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Asministrative Law

Relationship Between Parliament and Judiciary

The three main organs of the Indian government are the Parliament, the Executive, and the Judiciary. The legislative branch of government is led by the Parliament, which is in charge of enacting legislation. The executive is in responsibility of enforcing legislation passed by the legislature, while the judiciary is in charge of conflict resolution and serves as the Constitution’s guardian.

The Indian Constitution envisages a delicate principle of limited separation of powers and checks and balances between the three primary organs. Each organ exercises a check on the arbitrary exercise of power by the other organ. This has often had an impact on the relationship between the organs, especially the relationship between the Legislature and the Judiciary which has been evolving over the years with their due share of conflict and compromise. The policy of checks and balances has often led to tension between the two organs with each of them insisting to prove their points while ultimately agreeing to strike a compromise. We will look into the details of the relationship between the two organs as we proceed.

The Constitutional Relationship between the Legislature and Judiciary

The legislature and the Judiciary have been guaranteed rights and privileges by the Constitution to ensure their independence.

1. Parliamentary powers and Responsibilities.

  • The Parliament enacts laws, oversees the functioning of the executive, and acts as the voice of the citizens of the country.
  • The Parliament is also empowered to make laws for the judiciary, it can determine the organization, jurisdiction, terms of service of the judges. A judge can also be removed by the Parliament on grounds of proven misbehavior and incapacity.
  • The members of the Parliament also enjoy immunity from judicial proceedings for anything they say or vote on the floor of the House.
  • Parliamentary procedures are beyond the scope of scrutiny of the judiciary.
  • No Member of Parliament or the presiding officer can be questioned by the judiciary for any steps taken by them to regulate the business of the House.

2. Judiciary’s Powers and Responsibilities.

  • The prime responsibility of the Judiciary is to settle disputes and deliver justice.
  • The Supreme Court is the guardian of the Indian Constitution, it has the authority to declare any law passed by the Legislature as null and void if it contravenes the provisions of the Constitution. This is the power of judicial review of the courts.
  • Another prime responsibility of the Supreme Court and High Court is to protect the citizens against the violation of Fundamental Rights by issuing writs. A law can be declared null and void if it violates fundamental rights. For example, Section 66A of the Information Technology Act 2000 was struck down as unconstitutional as it violated Article 19 (1)(a) of the Constitution that protects the freedom of speech and expression.
  • The judiciary can also declare a law invalid if the subject matter of the law is beyond the jurisdiction of the Parliament. (Example, if any central law is formulated regarding public health and sanitation, it can be declared as invalid by the courts as this is a subject of state list.)
  • The Judiciary has also been guaranteed judicial independence by the Constitution, to render it free from any pressure exercised by the legislature and executive to enable it to try and decide cases without any bias. For example, the conduct of the Supreme Court and High Court judges cannot be discussed in Parliament unless it is for the removal of the judge. The conditions of service of the judges cannot be altered to their disadvantage during their time of service. A High Court judge can only be removed by the Parliament on grounds of proven misbehavior or incapacity. These conditions ensure that the judges can do their duties effectively without any interference.

Key aspects of the connection between Parliament and the Judiciary.

  • Limitations on Parliament’s powers to amend the Constitution: Initially the Parliament had the authority to amend every provision of the Constitution including the Fundamental Rights under Article 368 of the Constitution.

However, the Supreme Court through subsequent judgement in the Golak Nath vs State of Punjab case (1967) issued a verdict stating that the Parliament’s powers to amend the constitution are limited and Fundamental Rights cannot be taken away or abridged. This led to the development of a controversy between the Parliament and the Judiciary regarding the abolition of the Right to Property. During the periods 1967 and 1973, this controversy became very serious. This controversy between the two however was resolved by the verdict of the Kesavananda Bharati case where the Court ruled that the Parliament can amend the Constitution barring the ‘basic structure’, which stands beyond the power of amendment. The Court also ruled that the Right to property is not a part of the basic structure hence it can be amended by the Parliament. It also stated that it is the discretion of the judiciary to decide whether a particular matter falls in the category of the basic structure or not.  

This limitation on the amendment power of the legislature posed by the Judiciary defines the relationship of conflict and compromise between the two bodies.

