GS Notes

1.4 - Society Notes 12

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Elaborate Notes

Uniform Civil Code

A Uniform Civil Code (UCC) refers to the formulation and implementation of one common law for all citizens of a country, pertaining to personal matters such as marriage, divorce, inheritance, adoption, and succession. It aims to replace the existing system of fragmented personal laws, which are often based on the scriptures and customs of various religious communities.

The constitutional mandate for a UCC is found in Article 44 of the Constitution of India, which is a Directive Principle of State Policy. It states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Debate on the Uniform Civil Code

The discourse surrounding UCC is complex and deeply polarized, with strong arguments presented by both proponents and opponents.

  • Arguments in Favour of the Uniform Civil Code:

    • Gender Justice and Women’s Empowerment: Proponents argue that personal laws of most religions are patriarchal and discriminatory against women. For instance, issues like polygamy, unequal inheritance rights (though mitigated by the Hindu Succession (Amendment) Act, 2005), and triple talaq (Talaq-e-biddat, now criminalized) have historically disadvantaged women. A UCC is seen as a tool to ensure gender equality, as highlighted in landmark cases like Shah Bano Begum v. Mohd. Ahmed Khan (1985) and Shayara Bano v. Union of India (2017).
    • Uniformity and Legal Simplification: A common civil code would simplify the complex and often contradictory legal landscape of personal laws. This would reduce the burden on the judiciary, which currently needs to interpret laws based on different religious traditions, leading to ambiguity and prolonged litigation.
    • Promoting National Integration and Secularism: A UCC is argued to be a hallmark of a modern, secular state. By bringing all citizens under a single legal umbrella for personal matters, it can foster a sense of common citizenship and national cohesion, reducing the scope for religion-based vote-bank politics and communal conflicts. Dr. B.R. Ambedkar, in the Constituent Assembly Debates, viewed UCC as a desirable objective for a secular India, though he favoured its gradual and voluntary adoption.
    • Fiscal Benefits and Governance: By reducing social conflicts and legal complexities, a stable social environment can be fostered. This can create fiscal space, allowing the government to reallocate resources from law and order maintenance to investment in critical social infrastructure like health and education.

  • Challenges in the Implementation of a Uniform Civil Code:

    • Apprehensions among Minorities: The absence of a clear blueprint or draft for the UCC has led to fears among minority communities, particularly Muslims and Christians, that it might lead to the imposition of the cultural and legal norms of the Hindu majority, thereby eroding their distinct religious and cultural identities.
    • Conflict with Multiculturalism: Critics argue that imposing uniformity is antithetical to India’s multicultural ethos, often described by the ‘Salad Bowl Theory’, where different cultures coexist while retaining their unique characteristics. Political theorist Bhikhu Parekh in his work “Rethinking Multiculturalism” (2000) argues for a society that accommodates cultural diversity rather than assimilating it into a single mould. A UCC, it is feared, may threaten this pluralistic fabric.
    • Politicization and Lack of Consensus: The issue of UCC has been highly politicized, often viewed through a religious and communal lens rather than from the perspective of uniformity, justice, and empowerment. This lack of “emotional intelligence” and popular consensus makes its implementation extremely challenging. The 22nd Law Commission of India (2023) has initiated a process of seeking views from the public and religious organizations to build a broader consensus.
    • Cultural Lag: Sociologist William F. Ogburn introduced the concept of ‘cultural lag’ in his book “Social Change with Respect to Culture and Original Nature” (1922), where material culture (like laws) changes faster than non-material culture (beliefs, norms). A sudden imposition of UCC may face stiff resistance as core societal beliefs related to family and religion take a long time to evolve.
    • Views of the 21st Law Commission: In its “Consultation Paper on Reforms of Family Law” (2018), the 21st Law Commission, chaired by Justice B.S. Chauhan, argued that a UCC was “neither necessary nor desirable at this stage.” It suggested that the focus should be on ensuring “equality within communities” by reforming discriminatory practices within each personal law, rather than forcing “equality between communities.” It cautioned that an attempt to impose uniformity could threaten India’s territorial integrity by alienating diverse groups.
    • Exaggerated Vision of Empowerment: Some sociologists argue that legal changes alone may not guarantee social change. For example, despite legal reforms granting inheritance rights to women, such as the Hindu Succession (Amendment) Act, 2005, the actual ownership of assets by women has not seen a proportionate increase due to deep-seated patriarchal norms and social pressures.

