General Studies 2
- Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
- Welfare schemes for vulnerable sections of the population by the Centre and States
General Studies 1
- Social empowerment
- Salient features of Indian Society, Diversity of India.
Triple Talaq case: the judicial intervention
In news: The debate around triple talaq and Uniform Civil Code (UCC) has once again surfaced with mixing of two issues. Though the Law Commission sought public opinion on the exercise of revising and reforming family laws of all religions in the context of Article 44 of the Constitution, which talks of a Uniform Civil Code (UCC) for all citizens, it was opposed by All India Muslim Personal Law Board (AIMPLB), along with several other organisations associated with the Muslim community and called it as an attempt to target their personal law. The public today sees the judiciary as their final resort to get answers to their questions and doubts. Once again, the judicial door has been knocked for justice by a distressed women for her violation of fundamental rights. This time the battle seems to be tougher and judiciary is expected to play a crucial role.
The triple talaq issue has been confused with the issue of a uniform civil code, which has made the India’s minority Muslim community defensive.
A former SC judge, Justice V.R. Krishna Iyer, once wrote that personal laws can be reformed from within, without a quantum leap into a common code. According to him, remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.
Also, it has been time and again debated if judiciary can interfere while pronouncing judgements relating to personal law.
Ruling in the Shah Bano case
- The case had a 62 year old Muslim woman, Shah Bano, who filed a petition in local court under Section 125 of CrPC, asking for maintenance from her husband (Khan) for her children and herself, after being thrown out of house.
- Khan’s response was that Shah Bano had ceased to be his wife after he pronounced an irrevocable talaq (divorce) in 1978. Thus, he was not liable to provide maintenance (which was meagre Rs. 5400) except as prescribed under the Islamic law, mehr- amount promised on marriage.
- Courts at different levels upheld Section 125 of CrPC to be applicable to Muslims as well. Later, the case was taken to SC where Khan argued that Shah Bano was no more his responsibility because he had a second marriage, which was permissible under Islamic law.
- Finally in 1985, a five-judge bench of SC pronounced its verdict that there was no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
- The SC held that Section 125 of the CrPC applies to all regardless of caste or creed. It also discussed the desirability of bringing a uniform civil code in India which would help in national integration.
- However, it was the last ruling by Supreme Court in a matter concerning personal law.
Criticism by clergy
- The Muslim clergy was not happy with the judgement as it saw its importance in matters concerning social relations amongst Muslims under threat.
- The source of Muslim Personal Law in India is the Muslim Personal Law (Shariat) Application Act, 1937. It is a colonial law which allows Indian Muslims to be governed by the Shariat.
- The Muslim Personal Law was given the power to have their say in matters pertaining to intestate succession, special property of females, marriage, dissolution of marriage, maintenance etc. where the parties are Muslim.
- The absence of codification has legally allowed community leaders to hold the practices as sacrosanct. The Dissolution of Muslim Marriages Act, 1939, however, codifies a woman’s right to seek divorce by approaching the court.
Incoming of government
- The government of the time was requested to intervene in the matter and overturn a ruling which irreparably compromised Muslim Personal Law according to Muslim clergy.
- The government had to appease the Muslim community for reasons best known and hence couldn’t shy away from the case.
- The government argued that Koranic provision or lack of it for maintenance was neither a compulsion nor closed to interpretation. The Muslims could be reassured of their rights only by some amendments.
- Thus, it passed The Muslim Women (Protection of Rights on Divorce) Act 1986 which though was in name of protecting rights of Muslim women who had been divorced, actually denied Muslim divorcees the right to alimony from their former husbands.
A setback for Muslim women
- The Shah Bano judgement was overturned by adopting the new aforesaid law.
- As per the law, when a Muslim divorced woman is unable to support herself after the iddat period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law.
- But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Wakf Board to pay the maintenance.
- The ‘liability’ of the husband to pay maintenance was thus restricted to the period of the iddat only.
Thus, if it was a losing cause for Muslim women is still debated. Today, the society needs judiciary to take on the responsibility of interpreting the law in light of the widely criticised practice of triple talaq, which in the view of many practising Muslims is not the law.
The present Shayra Bano case
- Shayara bano, who was divorced in 2015, has not gone to court for maintenance issue but has challenged the Constitutional validity of three aspects of Muslim personal law: polygamy, triple talaq and nikah halala (a practice under which a woman who wishes to remarry her former husband must first consummate a nikah with another man).
