The trouble with child rights begins with the very definition of a child in law. A child domiciled in India attains majority at the age of 18. But there are several grey areas in the law here. Under the child labour regulations, for instance, a child is a person under 14 years
Who is a child? When does childhood cease or begin? These simple questions have complex answers. Most of the old world’s civilisations did not consider children human beings with full human value. Thus, childhood was not an independent social category until the beginning of the 18th century. Legislation did not deal with childhood as a period of life that needs special measures of protection until the early-19th century. In his book, L’enfant ET la vie familiale sous l’Ancien Regime, Philippe Aries said that the child in the Middle Ages did not exist as an independent anthropological category and therefore children did not need to be taken into consideration.
The law, policy and practice of child welfare have undergone significant changes from an historical perspective. Before 1839, authority and control was important. It was an established common law doctrine that the father had absolute rights over his children. After this, the welfare principle was reflected in the dominant ideology of the family. Victorian judges, who developed the welfare principle, favoured one dominant family form.
The traditional Indian view of welfare is based on daya, dana, dakshina, bhiksha, ahimsa, samya-bhava, swadharma and tyaga, the essence of which were self-discipline, self-sacrifice and consideration for others. It was believed that the wellbeing of children depended on these values. Children were recipients of welfare measures.
It was only during the 20th century that the concept of children’s rights emerged. This shift in focus from the ‘welfare’ to the ‘rights’ approach is significant. Rights are entitlements. They also imply obligations and goals. The rights approach is primarily concerned with issues of social justice, non-discrimination, equity and empowerment. The rights perspective is embodied in the United Nations Convention on the Rights of the Child (CRC), 1989, which is a landmark in international human rights legislation. India ratified the Convention on the Rights of the Child in December 1992.
According to Article 1 of the CRC, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”. The Article thus grants individual countries the discretion to determine by law whether childhood ceases at 12, 14, 16 or whatever age is found appropriate.
Today, nearly all cultures share the view that the younger the child the more vulnerable she/he is physically and psychologically and the less able to fend for herself/himself. Age limits are a formal reflection of society’s judgement about the evolution of children’s capacities and responsibilities. Almost everywhere, age limits formally regulate children’s activities: when they can leave school; when they can marry; when they can vote; when they can be treated as adults by the criminal justice system; when they can join the armed forces; and when they can work. But age limits differ from activity to activity, and from country to country.
Legal age of the child in Indian law
Several provisions in the Constitution of India impose on the State the primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. Article 21 A of the Constitution of India says that the State shall provide free and compulsory education to all children within the ages of 6 and 14 in such manner as the State may by law determine. Article 45 of the Constitution specifies that the State shall endeavour to provide early childhood care and education for all children until they complete the age of 6. Article 51 (k) lays down a duty that parents or guardians provide opportunities for education to their child/ward between the age of 6 and 14 years.
The age at which a person ceases to be a child varies under different laws in India. Under the Child Labour Prohibition and Regulation Act, 1986, a child is a person who has not completed 14 years of age. The Constitution of India protects children below the age of 14 from working in factories and hazardous jobs. But below 14, they can work in non-hazardous industries. An area of concern is that no minimum age for child labour has been specified. But for the purposes of criminal responsibility, the age limit is 7 and 12 under the Indian Penal Code, 1860. For purposes of protection against kidnapping, abduction and related offences, it’s 16 years for boys and 18 for girls. For special treatment under the Juvenile Justice (Care and Protection of Children) Act 2000, the age is 18 for both boys and girls. And 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.
Some provisions relating to age under different laws are:
Age of majority
Under the Age of Majority Act 1875, every person domiciled in India shall attain the age of majority on completion of 18 years and not before. The Indian Majority Act was enacted in order to bring uniformity in the applicability of laws to persons of different religions. Unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age. However, in the case of a minor for whose person or property, or both, a guardian has been appointed or declared by any court of justice before the age of 18 years, and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, age of majority will be 21 years and not 18.