Doctrine of Essential Religious Practices vs. Judiciopapism

This debate revolves around the extent to which the judiciary can and should intervene in religious matters.

  • Doctrine of Essential Religious Practices (ERP): This judicial doctrine posits that the state can regulate religious practices, but not those that are “essential” or “integral” to a religion. The protection under Article 25 (Freedom of Religion) covers only these essential practices.

    • The doctrine emerged from the Supreme Court’s judgment in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) case. The court held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. However, it also asserted that the final decision rests with the court.
    • Judiciopapism is a critical term used to describe what some perceive as judicial overreach or excessive interference in the theological domain of religion, where judges decide what is and is not essential to a faith.

  • Application of the ERP Doctrine in Key Cases:

    • Santhara/Sallekhana: The Rajasthan High Court banned the Jain practice of Santhara (a voluntary fast unto death) in 2015, equating it with suicide (an offence under the IPC) and deeming it not an ERP. The Supreme Court later stayed the High Court’s order, observing that the HC had not adequately consulted Jain practitioners and that the practice could not be simplistically equated with suicide due to its theological underpinnings of spiritual purification.
    • Ismail Faruqui v. Union of India (1994): In the context of the Babri Masjid demolition, the Supreme Court held that offering Namaz (prayers) in a mosque is not an ERP in Islam, as prayers can be offered anywhere. This judgment was highly consequential for the Ayodhya land dispute.
    • Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association (2000): In contrast to the Ismail Faruqui case, the Court observed that offering prayers is an ERP, but it must not violate public order, in this case, by causing noise pollution.
    • Shah Bano Case (1985): The Court’s order for maintenance to a divorced Muslim woman was based on a secular law, Section 125 of the Code of Criminal Procedure (CrPC). Therefore, it was not an interference in religious law or an act of judiciopapism, but an application of a criminal law provision aimed at preventing vagrancy.
    • Shayara Bano Case (2017): The Supreme Court declared the practice of Talaq-e-biddat (instant triple talaq) unconstitutional. The majority judgment reasoned that the practice was not an ERP of Islam, was manifestly arbitrary, and violated the fundamental rights of Muslim women.
    • Sabarimala Temple Case (Indian Young Lawyers Association v. State of Kerala, 2018):
      • Majority Judgment: The Supreme Court, in a 4-1 verdict, allowed women of all age groups to enter the Sabarimala temple, striking down the ban on women in their menstruating years (10-50). The grounds were:
        1. The practice is derogatory to the ‘dignity of women’ under Article 21.
        2. Individual rights to worship cannot be subjected to mob veto or popular sentiment.
        3. Patriarchy within religion cannot be allowed to override the constitutional guarantee of freedom to practice religion (Article 25).
        4. The exclusion based on a physiological process amounted to a form of ‘untouchability’ under Article 17. This interpretation was justified using the ‘Doctrine of Living Tree,’ which advocates for a dynamic and evolving interpretation of the Constitution.
        5. The Court also held that the practice was not an ERP.
      • Dissenting Judgment (Justice Indu Malhotra): The sole woman judge on the bench dissented, arguing that:
        1. India’s constitutional morality must accommodate its pluralistic and diverse fabric. ‘Diversity should not be confused with discrimination.’
        2. The restriction was not based on patriarchy but on the specific ‘celibate’ nature of the deity, Lord Ayyappa, a belief with a historical origin.
        3. Courts should not interfere in religious practices based on Public Interest Litigations (PILs) filed by individuals who are not followers of the faith, as it could destabilize the social fabric.

