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THE NEW SUBSTANTIAL LAW REPEALING,INDIAN PENAL CODE 1860

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 ABSTRACT –

The enhanced new law brought by the present ruling government replacing the substantive and procedural laws that have been over decades in our country. There have been significant changes to the law of the land. claiming that rather than Indian citizens, the Indian Penal Code of 1806 was designed to protect the interests of the British government.. The present paper respects both the existing Bharatiya Nyaya Sanhita Bill that was put forth in the Lok Sabha on August 1 and the long-standing law. Does proposing a new law change society by instilling fear? Does enacting or upholding the proposed law bring about change? It is safe to say that the Indian penal code of the colonial era was not lenient towards crimes committed by citizens, but the government officials  lacked  in the enforcement of the thoroughly codified law. The main goal of the bill is to give women and children top priority because they are the targets of the most heinous crimes and are the ones whose bodies are tortured.

INTRODUCTION –

The Bharatiya Nyaya Sanhita Bill, which will replace the IPC, will have 356 sections rather than the previous 511, with 175 sections amended, 8 new sections added, and 22 sections repealed. Union Home Minister Amit Shah presented the current bill on Friday, August 11.The home minster has stated that “ the colonial- era laws were meant to protect that state and its subjects, while the proposed changes are meant for deterrence and ensuring justice to the victim. Justice delivery will be central to new legal architecture” The bill’s 356 amendments state that murder shall take prominence over crimes against the state, crimes against women, and crimes against children. Additionally, the new for the first time covers the scope of offences related to organised terrorism. The Sanhita aims to eliminate antiquated and redundant provisions, add new offences, and strengthen the penalties for some crimes. The Sanhita also makes an effort to simplify and clarify the language used in the law. The substantial questions of law that arises now is whether the 8 new sections that have been added in the bill brings us to the objective of the paper. i.e.  Whether any new offenses are created which don’t exist now?

FEATURES OF THE BILL

  1. Maximum death penalty for offences like gang rape and mob lynching
  2. provisions that one of the penalties for minor offences is to perform community service for the first time.
  3. Provision for in-absentia trials of fugitives from justice  
  4. Additionally, the bill adds new offences like endangering India’s sovereignty, unity, or integrity, or engaging in acts of secession or armed rebellion.

CHANGES MADE

Sedititon- The codified law deals with sedition under section 124A which states.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 13 the Government established by law in 14[India], 15 shall be punished with 16[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.[2]

This offense as been prescribed the punishment of 3 years plus the added fine. In comparison with the BNS bill the term has “sedition” has been removed and  the introduction of a new section that deals with “Acts endangering sovereignty, unity and integrity of India given under section 150 of the seventh chapter of bill “ of offences against the state” which states

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine[3]

  The primary distinction is that the Indian penal code governs these offences through various sections and punishments, making it much more convoluted whereas the BNS bill has a wider angle for convicting the offence.  the insignificant amount of punishment change. Nothing is different because both punishments include a life sentence.

Criminal conspiracy –

Indian penal code defines criminal conspiracy under section 120 stating an agreement between two or more persons to commit an illegal act or a legal act by illegal means. The section also prescribes the punishment for criminal conspiracy, which varies depending on the nature and severity of the offense that is the object of the conspiracy.

 The bill has made changes to the definition and punishment under the section 61-

When two or more persons agree to do, or cause to be done–– (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. (2) Whoever is a party to a criminal conspiracy,–– (a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; (b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both

The punishment prescribed by the Indian penal code for the offence is  life imprisonment or either description for a term not exceeding six months, or with fine or with both.  No difference can be drawn ,but the BNS also introduces a new section, Section 120, which addresses intentionally causing bodily harm or great bodily harm when provoked. According to this section, anyone who intentionally causes harm or great harm to another person on their own grave or sudden provocation shall be punished with imprisonment for a term that may not exceed three years, a fine, or both.

 

CHEATING

Section 316 of the new Sanhita, which defines cheating more precisely and proportionately, replaces Section 420. According to the kind and degree of harm done to the victim, Section 316 also makes distinctions between various degrees of cheating.

The maximum sentence for cheating under Section 316 is seven years, which is identical to the maximum sentence under Section 420, but the minimum sentence is now six months instead of one year.

the removal of Section 420, which deals with deceit and coercing the delivery of property, is one of the significant changes. In India, this section has been extensively used and abused, frequently for pointless or frivolous reasons.

