When is a child a child? India’s laws still can’t agree

In the 13-odd years I appeared for the State as an Additional Public Prosecutor in Maharashtra and now as counsel before the Bombay High Court, I have watched a single word - “child” - do very different work in different courtrooms on the same morning. A boy of 15 standing in a children’s court is a child to be protected, counselled and reformed. A girl of 15 working a long shift in a small workshop a few kilometres away may be perfectly lawful in the eyes of our labour law. A married girl of 17 may, depending on which judge reads which statute, be treated either as a wife or as a victim. The law cannot seem to settle the one question that ought to be simplest of all: who, exactly, is a child?

This is not pedantry, and it is not a quarrel about numbers. Where the line of childhood falls decides whether a person goes to school or to work, whether an act is a crime or a private matter, whether the State steps in or stands aside. In India, that line is drawn in at least half a dozen different places by half a dozen different laws and the gaps between them are where real children fall through.

The 86th Amendment to the Constitution inserted Article 21A and made education a fundamental right. The enabling statute, the Right of Children to Free and Compulsory Education Act, 2009, guarantees free and compulsory education - but only “to all children of the age of six to fourteen years.”

Read that limit again. The right we rightly call transformative switches off on a child’s 14th birthday. A child who has spent 8 years in a good school, often a year or two short of the qualification that decides everything that follows, has no constitutional claim to a single further day of free schooling. If the family can pay, the child continues. If it cannot - and crores of families cannot, the child is finished with education. I have seen what that does. A boy is admitted young to a decent, even elite, school; the parents stretch themselves to fund it; and then at 14 the money runs out and the fee structure does not bend. The child does not vanish. He drifts and a few years later, he sometimes walks back into a criminal court, this time in the dock.

Here, our statutes contradict one another almost word for word. The Child Labour (Prohibition and Regulation) Amendment Act, 2016 forbids the employment of a “child” - a person below 14 - in any occupation, which sits neatly with the education guarantee. But the same amendment invents a new category, the “adolescent”: a person who has completed 14 but not 18. And it permits adolescents to work, barring only a short notified list of hazardous occupations - mines, work with inflammable substances and explosives, and processes declared hazardous under the Factories Act.

So the design, taken as a whole, is this: the State stops paying for your education at 14 and allows you to start earning at 14. The two halves fit together a little too well. A child the State will no longer educate is a child the State will let go to work. And because the forbidden list is short, a 14-year-old kept out of a mine or a firecracker unit may still be put to long, unsupervised hours in any number of small, unglamorous, unsafe places that never make it onto any notification.

Now set that beside the Juvenile Justice (Care and Protection of Children) Act, 2015, which treats every person below 18 as a child entitled to care and protection. By the logic of that Act, a 15-year-old is a child who needs the State’s shelter. By the logic of labour law, the very same 15-year-old is an adolescent who may clock in for a shift. Both propositions are, today, the law of the land. They cannot both be right. If a person is mature enough to be sent into industry at 14, why is he a child needing protection until 18? And if he is a child until 16, why is he in the workshop at 14 rather than in a classroom?

Nowhere is the confusion more consequential than in criminal law and nowhere is it more revealing; because here the age of the “child” shifts depending on whether the child is the accused or the victim.

When the old Indian Penal Code governed, as it did until the Bharatiya Nyaya Sanhita, 2023 replaced it on July 1, 2024, it never actually defined a “child” or a “minor” by a single age. It scattered ages across its sections. The new Sanhita has, for the most part, carried those scattered ages forward, unchanged. On the question of criminal responsibility, the two Codes agree. Nothing done by a child under 7 is an offence. A child above 7 and under 12 is excused if he has not attained the maturity to understand the nature and consequences of his conduct — Section 83 of the IPC, now Section 21.

It is worth pausing to correct a mistake that even careful people make: it is these provisions of the penal law, not the Juvenile Justice Act, that excuse the very young offender. The Juvenile Justice Act governs how a person under 18 is dealt with once an offence is made out; it does not decide whether the act is an offence at all. Conflate the two and the whole architecture stops making sense.

