Child before the law

The new National Policy for Children defining anyone below 18 as a child ignores Indian social realities.

After the December 16 Delhi  rape case, legal and human rights experts called for  a legal redefinition of the term ‘child’. Accompanying these calls was the suggestion to reduce the age of a ‘juvenile’ from 18 to 16. After a public debate, the recently passed National Policy for Children 2012 has however defined a child as anyone below the age of 18. Further, recent decisions to amend the Juvenile Justice Act 2000 seek to replace the word ‘juvenile’ with ‘child’. This move standardises the previous ambiguous definitions of a child in India but does not amend the definition of a ‘child’ in each and every law automatically. It can then  overcome the inconsistency where every law in India defines a child differently.

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Take a look at the different laws, often at variance, mandating different legal ages for a child.

  • Under the Age of Majority Act 1875, every Indian attains Majority at 18 years of age, unless another law ‘specifies’ otherwise.

  • Section 2 of the Prohibition of Child Marriage Act, 2006 states that a male has not reached majority if he has not completed twenty-one years of age, and a female, has not reached majority until she is eighteen years of age.

  • According to the Child Labour (Prohibition and Regulation) Act, 1986, a child is a person who has not completed 14 years of age. (The Amendment to this act prohibits employment of any child below 14 years. It also adds a new category of persons called ‘adolescents’ between 14 and 18 years of age.)

  • The Factories Act, 1948 and The Motor Transport Workers Act 1961, both define a child as a person who has not completed 15 years of age and adolescent as one who has completed 15 but not 18 years of age.

  • The Plantation Labour Act 1951 states that a child is one who has not completed 14 years of age and adolescence as one who has completed 14, but not 18 years of age.

  • The Beedi and Cigar Workers (Conditions Of Employment) Act 1966, defines a child as one below the age of 14 (but does not define an adolescent).

  • The Merchant Shipping Act and Apprentices Act 1961 don’t explicitly define a child but state that an individual below 14 is not permitted to work

  • The Mines Act, 1952 Act defines an‘adult’ as a person who has completed 18 years of age (and hence anyone below that age would be a child).

  • The Indian Penal Code 1860 finds that a person above 7 is criminally responsible for an action and incase of a mental disability or inability to understand the consequences of his action, the age is raised to 12.

  • The various state Shops and Establishment Acts define a child as someone below the ages 12-15 years, accordingly.

  • For protection against kidnapping, abduction and related offences, a child is one below 16 (male) and 18 (female) years.

  • The Protection of Women from Domestic Violence Act 2005 defines a child as any person below the age of 18, and includes an adopted step- or foster child.

  • Under Section 118 of the Evidence Act, even in the absence of an oath, the evidence of a “child witness” can be considered, provided that the witness is able to understand the answer thereof. The only precaution that the court should bear in mind that whilst assessing the evidence of a child witness, the witness must be reliable and his/her demeanour must not have a likelihood of being under influence or tutored.

  • Under Section 375 of the Indian Penal Code, sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape. An offence of rape within marriage stands only if the wife is less than 12 years of age. If she is 12-16 years, it is an offence though with a milder punishment. Once the age crosses 16, there is no legal protection accorded to the wife.

If we look at these laws as individual pieces of legislations, they are terse, catering to a specific context. But when combined together to form a child protection mechanism, they contradict one another and make little sense. An individual is a major at 18. But a girl can legally marry at 18 and a boy at 21. If the girl is raped within marriage at 16 years and four months of age, there is no punishment for her ‘husband’. But the legal age for a girl to marry is 18. While outside of marriage, neither a girl nor a boy can have consensual sex before the age of 18.

The 5-year old girl who was recently brutally raped and assaulted in Delhi, is a ‘child’ under the Juvenile Justice Act (under the category of children in need of care and protection). And so is the 17-year old male who brutally raped and assaulted a girl in the December 16 Delhi gang rape case: he is a ‘child’ under the Juvenile Justice Act (under the category of juvenile in conflict with the law). This accused cannot have consensual sex or marry, but according to the a different set of laws, he can work in factories and hazardous industries.

By fixing the age of a child as 18, the new policy has set to define a standard norm. If that standardisation is what the Indian legal system seeks, there is a need to individually amend all the relevant laws mentioned above, defining a child and standardising the age. Simply creating a policy, that labels everyone below the age of 18 as a child is not enough.

But such change has serious consequences. It stems from the paternalistic perception that one becomes an adult only after reaching the age of 18. The entrenched social and moral perceptions of a ‘child’ ignores that Indians, especially in urban areas are growing at a younger age — emotionally, mentally and physically. Research shows that among the lower economic classes in urban cities, responsibilities and a desperate need for economic self-reliance ensure that a child thinks as an adult much before the legal age. Similarly, life on the streets for most vagrant children ensures easy access to adulthood — employment in various non-formal sectors, exposure and access to sexual activity, substances (alcohol and narcotics), violence and a lack of familial structure. Economic fluidity (which results in stable nutrition, health and education provisions for children), access to different forms of media and communication and the rise in nuclear families ensure that most urban children  in middle and upper middle classes grow up in an environment very similar to the developed countries, resulting in early exposure to adulthood and hence at a faster pace than the previous generations.

Standardising the legal age of a child to 18 pretermits the category of young adults, those between 16 to 18 years of age. It believes that young adults are children unable of comprehending their actions. Data on juvenile crimes proves this fact. Between 2001 to 2011, juvenile crimes have escalated in India by 65 percent to 25,125. As per the NCRB data, 64 percent of these juvenile criminals are young adults, in the age group of 16 to 18 years. The Indian legal system instead needs to look at young adults as rational human beings, who are months away from adulthood.

The current legal system tries every individual below the age of 18 as a child through the Juvenile Justice Board. Without attaching too much importance to the seriousness on the nature of the crime committed, all juvenile offenders are put into reformatory homes until they reach the age of 18. This measure is a burden on the reformatory homes — most reformatories  face severe infrastructure and expertise deficit — which are forced to take in young adults and treat them as children.

The ideal amendment to the National Policy for Children would have been to incorporate the term ‘adolescent’ defining it as those belonging to the age group of 16-18 years. This does not automatically mean harsher punishments for adolescent offenders, or abandoning those in need of care and protection. It means recognising that this segment of population is neither a child nor is it at par with adults and therefore, should be treated legally on a case by case basis. By standardising the age of a child below 18 irrespective of the context, the new National Policy for Children fails to accept the contemporary social reality of India, the evidence of which was seen in the December 16 Delhi rape case.

Photo: John ‘K’