The major crimes of history has also been replaced with this new bill i.e. Rape and murder not denigrating that fact  the bill has given prominence to the offence  against women and children which is  governd by sections 63  to 97. Sexual offenses separately has been major importance  .

RAPE

The legal definition and sanction for rape have been modified in the proposed Sanhita, which seeks to replace the Indian Penal Code of 1860. However, it also kept some contentious elements of the previous legislation.

Rape is defined in Section 63 of the proposed Sanhita as acts of sexual activity carried out without the consent or will of the woman.According to the proposed Sanhita, rape is punishable by a minimum of 10 years in prison, with the possibility of a life sentence, as well as a fine. The penalty must be fair and reasonable in order to cover the victim’s medical costs and rehabilitation costs.

MURDER

Murderers are subject to the following penalties, as stated in IPC Section 302: “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.”

Section 302 of the proposed Sanhita defines the crime of “Snatching” in the proposed BNS, 2023. According to Section 302(1), “Theft is “snatching” if the offender suddenly, quickly, or forcibly seizes, secures, grabs, or takes away any moveable property from any person or his possession in order to commit theft.”

Murder is covered by Section 99 of the proposed Sanhita, which distinguishes between culpable homicide and murder.

Punishment for murder is laid down in Section 101, which has two sub- sections.

  • According to Section 101(1), “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.”
  • The proposed Section 101(2) According to Sanhita, “When a group of five or more persons acting in concert murders on the basis of race, caste or community, sex, place of birth, language, personal belief, or any other ground, each member of such a group shall be punished with death or with imprisonment for life or with imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.”
  • The term “murder by a group,” which includes lynching, is used in Section 101(2).

According to Section 307, a person who attempts to kill another person with the intent or knowledge to do so and in a way that would constitute murder if they succeeded faces up to ten years in prison and a fine. If the attempt results in harm to the victim, the offender will either receive a life sentence in prison or the previously mentioned punishment.

Section 307 of the proposed Sanhita outlines the definition of robbery as a crime and its associated punishment. The proposed Sanhita’s Section 107, which also outlines the punishment for the crime, includes a provision for attempted murder.

 The bill altered the long-standing law that dealt with heinous crimes. These are just a few of the numerous amendments that the bill in the Lok Sabha has suggested. We have established the requirement that the conviction rate be taken to be above 90% in accordance with this Bill. According to Amit Shah, it will be required in every situation where a law specifies a sentence of seven years or more in prison that a forensic team visit the crime scene.

CONCLUSION

 The law enforced and the bill to be enforced have certain objectives that will benefit society in every possible way The statements made by the home minister may not be the absolute perspective of the codified law. Since the Indian penal code 1908, has been sentencing the guilty which the given substantive and procedural laws. In the view of a generic opinion, it is not for the law to be changed or to be made more stringent or for the procedure to be speedy. The conventional structure of well-written law is unquestionably sufficient to run a nation. The question is whether the judiciary has ever adequately implemented the legislature after it has been drafted.  Where does the law prevail on the land?  In a nation like India, the intent behind a bill to prioritize crimes against women and children is very broad. Partly because of the incorrect interpretation of our nation’s traditions and customs. It is commendable that the current government has implemented notable modifications with this new legislation, but right now it must keep a promise to the citizens who are in need.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

[2] Casemine.com/judgement/in/575fd361607dba63d7e6e044

[3]https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf

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BHARATIYA NAGARIK SURAKSHA SANHITA BILL, 2023: An Overview

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ABSTRACT

This research paper critically examines the significance, motivations, and implications of the Bharatiya Nagarik Suraksha Sanhita Bill of 2023, which aims to replace the outdated Criminal Procedure Code of 1898 with comprehensive changes across its 533 sections, including amendments to 160 sections, introduction of 9 new sections, and repeal of 9 sections. The bill’s introduction aligns with India’s transition from 75 to 100 years of independence, resonating with the Prime Minister’s call to eliminate remnants of subjugation and infuse an authentic Indian essence into the criminal justice system. The paper analyzes proposed amendments like technological integration, communication tools, protective measures, and handcuff regulations, as well as provisions related to mercy petitions, non-arrest sampling, police detention, and trials in absentia. While acknowledging the bill’s commendable efforts to modernize the system and expedite legal proceedings, the paper also highlights potential drawbacks, including evidence misuse, privacy concerns, and challenges in implementation. It concludes by stressing the need for a balanced approach that upholds individual rights while enhancing justice delivery through holistic legal reforms.