Now turn the child around and make him the victim, and the ages multiply. Consent given by a person under 12 is no consent (Section 90 IPC; Section 28 BNS). Abetting the suicide of a “child” draws the gravest punishment, and there a child is anyone under 18 (Section 305 IPC; Section 107 BNS). Abandoning a child is an offence where the child is under 12 (Section 317 IPC; Section 93 BNS). On kidnapping from lawful guardianship, the protected minor is a boy under 16 but a girl under 18 (Section 361 IPC; Section 137 BNS). Procuration of a minor uses e18 (Section 366A IPC; Section 96 BNS). Importing a girl from abroad for immoral purposes uses 21, while for a boy it is 18 (Section 366B IPC; Section 141 BNS). Selling or buying a minor for prostitution uses 18 (Sections 372 and 373 IPC; Sections 98 and 99 BNS).

On rape, the age of valid consent is 18 (Section 375 IPC; Section 63 BNS), raised over the decades from 16. For a long while, a glaring exception sat beside it: intercourse by a man with his own wife was not rape if she was above 15. The Supreme Court closed most of that gap in Independent Thought v. Union of India (2017), reading the exception down so that a wife below 18 is protected like any other girl; the Sanhita has now written 18 into the text itself.

Lay these provisions side by side and the picture is almost comic, except that real children live inside it. To its great credit, the Protection of Children from Sexual Offences Act, 2012, cut through much of this by defining a child cleanly as any person below 18, regardless of sex, and by building child-friendly procedure - reporting, recording of evidence, in-camera trial through special courts - around that single number. When the legislature wanted clarity, it knew exactly how to write it. It simply has not done so everywhere else.

The deepest fracture runs through marriage. The Prohibition of Child Marriage Act, 2006 fixes the marriageable age at 18 for a woman and 21 for a man, across communities. Yet, personal law has long tolerated marriage at puberty and the courts have divided sharply over whether the secular statute overrides a religious permission to marry a girl who has attained puberty. Some High Courts have upheld such marriages; others have refused to. The question now sits before the Supreme Court. Until it is settled, the same 15-year-old girl is, at one and the same time, a child whom the POCSO Act shields absolutely and, on some readings of personal law, a person old enough to be given in marriage.

The harm here is not theoretical. A girl married at 15 is, almost by definition, a girl taken out of school and out of the slow, unfinished work of growing up. We have raised a wall against child marriage with one hand and quietly left a gate open in it with the other. And the parents who walk a daughter through that gate are rarely held to account, because the law gives them an argument: which definition of “child,” they may ask, are we supposed to obey?

I am not saying that every law must treat every 14-year-old identically. A learner’s licence, a vote, a contract, a glass of liquor — these can sensibly carry different ages, because they answer different questions about capacity and risk. The voting age was deliberately fixed at 18; the age of majority has stood at 18 under the Indian Majority Act since 1875. Those are settled, principles and they should stay.

What cannot be defended is incoherence in the laws that exist to protect the child from harm and to secure the child’s development. There, the differing ages do not reflect different judgments about capacity. They reflect the accidents of when each statute was drafted and what each draftsman happened to be anxious about that year. The result is a system in which one child can be, all at once, too old for free education at 14, old enough to work at 14, a protected victim until 18, a possible bride at puberty and an excused offender at 12. No legislature sat down and chose that. It simply accumulated.

India does not lack a model for doing better. The United Nations Convention on the Rights of the Child, which India has ratified, defines a child simply as every human being below the age of 18. The Beijing Rules of 1985 pointed juvenile justice in the same direction 4 decades ago. And our own Juvenile Justice Act and POCSO Act prove that a single, clean, sex-neutral age of 18 can be written into Indian law and made to work in our courts every day.

We need a uniform definition of “child” - 18, regardless of sex - across the cluster of laws concerned with a child’s protection and development, with departures allowed only where a different age genuinely serves a different purpose and is consciously justified. Education should not end where it now ends. Paid labour should not begin where it now begins. And no statute and no custom should be permitted to treat a girl as marriageable while another statute treats her as a child to be protected from the very consequences of that marriage.

Children are, in the worn phrase, the future of the country. We will not protect that future with laws that cannot agree on whom they are protecting. The least we owe the child - before we speak of opportunity, or equality, or a fair trial - is a straight answer to a simple question: when is a child a child? At present, honestly, we do not have one. It is time we did.

Sultana Vishnu Sonawane is an advocate practising before the Bombay High Court.