The Hindu Minority and Guardianship Act (HMGA), 1956, in Section 4 (a), defines a ‘minor’ as a person who has not completed the age of 18 years.
The age of majority for the purposes of appointment of guardians of person and property of minors, according to the Dissolution of Muslim Marriages Act, 1939, is also completion of 18 years.
Christians and Parsis also reach majority at 18. Significantly, under the Child Marriage Restraint Act, 1929, which is a secular law, the age of marriage is 21 years for males and 18 years for females. But the age of marriage in Muslim personal law is the age of puberty (around 14 years). It was held that Muslims are not exempted from this law. If the marriage of a Muslim girl is performed while she is a minor, the marriage cannot be void, but the persons who participated in the marriage are not immune from the legal punishment provided under Sections 4, 5 and 6 of the Child Marriage Restraint Act. A Muslim girl can marry on attaining the age of puberty, and her marriage cannot be declared void because she is below the age of 18, according to the Child Marriage Restraint Act.
Juvenile justice and claim of juvenility
The Juvenile Justice (Care and Protection of Children) Act 2000 is a legislation that conforms to the United Nations Minimum Standards for Administration of Justice to Children. It is an Act to consolidate and amend the law relating to juveniles in conflict with the law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment. Under the 2000 Act, juvenile means a boy or a girl who has not attained the age of 18 years.
Under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2005, the following amendments were introduced and applicable to all cases involving detention, prosecution or sentence on imprisonment of juveniles under any such law:
- “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed his 18th year as on the date of the offence being committed.
- Whenever a claim of juvenility is raised before any court, or a court is of the opinion that the accused person produced before it was a juvenile on the day the offence was committed, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of the person, and shall record a finding as to whether or not the person is a juvenile or a child, stating his age as nearly as may be
- An important provision is that a claim of juvenility may be raised before any court and it shall be recognised at any stage even after disposal of the case in terms of the provisions. If the court finds a person to be a juvenile on the day the offence was committed, it shall forward the juvenile to the Board.
It has been observed that, in many instances, if the police that takes a child ‘into custody’ finds the child well-built he is considered an ‘adult’ and denied the beneficial provisions of the juvenile justice system.
Minimum Age of Criminal Responsibility (MACR)
The legal definition of a child will also affect how the courts deal with offenders, so age is very significant here. A person who is a minor or a child cannot be convicted in the same manner as an adult.
For instance, if a juvenile is accused of an offence under the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, he is entitled to necessary benefits under the special enactment of the Juvenile Justice Act.
If there is legislation dealing with the criminal liability of minors, the accused should not be tried under the ordinary law for adults. Children have to be dealt with under the juvenile justice system and not the adult criminal justice system. Children can never be imprisoned or given the death sentence.
Age verification of rescued victims of trafficking
The age of a rescued victim is an important factor in law enforcement and justice delivery. Anyone under 18 years is a child under the Juvenile Justice Act 2000 and cannot be sent to jail. He has to be looked after in a home and treated according to the provisions of the Juvenile Justice Act.
There are several anomalies relating to the issue of age verification of trafficked minor girls after rescue. The Indian Penal Code, 1860, states that sexual intercourse with a girl-child under 16 years of age, even with her consent, constitutes an offence of rape under Section 375 of the IPC. Under Section 366 (A), procurement of a minor girl below 18 years of age is an offence. Under Section 366 (B), importation of girls less than 21 years of age from the state of Jammu and Kashmir to any other state, or from a foreign country to anywhere in India, is an offence. Under Section 372 and 373 of the IPC, selling/buying of minor girls below 18 years of age for purposes of prostitution, etc, is an offence.
It has been found, however, that traffickers, brothel owners, etc, make sure that the age of the rescued minor is entered as 18 years or above, making her an adult in the records. So, when they are sent to jail, the traffickers/brothel owners bail them out and the victims are returned to their effective confinement.
