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The Hindu Ministry of Women and Child Development in

December 2020 but it has not yet been made
Explained | Is raising marriage age enough to
public. Ms. Jaitly told The Hindu that raising the
help girls?
age of marriage is one of its many
Jagriti Chandra, DECEMBER 19, 2021 recommendations, which include a strong
campaign to reform patriarchal mindsets,
How have women’s rights activists responded improving access to education by providing
to the proposition? Will the move help lower girls safe transport to schools and ensuring
maternal mortality rates? toilets and sanitary napkins so girls don’t drop
The story so far: The Government has listed its out, providing sex education, as well as
proposal to raise the age of marriage for vocational training and livelihood options.
women to 21 for legislative business in “Unless all of the recommendations go with it,
Parliament in the coming week. The move there is no justification to raise the age of
comes within days of the Union Cabinet marriage. It is like making traffic rules without
approving the proposal which is based on the providing good roads or traffic lights,” said Ms.
recommendations of a task force constituted Jaitly.
last year. Will raising the age of marriage serve its
What do marriage laws in India say? purpose?

The Hindu Marriage Act, 1955, and the Indian While children born to adolescent mothers
Christian Marriage Act, 1872, prescribe the age have higher prevalence of stunting and low
of 18 years for the bride and 21 years for the weight, experts argue that the underlying
groom. The Muslim Personal Law (Shariat) cause is poverty. There is also a need to
Application Act, 1937, allows marriage if the improve access to education, skill training and
boy and the girl have attained puberty. The employment opportunities which are some of
Special Marriage Act, 1954, which governs the barriers for girls in pursuing higher
inter-faith marriages also lays down 18 years education. It is also important to ensure a safe
for women and 21 years for men as the age of environment free from the constant threat of
marriage. There is also the Prohibition of Child rape and sexual assault which is why girls are
Marriage Act, 2006, which prohibits marriage married off early. “A legislation to increase age
below 18 years for women and 21 years for of marriage is not needed for this purpose. This
men. measure is superficial and does not go to the
root of the problems faced by young women,”
What is the purpose of raising the age of women’s rights lawyer Flavia Agnes told The
marriage? Hindu. Steps must also be taken to address
early pregnancies instead of focusing on age of
In her 2020 Budget speech, Finance Minister
marriage by extending family planning and
Nirmala Sitharaman announced that the
reproductive health support which focus on
Government would set up a task force to look
preparation for pregnancy and delaying the
into the “age of a girl entering motherhood”
first birth.
with the aim to lower maternal mortality rates,
improve nutrition levels as well as to ensure Will the new proposal make women more
opportunities for women to pursue higher vulnerable?
education and careers. These were also the
terms of references for a 10-member panel According to National Family Health Survey-5
headed by former Samata Party chief Jaya (2019-2021), 23.3% of women aged 20-24
Jaitly when it was constituted on June 6, 2020. years married before the age of 18, which
The panel submitted its report to the PMO and shows that the Prohibition of Child Marriage
Act (PCMA), 2006, has not been successful in
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preventing child marriages and increasing the

legal age at marriage for girls will expand the
number of persons deemed underage and
render them without legal protection.
According to an analysis of NFHS-4 (2015-
2016) data by Mary E. John, Centre for
Women’s Development Studies, 56% girls were
married below the age of 21 and this figure was
as high as 75% among the poorest category of
population. This is also worrisome when one
looks at evidence on how PCMA is used largely
by parents to punish their daughters who
marry against their wishes or elope to evade
forced marriages, domestic abuse and
housework-- a study by Partners for Law in
Development showed.