INTRODUCTION

In a significant move aimed at modernizing and strengthening India’s legal infrastructure, Mr. Amit Shah, the Minister of Home Affairs and Minister of Cooperation, took an exceptional stride by presenting three revolutionary bills in the Lok Sabha on August 11, 2023. These legislative proposals comprise the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill 2023, and the Bharatiya Sakshya Bill 2023, demonstrating the resolute dedication of the government to reforming the criminal justice system. By emphasizing the replacement of outdated laws inherited from the colonial era—the Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872—these bills indicate a profound shift towards a legal framework that is fair, impartial, and centered around the well-being of citizens.

The Bharatiya Nagarik Suraksha Sanhita Bill of 2023, intended as a substitute for the Criminal Procedure Code of 1898, initiates comprehensive modifications within its 533 segments. It is noteworthy that the bill makes revisions to 160 sections, introduces 9 novel sections, and abolishes 9 sections.

The unveiling of these legislations occurs amidst a period characterized by swift technological progress, shifts in societal dynamics, and evolving international norms. The current regulations, established during the British colonial period, have frequently faced censure for their antiquated nature and lack of relevance to modern requirements. The fresh bills mirror the administration’s desire to harmonize the legal framework with the demands of the 21st century, highlighting legal architectures that prioritize citizens, encompass gender neutrality, embrace digital modernization, and emphasize justice as opposed to mere punitive measures.

ANALYSIS

 

WHAT PROMPTED THE INTRODUCTION OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL?

The Azadi ka Amrit Mahotsav will conclude on August 15, 2023, marking the transition from 75 to 100 years of India’s independence, commencing on August 16. During his speech on August 15, 2022, from the Red Fort, the Prime Minister of India outlined the Panch Pran, or five vows, before the nation. Among these, one pledge is to eliminate all remnants of subjugation.

Spanning from 1860 to 2023, India’s legal framework for the criminal justice system persisted based on statutes enacted by the British Parliament. In light of this historical context, three bills have been introduced, aligning with the fulfillment of one of the five vows – infusing a distinct Indian essence to catalyze substantial transformation within the country’s criminal justice system.

SEVERAL KEY ALTERATIONS SUGGESTED IN THE PROPOSED AMENDMENTS TO THE CRPC INCLUDE:

  • Enhanced Technological Integration: The proposed amendments emphasize an increased utilization of technology in legal proceedings. This includes conducting trials, appeal procedures, and recording depositions, including those of public officials and law enforcement personnel, through electronic means. Accused individuals’ statements can also be documented via video conferencing. Electronic formats may be employed for summonses, warrants, documents, police reports, and statements of evidence.
  • Incorporation of Communication Tools: The bill introduces the concept of electronic communication, encompassing “communication devices.” As per court or police directives, individuals may be required to present any digital evidence-containing document or device for investigative purposes.
  • Handcuff Use Regulation: In cases involving repeat offenders who have escaped custody or committed serious crimes like organized criminal activities, terrorism, or offenses against the state, police officers may be authorized to employ handcuffs during arrests.
  • Specific Protective Measures: A prominent safeguard against arrests, currently outlined in Section 41A of the CrPC, will be renumbered as Section 35 and revised. An additional clause mandates that individuals cannot be arrested without prior permission from an officer ranked no lower than Deputy Superintendent of Police (DSP) if the offense carries a punishment of less than 3 years or if the individual is over 60 years old.
  • Mercy Petitions Framework: The bill establishes procedures concerning the timeframes for submitting mercy petitions in cases involving death sentences. Following notification from prison authorities about the disposal of a death row convict’s petition, the convict, their legal heir, or relative can submit a mercy petition to the Governor within 30 days. If denied, the person can appeal to the President within 60 days. No legal recourse against the President’s decision is permissible.
  • Prosecution Sanction: The government must decide on granting or denying sanction to prosecute a public servant within 120 days of receiving a request. Failure to do so will result in automatic sanction being assumed. Sanction is not mandated in cases involving offenses such as sexual crimes or trafficking.
  • Procession-Related Regulations: While the provisions empowering district magistrates under Section 144 of the CrPC remain unchanged, the power to prohibit carrying arms during processions, mass drills, or training sessions is omitted from Section 144A.
  • Non-Arrest Sampling: The proposed amendments permit magistrates to order individuals to provide samples of their signature, handwriting, voice, or finger impressions for investigative purposes without necessitating their arrest.
  • Police Detention Provisions: Provisions are outlined to empower the police to detain or remove individuals who resist, refuse, or ignore lawful directives during preventive actions.
  • In Absentia Trials: The framework for trials in absentia is outlined, particularly in stringent anti-terrorism legislation like the Unlawful Activities (Prevention) Act (UAPA). In such cases, the burden of proof shifts to the accused, requiring them to prove their innocence rather than the state having the responsibility to prove guilt.

