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Critical Topics and Their Significance for the UPSC CSE Examination on October 18, 2024

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On the exception to marital rape

For Preliminary Examination:  Current events of national and international importance

For Mains Examination: GS II - Indian Polity & Governance

Context:

A three-judge Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud has begun hearing a batch of petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC). The challenge also extends, by implication, to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which supersedes the former provision. These provisions grant legal immunity to Indian husbands by stipulating that “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”.

Read about:

Marital Rape Exception (MRE)

Bharatiya Nyaya Sanhita (BNS)

Marital Law

Key takeaways:

A three-judge bench led by Chief Justice of India (CJI) D.Y. Chandrachud has started hearing petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860. This challenge also applies to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC provision. These exceptions grant legal protection to husbands by stating that "sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape."

What do the statistics show?

Data on marital rape is scarce due to stigma and legal hurdles, but available figures are troubling. The National Family Health Survey-5 (2019-2021) shows that nearly one-third of married women (aged 18-49) in India have experienced physical or sexual violence from their husbands. Globally, around three-quarters of sexual assaults occur in intimate settings, often by someone the survivor knows.

How did the exception originate?

The marital rape exception (MRE) is a colonial-era holdover from the "doctrine of coverture" in English common law, which severely restricted married women's legal autonomy. As explained by the Supreme Court in Joseph Shine v. Union of India (2018), this doctrine assumed that after marriage, a woman’s legal existence was absorbed into that of her husband. British jurist Matthew Hale’s 1736 treatise asserted that a husband could not be guilty of raping his wife, as she had given irrevocable consent through marriage. This reasoning influenced British colonies, but England abolished the MRE in 1991 with the landmark R v. R ruling.

What are the challenges before the Supreme Court?

Section 375 of the IPC defines seven conditions under which sexual intercourse constitutes rape, including when it occurs without the woman’s consent. Convictions lead to at least 10 years in prison, extendable to life imprisonment, with a possible fine. However, the law provides two exceptions: medical procedures and acts between a husband and wife if the wife is over 18 years of age.

Previously, the law exempted husbands if their wives were under 15, but in Independent Thought v. Union of India (2017), the Supreme Court raised this age to 18. Petitioners argue that the MRE violates fundamental rights, including the right to equality under Article 14, by creating two categories of sexual violence victims: married and unmarried women. They contend this distinction also violates the right to non-discrimination under Article 15(1).

Another critical issue is the violation of privacy and bodily autonomy under Article 21, as established in the Supreme Court’s Puttaswamy v. Union of India (2017) ruling, which affirmed the right to decisional autonomy. In Joseph Shine, the court further clarified that constitutional rights cannot be suspended within familial structures.

What are the legal precedents?

In 2022, the Karnataka High Court ruled in Hrishikesh Sahoo v. State of Karnataka that a man could be prosecuted for raping his wife. However, the Delhi High Court in May 2022 issued a split verdict. Justice Rajiv Shakdher declared the MRE unconstitutional, stating it undermines a woman’s bodily autonomy. In contrast, Justice C. Hari Shankar upheld the MRE, arguing that the institution of marriage includes a "legitimate expectation" of sexual relations.

Following the split verdict, petitioners approached the Supreme Court, which has yet to issue a final ruling. In a separate 2022 case, the court recognized that intimate partner violence could include rape, challenging the misconception that sexual violence is only perpetrated by strangers.

What is the government’s position?

The Union government recently opposed striking down the MRE, arguing that marriage creates an expectation of reasonable sexual access, unlike other relationships. While acknowledging that a man cannot violate his wife's consent, the government contends that labeling it "rape" would be overly harsh and could harm the institution of marriage by leading to false accusations.

Would striking down the MRE create a new offence?

