30 Sep 2022 1:52 PM GMT
Senior Advocate Dushyant Dave on Thursday(September 29) told a Constitution Bench of the Supreme Court that the power under Article 142 could not at all be exercised to dissolve marriages, since express statutory provisions for divorce had already been provided by the Parliament in its wisdom. Lamenting the weakening of the institution of the family, Dave argued that it was not...
Senior Advocate Dushyant Dave on Thursday(September 29) told a Constitution Bench of the Supreme Court that the power under Article 142 could not at all be exercised to dissolve marriages, since express statutory provisions for divorce had already been provided by the Parliament in its wisdom. Lamenting the weakening of the institution of the family, Dave argued that it was not permissible for the apex court to circumvent statutory provisions, such as the requirement of a cooling period, and grant an expedited divorce decree. Article 142, he said, was not an independent power and must be exercised in conjunction with the other powers vested in the Supreme Court. The senior counsel also sounded a note of caution, borrowing from B.R. Ambedkar's speeches, that if no limitations were imposed on authority, it could lead to tyranny and oppression.
The Constitution Bench was hearing a batch of petitions raising common questions of law, namely, whether it could exercise its powers under Article 142 to dissolve a marriage, what were the broad parameters to exercise such power, and whether the invocation of such extraordinary powers was allowed in the absence of the mutual consent of the parties. The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. Among the amici curiae appointed to assist the court, was Dave.
Dave began his submissions by reminding the Court of two principles that were "affirmately rooted in their jurisprudence" –
"First, under our Constitution, no one is imperio in imperium, not even the Supreme Court. Second, be you ever so high, the law is always above you!"
Dave then proceeded to strenuously argue that the Supreme Court could not exercise its powers under Article 142 to dissolve marriages at all. This power did not exist, Dave claimed.
Dave examined the birth of Article 118 of the Draft Constitution, corresponding to Article 142 of the Constitution –
"Articles 131, 132, 133, 134 read with 134A, and 136 have given the Supreme Court with different jurisdictions to deal with different matters. The constitution framers had initially forgotten to take into consideration the ultimate result. The original draft prepared by B.N. Kaul and his colleagues was faulty. Therefore, this draft was amended and the words that you now find in Article 142 were added…Sadly, the Constituent Assembly debates were silent about Article 118. Not a whisper about it."
Placing reliance on K.M. Nanavati v. State of Bombay [AIR 1961 SC 112] and Prem Chand Garg v. Excise Commissioner, U.P Allahabad [AIR 1963 SC 996], the senior counsel also emphasised that the power granted under Article 142 must be exercised in conjunction with the other powers conferred on it, particularly Article 136.
"Article 142 is not an independent power like it is understood, or with great humility misunderstood. It is a power in aid of Articles 131, 132, 133, 134 read with 134A, and 136. It is then in that context."
Dave quoted from a decision of the Supreme Court in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh [1986 SCC (2) 667] –
"We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws".
Dave observed –
"That is precisely what is being sought from this Court in this matter. "
Dave reiterated an "age-old principle", as Justice Kaul called it, of administrative law. He relied on a Constitution Bench ruling in CIT v. Anjum M.H. Ghaswala [(2002) 1 SCC 633] –
"If a statute provides a particular procedure for the exercise of power, it shall be exercised in that manner and in no other manner…The Parliament has in its wisdom conferred the jurisdiction on district courts. The district courts alone can exercise the powers. This Court has never allowed anyone to travel outside the scope of any statute. If that be so, should this Court do it? My respectful submission is no."
Next, Dave relied on Shiv Kumar Chadha v. Municipal Corporation Of Delhi [(1993) 3 SCC 161]. Justice Khanna promptly repeated the ratio of this decision –
"He who holds the procedural sword must perish with the sword."
Dave agreed, and continued –
"What is troubling me is this. The Act provides a particular procedure. The 'district court' in the provision does not mean the Supreme Court. You are opening a pandora's box by entertaining this question. This Act is a complete code. The Supreme Court cannot exercise its powers under Article 142 because of that."
On the need to limit the authority of the organs of the state, Dave highlights certain passages from Ambedkar's speeches in the Constituent Assembly, including –
"The purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression."
He resolutely maintained that the apex court could not grant reliefs only on the ground that the litigants had been languishing before the civil courts for years or decades –
"Everyone is concerned about the pendency. Both the bar and bench owe our citizens speedy justice. But the Supreme Court has greater responsibility…However attractive, however laudable be its objectives…There are 4.8 crore litigants suffering. Should every labourer, undertrial prisoner, or convicted prisoner who has filed an appeal, be allowed to come here directly?"
It was the responsibility of the Government, and not the Supreme Court, to address the issue of the pendency of cases, Dave urged –
"The Court cannot decide these matters on the consideration of delay. This is a constitutional court, it has far more urgent issues to deal with. The Government has to do something about the pendency of cases. That is the answer."
Earlier, Senior Advocate Kapil Sibal had recommended the decoupling of the issues of maintenance and custody from divorce proceedings to prevent extraordinary delays. Such delays, he had argued, could be violative of Article 21.
"It is amusing to hear that being in marriage violates Article 21. However good or bad marriage may be, a marriage is a marriage, it does not violate Article 21."
As a parting remark, Dave also lamented the weakening of primary social institutions such as the family, which he linked with the loss of social cohesion –
"The reason why the Western society is breaking up is because the family as an institution is dying. The cooling period is necessary to give the parties an opportunity to rethink. Now, people are approaching the Supreme Court and getting an expedited decree. Someone I know got married, went on his honeymoon, came back, and got divorced. Should the Court put a stamp on it?"
The Constitution Bench on Thursday finished hearing the submissions made by the amici curiae as well as the counsel in other connected matters. The Court has reserved its judgement.
Also Read : Refusal To Dissolve Marriage Despite Its Breakdown Amounts To Mental Cruelty: Sr.Ad V Giri Tells Supreme Court
Right To Exit A Marriage A Fundamental Right, Locating Fault Not Necessary For Divorce: Indira Jaising Argues Before Supreme Court
Shilpa Sailesh v. Varun Sreenivasan [TP(C) No. 1118/2014] and other connected matters
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