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Controversy Over the Age of Consent, Flavia Agnes

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Controversy Over the Age of Consent, Flavia Agnes COMMENTARY that lowering the age of consent will Controversy over Age of Consent encourage child marriage, totally dis- regarding the sociological trend that the age of marriage for females increases Flavia Agnes only when the standard of living is raised, and when public spaces are safe In the recent debate over hile the debate around the for them to pursue their education. In amendments to the law on rape, amendment to the rape law rural Karnataka in January 2013, a the age of consent for women Wraised a wide range of con- young girl on her way back from school cerns, an issue which became the focus on a bicycle was gang-raped and thrown attracted attention, for almost all of controversy at the last stage was the into a well. She was saved by passers-by the wrong reasons. What was age of consent. The media fanned the who noticed her struggling for life. overlooked was that the law has controversy by framing it as “whether Thereafter, the entire village has not helped in interventions at the the age should be retained at 18 or redu- stopped sending girls to schools outside ced to 16”, which was a wrong way of the village.1 These girls will soon be community level to curb child putting it. The issue split activist groups, married off, despite a law in place that marriages arranged by natal government ministries and parliamen- stipulates the minimum age for mar- families. There is a need for tarians down the middle. Strangely, it riage is 18. According to news reports community-level sensitisation, pitted women’s groups against child perturbed over recurrent instances of rights groups, the Ministry of Women sexual harassment of teenage girls, the greater security for girls in public and Child Development against the Min- panchayats of six villages in Haryana spaces, and better resources for istry of Law, and the ruling party against decided not to send their girls to school. education of girls in poverty- the opposition. Cloaked in confusion, Around 400 girls were affected by stricken villages and urban slums. the debate lacked clarity. this decision. One can condemn these Paradoxically, the Bharatiya Janata decisions, but this will not help change The campaign for stringent laws Party (BJP) expressed its opposition in social reality at the ground level.2 alone has merely strengthened terms of “preserving” our culture and Later reports said that parents had patriarchal power and weakened tradition. Najma Heptulla, the BJP spokes- allowed the girls to attend school under the negotiating power of young person, speaking on a news channel, ex- police protection. posed her ignorance when she declared, Child rights groups concerned with girls contracting marriages “India is not ready for it”, thereby implying the global traffi cking of minors opposed of choice. that a low age of consent is a “western the provision of 16 years for consensual tradition”, oblivious of the reality that a sex on the ground that it would encour- low age of consent and child marriage age child traffi ckers. But we cannot col- have been the bane of social reformers in lapse two different concerns – the issue India since the 19th century. of traffi cking of minors and consensual No one seemed to remember that the sexual activity between young adults. minimum age of consent for sexual inter- The new bill has stringent provisions on course was raised from 16 to 18 years traffi cking and there is no intention on only in November 2012, when the Pre- the part of the government to skirt this vention of Sexual Offences Act came issue. So this argument lacks validity. into force. However, there was no clarity This position also has the sanction of the even then. When this bill was fi rst moral brigade that views sex and mar- introduced in the Lok Sabha, the age riage as synonymous. of consent was stated to be 16, but The two main concerns for those re- due to protests from certain campaign sisting the increase in the age of consent groups, it was changed to 18 at the time are increasing parental control over of introducing it in the Rajya Sabha. young adolescents and criminalising a There were hardly any cases registered normal sexual activity. Perhaps a brief under it when the issue of the rape discussion of Monica’s (name changed) Flavia Agnes (fl [email protected]) is a law amendment hit the headlines in case may help to shed some light. women’s rights lawyer and director of Majlis, January 2013. Monica approached a public hospital which runs a rape victim support programme During the debate, the minister for with pregnancy-related problems.3 When in Mumbai. women and child development argued her age was recorded as 14, despite her 10 july 20, 2013 vol xlviii no 29 EPW Economic & Political Weekly COMMENTARY protests the police was called and her two years, either way. And in a dispute challenged the authority of the colonial mother was compelled to sign the fi rst over age between the parents and the state to interfere in local customs, prac- information report (FIR) under the threat child, the law tends to lean in favour of tices and religious beliefs. But the age of that treatment would otherwise not be the parents. consent was fi xed at 10 in the Indian provided to her daughter. The boyfriend, A discussion on “elopement” marriages Penal Code of 1860. Later, following the a 20-year old Muslim, who worked as a brings to the fore the ways in which death of a young bride, Phulmonee, due garage mechanic, was arrested. Monica multiple social subordinations – caste, to violent sexual intercourse by her was distraught. Several bail applica- region, religion – intersect with patri- husband, the age was raised to 12 in tions made on his behalf were dismissed archy to contain the sexual choices of 1890 after a great deal of controversy. despite Monica herself pleading for his defi ant young women within established The British courts had ruled that since release. This incident occurred before social mores. The situation becomes pre- the girl was above the age of consent, the Protection of Children from Sexual carious when an upper-caste girl elopes her death could not be viewed as murder Offences Act, 2012, with its provision with a lower-caste boy, or when a Hindu as the husband had a legal right to have of mandatory reporting of all sexual girl falls in love with a Muslim boy, sex with her (Sarkar 1993). offences came into force. transgressing the boundaries of Hindu During the early 20th century, when A month later, Monica delivered a upper-caste dictates on “purity”. In a women’s organisations entered the daughter. Her only concern was to meet strictly stratifi ed society, ridden with political arena, the focus shifted to the father of her child. Every time he prejudices against the lower castes and women’s health, protection from early was brought to court, she went along minorities, a young couple that dares to pregnancies, and concern over women’s with her infant all dressed in a hijab. cross boundaries is severely punished. education. The age for marriage of girls Her fault was not realising in time At times, the price for choosing a part- under the Child Marriage Restraint Act, that she was pregnant so she could ner is public humiliation or gruesome 1929 (CMRA) was raised from 12 to 14, undergo an abortion, and her mother murder. The notion of women as the sex- when biologically the body of the female truthfully admitting that she was not ual property of their communities is would be more receptive to sexual inter- married and that they were too poor deeply ingrained. course and pregnancy. In 1949, the age to afford a private maternity home. of consent under the rape law was raised Obviously, she turned hostile during the Child Marriage Discourse to 15 years. This became the basis while trial, but it is anyone’s guess whether The social movement against child mar- enacting the Hindu Marriage Act in 1955, the youth, once acquitted, will marry riage and the demand for state interven- which laid down a minimum age of 15 her after the ordeal of incarceration tion to curb this malaise was fi rst arti- for girls and 18 for boys. But the enact- for several months, for which she was culated in the 19th century and the ment did not render under-age marriages not even responsible. In Monica’s case, engagement with this issue continues in void. This was due to the ideology of the blame lay squarely on state agencies. the 21st century (Agnes 2011: 66-78). Hindu marriages being sacramental Monica is lucky that she has a supportive Despite this being one of the earliest (despite the codifi cation) and due to the mother but other young girls are not legal campaigns, there are hardly any in- grave social implications such a move so lucky. cisive analyses on why legal reform has would have on children born of such failed to address the problem. While unions. In this context, the CMRA came Elopement and Rape Cases child marriage continues to be a prob- to be viewed more as rhetoric or an There are several instances where the lem rooted within socio-economic struc- aspiration than a moral code or a legal parents fi le cases of rape against the tures, a solution to it is sought within the mandate. Socially sanctioned community boys with whom their teenage daughters domain of the law.
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