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Assam Crackdown on Child Marriages

It Rightly Upholds the Law

Dr. N. C. Asthana, IPS (Retd)

The Assam chief minister Himanta Biswa Sarma has informed on February 18
that, in their on-going drive against child marriages, 3047 persons have been
arrested so far. Only 251 of them have been able to get bail so far. This shows
that the arrests are, by and large, both legal and correct. He also informed that
the drive shall continue until 2026. The Assam crackdown on child marriages
has led to an impassioned outburst from Left-Liberal and Muslim Right Wing
activists. In the following, I will show how malicious their fulminations against
the Assam government are and why the latter must be lauded for upholding the
law.

Breast Beating By Left-Liberal and Muslim Right Wing Activists

Left-Liberal and Muslim Right Wing activists descended in droves beating their
breasts along predictable lines over this crackdown. They are so utterly illogical
that their ignorance and hypocrisy are pathetic. I will comment on some of the
prominent ones amongst them. One author says that the Assam chief minister’s
crackdown must stop because by criminalising child marriage, the Assam
government is undermining the importance of choice and prevention, and
tearing families apart in the process. By God, it is not the Assam government,
which has criminalised child marriages. There is a proper central Act
(Prohibition of Child Marriage Act, 2006) for this since January 2007 and it is
uniformly applicable to every state. In fact, in terms of Section 1(2), it applies to
all citizens of India without and beyond India also. Second, if someone is
raising the issue of choice and prevention in 2023, she must be informed that
she is barking up the wrong tree. These things ought to have been debated in
the Parliament when the law was being enacted, not in articles and not now!
As for the lamentation of families being torn apart, she must know that when a
murderer is hanged, his family is also torn apart. It is not the responsibility of
the society or the State to bother about a criminal’s family. If he was so much
concerned about his family, he should not have committed that crime in the first
place! By the way, have these people also bothered about the family of Ajmal
Kasab or sent them some financial help through secret channels? In a similar
vein, another author cries that Assam’s crackdown on child marriages leaves
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behind young women and sobbing children—as if all other millions of criminals
do not have young women and sobbing children to support!

Questioning the motive behind the crackdown, AIMIM chief Asaduddin Owaisi
has said that the Assam government should have concentrated on increasing
literacy levels if it was actually seized of the problem of child marriage. Owaisi
also sought to know who will be responsible for the women left in the lurch
following the arrest of the men of the house. By God, do we ask the same
questions in respect of any other criminal in the country also? Why this wave
of sympathy, if not for the reason that the accused happen to be mostly
Muslims?

Many authors simply want to invoke sympathy by projecting the episode as a

tearjerker story. One article says that it has left the families in anguish. Another
article says that legislation, education and government action must be used
together to help families keep teenage girls in school. For their kind
information, the issue of legislation was settled 16 years ago and the law does
not provide for any discrimination in its application. By the same logic,
education, moral education, employment, and government action must be used
together to keep young men responsibly at homes and not indulge in
kidnappings for ransom, murders, rapes, drugs and the like. Yet another article
calls it cruelty in the name of children. Interesting stupidity—by the same logic,
punishment to a rapist could be called cruelty in the name of women!

Another set of authors have tried the pontificator’s attitude of advocating

education, etc. One of them says that the solution to child marriage problem lies
in schools and not in mass arrests. In the same vein, another says that the
answer is schools, not jails. Yet another article says that we must invest in
changing social norms to end child marriage. They do not understand that all
these notions apply equally to all types of crimes. Given proper education,
probably many male criminals could find something more respectable and
productive to do instead of committing crimes.

These people are mischievously presenting generality alongside specificity.

Like education, there are many other ‘desirable’ things for any society. The
nation state is striving hard for them but is obviously under no legal obligation
to necessarily keep every citizen alive and educated. If Muslim girls do not
attend school in spite of the government having provided practically free school
education; who is responsible for that? As for talking of changing social norms,
the author seems to be living on another planet. Apparently, she does not have
the faintest idea of what Muslim society is like and how attempts at social
reforms in the past have floundered on the hard rock of orthodoxy. Such
ignorance can only be pitied.
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In any case, why is it that their hearts are rent only when the arrested people
happen to be Muslims, if not for their obvious anti-BJP stance? Their hypocrisy
has, in fact, crossed all limits. Let us face it. They are shedding crocodile tears
because practically most the accused arrested are from the Muslim
community and there is a BJP government in the state. The real target of
their ire and frustration is the BJP government—the child marriage-related
arrests are only a convenient excuse.

One author has suggested that rather than sending the husbands of the victim
girls to jail and re-victimising them, it would be prudent for the cops to take
stringent action against the religious priests who solemnise minors’ marriages
without due diligence, and to sensitise the masses through them. This is a
dangerously misplaced and legally wrong argument. In the first place, police do
not have any discretion given to them by the law. Section 9 of the Prohibition of
Child Marriage Act, 2006 provides for punishment for male adult marrying a
child. Any police officer, who, in a fit of liberalism, zeal for social reform or
under the influence of the propaganda of the Left-Liberal gang and Muslim
Right Wing knowingly decides to spare the husbands of child brides, will face
departmental action leading to dismissal from service as well as criminal
prosecution. As far as the person(s) who perform, conduct, direct, abet promote
or permit any child marriage (this may include family members etc. as well as
the religious figure performing the rituals), punishment has already been
provided for in Sections 10 and 11.

