Editorials/Opinions Analysis For UPSC 31 August 2022
- The Special Marriage Act: Being challenged
- One factor reducing business ease
The Supreme Court has dismissed a writ petition challenging provisions of the Special Marriage Act (SMA) of 1954 that require couples to give 30 days’ notice of their intent to marry.
GS Paper – 1 & GS Paper – 2: Issues Related to Women, Women’s Issues, Government Policies & Interventions
The government’s recent proposal to raise the legal marriage age for women to 21 years is a step toward women’s empowerment. Analyze critically. (150 words)
1954 Special Marriage Act (SMA)
- In India, all marriages must be registered under the respective personal law Hindu Marriage Act of 1955, Muslim Marriage Act of 1954, or Special Marriage Act of 1954.
- It is the judiciary’s responsibility to protect both the husband and wife’s rights.
- The Special Marriage Act, 1954 is an Act of the Parliament of India that provides for civil marriage for Indian citizens and Indian nationals living abroad, regardless of religion or faith practised by either party.
- A marriage under the Special Marriage Act of 1954 allows people from different religious backgrounds to unite in marriage.
- The Act specifies the procedure for both marriage solemnization and registration when either the husband or wife, or both, are not Hindus, Buddhists, Jains, or Sikhs.
- Notification of the marriage officer in advance
- Section 5 of the SMA requires couples to serve a notice on the Marriage Officer 30 days before the intended date of marriage, along with the necessary documents.
- The registration procedure
- Following the submission of documents, both parties must be present for the issuance of a public notice inviting objections.
- Registration occurs 30 days after the date of notice, after the SDM has resolved any objections received during that time period.
- Both parties, as well as three witnesses, must be present on the date of registration.
- The Supreme Court dismissed a writ petition challenging the constitutionality of certain SMA provisions.
- The petition was dismissed on the grounds that the petitioner was no longer an aggrieved party; however, another writ petition filed on similar grounds in Nandini Praveen vs Union of India & Others was admitted by the Supreme Court in 2020.
- In this case, the court is awaiting the government’s response.
What is the petition requesting?
- According to the writ petition, certain provisions of the SMA, 1954 violate the right to privacy guaranteed by Article 21 of the Constitution.
- This is because these provisions require couples to give a 30-day notice inviting public objections before the date of marriage.
- According to the petition, these provisions violate Article 14 as well as Article 15 on the right to equality because these requirements are absent in personal laws.
Provisions that have been called into question
- The writ seeks to overturn the provisions in Sections 6 through 10.
- Section 6 requires that such a notice be entered into the Marriage Notice Book kept by the Marriage Officer and be inspected by “any person desirous of inspecting the same.”
- Section 7 explains how to file an objection.
- Section 8 specifies the inquiry procedure to be followed following the submission of an objection.
- The petition contends that these provisions expose individuals’ personal information to public scrutiny, thereby seriously undermining one’s right to control over her/his personal information and its accessibility.
- Furthermore, these public notices have been used by anti-social elements to harass couples getting married.
Concerning Interfaith Marriages:
- The matrimonial relationship developed between two people of different religious beliefs.
- Although marrying into a different religion is a personal choice for an adult, there are some issues to consider.
Interfaith Marriage Issues:
- Interfaith marriages are thought to be forced conversions of one of the spouses (mostly women).
- According to Muslim personal law, the only way to marry a non-Muslim is to convert to Islam.
- The Hindu religion permits only monogamy, and those who wish to marry a second time must follow a different path.
- There is no provision for determining the caste of children born from such marriages.
- The Special Marriage Act of 1954 is incompatible with the society’s backwardness.
- The high court is debating the validity of Article 226 in the context of annulling the interfaith marriage.
- Article 226: High courts have the authority to issue certain writs.
One Factor Reducing Business Ease
The ease of doing business in India remains low, hampered by the country’s approach to contract enforcement. Recent reforms have helped to improve the business climate, but there is still a long way to go.
GS Paper 3: Effects Of Liberalization On The Economy, Changes In Industrial Policy and their effects on Industrial Growth
The ‘ease of doing business index’ does not accurately reflect the country’s business activity. Comment. Also, suggest policy measures that have been implemented to improve business activity in India. (250 words)
What exactly is the Doing Business Index?
