions and days of social media outrage for Sony to realise that airing Pehredaar Piya Ki, at any slot during the day or night, wasn't okay, because it depicted a nine-year-old boy as the husband to an 18-year-old girl. If a multinational company is unable to get the fundamental flaw in such a messaging, what hope is there for the millions, who already consider such liaisons to be part of a tradition they must keep alive?
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