  • Law-making power of the Judiciary: Law-making is a function of the Legislature, but even the Judiciary has time and again played a role in the framing of laws by issuing guidelines and directives under Article 32 and 142. In the Vishaka vs State of Rajasthan case, the Supreme Court gave guidelines on how sexual conduct at the workplace could be addressed. In 2016 the Supreme Court also imposed a cess on the registration of diesel vehicles in Delhi.
  • Supervision over Executive by Parliament and Judiciary: The Parliament supervises and acts as a check against the arbitrary actions undertaken by the executive through the various motions at its disposal. The policies implemented by the executive are also analyzed by the Parliament to determine their intent towards the welfare of the citizens. The Judiciary also oversees the actions of the executive while deciding on the constitutionality and legality of executive actions. The Supreme Court can also give directions to executive agencies to initiate investigation against corrupt politicians and bureaucrats, for instance, the Hawala Case, the Narasimha Rao case, etc.
  • Judicial Review over Parliamentary Privileges and Proceedings: The members of the Parliament cannot be held liable for any action undertaken by them on the floor of the House in order to maintain the principle of separation of powers. However, in several decisions, the courts have asserted their power to exercise judicial review over parliamentary proceedings and privileges. For instance, according to the Supreme Court when a speaker disqualifies a member of the Parliament for defection, that can be subject to judicial review as the Speaker is exercising a judicial function.

Conclusion:

The legislative and the courts have a delicately balanced relationship.Over the years, they have had a dynamic relationship of struggle and subsequent compromise, and both organs endeavor to advance the interests of the residents of the country. They are the protector and the voice of the nation, yet their fights have strengthened democracy and given a new interpretation to India’s constitution.

SPECIAL MARRIAGE ACT 1954

Under the present legal system of India, citizens have a choice between their respective religion-based and community-specific marriage laws on the one hand and, on the other hand, the general and common law of civil marriages. The Special Marriage Act is a central piece of legislation made to validate and register inter religious and inter-caste marriages in India. It allows two individuals to solemnize their marriage through a civil contract. No religious formalities are needed to be carried out under the Act.Under the present legal system of India, citizens have a choice between their respective.

In a revolutionary event, HS Maine Act III authorized dissenters to choose their matrimonial partner and legalized their marriage under the Civil Marriage Law of 1872. Society did not approve of the Act and opposed its enactment. Additionally, the incompetence of the Civil Marriage Law created the Special Marriage Act of 1872. They could marry without any religious ceremonies or converting their religion. After that, the Parliament came up with a special Act that ensured the dissenters marrying under the ambit of the Act would be safeguarded by providing the following legal provisions:

  1. A specialized form of marriage.
  2. Compulsory registration of marriages.
  3. Procedure for Divorce.

A marriage under the Special Marriage Act, 1954 allows people from two different religious backgrounds to come together in the bond of marriage. The Special Marriage Act, 1954, lays down the procedure for both solemnization and registration of marriage, where either the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.

The Act completely transformed the outlook of society on inter-caste and inter-faith marriages in the following manner:

Applicability

The Act, unlike other marriage acts, takes citizens of India into its ambit, irrespective of their religion and caste. Hence, any individual desirous of marrying another individual could get married under the said Act.

Rites and Ceremonies

The Act perceives marriage as a civil contract, so there are no rites and ceremonies performed. The court marriage gets performed under the act.

Essential Conditions of Marriage under Special Marriage Act

The Act observes the procedure of court marriage for any marriage under the said Act. The various provisions of the Act in this regard are:

Prerequisites for valid Marriage

Section 4 of the Act lays down the conditions for a marriage to be valid under the Act. These are:

No living spouse

The Act mandates that, at the time of marriage, neither party should have a living spouse. Hence, their first marriage has to get revoked either through divorce, their spouse’s death, or any other manner that ends the marriage.

Valid Consent

Essentially, the parties should be able to give valid consent. Neither of them should be of unsound mind or liable to get a recurring insanity act. Even if not insane, unfit for marriage, or have an inability to procreate, children render them unfit for marriage under this section.

Age

Any male who is 21 years of age or female who is 18 could marry as per the Act.

