Rule Of Locus vs Rule Of Law

With due respect to the authority of the Hon’ble Court, this dismissal represents a missed constitutional opportunity to clarify the law, protect children, and harmonise conflicting judicial interpretations. The said order suffers from three major lacunas:

Firstly, it overlooks the NCPCR’s statutory mandate under the CPCR Act, 2005, which explicitly empowers the Commission to inquire into violations and to approach the Supreme Court or High Courts for systemic relief in matters affecting children;

Secondly, it leaves unresolved the sharp conflict in rulings on the question of prevalence of personal laws vis-a-vis penal laws between High Courts at Punjab & Haryana, Delhi, Kerala and Karnataka - and thus letting confusion prevail diluting POCSO;

Thirdly, it departs from a long judicial tradition of treating commissions as custodians of rights: from Chakmas to Best Bakery and from Nandini Sundar to Bengal post-poll violence, where courts have consistently entertained or enlisted commissions as the institutional voice of the voiceless.

From Recognition to Rejection 

Before delving into the merits of the issues, let us look at a curious sequence of events. On 17th October, 2022 - the SC in Gulam Deen case, granted NCPCR the permission to file SLP, and stated in its order that there was a question of law that should be examined. The Court also appointed an Amicus Curiae to assist the Court. On the next date of hearing, on 13.01.2023, a Bench of the then Chief Justice DY Chandrachud and Justice PS Narasimha in Javed case, passed an order expressing its inclination to hear the said petitions with a view to resolving the question of law which was raised.

Not only this, but the Supreme Court also went a step ahead, and while issuing notice on the NCPCR’s challenge to the Punjab & Haryana High Court judgment that upheld the marriage of a 15-year-old Muslim girl, the Supreme Court categorically directed: “Pending further orders, the impugned judgment shall not be relied upon as precedent.” Yet, two years later, in August 2025, the very same Court dismissed the NCPCR’s plea altogether, apparently holding that the Commission lacked “locus”!

Muting the Mandates

The constitutional mandate leaves no ambiguity: Article 14 guarantees equal protection of the law to all children; Article 15(3) authorises special protective measures for children; Article 21 secures their dignity and bodily integrity; and Article 39(f) directs the State to shield them from exploitation. India is a signatory to the UN Convention on the Rights of the Child (UNCRC) which defines a child as anyone under the age of 18, ensuring they receive full protection and rights. To carve out exceptions to constitutional and statutory safeguards is to hollow out these guarantees, undermining both constitutional morality and India’s international obligations.

Further, the Commissions for Protection of Child Rights Act, 2005 expressly empowers the NCPCR to act in precisely such cases:

• Section 13(1)(a), (c), (j) empowers to review legal safeguards, inquire into violations, and take suo motu notice of non-implementation of child protection laws.
• Section 14 confers civil court powers for inquiries.
• Section 15(ii) explicitly authorises the Commission to “approach the Supreme Court or the High Court for such directions, orders or writs as that Court may deem necessary.”

The Act and speaking through it the voice of the Parliament (vox populi) could not have been clearer: the NCPCR is not a passive observer but the statutory guardian of children’s rights, with a direct pathway to constitutional courts. To dismiss its petition for want of locus standi is to truncate the Parliament’s mandate.

Past Precedents: Commissions and Courts

Constitutional courts have consistently considered commissions as custodian of rights - either by impeding them wherever deemed necessary or by entertaining their pleadings when they come knocking the doors of justice.

Instances when commissions approached the Court:

• In NHRC v. State of Arunachal Pradesh (1996), the Commission itself moved under Article 32 to protect the rights of Chakma refugees, and the Supreme Court categorically intervened to secure their life and settlement.
• In the aftermath of Gujarat riots, a Vadodara court in 2003, acquitted all 21 accused in the Best Bakery case after witnesses turned hostile. The NHRC filed a Special Leave Petition before the Supreme Court, was converted into an Article 32 petition and in 2004 a re-trial was ordered outside Gujarat, transferring the case to Mumbai.
• More recently, the NCPCR invoked its parens patriae role before the Supreme Court, alleging trafficking of children in Jharkhand charity homes run by the Missionaries of Charity; the Court entertained the plea and sought responses from multiple States.

