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EMANCIPATION LAWS IN INDIA: ASSESSING THE CURRENT LANDSCAPE AND GLOBAL PERSPECTIVES BY: RITIKA SIWACH & ANNIRUDH PASARI
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Article Details
“EMANCIPATION LAWS IN INDIA: ASSESSING THE CURRENT LANDSCAPE AND GLOBAL
PERSPECTIVES”
AUTHORED
BY: RITIKA SIWACH & ANNIRUDH PASARI
COLLEGE:
NMIMS, KIRIT P MEHTA SCHOOL OF LAW
Introduction
The
contested principle of emancipation revolves around the complex concept of
paternalism, often serving as the rationale for protective policies that
restrict individual freedoms. The state commonly employs the idea of
beneficence to justify the adoption of such protectionist measures, within
which the concept of emancipation is embedded. Two primary arguments are
frequently put forth by the state in favour of these protectionist policies.
First and foremost, it is essential to recognize the limited capacity of
children to make logical decisions. Additionally, it is crucial to consider the
potential harm that a minor may inflict upon both themselves and others. This article
critically evaluates both perspectives from a
standpoint that advocates for emancipation.
Examining
the implementation of policies in India is a pivotal aspect of this discussion.
Various legal and societal barriers may create a perception that protectionism
is more advantageous than embracing liberalism. The constitutional measures in
the country play a significant role in bolstering the execution of such
protectionist approaches, particularly in employment sectors where legal
competence is lacking. Moreover, it is imperative to take into account the
socio-economic context of India and the intricate dynamics of family systems.
One could argue that the historical concept of the Indian family poses a
constitutional challenge, questioning the absence of policies supporting
liberation. In essence, this article seeks to explore and understand diverse
viewpoints regarding the policy of emancipation of children in India.
The process of emancipation and its effect
Emancipation
as a concept results in the breaking of ties between a parent and a child,
there is absolute termination of any rights that a parent has over a child. The
crucial criterion to consider in each instance revolves around assessing
whether the circumstances have undergone significant alterations, rendering the
initial justification for imposing constraints on the minor no longer
applicable. Emancipation can be categorized broadly into two types: total and
partial.[1]
Judicial
emancipation denotes the legal process through which a minor is granted
independence and freedom from parental control by a court of law, particularly
within the framework of Common law jurisdiction. In such jurisdictions, parents
carry specific obligations toward their children, encompassing financial
support, ensuring physical well-being, overseeing education, and guiding moral
development.[2]
Under
specific conditions, these mutual rights and responsibilities are terminated,
marking the transition of the juvenile to adult status. Partial emancipation,
in such cases, is limited to specific obligations rather than a complete
release. On the other hand, complete emancipation involves a formal agreement
where parents willingly relinquish their legal rights over their child,
reciprocated by the child being released from all corresponding obligations.
The
conduct of the parties is pivotal in establishing a decree of emancipation
through implicit behaviour. Actions such as marriage or joining the military
are often considered sufficient indicators of emancipation.[3]
The rationale behind this consideration lies in these actions signifying a
significant and transformative shift in the minor's role within the family,
making it illogical to perceive them as not emancipated.
Statutory
emancipation, a distinct process from judicial emancipation, pertains to the
elimination of legal limitations associated with being a minor. The first type
involves an equitable proceeding where a minor requests the court to be freed
from the constraints of being underage. This differs from the second type,
which entails special statutory laws specifically removing certain limitations
associated with being a minor.[4]
Whether or not minors are to be granted this right?
The
principle of beneficence asserts the ethical obligation for individuals to
actively prevent harm and promote well-being. This principle is often wielded
by the state to establish specific parameters that either safeguard or restrict
individual freedoms. When extending these considerations to the rights of
minors, the state's stance against the emancipation of minors can be analysed
through the lens of this principle. The state argues on two main grounds: the
assumed incapacity of youngsters to make reasonable decisions and the perceived
correlation between a child's autonomy and potential societal and personal
harm.[5]
These
arguments converge into a broader principle, examining whether granting a legal
right to minors would advance the greater good or impede the prevention of
harm. The state contends that emancipating children is prohibited due to
potential harm to both society and the child, forming the basis for denying
this legal authority to minors.[6]
This assertion involves a predictive aspect concerning outcomes for children in
specific circumstances, relying on empirical claims substantiated by factual
evidence.
