GS Paper: GS1-06.Salient features of Indian Society

With the 2021 Census coming up, several political parties have demanded a nationwide caste census.

What is Caste Census?

• Every Census in independent India from 1951 to 2011 has published data on Scheduled Castes and Scheduled Tribes, but not on other castes.
• Before that, every Census until 1931 had data on caste.
• However, in 1941, caste-based data was collected but not published.
• In the absence of such a census, there is no proper estimate for the population of OBCs, various groups within the OBCs, and others.
• The Mandal Commission estimated the OBC population at 52%, some other estimates have been based on National Sample Survey data.
• Some political parties make their own estimates in states and Lok Sabha and Assembly seats during elections.

Arguments for caste census

A caste census is not merely geared to the reservation issue.

• Enumerating the marginalized: A caste census would actually bring to the particular the number of people who are at the margins, or who are deprived, or the kind of occupations they pursue, or the kind of hold that institutions like caste have on them.
• Data for Policymaking: This information is absolutely necessary for any democratic policymaking.
• Judicial backing: The courts in India have often emphatically said that it is important to have adequate data with regard to the reservation.
• Caste offers privilege: Caste is not only a source of disadvantage; it is also a very important source of privilege and advantage in our society.
• Caste doesn’t marginalize: We need to do away with the idea of caste being applicable to only disadvantaged people, poor people, people who are somehow lacking.
• Rids away caste rigidities: Counting of caste doesn’t necessarily perpetuate caste or the caste system. Myths of caste elitisms can be debunked through a caste census.

Arguments against caste census

• 50% breach: It is argued that a Socio-Economic Caste Census is the only way to make a case to breach the 50% cap on reservation and rationalize the reservation matrix in the country.
• Rising assertiveness: More the State ignores out caste, the more is the tendency to preserve caste, protect it. This has been observed in many states.
• Chaos: Data gathering itself is a big problem because it can become very, very invasive. But we need to actually balance it with enabling people and asserting citizen equality.
• Social friction: Caste identification can lead to friction amongst various classes.

Breaching the 50% cap

• Judicial Substantiation: The 50% cap, as introduced by the court, has not really been argued through.
• Questioning the sacrosanctity: Some feel that nothing sacrosanct about the 50% limit − it can be exceeded, if necessary, but a clear argument should be given for why this is being done.

Inefficacy of reservations

• Fractional benefits: The way reservation is practiced has invariably led to elites among castes and communities.
• Domination: These elites within the castes have tended to exercise their dominance over their very communities and not let them exercise the kind of freedoms, or search for equality, which any democratic polity deserves.
• Welfare isn’t reservation: The state has helped privileged communities far more, even though this help has not taken the explicit form of programs like reservation.

Why is a caste census always controversial?

• Data manipulation: This is a manifestation of the principle that those in power control data and information.
• Censoring of data: We have had instances where this data has been collected but has not been made public.
• Relative deprivation: Since a caste census is a necessity, it is not a happy thing, it is not a great achievement, it is just something that the State has to do circumstantially.
• Vote bank politics: Vested interests of particular state governments in hunt for vote banks are also visible these days.

SECC has the solution

• We have got locked into a mindset where we think only those communities which want welfare benefits from the state must be enumerated.
• Many have argued that a Socio-Economic Caste Census would be the best way to rationalize reservation based on data and make a strong case for breaching this gap.
• Earlier governments argued that counting caste will perpetuate it.

Conclusion

• Favoring one caste becomes a disfavor for others. This is an undeniable fact of Indian society.
• It seems that the caste census will happen unless something extraordinary happens in our polity.
• There are also important questions of demands coming up because of mismatches between the numbers that we come out with and the share in resources that different communities have.
• This is a kind of nightmare that all governments fear. So, they would much rather leave things vague.
• The Backward Classes are more than 50% of the population. And this dispensation knows that it cannot afford to lose the support of the Backward Classes.

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The Ministry of Home Affairs has informed that it was decided as a matter of policy not to enumerate caste-wise population other than SCs and STs in Census.

What kind of caste data is published in the Census?

• Every Census in independent India from 1951 to 2011 has published data on Scheduled Castes and Scheduled Tribes, but not on other castes.
• Before that, every Census until 1931 had data on caste.
• However, in 1941, caste-based data was collected but not published.

Why is there a demand for caste census?

• In the absence of such a census, there is no proper estimate for the population of OBCs, various groups within the OBCs, and others.
• The Mandal Commission estimated the OBC population at 52%, some other estimates have been based on National Sample Survey data.
• Some political parties make their own estimates in states and Lok Sabha and Assembly seats during elections.

