Can We Direct Parliament To Enact Laws? Supreme Court Asks In Pleas For Uniform Marriage Laws

Supreme Court bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala while hearing petitions concerning uniform laws for marriage framed the preliminary issue in the matter to be whether the court was permitted to direct the Parliament to make laws. 

At the outset, Senior Advocate Gopal Sankarnarayanan submitted–

"I have a suggestion. This is a batch of petitions of which there are 17 matters which are together before your lordships. Either your lordships can take all of them up together or maybe split them into these four categories, because this is dealing with four aspects of uniformity of personal laws – divorce, adoption guardianship, succession, and maintenance. We want it to be religion and gender neutral. There will be other aspects such as sexual choice, tribes, many other differences will come in. Essentially, the entirety of the citizenry should be governed by one law."

At this juncture, Senior Advocate Huzefa Ahmadi, appearing for a Muslim woman who opposed the petition on the ground that under Muslim law a marriage can be dissolved by consent of parties, submitted that conceptually, Muslim law gave a certain status to marriage. He stated that the petition needed to be dismissed on the ground of suppression. He stated that the petitioner Ashwini Upadhyay himself had earlier filed a petition in 2015 seeking identical reliefs. That petition was withdrawn and had not mentioned the same. He stated that this was a "gross abuse of process".

Per contra, Advocate Ashwini Upadhyay disagreed with the same and stated that the petition filed in 2015 was completely different and that the respondent had raised the same issue thrice before former CJI UU Lalit and the same had been rejected. 

After reading the prayer from the petition filed by Advocate Ashwini Upadhyay, which prayed for the respondents to be directed to take apposite steps to remove anomalies in the grounds of divorce and make them uniform or alternatively, declare that the discriminatory grounds of divorce were violative of the Constitution and  direct the Law commission of India to examine the laws, CJI Chandrachud remarked–

"Mr Upadhyay, this is a matter of legislative policy. This is for Parliament to intervene. You respond to this. We can't enact law, we can't make law in that sense. That is for Parliament to do. This is the preliminary issue and we would like you to address us on this. Our referring to the law commission must be in aid of something else. If the aid of something else is enactment of law by Parliament, that is a matter of Parliamentary sovereignty. We cannot say that Parliament you shall enact a law. That is a matter of legislative policy."

However, Advocate Upadhyay reiterated–

"I examined last 78 reports of the Law commission and I found that only 15 reports had been prepared on the direction of the Centre. 63 report is prepared by the Law commission or either by suo moto action or by direction of court. My only request is that separate these matters category wise because there are four categories and ask the Law commission to examine the laws and prepare a report. Whether the Centre passes the law or not is different."

To this, the bench stated that it will consider the same. 

The bench was hearing a batch of PILs which included four PILs filed by lawyer Ashwini Upadhyay, one petition filed by Lubna Qureshi and another petition filed by Doris Martin.

Case Title: Ashwini Kumar Upadhyay versus Union of India, WP(c) 869/2020, WP(c) 1144/2020, WP(c) 1000/2020, WP(c) 1108/2020, Lubna Qureshi versus Union of Inia WP(c) 707/2021, Doris Martin v. UoI WP(C) No. 474/2021

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