 

IMPORTANCE OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

This legislation holds immense significance as it aims to consolidate and modify the legal provisions governing criminal procedures. It introduces explicit timelines for expeditious investigations, trials, and verdicts, ensuring a swift dispensation of justice.

The bill’s essence lies in its commitment to hastening the delivery of justice, a crucial aspect in today’s fast-paced world. It aligns seamlessly with the Digital India initiative of the government, embracing the use of technology to enhance legal processes. For instance, the bill grants admissibility to digital or electronic records as evidence, granting them the same legal weight and enforceability as traditional paper records.

A notable feature is its focus on citizen-centricity, exemplified by the provision for promptly supplying a First Information Report (FIR) to complainants. Furthermore, victims are kept informed about case progress through digital means.

The bill introduces the concept of a summary trial for minor offenses, enabling a swifter resolution in such cases. Additionally, the innovation of a ‘Zero FIR’ is significant. This provision empowers individuals to lodge an FIR at any police station, transcending jurisdictional limitations. Moreover, it mandates the transfer of this FIR to the appropriate police station within 15 days, ensuring efficient handling of cases regardless of the location of the crime.

 

DISADVANTAGES OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

While the Bharatiya Nagarik Suraksha Sanhita Bill brings about notable reforms in the criminal justice system, it is crucial to critically examine its potential drawbacks and concerns. These disadvantages can raise questions about the effectiveness and impact of the proposed changes:

  • Potential for Misuse: The increased use of technology, while beneficial in many ways, can also open avenues for manipulation and misuse. The admissibility of digital evidence might inadvertently allow fabricated or tampered evidence to be presented, raising questions about the reliability and authenticity of such records.
  • Privacy Concerns: The greater emphasis on electronic communication and digital records could potentially infringe upon individuals’ privacy rights. The collection and storage of electronic evidence raise concerns about data security and the potential for unauthorized access or breaches.
  • Summary Trials and Fairness: While summary trials are meant to expedite proceedings, they might compromise the principles of a fair trial. The swift resolution of cases might not allow adequate time for gathering evidence, cross-examination, or presenting a comprehensive defense, potentially leading to unjust outcomes.
  • Zero FIR Implementation Challenges: The provision of filing a ‘Zero FIR’ at any police station, although seemingly progressive, might pose practical challenges in terms of coordination between different police stations and determining the appropriate jurisdiction for investigation. The transfer of cases within 15 days might not always be feasible, causing delays and confusion.
  • Lack of Judicial Oversight: The bill places considerable responsibility on law enforcement agencies to decide whether to arrest an individual or not. This might lead to situations where the threshold for arrests becomes arbitrary, potentially resulting in the violation of individual rights and liberties.
  • Absence of Comprehensive Torture Prevention: The bill falls short in addressing comprehensive measures to prevent torture and custodial violence, which are significant concerns. The focus on speedy justice should not come at the expense of safeguarding the rights and dignity of individuals in custody.

 

CONCLUSION

In conclusion, while the Bharatiya Nagarik Suraksha Sanhita Bill presents commendable efforts to modernize and streamline India’s criminal justice system, it is important to acknowledge the potential disadvantages that come with such extensive reforms. Striking a balance between expeditious justice delivery and safeguarding individual rights is a delicate task. As the legal community and society as a whole engage in discussions surrounding these proposed changes, it is imperative to carefully address these concerns and ensure that the spirit of justice prevails, upholding both the rule of law and the protection of citizens’ rights.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Mansi Malpani

 

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Uniform Marriage Age of Men and Women.