- It has to be known that her petition does not mention UCC or ask for codification of the Muslim personal law.
- It is fight for equality before law and protection against discrimination on the basis of her gender and religion.
- This case has once again stirred the murky waters of validated rights of Muslim women as per personal law or constitution.
Present stand of government
- The centre has opposed in the Supreme Court the practice of triple talaq among Muslims, maintaining that it cannot be regarded as an essential part of religion.
- According to centre, the practice of triple talaq is not in conformity with the constitution as well as cannot be regarded as an essential part of religion.
- The principles of gender justice, equality and dignity enshrined in the Constitution of India are above the personal laws.
- It gave examples of Muslim countries like Pakistan, Bangladesh, Morocco, Egypt, Iran and Sudan which do not have provision of triple talaq or if it exists, then it is regulated by law.
- The government has maintained that it doesn’t want to impose a uniform civil code and that both the issues were separate.
- No doubt, reform should come from within the religious community. That was why Raja Ram Mohan Roy, Dayanand Saraswati and others reformed Hindu religious practices. Over the years, Hindu religious practices have undergone substantial change and reform.
- The Muslim clerics should take note of the changing times and allow the Muslim women to exercise their rights and not subdue them in name of patriarchal laws.
- The way forward in this matter is to discuss and prevent continued exploitation of women by taking necessary measures wherever required.
- There is a need to create awareness that triple talaq is related to ending gender discrimination and ensure gender justice and equal rights. Whereas UCC is a different matter which aims to bring about common laws on issues like marriage, divorce/separation and inheritance which will be applicable to Indians irrespective of religion, caste and community. Undoubtedly, one of its basis is ending gender discrimination, but it certainly is not the sole reason.
- The government has to act in a matured way by handling both the issues separately with clarity. Politics should now not negatively affect individual’s basic right under Indian Constitution.
- A high level committee report- Status of Women in India (2015) need to be released. The report straddles the fine line between ensuring gender justice and maintaining the plurality of family laws and reiterates the need to protect diversity, and rejects uniformity as a way to push for women’s rights.
- Art 14 (Equality before law) and Art 15 (Against specific discrimination) have to be upheld. Art 25 should not be interpreted for petty personal gains, thereby giving meaning to Art 21 (Right to live).
Connecting the dots:
- What do you understand by triple talaq? In the 21st century of women empowerment and gender equality, can it be said that such provisions of personal law violates rights of Muslim women? Substantiate your stand.
- Can Uniform Civil Code and issue of triple talaq be pronounced in same sentence? The removal of triple talaq is a contentious issue for traditional Muslim clergy but has found support in many Muslim women. Do you agree? Give reasons.
- If the constitution supports secular fabric, can it have a say in personal laws guided by faith and religion? Critically analyse.
General Studies 3
- Indian Economy and issues relating to planning, mobilization of resources, growth, development and employment
- Inclusive growth and issues arising from it
- Government Budgeting
General Studies 2
- Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
Idea of a UBI for India
What the article intends to convey?
We know that, Government of India provides subsidies to help lift the poor out of poverty. However, subsidies are not only regressive but also cause misallocation of resources.
Therefore, as a solution, Economist Pranab Bardhan and others have recently advocated that the government of India should provide every citizen a universal basic income (UBI).
Even after three decades of sustained economic growth and a proliferation of welfare schemes, roughly one in three Indians still live below the poverty line, according to the last report on poverty estimates submitted by the Rangarajan committee in 2014. (Too many Indians remain trapped in poverty.)
The persistence of poverty and significant leakages in welfare schemes that aim to alleviate it has prompted many academics and policymakers to explore more efficient alternatives to India’s creaky and leaky welfare architecture.
One of the suggestions has been to move towards a “universal basic income”.
The idea is already gaining currency in the developed world, as fears of automation and consequent job losses have spurred thinkers in the West to devise ways wherein all individuals would be guaranteed some income.
Advantages of Universal Basic Income (UBI)
- UBI would avoid the inefficiency and wastage associated with government subsidies, and help lift the poor out of poverty.
- UBI can end the “non-merit” subsidies and tax exemptions that mostly benefit the rich.
What is Basic Income?
A basic income is an income unconditionally granted to all on an individual basis, without means test or work requirement. It is a form of minimum income guarantee that differs from those that now exist in various European countries in three important ways:
- It is being paid to individuals rather than households;
- It is paid irrespective of any income from other sources;
- It is paid without requiring the performance of any work or the willingness to accept a job if offered.