- It is a World Bank-created index that ranks 190 economies.
- A higher rank (closer to 1) indicates that the regulatory environment in the country is favourable to business operations.
- In 2020, India was ranked 63rd in the overall index.
- The World Bank has ceased publication of the Doing Business index.
The ranking is determined by indicators such as:
1. Starting a Business
2. Dealing with Construction Permits
3. Obtaining Electricity
4. Property Registration
5. Credit Obtaining
6. Minority Investor Protection and Tax Payment
7. International Trade
Contract Enforcement and
9. Insolvency Resolution
How is the metric ‘Enforcing Contracts’ calculated?
- In 2020, India was ranked 163rd in the parameter of ‘Enforcing Contracts,’ down from 186th in 2015. The parameter takes into account the length, cost, and quality of the judicial process.
- Time considers the number of days required to resolve a commercial dispute in court;
- Cost considers attorney, court, and enforcement expenses as a percentage of claim value; and
- Quality considers the use of best practises that can promote efficiency and quality, such as court proceedings, case management, alternative dispute resolution, and court automation.
- Each of the three indicators is weighted at 33.3%.
The World Bank
- It was established in 1944, alongside the International Monetary Fund, as the International Bank for Reconstruction and Development (IBRD) (IMF). The IBRD evolved into the World Bank.
- The World Bank Group is a one-of-a-kind global partnership of five institutions dedicated to reducing poverty and fostering shared prosperity in developing countries.
- It currently has 189 member countries.
- India is a member as well.
- It has five development organisations:
- International Bank for Reconstruction and Development (IBRD): lends, credits, and grants
- International Development Association (IDA): lends to low-income countries at low or no interest.
- International Finance Corporation (IFC): provides companies and governments with investment, advice, and asset management.
- Multilateral Guarantee Agency (MIGA): protects lenders and investors from political risks like war.
- International Centre for the Settlement of Investment Disputes (ICSID): mediates investment conflicts between investors and countries.
The Advantages of Ease of Doing Business
- The country’s image in the global market improves. During the reference period, the GoI implemented 37 reforms and wishes to assess their effectiveness.
- The government is liberalising the business environment, and these reforms are working.
- It transforms the country’s image in the eyes of the global market into a desirable place to do business.
- The rankings are expected to serve as a guide for investors when making decisions. As a result, the higher the ranking in the report, the higher the favorability.
- The performance of the Government of India in terms of GST implementation will provide an answer to the question of how business-friendly this reform is (GST was not considered for last year’s ranking, and this year’s ranking could not fully account for GST because the deadline for tax-related reforms was December 31st, and GST had only been in effect for six months).
- Industry growth averaged around 7% in the 1990s and increased to 7.4% in the last decade. The global financial crisis put a damper on the manufacturing and export sectors at the end of it.
- The government hopes to attract domestic and foreign investment into the manufacturing sector by improving the regulatory environment.
How is India currently performing on this metric?
- The country remains in 163rd place in 2020, with the time taken to resolve a commercial dispute being approximately 1,445 days according to the Doing Business Report 2020.
- However, as of August 2022, data from the law ministry show a nearly 50% improvement in the number of days required to resolve a dispute, with New Delhi taking 744 days and Mumbai taking 626 days.
What are some of the reforms being implemented?
- The Department of Justice, the nodal point for the ‘Enforcing Contracts’ indicator, along with the Supreme Court’s eCommittee, has implemented a number of reforms.
- Dedicated commercial courts with monetary jurisdiction up to 3 lakh have been established, as have online case filing, e-payment of court fees, electronic case management, special courts for infrastructure project contracts, and automatic and random allocation of commercial cases, thereby eliminating human intervention.
What other steps are needed?
- An efficient judiciary inspires investor confidence and signals the commercial viability of transactions.
- The number of court hearings should also be reduced; lawyers frequently have an incentive to prolong the process.
- The judicial system should encourage out-of-court settlements through respective lawyers, as is common in advanced countries.
- It is also critical that the judiciary leave economic governance to governments.