India’s SDG focus and its human development issues

Introduction:

• G-20 Summit 2023 in New Delhi resolved to accelerate the full and effective implementation of the UN Agenda 2030 for Sustainable Development.
• An “SDG Summit” 2023 was convened at the United Nations headquarters to follow up and review the implementation of the Agenda and the progress of the 17 Sustainable Development Goals (SDGs).
• A “Summit of the Future”, took place in 2024, at the UN headquarters to build upon the SDG Summit 2023 and its commitments by member nations.
• In this context, examining India’s progress in human development since 1990, based on the UNDP’s latest Human Development Report (HDR), is valid.
• As said by Nobel laureate Amartya Sen in his book, Development as Freedom, ‘development is a process of expanding the real freedoms that people enjoy’.
• In his ‘capability approach’, the basic concern of human development is ‘our capability to lead the kind of lives we have reason to value’.
• Freedom from hunger and ill-health on the one hand and gender and income equality, and access to quality education on the other hand lead to the achievement of human development, and, consequently, to sustainable development.

Development and the SDGs:

• The Human Development Index (HDI) developed by the UNDP has three dimensions: long and healthy life (measured by life expectancy at birth); knowledge (expected years of schooling and mean years of schooling), and a decent standard of living (income per capita).
• All the three dimensions are much related to some of the key SDGs: SDG-3 (good health); SDG-4 (quality education); SDG-5 (gender equality); SDG-8 (decent work) and SDG-10 (reduced inequality).
• Clearly, countries aspiring to achieve sustainable development need to take appropriate measures to boost human development.
• The HDR 2023-24 places India in the ‘medium human development category’ with a human development index (HDI) value of 0.644.
• India ranks 134 out of 193 countries.
• The HDI value was stagnant in 2019-20, at 0.638, and fell to 0.633 in 2021.
• It improved to 0.644 in 2022.
• In this report, some of India’s neighbouring countries have better HDI ranks – Malaysia (63); Thailand (66); China (75); Sri Lanka (78); Indonesia (112); Bhutan (125), and Bangladesh (129).
• The HDR also presents interpolated consistent data which can be used to compare HDI values across years and countries.
• India saw its HDI value increase by 48.4%, from 0.434 in 1990 to 0.644 in 2022.
• As per HDI rankings, during 2015-2022, India improved by four ranks, while neighbouring countries such as Bangladesh and Bhutan improved by 12 and 10 ranks, respectively.
• China improved by 18 ranks.
• India’s human development initiatives lagged behind during 2015-22.
• One of the reasons for the slow growth is the COVID-19 pandemic and its impact on dimensions of human development such as education and income.

Gender gaps:

• The HDR also presents the Gender Development Index (GDI) for 193 countries.
• It measures disparities in human development by gender.
• The report contains HDI values estimated separately for women and men, the ratio of which is the GDI value.
• The closer the ratio is to one, the lesser the gap there is between women and men.
• Among the 42 ‘medium human development countries’ to which India belongs, there are only seven with low equality in HDI achievements between women and men.
• These countries, with absolute deviation from gender parity of more than 10%, are India, Bangladesh, Nepal, Uganda, Morocco, the Syrian Arab Republic, and Kiribati.
• India has one of the largest gender gaps in the Labour Force Participation Rate (LFPR) a 47.8 percent points difference between women (28.3%) and men (76.1%).
• Female labour force participation rate in India is very low when compared to many countries, more so when one compares it with India’s neighbouring countries where in China it is 53.6 %, Bhutan 53.5 %, and Bangladesh 39.2%.
• In the latest Periodic Labour Force Survey (PLFS) -2022-23, published by the Ministry of Statistics and Program Implementation, around 37% females of working age (15 years and above) were in the labour force in 2022-23; it was 23.3% in 2017-18.
• However, there is a huge gap in female labour force participation in rural and urban areas.
• While the female labour force participation rate in rural areas increased from 24.6% in 2017-18 to 41.5% in 2022-23, there is only a marginal increase in urban areas (from 20.4% to 25.4%).
• This is a matter of concern that requires further research and in-depth study aimed at feasible policy initiatives.

Income inequality:

• In addition to the gender gap in income, inequality of incomes is also on the rise.
• India is one of the countries where income shares held by the richest 1% is very high (21.7%) compared to Bangladesh (11.6%), China (15.7%), Bhutan (18.1%), and Nepal (9.7%).
• Income inequality in India is also higher than the world average of 17.5% and the South Asia average of 19.6%.
• Most importantly, income inequality is also higher than other regional groups such as East Asia and the Pacific (16.5%) and Europe and Central Asia (15.7%).

Conclusion:

• India needs to address these gender development issues and increasing inequality in order to achieve the SDGs.

On the exception to marital rape (MRE)

What is the legal provision under challenge? What rights does it infringe upon and what are the contentions advanced by stakeholders? What is the ‘doctrine of coverture’ in English common law? What was the split verdict issued by the Delhi High Court in 2022 on the issue?

Introduction:

• A three-judge Bench headed by Chief Justice of India (CJI) 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”.

Statistics:

• While data on marital rape remains limited due to stigma and legal barriers, available statistics are deeply concerning.
• Data from the National Family Health Survey-5, conducted between 2019 and 2021, indicates that nearly one-third of married women (18-49 years) in India have experienced physical or sexual violence at the hands of their husbands.
• Additionally, global statistics reveal that approximately three-quarters of all sexual assaults transpire within intimate settings, often perpetrated by someone familiar to the survivor.