As for the suggestion of the so-called ‘sensitization of the masses’, the simple
fact is that it is not the job of the police—exceeding the mandates of their duty
may, in fact, land them in trouble on trumped up charges, such as violating the
privacy and ‘purdah’ of Muslim homes under the pretext of sensitizing the
people, especially women. Any attempt at social reform cannot depend only on
governmental initiative—the people have actually a greater share of
responsibility. When the British abolished Sati in India through the Bengal Sati
Regulation, 1829, they were not even a sovereign power in India—they merely
enforced the regulation in the area under their control and did not bother about
the consequences. They had neither the time nor the resources to ‘sensitize the
masses’ as such authors desire—this was accomplished by the labours of social
reformers like Raja Ram Mohan Roy.

Criticisms Are Actually Politically Motivated

Who are these people to comment upon the social merits or demerits of the
present Prohibition of Child Marriage Act, 2006 and what gives them the
authority to do so? This law, which came into effect from January 10, 2007
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replaced the Child Marriage Restraint Act, 1929 (famous as the Sarda Act),
which was enacted by the British and has had been hailed as a great piece of
legislation by all and sundry. No one criticized its social relevance in 78 years
of its existence. And, for the sake of argument, if the Left-Liberal and Muslim
Right Wing activists have had any problem with the Sarda Act, what prevented
them from voicing their criticism all these 78 years—particularly when, for the
most part of it, they had those political parties in power in the centre which were
ideologically sympathetic to their views.

Do these people mean to say that our lawmakers (that is, representatives of
the people) are not serious or sincere enough, or that they are utterly ignorant
of the social realities of this country? Do they mean to say that the 2006 law
was made in jest, for fun or for show? For the sake of argument, even if it is
accepted that they could not prevail upon the elected representatives to
reconsider the demerits of first the Sarda Act and then the 2006 Act, what
prevented them from approaching the Supreme Court? Since they did not do so
in 94 years since 1929, it can only mean that their present fulmination against
the enforcement of the Act is driven essentially because of their problems with
the BJP and because the accused are mostly Muslims, and not with the law per
se. Their rant, their venting out of frustration against the action of the Assam
government is nothing but a desperate, opportunistic attempt to once again
malign the BJP government as anti-Muslim! Why is it that they are talking of
the level of education, employability or ‘awareness’ of the child brides only
when they happened to be Muslims living under a BJP state government?
Their wickedness and chicanery screams out.

The Law Must Be Upheld At All Costs

Contrary to what the Left-Liberal and Muslim Right Wing activists have been
fulminating, the simple fact is that once we have a duly enacted law in place and
the constitutionality of which has not been commented upon adversely by the
Supreme Court, state governments are legally bound to enforce them. The
governments, not to speak of the police, do not have any discretion in this
regard.

Which provision in the Constitution of India or any law says that the state
governments have the discretion to not enforce of a law simply because it
supposedly hurts the Muslim community or that they must, at least, defer the
enforcement of the law until such time that the level of education,
employability or ‘awareness’ of the Muslim girls (and perhaps men too)
improved? In any case, no one knows when that will happen. The law does not
give such arbitrary powers to anybody. In fact, the governments would be
failing in their constitutional duty, if they do not enforce the law.
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The Left-Liberal and Muslim Right Wing activists are making much of an
isolated observation of the Guwahati High Court. Granting pre-arrest bail to
nine people on February 15, the HC had objected to the police invoking POCSO
(Protection of Children from Sexual Offences Act, 2012) in that case, and the
claimed necessity of custodial interrogation. In any case, we are given to
understand that the Assam chief minister has said that while men who married
girls below 14 years of age would be booked under the POCSO, those marrying
girls between 14 to 18 years would be booked under the Prohibition of Child
Marriage Act.

I do not mean to say that besides the laws, social, cultural, political and
economic initiatives at various levels and from various corners do not have
their place in the life of a country and its people, particularly with respect to
social evils. However, the lack of such initiatives or their pendency cannot be
invoked as a reason to stall legal action. Any such idea is fraught with the
dangerous possibility of their selective and rampant abuse for vested political
interests—this is precisely the reason that the application of laws is kept bereft
of any discretionary powers.

Moreover, there is no evidence that the Muslim society regards child marriage
as a social evil in the first place! In respect of Muslim girls, the marriage of a
minor who has attained puberty, defined as 15 years in the case of Muhammad
Ibrahim Rashid (1912) is considered valid. One hundred and ten years later also
in August 2022, in the case of Fija, the Delhi High Court also ruled that as per
Mohammedan Law, a minor girl who had attained the age of puberty could
marry without the consent of her parents on attaining puberty, and has right to
live with husband even when below 18 years. Earlier, in June 2022, the Punjab
and Haryana High Court had also ruled the same in the case of Gulam Deen. In
August 2022, the National Commission for the Protection of Child Rights
(NCPCR) moved the Supreme Court against the High Court orders. In January
2023, the Supreme Court decided to examine whether girls as young as 15 years
can enter into wedlock on the basis of custom or personal law when such
marriages constitute an offence in statutory law.

The Assam chief minister has rightly stated that the police will retrospectively
book people who have had participated in child marriage in the last seven years
and the focus will especially be on “mullahs, kazis, and pujaris” conducting
these marriages. We must applaud the Assam chief minister because violators of
laws, who have had been pampered for the politics of vote bank; who have had
been treated with kid gloves supposedly because their ‘sentiments could be
hurt’ and thereby cost dearly in terms of votes, are, at least for once, receiving
the full force of the heavy stick of the law. They must understand that, in the
name of an unwritten ‘special status’, they cannot have a ‘preferential
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treatment’ in the matter of criminal law. We only needed someone like

Himanta Biswa Sarma to drive the point home that the laws of the land
cannot discriminate amongst people and they shall be enforced irrespective of
community or religion!