The Law Commission's recent recommendation to bring greater consistency in the age-based definition of childhood in various Indian laws is a welcome move. But there could perhaps be a case for having a number of cut-off points in the definition of childhood when dealing with the different spheres of life in the legal context.
Thus, if age is the defining feature of childhood as a category, there may be good reasons why, for instance, the same age is not relevant in matters as varied as engagement in sexual activity in or outside marriage and participation in work. Surely there are complex categories such as sex work where both concerns overlap.
So, one can make a good case for having different cut-off points in different contexts not least because growing up is a gradual process.
Nevertheless, it does remain important that legal definitions do not conflict with each other in certain crucial respects. There is definitely something wrong with Section 375 of the Indian Penal Code (IPC), which treats 16 years as the age of consent for girls on the one hand and sets the barrier for consent at 15 years for a married girl on the other. This is further complicated by the fact that the legal age for a girl's marriage is pitted at 18. Therefore, it makes a lot of sense to do away with the exception regarding the 15-year-old 'wife' in Section 375, as it is very clearly a contradiction.
Some observers have also suggested that there is a contradiction in positing the age of consent for girls at 16 when they are allowed to marry only once they are 18. The ability to give consent to sex at 16 years is being treated as the same as being able to marry legally. This is clearly a confusion for surely there is the possibility of sex without marriage. However, it is apparent that we are not yet prepared to speak of premarital sexuality of girls so openly and would rather treat it as confined entirely within the domain of marriage.
Correspondingly, it is also not surprising that there is no question of an age of consent for boys. But from this no one extrapolates that men can marry at any age as in their case the distinction between sex and marriage is not so vague in public imagination.
Undoubtedly, women's biological role in reproduction complicates their engagement in sexual relations in a manner that is not the case for men. There is enough good reason, however, to see the issues of consensual sex and marriage as separate in contemporary times.
It is also relevant to note that the inconsistency in different laws came to light while dealing with the issue of elopement of minor girls. In elopement cases, the age of consent becomes an issue, as the girl's guardians usually make the plea that she had been kidnapped and her apparent consent is of no legal consequence.
It appears that under the existing laws, it is possible for a girl and boy to marry and then claim the legality of the relation even if the girl is only 15 years old. This is more so as the Child Marriage Prohibition Act provides for a declaration of such marriages as illegal only if the minor spouse chooses to annul the marriage. The proposed change in the age of consent should be able to make this an option only after the girl has reached the age of 16. But it is still not very clear how one would deal with situations in which a girl above 16 years but under 18 elopes. What sort of social and legal support do such young people have?
It is useful to remember that such events are often triggered off by parental attempts to get their daughters married against their wishes (read consent). The fact of the matter is that as things stand, it is usually possible for parents to marry off their children, especially daughters, against their will and also at an age below the legal minimum. But it is very difficult for the young men and women, even if they consent to a union and are above the required legal age, to marry each other against the wishes of their parents and community. The so-called honor killings that occur with alarming frequency testify to this unfortunate fact.
The situation is definitely more alarming when the young people have not even reached the legal age. This is particularly serious in communities that normally practice what is considered as child marriage in legal terms. Such a context permits the parents and the wider community to operate with impunity outside the ambit of the law and allows the same parents and community to use the state and the law against the young people who resist such practices.
The youth in such communities are doubly disadvantaged, and this is particularly worrying. There must be some serious thought given to how one can empower the young men and women of such communities to resist these traditional practices without getting on to the wrong side of the law.
The attention this issue has now received from the Law Commission was long overdue and should in turn provoke more public debate on the issue.