Every girl isn’t born into an ‘ideal’ home, an ‘ideal’ society with an ideal amount of wealth and security and to make the argument that conforms to the State’s preferences is in their best possible interest
In his Independence Day speech last year, Prime Minister Narendra Modi first revealed the intention to raise the minimum age for women to marry to 21 from 18, but the issue hadn’t been hotly debated until last week when the Cabinet approved a proposal to introduce a Bill to amend the Prohibition of Child Marriage Act of 2006 and the various personal laws to this effect.
The now-controversial proposal, which has been referred to the Parliamentary Standing Committee for evaluation, was based on the report submitted to the PMO in July 2021 by a committee headed by Jaya Jaitly, whose entire contents we are not yet privy to.
The justifications given for the need for this law so far range from mildly irrelevant to downright immaterial. The prime reasons cited are the “empowerment of women”, encouraging girls to take up higher education and work to achieve financial independence, enter the workforce and contribute to the economy, and the improvement of maternal nutrition and mortality rate, all of which will be elaborated on in this piece.
First, a clarification: Whether the amendment is instituted or not, child marriage is an entirely separate and distinct issue. Child marriage, which has veritably the greatest impact on the life of young girls, is still prohibited and remains a criminal offence regardless. A number of statutes are in place that aims to expressly prevent child marriage with legal remedies made available to the minor girl. But the discussion in this piece is largely restricted to women in the age bracket of 18-21, who are adults for the purposes of the law, and capable of consenting to sexual relations but would not be able to marry.
Legislative overreach
According to a 2019 report from the Ministry of Statistics and Programme Implementation, the overall average age of marriage for girls in India is a decent 22.1 years, though the median age lies a little lower, at 19 years, as around 27 percent of women are still married under the legal age of 18 (according to the National Family Health Survey 2015-16 (NFHS-4)). It has been established that better access to primary education leads to an increase in average age at first marriage, and urban women have an average age at marriage of about one year higher than that of rural women.
Urbanisation, education, and familial wealth and security have been shown to have the most substantial impact on the uptrend in the age of marriage. Child marriage rates have been declining, to the tune of a remarkable improvement of approximately 20 percent over the last 10 years and the average age of first marriage for both rural and urban women has steadily been increasing — the mean age for a bride was 22.3 in 2018 compared to 18.3 in 2001. The incidence of marriage before the legal age of 18 is 27 percent among women aged 20-24, compared to 46 percent for women aged 45-49 — a stark difference between the two age groups observed over just a couple decades (NFHS-4).
When the improvement of socio-economic factors that indirectly yet effectively impact the age at marriage, can be made even without a legal mandate, the introduction of a new law seems superfluous.
Improvements in the quality and access to education and healthcare resources to rural and semi-rural women are undeniably more challenging policies to implement at the grassroots level, but they have the capacity to bring about more positive impact in terms of practical and importantly, lasting changes; albeit gradually. Indian society, especially its familial traditions – is diverse in its cultural framework across castes, communities, and economic strata. This is perhaps why new legislation trying to exercise control over complex and deep-rooted societal norms instead of focusing on and investing more heavily in organic change is an exercise in the excessive delegation of legislative power.
Breach of fundamental liberties?
The right to marry is a fundamental right under Article 21 of the Constitution which enshrines the right to life and liberty. Is prohibiting 18-21-year-old adults from marrying a restriction of fundamental freedoms? How far can the state go in restricting these fundamental rights?
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Personal choices such as the right to marry and the right to choose one’s partner are at the heart of the constitutional liberty of two consenting adults, and this principle will hold good despite this amendment to legal marriageable age, unless the Parliament also amends the Majority Act of 1875 as well, and ceases to recognises 18-21-year-olds as adults.
While it is important for the state to envision a certain future for the women of India and partake in proactive policymaking to achieve such a vision, it is coercive to force a radical change through a sweeping law without changing the circumstances that require such legislation in the first place. Increasing the legal age of marriage is touted to bring “greater freedom of marital choices”, but I would argue the opposite. If every adult female that would otherwise marry before turning 21 is legally disallowed, that is clearly less marital freedom and not more.
Curbing the sexual and reproductive rights of women
The median age at first sexual intercourse is 19 years for women between the ages of 25 and 49 years, the same as the median age at marriage. The new law, if passed, has the potential to curb the sexual and reproductive rights of women, especially those belonging to lower socioeconomic strata, in whose families’ extramarital sexual relations and/or pregnancy are largely still a strict social taboo. Though capable of consenting to sexual relations, the sexual freedom of such girls might be hampered by the fact that they do not have the option to marry, especially given that their access to birth control and adoption clinics is also severely limited.