Population Associated Issues

Debate on High Population Growth: Liability vs. Asset

  • Population as a Liability (Malthusian View):

    • The classic argument, articulated by Thomas Malthus in “An Essay on the Principle of Population” (1798), posits that population growth outpaces the growth of resources (food supply), leading to poverty, famine, and social conflict.
    • A high population puts immense pressure on limited resources like land, water, and energy, threatening sustainable development goals (SDGs).
    • It can lead to inequitable distribution of resources, creating a sense of ‘relative deprivation’ among certain groups, which can fuel social unrest and disrupt social capital (trust and cooperation in society).

  • Population as an Asset (Human Capital View):

    • This perspective argues that a large population is a partial truth and can be a significant asset if it is transformed into ‘human capital’—a healthy, educated, and skilled workforce.
    • This transformation leads to a ‘demographic dividend’.

Demography

  • Demography (from Greek ‘demos’ meaning people and ‘graphein’ meaning to describe) is the scientific and statistical study of human populations. It analyzes trends and processes such as birth rates, death rates, migration patterns, age structure, and sex ratio.
  • Types of Demography:
    • Formal Demography: Focuses on the quantitative analysis of population data, measuring population size, composition, distribution, and changes over time.
    • Social Demography: Analyzes the social, economic, and political causes and consequences of population trends. It explores the relationship between demographic processes and social structures.

Demographic Dividend

  • The United Nations Population Fund (UNFPA) defines the demographic dividend as “the economic growth potential that can result from shifts in a population’s age structure, mainly when the share of the working-age population (15 to 64) is larger than the non-working-age share of the population (14 and younger, and 65 and older).”

  • Indian Context:

    • Statistics: Approximately 62.5% of India’s population is in the working-age group of 15-59 years, and this is projected to increase to over 65% by 2036.

  • Opportunities from the Demographic Dividend:

    • Increased Labour Supply: A larger workforce can increase productivity and drive economic growth. The availability of cheap labour can boost profits and attract investment.
    • Increased Savings and Investment: With a lower dependency ratio (fewer children and elderly per working-age adult), households tend to have higher savings, which can be channelled into investment, fueling capital formation.
    • Increased Domestic Demand: A large working-age population with disposable income boosts domestic demand for goods and services, creating a virtuous cycle of production and consumption.
    • Fiscal Space: The government can spend less on dependent populations (e.g., child care, pensions) and more on social and physical infrastructure, further boosting growth.
    • Innovation and Entrepreneurship: A young population is often more dynamic, innovative, and willing to take entrepreneurial risks, creating pressure on the government for better governance and opportunities.

  • Challenges and Prerequisites:

    • The dividend is an opportunity, not a guarantee. Its realization depends crucially on two factors:
      1. Quality of the Workforce: Investment in health (e.g., Ayushman Bharat), education (e.g., National Education Policy 2020), and vocational skills (e.g., Skill India Mission) is essential.
      2. Availability of Job Opportunities: The economy must create enough jobs to absorb the burgeoning workforce. This requires a conducive environment for investment, flexible labour laws, and support for labour-intensive sectors.
    • Policy Imperatives:
      • Improving the Female Labour Force Participation (FLFP) rate, which is currently very low.
      • Fostering strong Industry-Academia collaboration to align education with market needs.
      • Promoting a culture of entrepreneurship and startups (e.g., Startup India).
      • Investing in Research and Development (R&D) to move up the value chain.

Approach to the Question: “Is population growth responsible for poverty or poverty is responsible for population growth?”

This question addresses a cyclical relationship. A comprehensive answer should discuss both sides.