There is a need to ensure the accountability of doctors who carry out age verification. Also of police officers who record the age immediately after a rescue. Age verification reports usually place the victims within an age bracket. There are countless police records where the age of the girl is recorded as “appears to be of 18-19 years of age”. Even medical examinations place the age within a bracket. The Supreme Court has held that when the expert’s opinion is given in an age bracket, the lower age in the bracket should be the one taken into consideration, so that the benefit of the doubt favours the victim. Therefore, if the age verification report says that the girl is in the age bracket 17-19 years, for the purposes of law enforcement the age has to be taken as 17 years.
Age of consent for sexual intercourse
In India, the law considers anyone less than 18 years to be a child/minor, not competent to take major decisions affecting herself or others for the purposes of the Indian Majority Act, Contract Act, Juvenile Justice Act, Child Marriage Restraint Act, or Representation of Peoples Act. However, under Section 375 of the Indian Penal Code, the girl (aged 16-18) is given the right of consent to sexual intercourse. Yet, she cannot marry at that age even with the consent of her parents. She cannot be taken out of the keeping of her lawful guardian, even with her consent, for lesser purposes. But she can consent to sexual intercourse so long as she does not go out of the keeping of her lawful guardian. The Law Commission of India did attempt, in its 84th report, to bring the age of consent in rape to 18 years, in tune with other enactments and consistent with refined and modern notions regarding the concern and compassion that society should bestow on its younger members. But this was not accepted. As a result, the age of consent in an offence of rape continues to be 16 years even today. Raising the age of consent for sexual intercourse to 18, consistent with the stipulations in subsequent enactments, appears to be the unavoidable imperative before the system.
The courts have held that evidence from a child witness, if found competent to depose facts, could be the basis for a conviction. In other words, even in the absence of an oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act, provided such a witness is able to understand the answers thereof. The evidence of a child witness and credibility would depend on the circumstances of each case. The only precaution the court should bear in mind whilst assessing the evidence of a child witness is that the witness must be reliable, his/her demeanour must be like that of any other competent witness, and that there is no likelihood of him/her being tutored.
Further, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to the questions, because of their young age, extreme old age, or disease -- whether of mind or any other similar cause. However, a young child can be allowed to testify if he/she has the intellectual capacity to understand questions and provide rational answers.
While the law recognises the child as a competent witness, a child who is around 6 years old, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court as a witness whose sole testimony can be relied on without other corroborative evidence. The evidence of a child must be evaluated carefully because he/she is easy prey to tutoring.
The word ‘child’ has therefore been used in law as a term denoting relationship; as a term indicating capacity; and as a term of special protection. Underlying these alternative specifications are very different concepts about the child. These include considering a child a burden, which invokes the right to maintenance and support; regarding children as individuals with temporary disabilities, making for rights to special treatment and special discrimination; treating children as specially vulnerable, to ensure rights to protection; and recognising children as resources for the country’s development, necessitating nurturing and advancement.
Thus there do not appear to be any criteria or scientific parameters for determining a child: the age limit in some laws appear arbitrary or based on socio-cultural perceptions. The Indian Mines Act defines children as those below 18 years, and the various state Shops and Establishment Acts define the age as between 12-15 years.
It is necessary that the definition of ‘child’ be brought in line with the Convention on the Rights of the Child -- viz all those below 18 years of age. If the best interest of the child is the guiding norm, one can err on the side of a higher age limit for protective care and a lower age limit with respect to civil and cultural matters. A review of the definition of ‘child’, in light of Article 1 of the CRC, has been referred to the Law Commission of India as part of a comprehensive review of the Code of Criminal Procedure, the Indian Evidence Act and the Indian Penal Code.
(Dr Asha Bajpai is Professor, Centre for Socio Legal Studies and Human Rights, Tata Institute of Social Sciences, Mumbai)
InfoChange News & Features, June 2007