Contrary
to this paternalistic perspective, the author posits that the criterion for
emancipation should hinge on a minor's capacity for independent decision-making
rather than strict logical choices.[7]
Self-determining capability, as argued, involves assessing the outcomes of
actions, distinct from reason, which follows the thinking process evaluating
subsequent actions[8].
The contention is that minors, particularly those aged 14 or older, are capable
of making decisions and carrying out their plans.[9]
However,
the state's paternalistic perspective persists in maintaining that individuals,
even at a certain age, lack the capability for sensible execution of their
goals. This argument hinges on the assumption that a certain threshold of
rationality is established, yet lacks empirical evidence supporting this claim.
The argument
challenges the state's denial of liberty to minors, citing the principle of
beneficence. The example of mountain climbing is presented to demonstrate that
despite potential risks, adults face no restrictions on their rights. This
challenges the coherence and comprehensibility of the principle of beneficence
and calls for a reconsideration of its application.[10]
In
conclusion, the author contends that assigning certain rights based solely on a
conceptual framework is overly expansive. The argument asserts that minors can
achieve emancipation given their capacity for sound decision-making, which
involves both rationality and reasonableness. Reasonableness, in this context,
necessitates a comprehensive understanding of a minor's cognitive and emotional
capacities, challenging the state's claim of a lack of logical decision-making
among juveniles.[11]
Emancipation in India
with reference to the socio-cultural environment.
The trajectory of the
emancipation movement in India is firmly embedded within the fabric of Indian
culture and history.[12]
Throughout history, it has been recognized that it is the responsibility of the
king and the State to provide for individuals who are unable to care for
themselves because to their lack of intellectual maturity, faulty judgment, or
other factors related to their age.[13]
According to the statutory legislation, the responsibility for providing
protection is with the Courts, who now act as representatives of the sovereign.
It was extended to encompass the entire territory of India.[14]
Liberationists argue that
the state has the authority to emancipate minors through the parens patriae
jurisdiction it possesses. One could argue that the existence of fundamental
rights allows for a legitimate constitutional claim under article 21. Given
that minors possess the fundamental entitlement to existence and should not be
treated only as property or lifeless entities, they possess a legitimate demand
for their liberation. [15]
The case of L
Chandran v. Venkatlakshmi[16],
The ruling stated that a child must be recognized as an individual who is
entitled to the right to life as outlined in Article 21. Considering this, the
court concluded that the belief in a father's absolute rights to child
possession and custody goes against this fundamental protection. Adhering to
such a belief would diminish the kid's status to that of a mere object.[17]
Several high court rulings
uphold the aforementioned premise, but the Supreme Court has not issued any. When
there is no legal precedent, it is assumed that parents have right and
authority over their children. This is addressed further. Firstly, it is
contended that the only way to achieve the liberation of a minor in India is by
judicial activism.[18]
The concept of parens
patriae jurisdiction has always been limited to custody matters under
family law involving minors. The perennial issue revolves around the placement
of the minor, necessitating a delicate balance between the interests of both
parents. The exercise of parens patriae jurisdiction by the court
can be observed in Section 13 of the Hindu Minority and Guardianship Act, as
well as in Section 7 of the Guardians and Wards Act.
As seen before, the emancipation
of a minor under a foreign jurisdiction has been effective in situations where
the parents have essentially lost control over the minor. According to the
legislation, it is required that one parent be selected first. However, if both
parents are deemed undesirable, it is quite probable that emancipation will
take place in India.[19] The
crux of the debate rests in the legal position that prohibits the emancipation
of minors.
Liberals have overlooked
the essential aspect of the parens patriae jurisdiction due to an unnecessary
approach. In countries that follow western or common law, the rights of minors
have been officially acknowledged by the existing legal system. Rights of
minors have been recognized under the ample scope that Article 21 provides.[20] Furthermore,
Its jurisdiction of parens patriae is inherently subject to
certain implicit limitations. The essence of this independence lies in the
relinquishment of parental authority.