  • Poverty leads to Population Growth:

    • More Hands to Work: In poor, agrarian families, children are often seen as economic assets or ‘working hands’ who can contribute to family income from a young age.
    • Lack of Education and Awareness: Poverty often correlates with low levels of education, particularly for women, leading to a lack of awareness and agency regarding family planning.
    • Poor Access to Contraception: The poor have limited access to and affordability of family planning measures and reproductive healthcare services.
    • High Infant Mortality Rate (IMR): High poverty leads to poor nutrition and sanitation, resulting in high IMR. Families may have more children as an ‘insurance’ against potential child loss.

  • Population Growth leads to Poverty:

    • Strain on Resources: Rapid population growth puts pressure on resources like land, water, and public services (schools, hospitals), reducing per capita availability.
    • Dilution of Capital: It can lead to a ‘capital shallowing’ effect, where the amount of capital per worker decreases, leading to lower productivity and wages.
    • Unemployment: If job creation does not keep pace with the growth of the labour force, it leads to high unemployment and underemployment, perpetuating poverty.

Fertility

  • Fertility, in demography, refers to the actual reproductive performance of a population, i.e., the bearing of children. It is often measured by the Total Fertility Rate (TFR), which is the average number of children a woman would have in her reproductive age group (15-49 years).
  • Replacement Level Fertility is the TFR at which a population exactly replaces itself from one generation to the next, without migration. This rate is approximately 2.1 children per woman.
  • NFHS-5 (National Family Health Survey, 2019-21) Report:
    • India’s national TFR has declined to 2.0, which is below the replacement level.
    • However, there are regional variations. Five states have a TFR above the replacement level: Bihar (2.98), Meghalaya (2.91), Uttar Pradesh (2.35), Jharkhand (2.26), and Manipur (2.17).
  • Uttar Pradesh Population Policy (2021-2030):
    • As a state with a high TFR, UP launched a new population policy aiming to bring the Gross Fertility Rate down to 2.1 per thousand population by 2026 and to 1.9 by 2030 through improved access to family planning and healthcare.

Prelims Pointers

  • Uniform Civil Code (UCC): Mentioned in Article 44 of the Constitution, under the Directive Principles of State Policy.
  • 21st Law Commission: In its 2018 Consultation Paper, it stated that a UCC is “neither necessary nor desirable at this stage.”
  • Doctrine of Essential Religious Practices (ERP): Originated from the Supreme Court’s judgment in the Shirur Mutt Case (1954).
  • Shah Bano Begum v. Mohd. Ahmed Khan (1985): SC granted maintenance to a divorced Muslim woman under Section 125 of the CrPC.
  • Ismail Faruqui v. Union of India (1994): SC held that offering Namaz in a mosque is not an ERP of Islam.
  • Shayara Bano v. Union of India (2017): SC declared Talaq-e-biddat (instant triple talaq) unconstitutional.
  • Indian Young Lawyers Association v. State of Kerala (2018): Known as the Sabarimala Temple Entry case. The SC lifted the ban on the entry of women of menstruating age.
  • Doctrine of Living Tree: An approach to constitutional interpretation that suggests the constitution is an organic document that should be interpreted in a broad and liberal manner to adapt to changing times.
  • Untouchability: Prohibition of women’s entry in Sabarimala was linked to Article 17 of the Constitution by the majority judgment.
  • Demographic Dividend: The economic growth potential from a rise in the share of the working-age population (15-59 years).
  • India’s Working-Age Population: Constitutes about 62.5% of the total population.
  • Replacement Level Fertility: The Total Fertility Rate (TFR) required for a population to replace itself, which is 2.1 children per woman.
  • NFHS-5 (2019-21) Data:
    1. India’s national TFR is 2.0, which is below the replacement level.
    2. States with TFR above 2.1 include Bihar, Meghalaya, Uttar Pradesh, Jharkhand, and Manipur.

