1. A politics of avoidance that must be questioned

The dropping of Question Hour, which helps the government feel the nation’s pulse, goes against the grain of democracy

• We, the people of India, gave ourselves a Constitution that prescribes for our democracy a parliamentary form of government in which the executive is accountable to the electorate through a legislature which in turn is periodically elected by the electorate. This accountability lies at the heart of democratic government and is implemented through procedures put in place by the legislature whose functions include lawmaking, controlling the national finances and approving taxation proposals, and having discussions on matters of public interest and concern. Each of these functions is discharged, daily or periodically, during sittings of the legislature and cover questions, adjournment motion, calling attention, half-an-hour discussion, motion of no confidence, questions of privilege, etc.

Instruments of accountability

• Among these instruments of accountability, the daily ‘Question Hour’ has an unmatched criticality on account of its regularity and its availability on a basis of equality to every Member of the House, Rajya Sabha or Lok Sabha. It has a special significance in the proceedings of Parliament since it covers every aspect of government activity, domestic and foreign. The government of the day is thus helped to feel the pulse of the nation and give the public a view of the performance of both of its elected representatives and of the Ministers. Those who fumble are rarely forgotten.
• The Rules of Procedure in both Houses prescribe the operational details. These include, inter alia, the notice period, conditions of admissibility, balloting, and a host of other procedural or regulatory prescriptions. Questions are addressed to a specific Minister of the government and can seek oral answers marked by an asterisk or a written one. The veracity of the answers given are matters of utmost importance and rules permit correction of inaccuracies by the Minister concerned. Copies of answers given are available to Members at the Notice Office before the start of the day’s proceedings as also on the websites.

Seeking the specifics

• Since questions are generally ‘pointed, specific and confined to one issue only’, they tend to elicit specific information from the government; our parliamentary history records instances of answers given to questions leading to wider debates, inquiries, and even administrative scandals. Even otherwise the information so made available adds to public information essential to informed debates on matters of interest or concern. The advantage to the government is that its position in the matter is authoritatively explained. By the same logic, incomplete or unsatisfactory answers induce resort to other forms of accountability mentioned above.
• For this reason, Members of Parliament and the interested citizens attach much importance to questions in Parliament and have been taken aback by the peremptory announcement in parliamentary bulletins this week that in the forthcoming session of Parliament (monsoon session that starts on September 14) that ‘there will be no Question Hour.’ The stated reason for this is the situation created by the COVID-19 pandemic.

Citing the pandemic is jarring

• The gravity of the situation resulting from the spread of COVID-19 continues to be experienced by people the world over and by every citizen of the country. New disciplines have descended on us and we have experienced new norms and styles of existence, learnt to live with total and partial lockdowns, and have moved from no activity to partial restoration of essential activities. Procedures of social distancing and the wearing of protective masks have been imbibed. Countries far and near have brought forth their individual response patterns; some of these show that legislative bodies have continued to function with new sets of ‘dos and don’ts’. Finally, though belatedly, some of our State Assemblies took the initiative and now the Parliament of India has followed suit. The public has welcomed this.
• In this context, the deletion of ‘Question Hour’ from the announced agenda of the day is baffling and has understandingly been viewed as curtailment of the right to question the government. Subsequent clarifications have stated that the Unstarred Questions will continue to be received and answered and that the change will relate only to Starred Questions and the Supplementary questions emanating from them that require to be answered orally.

Exploring options

• The purpose of a Starred Question is to explore the intent and the alleged illegality or procedural lacuna that the government decision in question has sought to camouflage in the form of words and expressions used in the answer. The Oral Supplementary questions seek to unravel these. It is a form of verbal gymnastics not unknown in daily life. Perhaps greater sensitivity to parliamentary and public sentiments could have been displayed by exploring procedural options that would retain the substance if not the complete form of a Starred Question. One way could be to admit the Starred Question, reply to it in a set of prepositions and allow the Member concerned to table in writing the permitted number of follow up questions also to be answered in writing the following day.
• Were these options explored and discussed with leaders of political parties and groups? The Chairman and the Speaker unquestionably have the final word on matters relating to the proceedings of their respective Houses. This can be, and has been supplemented, on occasions, by using a Motion to develop a consensus ‘on matters of general public interest’. Was this explored on this occasion? And, finally, what public purpose is served when senior members of the ruling party describe the Opposition expression of concern as ‘a fake narrative’ since ‘extraordinary times justify extraordinary measures?’
• The test of a functioning democracy is its ability to face crises — social, economic, political — and seek correctives premised on institutions of democracy. A resort to what has been called ‘the politics of avoidance’ does not help the process. Executive accountability upfront cannot be allowed to become a thing of the past.