In our country, the state
exerts parens patriae not to relinquish control, but rather to
transfer it in another manner. The essence of parens patriae is
primarily oriented towards the implementation of protectionist policies. Hence,
our contention stands that the court can only grant emancipation to a juvenile
if it examines the constitutional claim beneath the age of 21, specifically in
cases of judicial activism, and not in any other circumstances. Firstly, the
rigorous regulations in the field of commercial law.[21]
Secondly, neither in the
United States nor in common law there is no decided age at which a minor can
obtain emancipation status. The legislation contain different age limits, with
some setting it at 16 while others establish a minimum age of 12. [22] There
are provisions that are put in place for the benefit of the minors. Hence,
determining the age threshold for emancipation is a major issue in India. In
the aforementioned instances of emancipation, there is a significant likelihood
that these adolescents may be drawn to engage in industrial labour at a young
age. Any form of arduous job, whether in a high-risk business or inside a
bustling economic environment. The state is unable to argue against child labour
in this case, as a juvenile who has been granted emancipation will possess the
legal ability to freely enter into employment agreements. It would potentially
result in widespread exploitation in India. Given that about 49% of the
population in India falls below the poverty line, it is common for adolescents
in these homes to be compelled into labour employment. Minors in this location
are more likely to achieve financial autonomy at an earlier age than to minors
in 51% of other locations. This suggests that while implementing such
legislation, the state must create a compromise between child labour
restrictions and its advantageous laws for kids.[23]
It is widely acknowledged
that the sole remedy for the issue of child labour is to offer alternative
options, such as education. The constitution has clearly and explicitly granted
the right to education, both in its directive principles and fundamental rights.
Emancipation has an impact on both parties involved, as it involves the
transfer of control over a juvenile once they have obtained legal capacity. Even
though policies do exist for the benefit of these minors, money being of utmost
importance in the country, it is put ahead of education instead. However,
constitutionalism has the potential to restrict the state from implementing
such policies. In the case of Baseshar Nath, the Supreme Court
ruled that fundamental rights cannot be voluntarily relinquished by a person.
Thus, neither can a minor opt to renounce their right to education, nor can the
state revoke it, as it is an integral component of the fundamental framework.
The argument's fundamental fault lies in its limited prohibition of child labour,
which only applies to children under the age of 14.[24] The
same restriction applies to the right to education. Thus, proponents of
liberationism argue that the petition for emancipation of minors should only be
considered once the minor reaches the age of 15 or 16. Implementing this would
necessitate a minor modification in the Indian Contract Act, without any
simultaneous revocation of existing legislation. Furthermore, the age limit can
be established through legislative action, which greatly clarifies any
confusion. Although the reasoning may appear academically valid, there are
major flaws.
Fuller asserts that every
legislation possesses inherent moralities, which can be categorized as the
morality of obligation and the morality of aspiration. An exemplary piece of
law is one that satisfies both characteristics. Our contention is that while
the state may succeed in one aspect of this case, it will intentionally fail in
the other. The aspirational goal of the child labour or the right to education
act is to increase literacy rates and prevent the exploitation that children
are susceptible to in emerging nations like India during this era of
industrialization. Despite a youngster surpassing the age of 15, it is quite probable
that they will pursue employment in the industrial sector rather than acquiring
advanced education.[25] A
significant number of underage individuals are likely to be attracted to it due
to the fact that the necessary conditions for their liberation are easily met
in the case of kids below the poverty line. Abdication, financial reliance, and
marriage are three significant elements that are empirically observed in cases
of individuals living below the poverty line. Over time, the individuals under
the age of 18 within that 49% of the population will contribute to the rise in
unemployment and various other obstacles to progress. Consequently, it goes
against India's policy interests. Given India's socio-economic conditions, it
can be argued that protectionism is acceptable. Enacting legislation to
emancipate kids will be detrimental to India's welfare.[26]
Another legal argument that
strongly opposes emancipation has been escalated. The actions pertaining to
children that have been implemented can be interpreted as secondary laws under
the international agreement. The case of Pratap v. State of Jharkhand[27] established
that any legislation concerning children must comply with the convention on the
rights of the child.
The final and most crucial
argument We have against the emancipation of minors paradoxically stems from
Article 21. To recapitulate, our compelling argument posited that the child
should not be seen as mere property and possesses an independent existence.