Fall within degrees of Prohibited Relationship

The parties must not fall within the prohibited relationship degrees. Where the custom allows such marriage, the act would not bar it. Any couple wishing to avail the fruits of this Act is required to issue a notice in writing to the “Marriage Officer” of the district where at least one of the parties to the marriage has been residing for the last thirty days. The marriage is generally scheduled within three months from the date of issue of notice. The notice so received will be published in the office of the Marriage Officer by displaying it in a conspicuous place. A copy of the same must also be attached to a “Marriage Notice Book,” which could be inspected by anyone.

Any objections to the marriage, with respect to age, capacity to consent, incest, etc, may be addressed to the marriage officer within 30 days of the publication of the notice. In case of any objections, the Marriage Officer is mandated to conduct an inquiry into its validity within a window of 30 days, during which the marriage cannot be solemnized.  If the Marriage Officer discovers that the objection is valid and decides against the marriage of the concerned parties, the bride or groom may appeal to the district court within thirty days of such refusal. If all the concerned objections are dealt with, the bride, groom, and any three witnesses need to sign a declaration in the presence of the Marriage Officer, who would then countersign it. In the absence of any objections, the marriage will be solemnized upon the cessation of the objection period.

Power of Enquiry

In receiving an objection, marriage officers are granted the following rights: 

  1. Summoning and enforcing witnesses’ attendance.
  2. Examining the witnesses on oath.
  3. Demanding documents to produce.
  4. Demanding the evidence on affidavits.
  5. Issue of commissions for the witness scrutiny.

Registration of Valid Marriage

  • The procedure of registration begins when the pirates submit the duly signed application to the Marriage Officer.
  • He then releases a public notice after thirty days.
  • Any objections to such a marriage shall get heard within these thirty days.
  • After that, fulfilling all the necessary conditions of section 15, he might enter the certificate of the marriage in the Marriage Certificate Book in the prescribed manner.
  • Then this certificate should be signed by the parties to the marriage and any three witnesses.

Void Marriages

The marriages solemnized under the said act would be rendered void if any of the conditions laid down in Section 6 are left. Either party to the marriage could file a petition for declaring the marriage void.

According to Section 24, the impotence of the respondent could also be the ground for rendering the marriage void.

Voidable Marriages

As per Section 25, marriage under the said act would be rendered voidable under the following situations:

Non-consummation of Marriage

If the respondent refuses to consummate the marriage, the CourtourtCourtrt could grant decree upon the fulfilment of the following conditions:

  1. Petitioner did not know respondents’ conditions at the time of marriage.
  2. Initiation of proceedings within a year of marriage.
  3. Lack of marital intercourse since the revelation of respondent’s condition.

Divorce under Special Marriage Act

Grounds for Divorce

Under Section 27, the Act laid specific common grounds for the petitioner filing the divorce irrespective of religion. These are:

  1. Adultery
  2. Desertion for a minimum of two years
  3. Respondent subject to imprisonment for a minimum of seven years
  4. Cruelty
  5. Unsound Mind
  6. Venereal Disease
  7. Leprosy
  8. Presumption of Death
  9. Responded husband guilty of rape or outraging women’s modesty

It must be noted that the Court might not entertain the petition if a minimum of one year has not passed since marriage registration. However, in some instances where the petition is subject to ultimate hardships, the court would accept the petition.

Divorce by Mutual Consent

The parties who have agreed to a mutual divorce could file a petition under Section 28 of the said Act. They could move the application to the District Court stating that they have been living separately for more than one year and have discovered that they could not live in the matrimonial ties anymore.

Citations: Lata Singh Vs State of U.P. & Another, AIR 2006 SC 2522.