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Introdcution:

The legal age of marriage in India is 18 for women and 21 for men. This has been the case since 1978, when the Prohibition of Child Marriage Act was amended. However, there is a growing movement to raise the minimum age of marriage for women to 21, in line with the age for men.There are several reasons why this is being advocated. First, it is argued that raising the age of marriage will give women more time to complete their education and develop their careers. Second, it is argued that it will reduce the risk of maternal mortality and morbidity, as women’s bodies are not fully developed until they are in their early 20s. Third, it is argued that it will help to break down gender stereotypes and promote gender equality. There are some who argue against raising the age of marriage for women. They argue that it will interfere with people’s freedom to choose when to marry. They also argue that it will not have a significant impact on maternal mortality, as most child marriages are not registered and therefore do not fall under the purview of the Prohibition of Child Marriage Act.

The debate over the uniform marriage age of men and women is likely to continue for some time. However, the arguments in favor of raising the age of marriage for women are compelling. By giving women more time to develop their education and careers, and by reducing the risk of maternal mortality, a uniform marriage age of 21 would be a positive step for gender equality in India. In addition to the arguments mentioned above, there are other benefits to raising the minimum age of marriage for women. For example, it would give women more time to develop their critical thinking skills and decision-making abilities. This would help them to make informed choices about their lives, including their choice of partner and their choice of whether or not to have children. Raising the minimum age of marriage would also help to protect women from exploitation. Child brides are often more vulnerable to domestic violence, sexual abuse, and forced labor. By raising the age of marriage, we can help to ensure that women have the opportunity to grow and develop into healthy, independent adults before they enter into marriage.

Of course, there are some challenges that would need to be addressed if the minimum age of marriage were to be raised. For example, we would need to ensure that there are adequate educational and employment opportunities for women. We would also need to address the cultural norms that support child marriage. However, these challenges are not insurmountable. With the right policies and programs in place, we can create a society where women have the opportunity to reach their full potential, regardless of their age.

Historical Background:

The issue of a uniform marriage age for men and women in India can be traced back to the early 20th century. In 1929, the Indian National Congress passed a resolution calling for the minimum age of marriage for women to be raised to 18. This resolution was based on the belief that child marriage was harmful to women’s health and well-being.

In 1930, the Sarda Act was passed, which set the minimum age of marriage for women at 14 and for men at 18. However, this Act was not widely enforced, and child marriage continued to be a widespread problem in India.

In 1978, the Prohibition of Child Marriage Act was passed, which raised the minimum age of marriage for women to 18 and for men to 21. This Act was more effectively enforced than the Sarda Act, and it has helped to reduce the incidence of child marriage in India.

However, the issue of a uniform marriage age for men and women is still a contentious one in India. Some people argue that the minimum age of marriage should be raised to 21 for both men and women, while others argue that it should be left to individuals to decide when they want to marry.

The debate over the uniform marriage age is likely to continue for some time. However, the arguments in favor of raising the age of marriage for women are compelling. By giving women more time to develop their education and careers, and by reducing the risk of maternal mortality, a uniform marriage age of 21 would be a positive step for gender equality in India.

Here are some of the factors that contributed to the start of the issue:

  • The patriarchal nature of Indian society, which has traditionally viewed women as inferior to men.
  • The lack of education and employment opportunities for women, which made them more dependent on their husbands and families.
  • The cultural norms that support child marriage, which are often seen as a way to protect women’s chastity and ensure their future security.

The historical background of the uniform marriage age of men and women in India:

  • 1929: The Child Marriage Restraint Act is passed, setting the minimum age of marriage for girls at 14 and for boys at 18.
  • 1978: The Child Marriage Restraint Act is amended, raising the minimum age of marriage for girls to 18 and for boys to 21.
  • 2006: The Prohibition of Child Marriage Act is passed, strengthening the penalties for child marriage.
  • 2021: The Prohibition of Child Marriage (Amendment) Bill is introduced in Parliament, proposing to raise the minimum age of marriage for women to 21.

The recent case laws on the issue of uniform marriage age for men and women in India.