2. Should the age of marriage for women be raised to 21?

There is no evidence that tinkering with the age of marriage will benefit women in any way

• In his Independence Day speech, Prime Minister Narendra Modi announced that the government will soon take a decision on the age of marriage of women. Earlier, a task force had been formed to consider raising the age of marriage from 18 years to 21. Madhu Mehra and Jayna Kothari discuss the issue in a conversation moderated by Jagriti Chandra. Edited excerpts:
• Do you agree with the move to increase the age of marriage for women to 21 years?
• Madhu Mehra: It is important that girls are not pushed into marriage early; marriage should not be compulsory for them to gain social and economic status. Yet, an increase in the minimum age of marriage to 21 years will be counterproductive. 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.
• Now, to increase the age of marriage to 21 years would mean that girls will have no say in their personal matters until they are 21. In our research at Partners for Law in Development, we looked at 10 years of use of the child marriage law. Overwhelmingly, the law was 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. So, 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. So, nowhere is age an issue in people’s minds.
• An increase in age to 21 years would mean further persecution of girls right up till 21 years. We’ve seen this in the Supreme Court and the Kerala High Court in the Hadiya case, where an adult woman’s decision to marry was challenged by her parents. This is how it plays out in the Indian context.
• The elementary right that the child rights convention 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.
• How does the Prohibition of Child Marriage Act (PCMA), 2006, view underage marriages and how effective has it been on the ground?
• MM: The PCMA sets the minimum age of marriage at 18 years for women and at 21 for men. It treats underage marriages as valid, but voidable. It means that an underage marriage is valid as long as the minors involved in the marriage want it to remain valid. The PCMA also treats those underage marriages as void or having no legal validity, where they involve trafficking, enticement, fraud and deceit.
• A valuable provision in the PCMA is that it allows the minor party to repudiate the marriage or to have it nullified right up till two years of attaining majority. This allows girls who elope with their partners to demand that their marriages are protected. This right should never be taken away.
• There is also a provision for injuncting an underage marriage from happening, which allows social workers flexibility in negotiating with the families involved and in getting the help of the district administration, child protection agencies, as well as the police. They usually do not use the law to formally prosecute as the repercussions at the village level are very severe for those who interfere. We saw this with Bhanwari Devi who was gang-raped for stopping a child marriage.
• Even if the law declares a child marriage void, in the eyes of the community, arranged marriages will have social validity. There are huge financial penalties, which go into lakhs of rupees depending on which caste and biradri you come from, for breaking a marriage which the law does not address or provide protection against. So the legal force of the PCMA and its flexibility, rather than prosecutions, enable social workers to prevent marriages.
• One argument for raising the age of marriage for women to 21 years is that it will make the marriage age equal for both men and women. Do you welcome that?
• Jayna Kothari: I agree that the age of marriage should be uniform for men and women, but I don’t welcome the move to increase it to 21. Human rights activists, women’s groups and child rights activists demand that the age of marriage should be equal for boys and girls. Under the previous 1929 law, the Child Marriage Restraint Act, there was a thinking that girls mature earlier than boys and therefore should have a lower age of marriage. That is a very outdated perception.
• The Law Commission Report of 2008, on reforming family law, recommended a uniform age of marriage for boys and girls at 18 years and not 21. The National Human Rights Commission in 2018 recommended that there should be a uniform age of marriage for boys and girls. Laws such as the Indian Majority Act, 1875 grant the right to vote, and to enter into contracts, for those who attain the age of 18. And they are equal for men and women. Even the Supreme Court, in the Independent Thought case, when it looked at child marriage, said that it’s accepted universally that a child is someone who’s under the age of 18, and that should be the age of marriage. If we look at our international commitments, the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women) Committee also recommends 18 as the age of marriage. If we’re looking at law reform, we should not have these different ages for marriage.
• At the current age of marriage for women and men, we find that implementation of the child marriage law is very hard. So there is no basis to increase it to 21. If the concern is that there should be fewer pregnancies or to avoid early pregnancies among young girls, there are different ways to address that.
• Moreover, the unequal age of marriage impacts girls more adversely. Both girls and boys get two years’ time after their age of marriage to repudiate their underage marriage under the PCMA, 2006, which for a girl is only till she turns 20, but for a boy it is until he turns 23. At 19 or 20, a girl is at a fairly young age to have the capacity or the wherewithal to annul the marriage.
• Do you agree with the principle of equality being applied here?
• MM: How do we understand equality is my question. My proposition is to enhance gender equality. It’s only a theoretical discussion to revise the age of marriage because we don’t have evidence that tinkering with age will be beneficial in any way.
• In India, we widely practise hypergamy, where the boy has to be older, more educated, must have a higher income, and so on. If we bring the age of marriage down to 18, it is possible then that the most desirable bride for that boy would be 15 or 16 years old. I would say let’s not touch the age of marriage because there is no evidence of particular harm in that regard.
• As far as the issue of repudiation of marriage by girls is concerned, I believe it should be four years for girls and not two.
• But if we are thinking about equality and non-discrimination, then another amendment is non-negotiable and of very high priority, that is the age of sexual consent. Currently, in elopement cases, boys are prosecuted for repeated rape of the minor wife, which is an aggravated offence punishable by a minimum of 20 years under the Protection of Children from Sexual Offences Act. In contrast, in an arranged marriage, in the rare case when parents are prosecuted, the maximum punishment is two years. This disparity replaces honour killings by the rule of law. This is heinous, and the age of consent must be brought down immediately. To bring in the law for consensual, non-exploitative, non-coercive relations between peers is a big flaw that needs to be corrected.
• Jayna, the debate we’re having emerges from the Supreme Court judgment of 2017 which said that sexual intercourse with a child bride under 18 years would be considered rape. As a result, the government is considering amending the law to make child marriages illegal or void ab initio. Do you think this will help girls?
• JK: I think it’s important to have the PCMA declare child marriages void ab initio, which means that all child marriages would be considered as invalid marriages. It would help young girls who are forced into marriages and want to come out of it. We need to recognise child marriage as a human rights violation as it endangers the lives of young girls by exposing them to increased domestic violence, marital rape, early pregnancies, etc. Rendering all child marriages invalid will also make them unacceptable. Of course, it has to go along with some measures to protect young girls such as maintenance and protection orders from domestic violence.
• Karnataka has amended the PCMA to make marriages void ab initio. What has been the impact of this in the State?
• JK: This amendment was brought about in 2017 based on the recommendations of a committee under Justice Shivraj Patil. There hasn’t been much impact because the Karnataka government has not advertised this amendment to create any awareness. Even the child marriage prohibition officers are not trained.
• Though I agree with Madhu that there shouldn’t be criminalising or policing, I would also argue that the law has to prohibit child marriage. And that’s not criminalising, that is just declaring child marriages void.
• Madhu, what do you think is an effective way of tackling underage marriage?
• MM: An issue like child marriage is a social issue, an economic issue. While there is the Right to Education Act, 2009, the quality of education is poor and doesn’t show a way out of inter-generational poverty. Poor families don’t see any value in continuing education. Second, a lot of parents are interested in private education because it is better, but they can’t afford it. Third, poor families thrive on domestic work and a girl often gets pulled out of school to help at home. So, this myth that girls leave education because of marriage is not borne out by data. We must ensure an increase in the scope of the Right to Education for girls right up to vocational studies.
• I would say that to introduce criminal law and punishment and to declare child marriage void is like saying hunger is a human rights problem and the way to address hunger is by criminalising those who have less food or eat one meal.
• As far as the Karnataka situation is concerned, one social worker shared with us a case of a minor who was widowed. When she sought to claim the pension of the deceased husband, she was told that her marriage is not valid. We can say that they have the right to maintenance, but that is of no succour to a person who’s continuing to be within that marriage but has no matrimonial rights, no right to inheritance, no right to stay in her marital home, and the man would face no legal consequences if he married again. The woman’s life doesn’t change merely by saying the marriage is void. She just becomes a de facto wife without any legal protection.
• Many social workers did not agree with the recommendations of the Justice Shivraj Patil Committee as they thought those made their life more difficult. How do they help girls who have no recognition in the eyes of the law?