How often has the demand for a caste census been made?

• It comes up before almost every Census, as records of debates and questions raised in Parliament show.
• The demand usually come from among those belonging to Other Backward Classes (OBC) and other deprived sections, while sections from the upper castes oppose the idea.
• On April 1, the constitutional body National Commission for Backward Classes urged the government to collect data on the population of OBCs “as part of Census of India 2021 exercise”.

Need for caste census

• There is a central list of OBCs and a State-specific list of OBCs.
• Some states do not have a list of OBCs; some States have a list of OBCs and a sub-set called Most Backward Classes.
• There are certain open-ended categories in the lists such as orphans and destitute children.
• Names of some castes are found in both the list of Scheduled Castes and the list of OBCs.
• Scheduled Castes converted to Christianity or Islam are also treated differently in different States.
• The status of a migrant from one State to another and the status of children of inter-caste marriage, in terms of caste classification, are also vexed questions.”

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Back2Basics: Census of India

• The decennial Census of India has been conducted 15 times, as of 2011.
• While it has been undertaken every 10 years, beginning in 1872 under British Viceroy Lord Mayo, the first complete census was taken in 1881.
• Post-1949, it has been conducted by the Registrar General and Census Commissioner of India under the Ministry of Home Affairs, Government of India.
• All the censuses since 1951 were conducted under the 1948 Census of India Act.
• The last census was held in 2011, whilst the next was scheduled to be held in 2021.

The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.

What is the provision under challenge?

• Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights.

What are conjugal rights?

• Conjugal rights are rights created by marriage, i.e. the right of the husband or the wife to the society of the other spouse.
• The law recognizes these rights— both in personal laws dealing with marriage, divorce etc and in criminal law requiring payment of maintenance and alimony to a spouse.
• The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins and has genesis in ecclesiastical law.
• Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
• Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.

How can a case under Section 9 be filed?

• If a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation.
• If the order of the court is not complied with, the court can attach property.
• However, the decision can be appealed before a High Court and the Supreme Court.
• Normally, when a spouse files for divorce unilaterally, the other spouse files for restitution of conjugal rights if he or she is not in agreement with the divorce.
• The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.

Why has the law being challenged?

• The law is being challenged now on the main grounds that is violative of the fundamental right to privacy.
• The plea argues that court-mandated restitution of conjugal rights amounted to a “coercive action” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
• In 2019, a nine-judge Bench of the Supreme Court recognised the right to privacy as a fundamental right.
• The verdict in the privacy case set the stage for potential challenges to several laws such as the criminalization of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations.

Question over gender-neutrality

• Although the law is ex-facie (‘on the face if it’) gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.
• Women are often called back to marital homes under the provision and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.
• It will also be argued whether the state can have such a compelling interest in protecting the institution of marriage that it allows legislation to enforce the cohabitation of spouses.

What has the court said about the law earlier?

Supreme Court:

• In 1984, the Supreme Court had upheld Section 9 holding that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”.
• Leading up to the Supreme Court intervention, two High Courts — those of Andhra Pradesh and Delhi — had ruled differently on the issue.

AP High Court:

• In 1983, AP High Court had for the first time struck down the provision and declared it null and void. It cited the right to privacy among other reasons.
• The court also held that in “a matter so intimately concerned the wife or the husband the parties are better left alone without state interference”.
• The court had, most importantly, also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.

Delhi High Court:

• In the same year, a single-judge Bench of the Delhi High Court took a diametrically opposite view of the law and upheld the provision.
• From the definitions of cohabitation and consortium, it appears that sexual intercourse is one of the elements that go to make up the marriage.
• But it is not the summum bonum (the ultimate aim). As if marriage consists of nothing else except sex.

The Supreme Court has directed the States and Union Territories (UTs) to take stringent action against private individuals and NGOs who invite people to illegally adopt children orphaned by the COVID-19 pandemic.

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Legal issues involved in adoption pleas for Covid-19 orphans

SC ruling against illegal adoption

• The court ordered the government to step in and prevent private entities from revealing the identities of COVID-19 affected children, usually on social media and inviting people to adopt them.
• No adoption of affected children should be permitted contrary to the provisions of the Juvenile Justice Act, 2015 the court-ordered.
• It was illegal to invite strangers to adopt children, already traumatized by their personal losses, without the involvement of the Central Adoption Resource Authority (CARA).