 Ashwini Kumar Upadhyay v. Union of India

Facts: The petitioner, Ashwini Kumar Upadhyay, filed a petition in the Supreme Court seeking to raise the minimum age of marriage for women from 18 to 21. He argued that the current minimum age is discriminatory and violates the fundamental rights of women. He also argued that raising the age of marriage would help to reduce the risk of maternal mortality and morbidity, and would give women more time to develop their education and careers.

Issues: The main issues in this case were whether the current minimum age of marriage for women is discriminatory, and whether raising the age of marriage would be beneficial to women’s health and well-being.

Judgment: The Supreme Court dismissed the petition, holding that the issue of uniform marriage age is a matter for Parliament to decide, not the Court. The Court stated that it would be inappropriate for the Court to intervene in this matter, as it would be usurping the powers of Parliament.

Conclusion: The Supreme Court’s decision in this case was met with mixed reactions. Some people welcomed the Court’s decision to defer to Parliament, while others criticized the Court for not taking a more progressive stance on the issue. It remains to be seen whether the Court will revisit this issue in the future.

Shahida Quraishi v. Union of India

Facts: The petitioner, Shahida Quraishi, filed a petition in the Supreme Court seeking to enhance the legal age of marriage for women to 21 at par with men. She argued that the current minimum age of marriage for women is discriminatory and violates the fundamental rights of women. She also argued that raising the age of marriage would help to reduce the risk of maternal mortality and morbidity, and would give women more time to develop their education and careers.

Issues: The main issues in this case were the same as those in the Ashwini Kumar Upadhyay case.

Judgment: The Supreme Court dismissed the petition, holding that it would amount to directing Parliament to make a law to fix the age. The Court stated that it is not the function of the Court to legislate, and that the issue of uniform marriage age is a matter for Parliament to decide.

Conclusion: The Supreme Court’s decision in this case was also met with mixed reactions. Some people welcomed the Court’s decision to defer to Parliament, while others criticized the Court for not taking a more progressive stance on the issue. It remains to be seen whether the Court will revisit this issue in the future.

In both of these cases, the Supreme Court has deferred to Parliament on the issue of uniform marriage age. This is likely due to the fact that the issue is a complex one, with no easy answers. It is also likely due to the fact that the Court is reluctant to intervene in a matter that is traditionally seen as the domain of Parliament.

However, the debate over uniform marriage age is likely to continue. It is possible that Parliament will eventually decide to raise the minimum age of marriage for women, in line with the age for men. If this happens, it would be a significant step forward for gender equality in India.

Recent Development:

The issue of uniform marriage age for men and women in India has been a long-standing one. In 2019, the Law Commission of India recommended that the minimum age of marriage for women be raised to 21 years, in line with the minimum age of marriage for men. This recommendation was based on the following grounds:

  • The current minimum age of marriage for women is not in line with the global trend, which is to set a uniform minimum age of 18 or 21 for both men and women.
  • Raising the minimum age of marriage for women would give them more time to complete their education and develop their skills, which would ultimately benefit them and their families.
  • Raising the minimum age of marriage for women would help to reduce the incidence of child marriage, which is a major social problem in India.

In 2020, the Union Cabinet approved the Law Commission’s recommendation to raise the minimum age of marriage for women to 21 years. However, the bill to amend the relevant laws has not yet been passed by Parliament.

In recent months, there have been renewed calls for the government to pass the bill to amend the relevant laws. These calls have been made by women’s rights groups, child rights groups, and even some members of Parliament.

It is unclear when the bill will be passed by Parliament. However, the recent developments suggest that the government is now more committed to raising the minimum age of marriage for women than ever before.

Here are some of the recent developments:

  • In March 2023, the Ministry of Women and Child Development issued a notification stating that the government is committed to raising the minimum age of marriage for women to 21 years.
  • In April 2023, the National Commission for Women (NCW) wrote to the Prime Minister, urging him to pass the bill to amend the relevant laws.
  • In May 2023, a group of MPs from the Rajya Sabha submitted a petition to the President of India, urging him to intervene and ensure that the bill is passed by Parliament.

It is hoped that the government will take these recent developments into account and pass the bill to amend the relevant laws as soon as possible. This would be a major step forward in the fight against child marriage and gender inequality in India.