Hence, by considering the optimal outcome, he could perhaps be granted
emancipation. This argument is too narrow-minded as it disregards the concerns
of the parent, particularly in the context of India. Parents may potentially
assert a significant argument invoking their rights under Article 21. In the
context of family dynamics in India, the parental right to life encompasses the
authority to govern and make decisions for their kid until the youngster
reaches the legal age of adulthood. Therefore, it is advisable to explicitly
consider legislation pertaining to the empowerment of a minor rather than
focusing solely on emancipation. [28]
Regarding the history, it
is widely accepted that the prevailing form of family structure in India has
consistently been a joint family. Hindu households adhere to a patriarchal
structure, in which the male elders hold authority and make decisions concerning
the well-being of the family. However, following the 19th century, as Indian
civilizations underwent industrialization, it was contended that the
traditional joint family system had been dismantled. In the 21st century, the
concept of a joint family has become obsolete.[29]
However, it is important to note that this argument has a significant empirical
problem. Some scholars propose that even if children may have grown up and
moved away, it does not necessarily mean that the joint family no longer
exists. Empirical evidence has demonstrated that, unlike in Western societies,
the essential emotional relationships are not dissolved. From a materialistic
perspective, the wages are nevertheless burdened by the presence of the joint
family. Merely 1.8% of families have independently made decisions without
seeking input from the entire combined family. Indian families adhere to a
pattern of transitioning between joint and nuclear family structures,
regardless of urbanization and industrialization. Consensus among Indian family
authors affirms the coexistence of both joint and nuclear families in India,
both in the past and in the future. The Indian family is regarded as a cohesive
entity that engages in both consuming and production activities.[30]
A conjugal family is
considered the best model of a western family. In conjugal families, mates are
chosen independently, marriage is seen as a contractual agreement, and a
self-sustaining social and economic unit is formed by the couple. Additionally,
the rights of children are acknowledged. In contrast, the family structure in
India is characterized by parental dominance and a lack of respect of
individual rights. Several scholars have derived their findings from the
premise that the degree of individualism is contingent upon the size of one's
family. Due to urbanization, the size of families has decreased in metropolitan
regions. [31]The
logical inference is that westernization has led to a prevailing spirit of
individualism. We have already demonstrated the fallacy of this argument, but
to effectively rebut it, these families have been categorized as extended
families. The extended family of India remains connected and maintains equal
bonds, while being physically separated from the core unit. Consequently, the
opposing party exercises the privileges of being a mature individual, acting as
guardians, in order to nurture their offspring according to their own judgment.
[32]This
also implies the absence of any potential interference by the government, as
well as the prevention of any form of harassment by dissatisfied adult
claimants, with the assistance or encouragement of the law. Although there is
empathy for people dealing with tragedy, the decision that the courts or
legislature must make is not fundamentally different, although it may appear
challenging, from what is typically encountered in cases involving common law
adoption in foster care. Regardless of the court's decision, there will
inevitably be adversity. Perhaps the parents have already been subjected to the
hardships of poverty. Individuals who suffer from inadequate education, poor
health, prejudice, personal ambivalence, or other unfavourable conditions may
be unjustly deprived of custody of their children, despite having provided
extended and devoted care.[33] This
can occur both in families facing financial difficulties and in affluent
families. Furthermore, it should be noted that the authority to control the kid
will be explicitly listed as a right in Article 21 of the Indian Constitution.
In conclusion, We have offered two perspectives on the jurisprudential aspect
and the socio-legal considerations in India. In this situation, We find ourselves
somewhat perplexed about taking a stance. However, if forced to do so, We would
assert that emancipation is highly improbable under the Indian legal system.[34]
Conclusion
Conclusively, it is asserted that the
emancipation of children is not viable in India, considering the considerations
discussed in this article. In both common law and the United States legal
system, the court has established many criteria for emancipating kids when
determining their best interests. The grounds for such cases might range from
desertion and intra torts to financial independence, among others.
However,
the legal reasoning behind the decision to not grant emancipation did not
present any compelling arguments in support of the state's position. The state
depends on the principle of beneficence, which serves as the foundation for
this policy framework. Furthermore, it was contended that the state has
violated the same principle by failing to implement a policy for emancipation.