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The Indian Express Thus, Article 21 is a protective umbrella under

which India’s citizens live without fear of being
Supreme Court must ensure hate speech
deprived of this cherished right. The state has
guilty are punished
an absolute obligation to ensure that this right
Dushyant Dave, January 6, 2022 is not just preserved but protected. Clearly, in
failing to take any action for almost two weeks
While presenting the report of the Advisory since the recent hate speech incidents, the
Committee on Minorities before the state appears to have failed. It has been
Constituent Assembly, Sardar Vallabhbhai dithering, first by stating that persons have
Patel said on May 25, 1949: “If they really have been booked and now by constituting an SIT to
come honestly to the conclusion that in the look into the matter, while the culprits roam
changed conditions of this country, it is in the free and their supporters and sympathisers run
interest of all to lay down real and genuine amok on social media.
foundations of a secular state, then nothing is
better for the minorities than to trust the good Statements about killing Muslims to make a
sense and sense of fairness of the majority, and Hindu Rashtra, expressing the desire to shoot
to place confidence in them. So also it is for us former prime minister Manmohan Singh and
who happen to be in a majority to think about calling upon the police, leaders and the army
what the minorities feel…But in the long run, it to take up arms to indulge in ethnic cleansing
would be in the interest of all to forget that are perhaps the worst ever spoken publicly in
there is anything like majority or minority in decades. Do they require any investigation,
this country and that in India there is only one much less by the SIT? Do they not constitute
community.” ex-facie offences within the meaning of the
Indian Penal Code? This calls for an immediate
Inaction on the part of the BJP government in and summary trial and the awarding of the
Uttarakhand and at the Centre against the maximum punishment provided under the law.
recent incidents of hate speech in Haridwar
and Delhi, clearly reflect that Patel’s hope for The rule of law is a basic structure and basic
the “real and genuine foundations of a secular feature of the Constitution. It clearly obliges
state” is fast diminishing. the executive to enforce the law, without fear
or favour. The SC itself in Pravasi Bhalai
The Constitution of India affords all citizens Sangathan v. Union of India had defined “hate
equal rights. Article 21, although couched in a speech” as “an effort to marginalise individuals
restricted manner, has been interpreted by the based on their membership in a group.”
Supreme Court in the widest possible terms.
The right to life and liberty guaranteed It further said, “Hate speech lays the
thereunder has been recognised in various groundwork for later, broad attacks on the
forms. It is a sacred and cherished right as vulnerable that can range from discrimination
personal liberty has an important role to play to ostracism, segregation, deportation,
in the life of every citizen. violence and, in the most extreme cases, to
genocide.” The court observed: “The root of
The court has even held that Article 21 must be the problem is not the absence of laws but
interpreted in conformity with international rather a lack of their effective execution.”
law, as India is a signatory to the International
Covenant on Civil and Political Rights, 1966. The constitutional framers had advisedly
Equally, the right to speedy justice is part of incorporated “fraternity” as one of the goals in
this guarantee. the Preamble. B R Ambedkar, who is also often
referred to by PM Modi and senior BJP leaders
as one of India’s greatest leaders, had told the
Constituent Assembly on November 25, 1949:
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“Fraternity… is the principle which gives unity

and solidarity to social life.” He forewarned: “In
our social and economic life, we shall, by
reason of our social and economic structure,
continue to deny the principle of one man one
value. How long shall we continue to live this
life of contradictions? How long shall we
continue to deny equality in our social and
economic life? If we continue to deny it for
long, we will do so only by putting our political
democracy in peril.”

The judiciary, and particularly the Supreme

Court, in view of its constitutional status, is
truly a sentinel on the qui vive. The judiciary
has an absolute obligation and duty to step in
when the executive fails in the enforcement of
the fundamental rights of citizens. It must,
therefore, step in to reassure Muslims that
they have nothing to fear and that nobody will
be allowed to take the law into their hands to
harm them. Only then can the judiciary be said
to be the real custodian of the fundamental
rights of citizens and their ultimate protector.

The Supreme Court has authoritatively held in

I R Coelho v. State of Tamil Nadu: “Over the
years, the jurisprudence and development
around fundamental rights have made it clear
that they are not limited, narrow rights but
provide a broad check against the violations or
excesses by the State authorities… The
principle of constitutionalism is now a legal
principle that requires control over the
exercise of governmental power to ensure that
it does not destroy the democratic principles
upon which it is based. These democratic
principles include the protection of
fundamental rights.”

It was therefore held, “It is the duty of this

court to uphold the constitutional values and
enforce constitutional limitations as the
ultimate interpreter of the Constitution.”

Senior Advocate and former president of the

Supreme Court Bar Association

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