3. Sri Lankan Cabinet appoints panel to draft new Constitution

Move follows Rajapaksa brothers’ election pledge to abolish the 19th Amendment

• The Cabinet has set up an experts’ committee to draft Sri Lanka’s new Constitution, even as the government gazetted the draft of the 20th Amendment that would reverse the preceding 19th Amendment, a 2015 legislation that clipped certain executive powers of the President.
• The move follows the ruling Rajapaksa brothers’ poll pledge to abolish the 19th Amendment, introduced by the former government. After a securing a comfortable two-thirds majority in the August general elections, the government took up the promise swiftly.
• In his inaugural address to Parliament on August 20, President Gotabaya Rajapaksa announced that Sri Lanka would draft a new Constitution, jettisoning the 19th Amendment that sought to strengthen Parliament and independent institutions, besides curbing presidential powers.

Two-step process

• The government’s amendments to the Constitution will be carried out in two-steps, Minister Udaya Gammanpila told the weekly Cabinet press briefing on Thursday. While the 20th Amendment would “correct anomalies” in the current Constitution, a completely new Constitution would replace it soon after, authorities said.
• Earlier, on examination of the draft amendment, the Attorney General told the government that it could be passed with a two-thirds parliamentary majority, and did not require a national referendum.
• Government sources said the public would have about two weeks to go through the draft and petition the Supreme Court if they have objections.
• Once the Supreme Court gives its determination on the draft to Parliament, it would be taken up for debate in the House, a senior official told The Hindu, requesting anonymity. Asked what time frame the government was looking at to complete the process, the official said: “As soon as possible.”
• The committee tasked with drafting the new Constitution will be led by senior lawyer Romesh de Silva.