  • The Honorable Supreme Court held that the writ petition under Article 32 of the Constitution was maintainable for quashing the Session Trial under Section 366 & 368 of the Indian Penal Code, 1860.
  • The court observed that the marriage between the Petitioner and Brahma Nand Gupta was valid.
  • The Court further observed that everyone has the right to marry and a definite right to choose their life partner under the ambit of Article 21 of the Constitution. This fundamental right of any citizen cannot be violated at the instance of another person.
  • In the present case, the petitioner wanted to quash the petition filed by her enraged brother because the petitioner underwent an inter caste marriage. Hence, the Apex Court ruled that the petitioner being 24 years of age, is major and in a position to chose her matrimonial partner.
  • SHAFIN JAHAN v. ASOKAN K.M (A.I.R 2018 SC 357) case, where a Hindu women named Hidaya convert herself to Islam religion, upon this her father criticized that she had been �indoctrinated’ into embracing Islam and alsoa victim of a movement to convert Hindu women to another religion and fear to transfer them to other country. It was consenting marriage between two and her conversion to Islamwas of her own choice and will. Taking in to the account, we can conclude that the subject matter here is no tone religion tall. But it is one of the women’s freedom of choice and religion, human rights and also to protect personal freedom.
  • Benefits of the verdict:
  • It would decrease the cases of conversion for marriage, as the delay under the special marriage Act 1954 was forcing many couples to marry by converting. It shall remove hindrances to inter-faith and inter-caste marriages, and thus could promote ideals of secularism and egalitarianism. It shall provide relief to interfaith couples from being targeted by vigilante groups.

Divorce Vs Judicial Separation

DivorceJudicial Separation
It could be filed only after the lapse of one year from marriageCould be filed at any time post marriage
Double step judgementSingle-step judgement
Dissolution of marriageProvisional termination of a marriage
No probability of conciliationProbability of conciliation
Remarriage is allowed after the decree for divorce is passedCould not remarry after the decree for judicial separation is passed.
It happens after the Judicial separationIs ground for divorce
Parties must live in an adulterous relationshipA single event of adultery is enough for taking judicial separation.

Difference between the Hindu Marriage Act and Special Marriage Act

The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to all Indian citizens.

The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage Act allows for an already solemnized marriage to be registered. It does not provide for Registrar for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the marriage has resided for at least six months immediately before the date of marriage. Both parties must appear with their parents or guardians or other witnesses before the Registrar within one month from the date of marriage. There is a provision for the Registrar, and subsequently, the District Registrar concerned to condone delay for up to five years.

The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the citizens of India and all Indian nationals in foreign countries with a special form of marriage, regardless of the religion or faith practiced by either party. The Special Marriage Act provides for marriage solemnization as well as registration by a marriage officer. The parties to the intended marriage must notify the marriage officer in whose jurisdiction at least one of the parties has resided for at least 30 days prior to the date of the notice. It should be put in his office at some conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for similar publication should be sent to him. If no objections are received, the marriage may be solemnized after the expiry of a month from the date of publication of the notice The Marriage Officer has to inquire into them if any objections are received and make a decision either to solemnize the marriage or to refuse it. Registration will be made after the marriage has been solemnized.

Amount of Maintenance

The maintenance amount shall be purely the Court’s discretion. The court shall take due account of the following factors in deciding the amount of maintenance, namely: 

  • The position and status of the parties; 
  • The fair preference of the claimant; 
  • If the claimant resides separately, whether the claimant is justified in doing so; 
  • The value of the claimant’s estate and any income derived from that property or from the claimant’s own income or from any other source.

CONCLUSION:

Inter-standing marriage segment with respect to the Special Marriage Act. In India, marriage is considered as a sacred, divine, and was called the holy union. It’s a basic piece of our way of life. India is a large nation, and thereafter people from different religions and cultures live here. Thus the Parliament approved the Special Marriage Act of 1954 for individuals of India and for every single Indian national of outside nations, irrespective of rank or religion. The one of a kind aspect of the Special Marriage Act of 1954 is that any marriage solemnized in any other manner under any other law, Indian or nonnative, between any two persons may be enlisted under the Act, With the enactment of a competent version of the Special Marriage Act, the individuals would marry the person of their choice irrespective of their caste, community, religion or societal taboo. Keeping in mind the outrage of the community, the Special marriage Marriage intended to protect the couple to all possible extents.

The Act laid provisions for the valid marriage, void marriage, voidable marriage, procedure for registration, grounds for divorce, maintenance, the status of the children and remarriage. The objective was to provide a uniform code that could lessen the disparity running deep in the society and eating it up like termite.