Upon philosophical examination, it was determined that the state's argument for
emancipation is not viable.
However,
it is also argued that the principle of beneficence is applicable when
considering such a scenario in India due to the country's socio-economic
conditions. The jurisdiction of India over children, as outlined in the
appropriate acts, demonstrates the state's commitment to protecting them.
Constitutional actions are accountable for creating a protectionist framework.
Finally, the reasoning relied on the excessively broad Article 21. Given the
familial framework in India, removing a child from their parents is likely to
have a severe impact that violates their right to life. The author wishes to
assert that addressing these issues would involve significant intricacies,
which, within the Indian context, may require several years to settle.
Therefore, it would be unwise to propose this strategy in India.
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3.
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13. Mullati, Families in India: Beliefs and
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14. M. A. Cataldo, Safe Haven: Granting Support
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15. R. Agarwal, Possibility of Minor Emancipation
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16. S. Bajpai, Emancipation of Minors,
International Journal of Law and Legal Jurisprudence Studies, 1(6) (2014).
[1] M. C. Studer, Parent and
Child-Emancipation: The Emancipation of Minor Children: Freedom of North Dakota
Youth, 96 NDL Rev. 263 (2021).
[2]V. V. Palmer, Absolute
Emancipation, 85 S. African L.J. 24 (1968)..
[3] C. A. Cooper, Emancipation of
Minors, 8 J. Juv. L. 428 (1984).
[4] Supra Note1.
[5] S. Bajpai, Emancipation of Minors,
International Journal of Law and Legal Jurisprudence Studies, 1(6) (2014).
[6]G. Kaimowitz, Legal Emancipation of
Minors in Michigan, 19 Wayne L. Rev. 23 (1972).)
[7] Id.
[8]P. Q. R. Boberg, Emancipation and
the Attainment of Majority, 92 S. African L.J. 183 (1975)..
[9] Supra Note 5.
[10]S. Stoicescu, Emancipation of a
Minor in the Civil Code System, 2021 Romanian Rev. Priv. L. 298..
[11] Supra Note 5.
[12]N. Mulcahy, Emancipation of Minors,
23 Ga. St. U.L. Rev. 79 (2006)..
[13] Id.
[14]P. Pauw, Historical Notes on
Emancipation, 96 S. African L.J. 319 (1979)..
[15] Id.
[16] L Chandran v. Venkatlakshmi, AIR
1981 AP 1.
[17] Supra Note 7.
[18] Supra Note 11.
[19] Supra Note 5.
[20] Supra Note 5.
[21] R.M. Lyon, Speaking for a Child:
Role of Independent Counsel for Minors, 75 C. L. REV, 681, 684 (1987).
[22]C. Sanger & E. Willemsen, Minor
Changes: Emancipating Children in Modern Times, 25 U. Mich. J.L. Reform 239 (1991)..
[23] Supra Note 5.
[24]L. K. Wexler, In Re: The
Emancipation of P, A Minor (Emancipation), 32 Quinnipiac Prob. J. 354 (2018)..
[25]I. Richardson, Emancipation of
Minors, in The Emancipation of Minors in Current Trends in State Legislation,
1956.)
[26] Id.
[27] Pratap v. State of Jharkhand,AIR
2005 SC 2731
[28] M. Davis & A. Fang,
Emancipated Minor (2020).
[29] Supra Note 5.
[30] Supra Note 5.
[31]M. A. Cataldo, Safe Haven: Granting
Support to Victims of Child Abuse Who Have Been Judicially Emancipated, 52 Fam.
Ct. Rev. 592 (2014).)
[32]R. Agarwal, Possibility of Minor
Emancipation in India, 2 Law Essentials J. 182 (2021)..
[33] Supra Note 5.
[34] Id.
Article Information
EMANCIPATION LAWS IN INDIA: ASSESSING THE CURRENT LANDSCAPE AND GLOBAL PERSPECTIVES BY: RITIKA SIWACH & ANNIRUDH PASARI
Authors: RITIKA SIWACH, ANNIRUDH PASARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/13
- Issue 7
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