The Supreme Court in the case Ashwini Kumar Upadhyay versus Union of India, wherein the bench comprising of Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala observed while hearing the 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. The counsel, Senior Advocate Gopal Sankarnarayanan before the court submitted that, I have a suggestion, there being a batch of petitions of which there are 17 matters which are together before your lordships. It is either your lordships who 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 – adoption guardianship, divorce, succession and maintenance. Therefore, we want it to be religion and gender neutral. Thus, there will be other aspects such as sexual choice, tribes, many other differences will come in. Essentially, the entirety of the citizenry should have been governed by one law. The counsel, Senior Advocate Huzefa Ahmadi appearing for Muslim woman submitted and has opposed the petition on the ground that under Muslim law a marriage can be dissolved by consent of parties, submitted that conceptually, Muslim law provides a certain status to marriage. It has been stated in the plea needed to be dismissed on the ground of suppression. Further, he stated that the petitioner Ashwini Upadhyay himself had earlier filed a petition in 2015 seeking identical reliefs. The court withdrawn the petition and had not mentioned the same. He further stated that this being a “gross abuse of process”. Therefore, the counsel, Advocate Ashwini Upadhyay disagreed with the same and stated that the plea filed in the year 2015 and the same was completely different and that the respondent had raised the same issue thrice before former CJI UU Lalit and the same had been rejected by the court. The plea was 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, wherein declaring the that the discriminatory grounds of divorce were violative of the Constitution and direct the Law commission of India to examine the laws. The bench headed by CJI Chandrachud remarked that Mr Upadhyay, this being a matter of legislative policy. This being Parliament to intervene. Thus, We can’t enact law, we can’t make law in that sense and that being for the Parliament to do. The same being the preliminary issue and we would like you to address us on this. Our referring to the law commission must be in aid for that something else. Therefore, if the aid of something else is enactment of law by Parliament, that is a matter of Parliamentary sovereignty. It cannot be said that Parliament you shall enact a law. As the matter is of legislative policy. Advocate Ashwini Upadhyay in the case observed and has reiterated that, he examined last 78 reports of the Law commission and he found that only 15 reports had been prepared on the direction of the Centre. Thus, the 63 report is prepared by the Law commission or either by suo moto action or by direction of court. The only request may by him 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. Weather the Centre passes of the law or not being different. Adding to this, it has also been stated by the bench that this court will consider the same. In the present case, the bench was hearing a batch of PILs which included four PILs filed by lawyer Ashwini Upadhyay, one plea was filed by Lubna Qureshi and another petition filed by Doris Martin.
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