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EXCLUSIVE | 'Sex with minor wife is RAPE': Why and how NGO 'Independent Thought' began the battle that led to landmark SC verdict

‘It’s a social reality’ is what kept coming in arguments, but this by no means justifies the deprivation and violation of rights of girls, which is otherwise agreed internationally as well as constitutionally and under various other statutes.
Supreme Court of India
Reported by: Parimal Peeyush New Delhi October 15, 2017 17:38 IST

The Supreme Court's verdict criminalising sex with a minor wife that removed a big inconsistency in law that kept a married minor girl out of the purview of the rape law has been hailed as a landmark order. In conversation with Indiatvnews.com, Vikram Srivastava, advocate and founder, Independent Thought, the petitioner in the case who challenged this exception to Section 375 back in 2013, says the SC order blows off the protective cover that law provided so far, allowing husbands of illegal child marriages to force themselves on their wife if she is 15 years and above.

The need now, he says, is for the message to go loud and clear to the most remote corners of the country that if you even think of marrying a child below the age of 18 years, there can be some serious repercussions, even to the extent of criminal liability of rape.

Here are the edited excerpts of the interview:

Queston: You filed this petition challenging the exception to the rape law in 2013. Take us through your journey through these years.

Answer: I have been working on issues of child rights and law for the last 17 years. Having travelled extensively throughout the country, I have a broad understanding of different issues and its impact on children and families. As part of my working, we deal with several other laws that deal with children.

From 2000 onwards, there have been progressive legislations coming in India. All the governments of the time have somehow brought very progressive and good legislations. Starting from the Juvenile Justice Act of 2000, the Prohibition of Child Marriage Act (PCMA) 2006, Protection Of Children from Sexual Offences (POCSO) 2012, the criminal law amendment of 2013, the national plan of action and national policy for children, the national charter – all these things were very progressive.

Vikram Srivastava, Advocate and Founder - 'Independent Thought' Vikram Srivastava, Advocate and Founder - 'Independent Thought'

One of the uniform things in all these legislation and policy documents is the fact that the age of children has been fixed at 18 years. That is the uniformity in all these legislations. POCSO came as a very refreshing thing, in the sense that it not only recognized that sexual offences happen, but also recognized that the existing mechanism and way of dealing with it is not sufficient. It created a very different legal and institutional mechanism to deal with child abuse.

Also Read: Sex with wife below 18 years of age to be considered rape, rules Supreme Court

Q: What were the key changes that POCSO brought about? How did it help your case?

A: There were two very critical things that POCSO brought.

One is the fact that the age of consent was raised to 18. This was also echoed in the criminal law amendment, when the provision within the rape law (Section 375 and Section 376) with respect to the age of consent was also raised from 16 to 18.

The second thing that POCSO did was that it had no exceptions to the general rule. In fact, it created another level of offence, which is the aggravated form, in certain circumstances and relationships. But contrary to the general rule which all these legislations like POCSO and criminal law amendment brought in, there was an exception, like a sore in the eye. This was Exception 2 to Section 375.

This stood completely illogical for a couple of reasons. One, that it was in direct conflict with all the laws that we have talked about. POCSO universalised the age of consent at 18 years. It was echoed by the 2013 amendment in the criminal law. Also, it created no exception.

Second, this provision of 15 years was last amended in 1940, which was 77 years ago. But the criminal law amendment still created an exception. In fact, it continued with the exception in Section 375 of the IPC.

Our petition was purely for the fact that now there is a special law for children, special for a special issue which is sexual offences. This special law overrides the IPC. There are provisions in POCSO which say that it overrides the IPC. That was the very simple plea which we took to court. We purposefully avoided getting into other issues, like those related to PCMA, the void-voidable, the kind of punishments, what happens post-marriage. We also did not touch the larger issue of marital rape.

It was a strategic decision to stick to the age group (argument).

Q: What was the government’s argument?

A: There were some broad arguments that they made. One was that there are a large number of child marriages happening – some 23 million child brides in India. That was their first argument that the number is huge and whatever we decide will have a larger impact on many such couples and children., etc.

Second, it said that marriage and the institution of family is sacrosanct. They said it’s a private affair of individuals, and that the State should not intervene. They also said that State has been trying and progressively legislating, the PCMA was brought in 2006, and that there is ongoing effort to curb child marriage.