Legal paternalism
In his essay On Liberty, John Stuart Mill writes: “The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign.” The evocation of the public policy doctrine parens patriae has long been justified in common law for interventions in matters concerning children or otherwise incapacitated individuals that lack the competency to make their own decisions, and these situations can be regarded as within the ambit of the state’s responsibility, rather than as infringement upon individual autonomy.
Outside these specific situations, state interference in individual decisions might be legitimised on the grounds that the “state knows best”. While some degree of paternalism is inherent in the premise and the existence of the law itself, Joel Feinberg in his essay Legal Paternalism argues that the reason the State must not interfere in self-regarding affairs because it is “not that such interference is self-defeating and likely to cause more harm than it prevents, but rather that it would itself be an injustice, a wrong, a violation of the private sanctuary which is every person’s self; and this is so whatever the calculus of harm and benefits might show”.
While the government does have the responsibility to act in the best interests of the citizens, it is impossible to gauge whether these acts are purely protectionary.
Therefore, as John Mill writes, interference in an individual agency is justified only when the action seems so “patently self-damaging” that no reasonable or competent person would voluntarily engage in or consent to, and state intervention in any other situation is “wrongful invasion”. “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise, or even right.”
This logic fits perfectly into our discussion of the state criminalising marriage of girls aged 18-21 “for their own good”. The State compelling one to make this decision is a substantial and potentially life-altering restriction of voluntary choice, even if purported to be made for collective societal benefit. The State may use powers of persuasion to convince people that it might be in their best interest for girls to marry later and stay in school, but the state forbidding it without allowing a free choice in the matter is paternalism in its most classic sense.
Do all women aged 18-21 currently lack agency?
By the wholesale prohibition of the sizable portion of marriages that are entered into by 18-21-year-old women, is the state implying that every one of these girls and/or their parents “don’t know any better” for themselves/their child? If yes, it reflects worse on governance, education policy and developmental trajectory of the country rather than on who the state calls “burdened” parents.
Underprivileged parents are often stuck between a rock and a hard place while making decisions regarding their children and would be quite a stretch to claim that every one of them would deliberately deprive their daughter of a right to education and financial independence by forcibly getting her married if their social and financial circumstances did not contribute to the pragmatism of this decision.
It is also commonplace that girls themselves elope to start a new life with their lovers or wish to marry as an escape from their homes where they might face abuse or hardship. The implication that all adult women who marry between the ages 18 and 21 do so only under parental pressure and out of a complete lack of personal agency, though they have capable of giving consent to sexual relations – is alarming, to say the least.
Maternal nutrition and maternal mortality rate
Taking measures to curb child marriage and pregnancy are more objectively justifiable, due to serious concerns from a maternal health perspective — young primigravidae, especially below the ages of 16-17 are prone to a multitude of complications and even death, especially if anaemic or malnourished.
The same argument is more difficult to make while attempting to prevent women between the ages of 18-21 from marrying, whose subsequent pregnancies would not carry a comparable risk, and improving access to prenatal and antenatal care, especially in rural areas, would significantly improve outcomes. But alas, though health care and health education are basic human rights, it is undoubtedly easier to pass a law curbing marriage and pregnancy rather than building and investing in efficient and well-equipped public health infrastructure.
Education of women
Is the current legal age of marriage really hampering education prospects? According to the All India Survey of Higher Education 2019-20 females constitute 49 percent of the total enrolment across the country, almost equal to that of men, though they currently do not participate in the formal workforce in as high numbers as men.
A statement by the Indian Health Ministry on Twitter stated: “Delaying the age of marriage would provide more time for completion of education for the girls and physiologically and psychologically to shoulder the responsibility of marriage and children.”
This statement is problematic on many levels. State’s insinuation that education is a prerequisite to marry/children, and that “uneducated” women, which make up a large majority of the population, are not “physiologically and psychologically” prepared to make that decision is exceedingly condescending. It is egregious to imply that uneducated women are unfit to make autonomous decisions concerning their own lives.
One might argue that a portion of these cases constitute women that have been coerced into marriage by their families– in which case the voluntariness of the decision is suspect. However, it is patronising for the state to make this decision on their behalf rather than providing the best resources possible for the education of the girl child, such as the effective implementation of the National Education Policy 2020 (intended to roll out in 2022), and hoping the family makes an informed choice.