About CARA

• Central Adoption Resource Authority (CARA) is an autonomous and statutory body of the Ministry of Women and Child Development. It was set up in 1990.
• It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.
• CARA is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the 1993 Hague Convention on Inter-country Adoption, ratified India in 2003.
• It primarily deals with the adoption of orphaned, abandoned and surrendered children through its associated and recognized adoption agencies.
• In 2018, CARA has allowed individuals in a live-in relationship to adopt children from and within India.

The Centre has opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.

What is the case?

• A petition had sought to recognize same-sex marriage.
• Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.

What did the Centre say?

• Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept.
• The Indian concept of family constitutes a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out.
• It said the 2018 landmark judgment of the Supreme Court decriminalizing consensual homosexual sex in India was “neither intended to nor did it in fact, legitimize the human conduct in question”.

Why such a move by the Centre?

• The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
• Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, the government cautioned.
• In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.

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Back2Basics: Article 377 of IPC

• Section 377 of the Indian Penal Code (IPC) is an act that criminalizes homosexuality and was introduced in the ear 1861 during the British rule of India.
• Referred to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
• However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized Section 377 of the IPC and allowed gay sex among consenting adults in private.
• The SC ruled that consensual adult sex is not a crime saying sexual orientation is natural and people have no control over it.
• It also said that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

The task force set up to take a re-look at the age of marriage for women has submitted its report to the Prime Minister’s Office and the Ministry of Women and Child Development.

Try this question for mains:

Q.The different minimum age of marriage for women and men is a discriminatory provision. Analyse.

What is the issue?

• PM in his I-Day speech last year spoke about a panel formed to decide on the “right age of marriage” for women.
• The minimum age of marriage, especially for women, has been a contentious issue.
• The law evolved in the face of much resistance from religious and social conservatives.
• Currently, the law prescribes that the minimum age of marriage is 21 years and 18 years for men and women respectively.

Invoking ‘Majority’

• The minimum age of marriage is distinct from the age of majority which is gender-neutral.
• An individual attains the age of majority at 18 as per the Indian Majority Act, 1875.
• The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.

About the Committee

• The Union Ministry for WCD had set up a task force to examine matters pertaining to the age of motherhood, imperatives of lowering Maternal Mortality Ratio and the improvement of nutritional levels among women.
• The task force would examine the correlation of age of marriage and motherhood with health, medical well-being, and nutritional status of the mother and neonate, infant or child, during pregnancy, birth and thereafter.
• It will also examine the possibility of increasing the age of marriage for women from the present 18 years to 21 years.

How common are child marriages in India?

• UNICEF estimates suggest that each year, at least 1.5 million girls under the age of 18 are married in India.
• It makes our country home to the largest number of child brides in the world — accounting for a third of the global total.
• Nearly 16 per cent adolescent girls aged 15-19 are currently married.

Provisions for the minimum age for marriage

• Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
• For Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom.
• However, child marriages are not illegal — even though they can be declared void at the request of the minor in the marriage.
• In Islam, the marriage of a minor who has attained puberty is considered valid.
• The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively.
• Additionally, sexual intercourse with a minor is rape, and the ‘consent’ of a minor is regarded as invalid since she is deemed incapable of giving consent at that age.

Evolution of the law

• The IPC enacted in 1860 criminalised sexual intercourse with a girl below the age of 10.
• The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid.
• The law faced opposition from conservative leaders of the Indian National Movement, who saw the British intervention as an attack on Hindu customs.
• A legal framework for the age of consent for marriage in India only began in the 1880s.

Comes in: The Sarda Act

• In 1929, The Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for girls and boys respectively.
• The law, popularly known as the Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man respectively.

Contention over different legal standards

• There is no reasoning in the law for having different legal standards of age for men and women to marry. The laws are a codification of custom and religious practices.
• The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
• Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men of the same age and, therefore, can be allowed to marry sooner.
• The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.

Why is the law being relooked at?

• Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in the country.
• From bringing in gender-neutrality to reduce the risks of early pregnancy among women, there are many arguments in favour of increasing the minimum age of marriage of women.
• Early pregnancy is associated with increased child mortality rates and affects the health of the mother.

Upholding the Constitution

• Petitioners, in this case, had challenged the law on the grounds of discrimination.
• It is argued that Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to live with dignity, were violated by having different legal ages for men and women to marry.
• Two significant Supreme Court rulings can act as precedents to support the petitioner’s claim.
• In 2014, in the ‘NALSA v Union of India’ case, the Supreme Court, while recognising transgenders as the third gender, said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws”.
• In 2019, in ‘Joseph Shine v Union of India’, the Supreme Court decriminalized adultery, and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity”.