But what the court picked up was the fact that in 2006, when the law (PCMA) was brought in, it is understood that the Parliament has already gone through the issues, have debated them, and understood, recognised and created a law to abolish child marriage across the country. That is the reason Parliament brought this law.

The court said during the hearing that the fact that Parliament has brought this law means it also wants to abolish child marriage in India. There is no confusion in it. Any Act which is coming… it is understood that Parliament has already debated, discussed and then taken a firm decision on it.

So, the court was interested in knowing that post-2006 (when the PCMA was in place), what has the State done to better implement the law. What has it done in terms of appointing Child Marriage Prohibition Officers, assisting minor girls in not getting married or getting the marriage nullified., etc.

The court was asking more answers on the implementation part. After a point, even the government in its argument was very clear that they cannot deny that there is a legal conflict and they understood that there is very less argument against it. The exception was standing for no reason and you only have social arguments around it. Nobody can justify a girl being married at 15 and giving birth to a child at 16. Nobody can justify it.

‘It’s a social reality’ is what kept on coming in arguments, but these things by no means justify deprivation and violation of rights of those girls, which is otherwise agreed internationally as well as constitutionally and under various other statutes. That was the larger discussion. Counter arguments weren’t happening it turned out more of a discussion between the three parties.

Q: The SC in its judgement has been very clear that the State has not done enough in terms of implementation of the law to contain child marriages. Can you point out where the State has faltered?

A: Specific to the law, the Prohibition of Child Marriage Act (PCMA) itself is not a very strong legislation. One, because it talks only of prohibition and not about abolition (of child marriage). So, it still gives space for marrying and for the fact that marriages happen, it still has provisions of ‘void’ and ‘voidable’.

Marriages are not automatically void ab initio (to be treated as invalid from the outset), it’s still voidable in most of the circumstances. That is an issue. The lacuna begins from here in the Act (PCMA) itself.

Second comes the implementation part. The fact that most of the children are married off by their parents or guardians, there is lack of complainant in most of the cases.

Third, State has a role to play. Even the state machinery and the officers who are designated as CMPOs (Child Marriage Prohibition Officers) are assumed to be part of the same society and have the same mindset. They understand that stopping a marriage has some repercussion. So, somewhere the implementation part on the ground has just not worked out and has not been pushed to another level.

Legally, if you ask, the 2015 amendment to the Juvenile Justice Act brings in children in imminent danger of marriage as one of the categories of Child in Need of Care and Protection or the CNCP, whereby it means that if a child or any friend of that child informs the government, it should intervene and help the child, bring her before the Child Welfare Committee. The Child Welfare Committee can get into a guardianship role and the protection within the Juvenile Justice system start applying.

So, there are provisions in terms of legally dealing with the issue. There are progressive amendments and legislations coming up. But in terms of institutional working and implementation, there seems to be a gap.

Q: Do people really know that such protection is available to them? Is there awareness regarding the recourse available to those who are suffering?

A: There are three-four aspects to it. One of the laws which has been publicized the most by the government has been the age of 18 and 21. From our childhood days, we have seen advertisements in this regard. Even when only Doordarshan and AIR existed, this law was pushed.

Beyond this law of age of 18 for girls and 21 for boys, not much has been done in terms of creating awareness or linking children.

Third aspect is that children are now getting more aware as a larger number of them are now reaching school. Once they reach school, they are getting more informed as compared to earlier generations. Many children are now aware that there is something like child protection and child marriage and child line exist. They are getting aware of child rights.

Q: Any data on how many complaints have been made through these existing mechanisms?     

A: I’ve heard that in the last three years, the official 1098 Child Helpline number has received close to 30,000 calls concerning child marriages. These 30,000 calls are coming from people who are desperate to stop child marriage. But there is no state response that is coming. So, you have a very small number in the NCRB data (293 cases in 2015). This gap between 30,000 and 293 in the non-implementation part.

These people (30,000 callers) are aware and are seeking support but the support actually rendered or offered is almost negligible.

Q: In the absence of support, how does one then justify the argument that societal mindsets need to change to get rid of child marriage?

A: Status quo is easy, it is painless work. The moment you want to change status quo, you need to make efforts. And that’s the problem.

Secondly, we at times see social culture and law as two separate ways of looking at things. It is not so. Legal culture is very much part of our social culture. Each influence each other. Society influences law and law in turn also influences society as well as mindsets. Law is in fact a very good tool for social change. These are theories that we have all studied.