Genesis of the exception:

• The MRE is a colonial relic, originating from the “doctrine of coverture” in English common law, which severely curtailed a married woman’s legal autonomy.
• As elucidated by the Supreme Court in Joseph Shine versus Union of India in 2018, this doctrine assumed that the husband and wife became a single entity after marriage, that is, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband”.
• One of the earliest instances of codification of the MRE can be traced back to British jurist Matthew Hale, who wrote in a 1736 treatise that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband, which she cannot retract.”
• Hale’s reasoning proved hugely influential and was subsequently adopted by several British colonies.
• However, in 1991, England outlawed the MRE in the landmark case of R versus R underscoring that the common law doctrine no longer represented the true position of a wife in present-day society.

Challenges before the SC:

• Section 375 of the IPC delineates seven conditions under which sexual intercourse is deemed rape, such as when it occurs without the woman’s consent, or when consent is obtained through coercion.
• Those convicted are punished with a prison term of at least 10 years, which can be extended to a life sentence, along with a possible fine.
• However, the provision stipulates two “exceptions”.
• The first exception pertains to medical procedures.
• As per the second exception, “sexual intercourse or sexual acts by a man with his own wife” do not constitute rape if the wife is over 18 years of age.
• The MRE, therefore, creates a legal friction whereby, even if all the elements constituting the offence of rape are met, a conviction cannot take place if the parties are married and the wife is over 18 years of age.
• However, a married woman can seek recourse to other criminal law provisions such as Section 85 of the BNS which criminalises subjecting a woman to “cruelty”.
• Civil remedies can also be availed under laws such as the Protection of Women from Domestic Violence Act (2005) but they are limited to “protection orders, judicial separation and monetary compensation”.
• The petitioners have argued that the exception is unconstitutional since it violates a host of fundamental rights.
• Foremost among them is Article 14 which guarantees the equal protection of laws to all persons.
• The MRE creates two distinct classes of victims of non-consensual sex by denying married women the protection of laws that are extended to unmarried women.
• This, according to the petitioners, also offends the principle of “substantive equality” by failing to address systemic barriers to ensure that all women regardless of their marital status receive equal protection against sexual violence.
• By specifically disadvantaging married women, the MRE violates their right to non-discrimination under Article 15(1).
• Another important facet is the purported violation of the right to privacy and bodily integrity under Article 21.
• The Supreme Court’s ruling in K.S. Puttaswamy versus Union of India (2017) not only clarified that privacy was a fundamental right, it also affirmed the concept of decisional autonomy – the right of each individual to determine how and for what purposes their body may be used.
• As noted by constitutional law expert Gautam Bhatia the true brilliance of Puttaswamy lies in clearly establishing that the right to privacy is not merely anchored in physical spaces and institutions (such as marriage), but is fundamentally tied to individual self-determination.
• The right is, therefore, inseparable from the ability to make choices regarding the most integral aspects of one’s body and life.
• In Joseph Shine, the top court built on this jurisprudence by observing that “familial structures cannot be regarded as private spaces where constitutional rights are violated” and that doing so is “to obstruct the unfolding vision of the Constitution.”

Judicial precedents:

• In March 2022, the Karnataka High Court in Hrishikesh Sahoo versus State of Karnataka and Others ruled that a married man can be prosecuted for raping his wife.
• Relying on a 2013 report authored by the Justice J.S. Verma Committee, which recommended the abolition of the MRE, Justice M. Nagaprasanna reasoned that no legal exception can be so absolute as to licence crimes against society.
• However, instead of striking it down, he made the exemption inapplicable in cases involving the commission of heinous sexual offences by husbands against their wives.
• Justice Rajiv Shakdher of Delhi High Court deemed the MRE unconstitutional, asserting that it violates a woman’s bodily autonomy and expression.
• He characterised the exception as “steeped in patriarchy and misogyny,” adding that “the classification, in his opinion, is unreasonable and manifestly arbitrary as it implies that forced sex outside marriage constitutes ‘real rape,’ whereas the same act within marriage does not.”
• Conversely, Justice C. Hari Shankar opined that within marriage, sexual relations are a “legitimate expectation” making the MRE legal.
• “Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasions, sex with her without her consent would, in his view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law”, he reasoned.
• While an authoritative pronouncement is awaited, the top court (SC) in 2022 recognised for the first time that “sexual assault by a man against his wife can constitute rape” in a separate case concerning an unmarried woman’s right to seek medical termination of pregnancy.
• A Bench led by Chief Justice Chandrachud underscored, “We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one”.

Centre’s statement:

• The Union government’s latest Supreme Court affidavit is the first time that it has on record opposed the striking down of the MRE.
• During the proceedings before the Delhi High Court, the government had said that the “issue needs wider consultations” and that a review of existing criminal laws was pending at that time.
• Drawing from Justice Shankar’s opinion, the Centre has argued that marriage creates “a continuing expectation of reasonable sexual access” which is absent in the case of a stranger or of another intimate relationship.
• While acknowledging that a man has no fundamental right to violate his wife’s consent, it has contended that classifying such acts as “rape” is “excessively harsh” and “disproportionate”.
• It has also apprised the court that criminalising marital rape would affect the sanctity of the institution of marriage and potentially result in false allegations of marital rape.

‘New’ offence:

• A pivotal question before the top court is whether striking down the MRE would result in the creation of a new offence, as it would allow for the prosecution of husbands who engage in non-consensual sex with their wives.
• Justice Shankar, in his opinion, responded in the affirmative and cautioned that there is an “absolute proscription” against this since such an authority rests exclusively with the legislature.
• However, senior advocate Rebecca John argued before the Delhi High Court that deeming the exception unconstitutional would not create any new offence, as the offence already exists- rather, it would simply revoke the legal immunity presently enjoyed by a specific class of individuals.
• In Independent Thought, while raising the age for the application of the MRE from 15 to 18 years, the top court noted that “by partly striking down Section 375 IPC, no new offence is being created”.