•  •  Dark Mode

Your Interests & Preferences

I am a...

law firm lawyer
in-house company lawyer
litigation lawyer
law student
aspiring student
other

Website Look & Feel

 •  •  Dark Mode
Blog Layout

Save preferences

SCOI Report: SC dilutes judicial activism by deleting its 2006 order on marriage laws

When the BJP formed the Government at the Centre in 2014 with an absolute majority of its own, it was widely expected that judicial activism, which was on the rise in the 1990s and 2000s when coalition governments with bare majorities were in power at the Centre, might well be on its decline.

It is because of judicial activism - which literally means the judiciary taking up matters which are in the executive and legislative domain - can have a conducive environment only when the Governments in power are perceived as weak, unable to carry out the legislative agenda, leaving a vacuum for the judiciary to step in. One instance of this was the Supreme Court’s judgment in 2006 in Smt Seema vs Ashwani Kumar in which the bench of Justices Arijit Pasayat and SH Kapadia directed the framing of rules by all the States to make registration of marriages mandatory, and the Central Government to place any law made by Parliament in this regard for its scrutiny.

The Supreme Court continued to monitor this case over the years, and pulled up the Centre repeatedly for its failure to file an affidavit. The Centre filed its affidavit only on 25 October 2013, making known its intention to amend the Registration of Births and Deaths Act, to include marriages within its ambit. Almost all the States have apprised the court [about the steps taken to make registration of marriages mandatory.

The previous UPA Government introduced a Bill in this regard in the Rajya Sabha. The Bill, however, [lapsed with the dissolution of the Lok Sabha in 2014.

The Bill, even when it was referred to a Standing committee of Parliament in 2013, had provoked the MPs to demand that the Government should seek a review of the 2006 ruling of the court to expunge the direction that the Government must place the law enacted for the court’s scrutiny, as it impinged on the legislative domain. (See this PRS summary).

Legally India had also reported on this in 2013.

However, the review petition filed by the UPA Government in 2013 in this regard, could yield results only on 22 September when the Supreme Court agreed to delete the direction in the 2006 judgment.

The court agreed to delete the direction, even though the Modi Government is yet to introduce a fresh Bill in Parliament to replace the lapsed Bill on the subject.

The Law Commission, in this report has recommended enactment of a “Marriage and Divorce Registration Act” to be made applicable in the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions.

The court’s consent to delete the direction with regard to placing the yet-to-be-introduced legislation for its scrutiny is seen by many as diluting its activism, as it was evident in 2006, when the court showed its over anxiety to protect the rights of women, who are deserted by husbands, but suffered for want of proof of marriage.

Click to show 1 comment
at your own risk
(alt+c)
By reading the comments you agree that they are the (often anonymous) personal views and opinions of readers, which may be biased and unreliable, and for which Legally India therefore has no liability. If you believe a comment is inappropriate, please click 'Report to LI' below the comment and we will review it as soon as practicable.