Instances when courts enlisted commissions:

• In Nandini Sundar v. State of Chhattisgarh (2011), the Supreme Court directed the NHRC to conduct fact-finding into atrocities linked to the Salwa Judum militia.
• During the COVID-19 pandemic (2020), the Supreme Court, in its suo motu proceedings on children in protection homes, issued notice to the NCPCR, relying on its statutory mandate to safeguard orphans and abandoned children.
• In 2021, a Constitution Bench of the Calcutta High Court constituted a special committee including the NHRC to inquire into grave allegations of murder, sexual violence, and displacement during West Bengal’s post-poll violence, leading to CBI and SIT investigations.
• Most recently, in challenges to Talaq-e-Hasan, the Supreme Court expressly sought responses from the NCPCR, alongside the NHRC and NCW, treating them as indispensable stakeholders in the adjudication of fundamental rights.

For decades, courts have treated commissions like the NHRC and NCPCR as the institutional voice of the voiceless. To now shut the door on the NCPCR in the child-marriage cases is not just a lapse, it is a disturbing break from that legacy.

Conflicting Caselaws & Chaos

A tug of war has been unleashed by the Courts in recent years: personal laws v. penal laws - which would prevail over the other? The question in the cases being discussed was - if a marriage of a girl of less than 18 years of age is consummated, would a Muslim husband be held guilty of rape? It is a substantial question of law, as its determination in a positive way will conclude that the POCSO Act will have an overriding effect on the Muslim personal law.

In Javed v. State of Haryana (2022), the Punjab & Haryana High Court upheld the validity of the marriage of a 15-year-old Muslim girl, holding that such a marriage was permissible under personal law upon attainment of puberty. The Delhi High Court, in Fija v. State (2022), echoed this position, ruling that a Muslim marriage involving a girl below eighteen could not automatically trigger prosecution under POCSO. Likewise, the Karnataka High Court in Mohammad Waseem Ahmad v. State (2022) quashed proceedings against a husband married to a 17-year-old, treating the marital relationship as a shield against statutory liability. These judgments in effect dilute POCSO, by treating personal laws prevailing over penal law.

Whereas there is a plethora of judgments that have held that POCSO being a special law and that too penal in nature cannot be undermined by reference to personal laws. The Kerala High Court in Khaledur Rahman v. State of Kerala (2022) squarely held that marriages under Muslim law do not create an exception to the operation of POCSO, and that sexual relations with a spouse below eighteen attract criminal liability. The Karnataka High Court in its another set of rulings has been particularly emphatic: in Rahul v. State of Karnataka (2021), further reiterated that any sexual intercourse with a girl under eighteen, even within marriage, constitutes penetrative sexual assault; and in Aleem Pasha v. State of Karnataka (2022), it ruled that POCSO, as a special legislation designed to safeguard children, overrides personal law considerations, dismissing the argument that puberty under Mohammedan law should determine validity. These judgments affirm the universality of child protection, recognising that statutory rights to bodily integrity and dignity cannot be diluted by faith-based exemptions.

The NCPCR’s plea in the instant case was against this backdrop. Now, the task before the Supreme Court ideally would have been to analyse the two sets of judgments and analyse which prevailed. The Supreme Court had a golden opportunity to settle the law by declaring this stray line of judgments as per incuriam and thereby reaffirming that the POCSO Act overrides all personal law exceptions. Its reluctance to do so has only deepened the uncertainty.

To the author’s limited understanding, the conflicting High Court rulings, largely pro-personal law, have muddied the waters by importing religious considerations into the domain of penal statutes, which have historically stood on a distinct and non-negotiable footing. The Supreme Court in Independent Thought v. Union of India (2017) made it unambiguously clear that there can be no distinction between a married and an unmarried girl under the age of eighteen for the purposes of Section 375 IPC. To carve out a separate standard under the POCSO Act on the basis of religion is to reintroduce precisely the inequality that Independent Thought struck down.

The question here is not the validity of Muslim personal law itself, but whether statutory child-protection norms under POCSO are being applied unequally: insulating Muslim child marriages while criminalising the same conduct for all other communities. The discrimination thus arises not from personal law, but from the unequal application of a secular statute: a clear affront to Article 14. Further, in Indian Young Lawyers Association v. State of Kerala (2018) i.e., the Sabarimala ruling, the Supreme Court expressly affirmed that practices under the garb of personal law can be scrutinised if they violate fundamental rights.

Epitaph

The Supreme Court’s refusal to hear the NCPCR may well mark a serious setback to child protection in India and to the morale of Commissions tasked with being the vanguard of the vulnerable. At stake is more than locus standi; it is the constitutional promise that no child in this country shall be denied equal protection of law: without exception, without compromise.

Disclaimer: At the time of writing, the order has not yet been uploaded and this article is based on the oral findings dictated by the Hon'ble Court while dismissing the petitions.