Only Parliament can amend the law to provide a uniform marriage age

Subject: Polity

Section: Judiciary

Concept:

The Supreme Court while dismissing a petition seeking to increase the minimum age of marriage of women from 18 to 21 has said that only Parliament can amend the law to provide a uniform marriage age as it is left to the ultimate wisdom of the Parliament.
The Chief Justice of India D.Y. Chandrachud has held that it should not be perceived that the judiciary is the exclusive custodian of the Constitution as the Parliament is equally the custodian of the Constitution.
The petitioner sought a legislative amendment to increase the minimum age of marriage to 21 years saying that the prescription of 18 years was arbitrary.
However, according to the apex court, it is trite law that the court in its exercise of Article 32 of the Constitution cannot issue a mandamus to the Parliament to legislate a matter entrusted to the Parliament or the State Legislatures to exercise power.

Prerogative Writs

Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.

Mandamus

Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

When is it used?

The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.

Limitations

Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.