Mains Insights

Uniform Civil Code: National Integration vs. Pluralism (GS-I, GS-II)

  1. Conflict of Fundamental Rights: The debate on UCC represents a classic constitutional dilemma, pitting the Right to Equality (Articles 14, 15) and dignity (Article 21) against the Right to Freedom of Religion (Articles 25-28). A key question for policymakers is how to balance individual rights (especially of women) with the collective rights of religious communities to manage their affairs.
  2. Secularism: Indian vs. Western Model: The push for UCC is often justified on grounds of secularism. However, it raises questions about the nature of Indian secularism, which follows a model of principled distance from all religions, unlike the strict separation of state and church in the West. Critics of UCC argue that it might push India towards a more assimilationist model of secularism, eroding the space for religious and cultural diversity.
  3. Path to Implementation: Revolution or Evolution? The core debate is whether reform should be revolutionary (a top-down imposition of a single code) or evolutionary (gradual, consensus-based reforms within each personal law). The 21st Law Commission’s recommendation for piecemeal reforms within communities reflects the evolutionary approach, which is seen as more democratic and less disruptive in a deeply religious and plural society.

Judiciary’s Role in Religious Reforms: Sentinel or Intruder? (GS-II)

  1. The ERP Test and its Inconsistencies: The judiciary’s application of the ‘Essential Religious Practices’ test has been inconsistent. For instance, offering prayers in a mosque was deemed not essential (Ismail Faruqui case), while the right to offer prayers was upheld as essential in another context (Church of God case). This ambiguity grants significant power to judges to interpret theology, leading to accusations of ‘Judiciopapism’ and undermining legal certainty.
  2. Judicial Activism vs. Judicial Restraint: The Sabarimala judgment is a prime example of judicial activism aimed at social reform and upholding individual dignity. The majority verdict prioritized constitutional morality over religious tradition. In contrast, the dissent by Justice Indu Malhotra advocated for judicial restraint, arguing that courts lack the competence to adjudicate on deep-rooted religious beliefs and that such interventions could have serious social consequences. This reflects the ongoing tension within the judiciary itself regarding its role in sensitive socio-religious issues.
  3. Living Constitution vs. Religious Autonomy: The use of the ‘Doctrine of Living Tree’ to expand the meaning of rights (like Article 17 to include menstrual discrimination) shows the judiciary’s intent to make the Constitution relevant to contemporary challenges. However, this can clash with the autonomy guaranteed to religious denominations under Article 26, creating a delicate balancing act for the courts.

Demographic Dividend: Opportunity or Impending Disaster? (GS-I, GS-III)

  1. The Vicious Cycle of Poor Human Capital: India’s demographic dividend can turn into a demographic disaster if the workforce is not educated, skilled, and healthy. A large, unemployable youth population can lead to social unrest, increased crime rates, and political instability. The focus must shift from quantity (population numbers) to quality (human capital).
  2. Jobless Growth and Sectoral Challenges: A major challenge is ‘jobless growth,’ where the GDP grows without a corresponding increase in employment. The agriculture sector is overburdened, while the manufacturing sector has not created enough jobs to absorb the surplus labour. Policy interventions like the Production Linked Incentive (PLI) scheme and a renewed focus on MSMEs are critical to creating quality employment.
  3. Gender and Regional Disparities: The economic benefits of the dividend cannot be fully realized without improving the Female Labour Force Participation (FLFP) rate, which is among the lowest in the world. Furthermore, the demographic transition is uneven across India; southern and western states are aging faster, while northern states have a larger youth bulge. This requires region-specific policies for skilling, employment, and social security.
  4. The Poverty-Population Nexus:
    • Cause-Effect Relationship: Poverty and high population growth are intertwined in a vicious cycle. Poverty leads to high fertility due to factors like lack of education, poor access to healthcare, and children being viewed as economic assets.
    • Policy Implications: This understanding validates an empowerment-based approach over a coercive one. As demonstrated by the demographic transition theory and the experience of states like Kerala, investments in education, healthcare, and women’s empowerment are the most sustainable tools for population stabilization, which in turn helps in poverty alleviation.

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