Earlier this month, the National Commission for Protection of Child Rights (NCPCR) revealed in a report that over 11 lakh children in India could be part of child marriages in 2023-24. The data shows that despite the Prohibition of Child Marriage Act (PCMA), which was passed way back in 2006, our society has been unable to snuff out the perverse reality of child marriage. In a country as diverse and multi-cultural as India, social transformation, more often than not, follows in the wake of binding legal decisions and the question of child marriage is no different.
So when the Supreme Court took up the issue of child marriage and passed a 141-page judgement on Friday, there were multiple reasons to laud what the three-judge bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Mishra had to say. The judgment came down heavily on the despicable institution of child marriage, saying that, “Marriages fixed in the minority of a child have the effect of violating their rights to free choice, autonomy, agency and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency.” These words assert that even a minor has certain rights which child marriages violate, keeping the focus firmly fixed on the negative social aspects of the practice.
But there was another significant sidelight to the Supreme Court judgment. The Centre had urged the Court to rule that the provisions of PCMA would prevail over the personal laws of different communities, but the Justices turned this plea down, lobbing the ball back in Parliament’s court. According to the Bench: “The Prohibition of Child Marriage (Amending) Bill 2021 was introduced in Parliament on 21 December 2021. The bill was referred for examination to the Department Related Standing Committee on Education, Women, Children, Youth and Sports. The bill sought to amend the PCMA to expressly state the overriding effect of the statute over various personal laws. The issue, therefore, is pending consideration before Parliament.” This essentially means that the government will have to amend the law in the legislature and cannot use the apex court’s judgment to push through PCMA over personal laws.
There were other aspects of the landmark judgment worth considering. The court noted that PCMA did not deal with child betrothals and it was quite likely that that this loophole is being used to evade possible punishment as per the law, directing the Centre to examine this aspect of the problem. Parliament may consider outlawing child betrothals, which may be used to evade penalty under PCMA. “While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination,” the Bench stated. The Bench also focused on raising the awareness of communities and not just on increasing prosecutions under PCMA. It clarified that while offenders should be charged, only prosecution without any effort to stop child marriage was not desired.
The judgment was delivered on a plea by the Society for Enlightenment and Voluntary Action, which has sought effective and proper implementation of PCMA that had replaced the Child Marriage Restraint Act, 1929. The court appreciated the society’s act of filing the plea and directed the Centre, states and Union Territories to appoint Child Marriage Prohibition Officers (CMPOs) in every district to implement the PCMA provisions. The court also asked judicial magistrates to take adequate measures to stop child marriages, including keeping a track of “auspicious days” on which mass weddings happen. These are the days on which the incidence of child marriages was high.
The Supreme Court also made it clear that Collectors and Superintendents of Police would be tasked with actively preventing child marriages in their area of jurisdiction and anyone who was involved in solemnising a child marriage should be prosecuted. Another important aspect of the judgment was the directive to the Centre to assess the feasibility of setting up fast-track courts in consultation with the States to handle PCMA cases exclusively. The apex court has given a year’s time for a status report on setting up these courts.
The Supreme Court has given a firm push to the government – and to society at large – to end child marriages. How we act on its directives will ensure if the obnoxious practice can be rooted out from our country, giving children the freedom to build their lives as they choose as adults.