One key issue is whether removing the MRE would create a new offence, allowing husbands to be prosecuted for non-consensual sex with their wives. Justice Shankar believes it would, as only the legislature has the authority to define new offences. However, senior advocate Rebecca John argued that declaring the exception unconstitutional would not create a new crime but simply revoke the immunity husbands currently enjoy

Follow Up Question

1.Critically examine the constitutional validity of the Marital Rape Exception (MRE) in Indian law, with reference to its origins in colonial jurisprudence and its implications on the fundamental rights of equality, non-discrimination, and privacy. Discuss the challenges before the judiciary in balancing the institution of marriage with the protection of individual rights." (250 words)

A modified UBI policy may be more feasible

For Preliminary Examination:  Current events of antional and international importance

For Mains Examination: GS III - Indian Economy

Context:

The idea of a Universal Basic Income (UBI) keeps surfacing from time to time. A recent report by the International Labour Organization talks about how jobs growth has been lagging globally due to automation and Artificial Intelligence, and notes the massive problem of youth unemployment in India. The phenomenon of jobless growth, where productivity rises but job creation lags and contributes to the alarming trend in inequality, has rekindled interest in a UBI as a component of a social safety net across the world.

Read about:

What is Universal Basic Income?

World View on Universal Basic Income

Key takeaways:

• The concept of Universal Basic Income (UBI) resurfaces periodically in discussions. A recent report from the International Labour Organization highlights how job growth is slowing worldwide due to automation and artificial intelligence, with India facing a significant issue of youth unemployment. The trend of jobless growth—where productivity increases but job creation stagnates—has renewed global interest in UBI as part of a broader social safety net to tackle rising inequality.
• In India, UBI gained traction after being recommended in the 2016-17 Economic Survey. Experts debated whether replacing inefficient welfare schemes with direct cash transfers to the poor could be more effective. The development of the JAM (Jan-Dhan, Aadhaar, Mobile) infrastructure also made the idea of direct benefit transfers more practical.

UBI and its variations

• The question arises whether India should adopt a version of UBI to address issues like unemployment and poverty. While feasibility and desirability are both factors in policymaking, critiques often misunderstand UBI's purpose. UBI is primarily a social safety net to help individuals cope with unemployment rather than directly stimulating job creation. As with other policies, it should be assessed based on the specific issues it aims to resolve.
• Even if UBI is deemed desirable, its feasibility is constrained by budgetary limits. A scaled-down version might be more practical. While India has several cash transfer schemes, UBI, by definition, must be universal and not targeted at specific groups.
• Comparisons with other safety net programs, like MGNREGS or the Public Distribution System, highlight the need for clarity in policy objectives—whether the goal is immediate relief or long-term poverty reduction.

Existing income transfer schemes

• India has already implemented cash transfer programs in agriculture, such as Telangana's Rythu Bandhu Scheme and the nationwide PM-KISAN scheme. These initiatives provide financial support to farmers but face challenges, including inclusion and exclusion errors. Universal income transfers could overcome some of these issues by simplifying implementation and reducing administrative costs.
• A common critique is that the wealthy would also benefit from UBI. However, in advanced economies, individuals pay taxes and receive benefits based on circumstances. Similarly, wealthier individuals would pay more in taxes than they receive from UBI, making the net effect fair.

Financial feasibility of UBI

• The main obstacle to UBI in India is its financial viability. Proposals suggest large transfers, amounting to 3.5%-11% of GDP, which would require cuts in other programs or significant tax hikes. A more modest approach could involve a smaller, universal transfer scheme, such as one pegged at 1% of GDP per capita.
• This would provide about ₹144 per month per citizen, similar to PM-KISAN, but extended to all citizens, including landless laborers. Though this amount may seem small, it aligns with poverty line estimates.
• Challenges remain, particularly in last-mile delivery of benefits. Issues like access to cash-out points and biometric authentication failures must be addressed for successful implementation.
• Despite fiscal constraints, a modified UBI could serve as a foundational policy, to which other targeted schemes, like those for women or vulnerable groups, could be added. Combining UBI with programs like MGNREGS could create a comprehensive safety net for various sections of society. The COVID-19 pandemic has shown the importance of both income and in-kind transfers in ensuring people's well-being during crises