The change that has happened between yesterday and today is that before the judgment, the law (Exception 2) meant only one thing that if a man wants to marry a minor, we will protect you, be it an Indian man on a man from Arab. The law says ‘we will protect you, please go ahead. You marry a 15-year-old, have an enjoyable life and we will protect you.’

This judgment has blown off that protection. This message has to go loud and clear to the most remote corners of the country that if you even think of marrying a child below the age of 18 years, there can be some serious repercussions. Even to the extent of criminal liability of rape.

The moment this message starts growing, there is bound to be social change. People can wait for two years to avoid jail. They are not foolish. It is only that for the last 77 years, there was a facilitative environment, there was legal protection for people to literally go ahead and choose the youngest girl and marry her. The situation is no longer the same now.

Q: There have been some Muslim clerics who have slammed the SC judgment. How do you respond to them?   

A: Everyone has their own way of looking at what is ‘good’ for society. But our way of looking at it is whether it is in the best interest of children or not. Marrying a 15-year-old girl, regardless of the man’s age, where one of the consequences can be the girl getting pregnant and delivering a child in the next nine months, cannot be in the child’s interest.

Can any reasonable man say it is in the interest of the girl child? Is a girl at the age of 15 ready for marriage? She should be sitting in a classroom and studying and developing her own mind and her career. These are very basic and fundamental questions. Any reasonable man will think like this. That said, there can be no limit to unreasonableness. It can be anything.

Q: Can you point out the major factors that led you to court to bring the change that we have today?

A: There were several factors that were already existing, and have existed for ages. The triggering point was the POCSO Act and the criminal law amendment. That gave us the avenue that there is now a legal conflict. Without these two avenues (POCSO and CrPC amendment) existing, the social arguments could have been built upon. But now the question is of law. The amendments gave us that strength.

Q: Isn’t the girl child suffering also a social argument?

A: Obviously. You move around anywhere, speak to any girl 15 years of age – within your own family or outside. Ask her what she wants in life at this age. You will rarely find somebody say that she wants to marry. It is only when we sit down and talk about it that we realise that it is so obvious. But who will explain this to those clerics. Only they know their explanation of what is good for society. These are very basic and obvious things that have not been taken up. But we choose to get into bigger arguments just to maintain status quo. Nobody wants to change that status quo because it will require effort.

Q: From your experience with children, can you share some examples of how child marriage has affected these children. Can you share some specific instances?  

A: I would not like to get into particulars. Generally, any girl who discontinues education and marries, their life path changes, in terms of her education and profession as well as in terms of the choice of the man. When one is married off at the age of 14 or 15, the kind of groom she will get will obviously be of a different kind. Think of an example where even educated people get married, let’s say during graduation, and then think of a girl marrying when she is in a profession, the person they are getting married to are very different.

But marriage and sexual relationships are just one part. There are several other issues of privacy, aspirations, freedom, right to have a choice. Below 18, one isn’t even allowed to make a choice being a minor. Even in other aspects of life, you are not eligible to make a choice and you have to go through the parents. There are several other issues that get violated.

Education, marriage, sex and career are just the visible part of it. Once a girl is married at the age of 15 or 16, in many ways it ends various other aspects of her being a human being.

Q: In terms of law, what measures would you like to see to end the fallacies that exist in our society when it comes to child rights?      

A: I would like to take a positive stand here. I feel and I request the government to make one amendment in the Right To Education Act. At the moment, the Article 21 (a) of the Constitution caters to only the age group of 6-14. My request is that if you really want to make Beti Bachao Beti Padhao successful—Beti Bachao has got a boost with this SC judgment – Beti Paadhao should get a boost now and the age at least for the girl child under the RTE should be extended to the age group of 14 to 18. If the government is able to match that, I cannot imagine what will happen in the next 10 years. If the government invests 10 years, extends the age group under RTE for the girl child to 14-18 years and ensures that every girl child completes her XIIth in the school and see what India will have. I think those are the measures that the government needs to take up.

Implementation will happen, agencies need to function. We already have too many child protection systems in place. We have the juvenile justice mechanism, the Integrated Child Protection System. There is already an attempt being made to interlink agencies. These things obviously need to be done.

But one positive measure that I see as a potential game-changer is the RTE. Imagine a situation when the girl is free mentally knowing two things – I cannot get married before the age of 18 years and I will have access to free and compulsory education till the age of 18. It will change the demography of the country and transform the way we look at girls in India.     

 

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