The universal basic income, as it is understood today, has three distinguishing characteristics:
First, it is universal and not targeted. In the Indian context, this makes sense because of the less-than-satisfactory experience with targeting welfare services. Apart from the standard arguments against targeting—that it often excludes a lot of the deserving households from receiving subsidies, people often fall in and out of poverty and therefore it becomes difficult to ascertain who are rightfully entitled to receive such benefits. Thus, a “universal” programme would not only be more appropriate, it will also reduce the burden of the bureaucracy in so far as it is engaged in identifying the deserving beneficiaries of any targeted programme.
The second feature of any proposed universal basic income scheme is cash transfer in lieu of in-kind transfer. There are standard arguments in favour of cash transfers over in-kind transfers (food stamps or grains provided through the Public Distribution System) as they are supposed to be much less market-distorting than in-kind transfers.
The third distinguishing feature is that it is unconditional. Cash transfers are not tied to exhibiting certain behaviour, and the people are free to spend the cash as they want. An example of conditional in-kind transfer in India would be the mid-day meal scheme, where the meal—an in-kind transfer—is conditional upon attending school.
Thus, the universal basic income seeks to provide unconditional cash to every individual, or household, and the individuals would be free to use the cash as per their discretion and spend according to their own preferences. Thus, the movement for a universal basic income has attracted support from both the left and right ends of the political spectrum.
What are the main arguments against a universal basic income?
- It would reduce the motivation for work and might encourage people to live off assured cash transfers.
- Ensuring fiscal affordability of UBI
- Economist Pranab Bardhan and others have proposed for an payment of between Rs3,500 and Rs10,000 per person (based on poverty estimates for 2014-15)
- As it is estimated paying a basic income equivalent to the poverty line, to each and every adult in India, would entail a cost of 11% of GDP, which is way above the 4.2% of GDP that the government currently spends on explicit subsidies.
(Explicit subsidies mean the subsidy cost under the Public Distribution System, fertilizers, railways, electricity, sugar, LPG, kerosene and water).
- It is also argued that unconditional cash transfers might raise wages due to the decline in the supply of casual labourers.
- There is also question of whether a shift towards it should be a substitute for all existing subsidies or whether it should complement the existing ones.
- A UBI handout by itself would not solve the two fundamental problems the poor face in India—low income-earning opportunities and inadequate quality of human capital services consumed by them.
- In India, where entrepreneurship and job creation continue to face formidable challenges, and public sector failures in education, health and sanitation severely degrade the poor’s expenditure on human capital. Therefore, a UBI will prove insufficient or even wasteful.
In discussing the merits and demerits of the UBI or any other development policy, it is important to avoid some standard pitfalls.
- First, all policies have some pros and cons, and so just picking a problem with or highlighting a nice feature of a particular policy is not good enough. That traps us in an elusive search for “win-win” policies. The focus should be on relative costs and benefits of different policies.
- Second, one size does not fit all. We should be open to the possibility that different policies could work well in different contexts. Cash transfers only make sense if you have ready access to markets, which is not true if you live in remote rural areas in which we have to rely on in-kind transfers.
- Third, there is no magic pill that will cure all problems. Different policies are needed to address different problems.
So yes, a UBI or a cash transfer as envisaged by JAM or the MGNREGA will provide some relief to the poor, but will not provide a long-term solution to the problem of poverty. For that one needs investment in health, education, and skill-formation to enable the poor to take advantage of growth opportunities, and investing in infrastructure and regulatory conditions to facilitate private investment for employment generation.
While some of the challenges of implementing a basic income can be met with the better use of technology and an expansion in banking services, the challenge of affordability remains. How far existing welfare schemes can be trimmed without hurting the poor, and how much public resources can be saved to implement the scheme remains an open question.
The required budgetary resources could be raised by trimming the implicit and explicit subsidies to the rich (often in the form of tax breaks or subsidies given to goods largely consumed by the relatively well-off), or by raising additional taxes by improving property tax collections (currently extremely low).
Few regard UBI as a simple and potentially comprehensive antidote to poverty. It is also viewed as a means to demolish complex welfare bureaucracies while recognizing the need for some social transfer obligations in a way that doesn’t weaken incentives significantly.
Connecting the dots:
- What is basic income? What are the potential benefits and drawbacks of a universal basic income guarantee?
- Is India ready for a universal basic income scheme? Critically analyze.
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