Increasing women’s participation in the workforce
The female labour force participation rate (LFPR) in India has been falling steadily for the past two decades. Recent estimates cited by the International Labour Organisation indicate that female LFPR was about 31.1 percent in 2013-14, fell to 27.4 percent in 2015-16 and since the COVID-19 pandemic when unemployment in both the formal and informal sectors has increased rapidly, the numbers have fallen even further.
One of the reasons for this trend is the increased household incomes, which decreased their participation in agricultural labour (yet women still make up around 42 percent of agricultural labour) and another is simply the lack of employment opportunities. The marital status of women, by itself, has little impact, and an expansion of the manufacturing sector to create more positions for semi-skilled workers might be a way to incentivise women to enter the workforce rather than unnecessarily restricting their freedom to marry.
Divesting accountability
The passing of this legislation with a view to magically “fix” the societal phenomenon of early marriage that might be preventing a portion of the female population from actualising their desire for an education and a job is an opportunity for the state to absolve itself of responsibility. By blaming parents and girls from lower socio-economic backgrounds for early marriage, the State deflects from being held accountable for the abysmal state of the education system, especially the quality of elementary education, and the horrific lack of access to maternity clinics and healthcare in rural areas.
A study conducted by the University of Cambridge concluded that higher mortality among young mothers was mitigated by the improvements in socio-economic standing such as wealth, access to antenatal care, and education.
Gender equality
If a uniform legal marriageable age was desired to be implemented to ensure gender parity and equality, lowering the age for men to 18, to make it equal with women as recommended by the Law Commission in 2008, would have been a far more pragmatic and equitable change. This way, the state needn’t needlessly exercise control over individual autonomy. The current disparity of three years between men and women seems like a state-mandated age gap between two adults that wish to marry, rather than a law based on a logical justification.
The problem of enforceability
A law is only as good as its implementation — and when the state has failed to strictly enforce even the Prohibition of Child Marriage Act and the current age limit of 18 years, it is reasonable to assume that enforcing the new limit would prove exceedingly difficult. The priority of the state should be to prevent marriages under the age of 18, which have the greatest impact, rather than introduce overarching laws to target 18-21-year-olds simply because their own incompetence is on display. The law might deter some men from marrying girls younger than 21 to avoid legal consequences, but chances are slim.
An elitist imposition or a “Civilising Mission”?
The rationale offered by the government so far has been quite inadequate to justify the pressing need for this law. An attempt to impose a certain uniform “standard” upon Indian society as a whole, and call it a marker of “progress” is quite reminiscent of the hitherto colonial state which viewed the Indian masses as incapable of conceptualising their own morality and law. While progressivism deifies individualism and places individual rights on a pedestal, the State is attempting to impose a “collective morality”, predicated on its view of the majority of the country being “backward” and “uneducated” and therefore unable to make choices that are in the best interest for themselves and their families.
The law ignores principles of cultural relativism while considering the various diverse customs and traditions that are extant across India, and thus could further jeopardise the freedom of already marginalised communities such as tribes whose current practices might be criminalised as a result. Those that feel the need to pontificate on increasing the marriageable age are invariably the privileged classes that have the means to transcend the stifling social conformity that characterises the life of the lower and lower-middle classes.
Political incentives
Representatives for the government and others that welcome this Bill are of the view that increasing the age would mean that girls effectively can’t be “married off” by families that seek to “unburden” themselves, and therefore will be forced to allow their daughter to attend university/college.
But this seems simply like an attempt to appear progressive, and pro-women’s rights, rather than effectuate more substantive change in and the implementation of existing policy that would truly empower women. Shifting focus away from economic factors to stagnate on social and cultural issues seems to bring the most dividend in the current political climate.
Musing about what the “ideal” trajectory should look like for a girl’s life is one thing, and effectuating a sweeping law restricting their lives to an extremely narrow, uniformist future that the state envisions for them is another. The harsh reality is that every girl isn’t born into an “ideal” home, an “ideal” society with an ideal amount of wealth and security and in order to make the argument that conformity to the state’s preferences is indeed in their best possible interest. In view of some of the considerations elaborated above, I sincerely hope that the Standing Committee takes some of the arguments I’ve tried to make into their purview while evaluating the necessity for this law.
The writer is a doctor and a student of law. Views expressed are personal.
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