Child Definition
Article 1
For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.
Article 1
1. Article 1 defines the holder of rights under the CRC as ‘every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.’ The Convention clearly specifies the upper age limit for childhood as 18 years, but recognises that majority may be obtained at an earlier age under laws applicable to the child. The article, thus, accommodates the concept of an advancement of majority at an earlier age, either according to the federal or State laws of a country, or personal laws within that country. However, the upper limit on childhood is specified as an age of ‘childhood’ rather than ‘majority’, recognising
that in most legal systems, a child can acquire full legal capacity with regard to various matters at different ages.1
2. Thus, while the Convention defines a “child” as every human being below the age of 18 years, it allows for minimum ages to be set, under different circumstances, balancing the evolving capacities of the child with the State’s obligation to provide special protection.
Accordingly, Indian legislation has minimum ages defined under various laws related to the protection of child rights.2
3. Though legislation has been enacted to make 18 years the general age of majority in India, 21 years continues to be the upper limit for childhood for some purposes, partly due to the influence of nineteenth-century English Law and partly due to current exigencies.3
For example, India recognises 21 years as the age of majority in circumstances where a guardian has been appointed by the Court for a child below the age of 18 years.4
4. With respect to the rights of the child in the womb, the legislation in India is in harmony with the interpretation of the Convention. The articulation of the ‘right to life’ in the Indian Constitution reflects the English Common Law approach, in that it states that this right is conferred on a “person”. Although India has permitted medical termination of pregnancy through legislation enacted in 1971, this recourse can be taken only in the following cases: (i) the continuance of pregnancy would involve a risk to the life of the pregnant woman or a grave injury to her physical and mental health or (ii) there is substantial risk that if the child is born, it would suffer from such physical or mental abnormalities that it would be seriously handicapped. Significantly, Section 20 of the Indian Succession Act gives the right to property to a child in the womb whose parent dies intestate and who is subsequently born alive—he/she will have the same right to inherit as if he or she had been born before the death of the parent. 5
5. Varying ages of legal capacity is a phenomenon that can be seen in many countries. However, while the CRC’s definition of childhood can be perceived as setting a basic minimum standard in view of Article 41, which declares that ‘nothing in the Convention or any of its provisions shall effect realisation of the rights of the child’ under the law of a State Party, it is essential that there is some synchronisation of the upper age limit for childhood. India has achieved this to a large extent, for instance, the minimum compulsory age of education is 14 years. The various laws relating to labour prohibit a person under the age of 14 years to work. Thus, the minimum age at which compulsory education ends synchronises with the minimum age of employment.
6 The age of capacity to contract a marriage is 18 years for a girl and 21 years for a boy, for all communities. The Child Marriage Restraint Act, 1929, defines a child as a person who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age. Under Section 5 of this Act whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment upto three months and shall also be liable to fine, unless he proves that he had reason to believe that the marriage was not a child marriage.
7 This uniform legislation is an effort to discourage child marriages under personal laws. 8
6. However, regarding certain aspects that are deeply rooted in the community, and compounded by historical poverty and vulnerable socio-economic conditions, there is a gap between laws and their enforcement. For example, child labour is a fact that exists in our country, and in spite of our consistent efforts, child marriages are still prevalent. The Government has already initiated action to review and amend the laws pertaining to rape and sexual consent, so as to remove any discrepancy between girls and boys.