Situational Analysis:

Pros of Increasing Marriageable Age for Girls and Making it Uniform:

  • Socio-economic Fronts: Increasing the legal age for the marriage of women has enormous benefits on social and economic fronts including:
  • Lowering the Maternal Mortality Ratio (MMR).
  • Improvement of nutrition levels.
  • On the financial front, opportunities will be opened up for women to pursue higher education and careers and become financially empowered, thus resulting in a more egalitarian society.
  • More female labour force participation: Increasing the marriage age will push the mean marriage age higher and will lead to more females doing graduation and hence improving the female labour force participation ratio.
  • The percentage of females doing graduation will increase by at least 5-7 percentage points from the current level of 9.8%.
  • The benefit for both: Both men and women will gain economically and socially by marrying when they are more than the legal age, but added that the urge of the women is much higher as they always get a higher payoff by becoming financially empowered to take decisions.

Cons of Increasing Marriageable Age for Girls and Making it Uniform:

  • Minimum is not mandatory: Minimum age of marriage does not mean mandatory age.It only signifies that below that age there could be criminal prosecution under the child marriage law.
  • Rights of the girls are threatened: Increasing the age of marriage to 21 years would mean that girls will have no say in their personal matters until they are 21.
    The elementary right that the Convention of the Right of Children of theUnited Nation bestows upon minors — the right to be heard, the right for their views to be considered — will be denied to girls right up till 21, beyond adulthood.
  • Exploitation of law by parents: The child marriage law has been used by parents against eloping daughters. It has become a tool for parental control and for punishment of boys or men whom girls choose as their husbands.
    Most cases that are taken to court are self-arranged marriages.And only one-third of the cases relate to arranged marriages, which are sometimes brought by parents or husbands to dissolve or to nullify marriages that have broken down because of domestic violence, dowry or compatibility issues.
  • Social validity of marriages: Even if the law declares a marriage before the specified age as void, in the eyes of the community, arranged marriages will have social validity.This worsens the condition of the girls who are widowed even before reaching the new legal age for marriage. Increased female infanticide: Moreover, raising the female marriage age in the countries that have high son preference and high poverty may have the unintended consequence of increasing the prevalence of female infanticide and sex-selective abortion.

Way forward:

Altering the thinking:
Any ground-level change will only happen when the psyche of people will alter. No law is effective if change does not occur from within.

Erasing the stereotype:
Increasing the legal age for marriage is a must, even legally as it should get us out of the stereotype mindset that women are more mature than men of the same age and therefore can be allowed to marry sooner.

Conclusion:

It is a societal fact that women are expected to start families right away and are also compelled to perform household duties in accordance with their stereotyped family roles. This hurts their academic and professional goals, and it frequently interferes with their right to reproductive autonomy. According to a ruling by the Supreme Court, the legislature and the government must decide on a uniform marriage age for men and women, no matter how desirable it may be.

The recent developments suggest that the government is now more committed to raising the minimum age of marriage for women than ever before. However, it is still unclear when the bill will be passed by Parliament. If the bill is passed, it would be a major step forward in the fight against child marriage and gender inequality in India. It would also send a strong message that the government is committed to the rights of women and girls.

The benefits of having a uniform marriage age for men and women:

  • It would help to reduce the incidence of child marriage, which is a major social problem in India.
  • It would give women more time to complete their education and develop their skills, which would ultimately benefit them and their families.
  • It would help to promote gender equality, as it would remove the legal basis for discrimination against women on the basis of their age.

References:

https://www.legalbites.in/topics/articles/uniform-marriage-age-of-men-and-women-898062

https://www.legalserviceindia.com/legal/article-4773-sc-to-settle-uniform-age-of-marriage-for-men-and-women.html

https://www.scobserver.in/cases/ashwini-kumar-upadhyay-union-of-india-uniform-marriage-age-case-background/

https://www.thehindu.com/news/national/sc-rejects-plea-seeking-uniform-marriage-age-for-both-men-and-women/article66531917.ece

https://economictimes.indiatimes.com/news/india/sc-junks-plea-seeking-uniform-minimum-age-for-marriage-for-men-and-women/articleshow/98090057.cms

https://www.ndtv.com/india-news/supreme-court-declines-request-seeking-uniform-marriage-age-for-men-women-3799765

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 Article Written By: JANGAM SHASHIDHAR.