Skip to main content

Same Sex Marriage Verdict: Apolitical Politics of Court

Every judgment of the Constitutional court solves and unsolves certain fundamental questions. Court often takes two steps forward and one step backward (Shklar). Navtej Johar was rightly celebrated as a progressive judgment which recognised same sex relationships on the touchstone of constitutional morality. In a way, judgment progressively explored the colonial and post-colonial politics and reviewed Section 377, IPC from the perspective of constitutional morality emanating from the "objective purposive interpretation",  a concept devised by Justice Aharon Barack, a former judge of Israel Supreme Court. NALSA judgment already went ahead with the recommendations to broaden the scope of reservation policy in India to allow the constitutional protection of sexual minorities. The latest judgment has attracted widespread criticism from the intellectuals. Many of them have argued that the Court has not taken its responsibility in protecting the rights of sexual minorities. There is a famous position in American politics that Court is not an apt institution to review political or policy questions. Only principle oriented issues related to the violation of natural rights can be adjudicated by the courts. One school of legal thought, however, argues that "law is a politics by other means", and court does poltics. Upendra Baxi in his Magnum Opus, "Supreme Court and Poltics" raised the question if court is apolitical institution? And his conclusion was realistically inclined towards "adjudicatory politics" of the courts". In contemporary times, he relies upon "demosprudence" to support an activist judiciary to facilitate an emancipatory politics. It is quite obvious that one's proclamation to be apolitical is equally a political move. Courts are not immune from their ideological inclination. However, one question is very significant, i.e., if all judgments are implementable? If courts can successfully instrumentalize the policy from the executive, particularly with reference to its inherent lack suggested by Alexander Hamilton. In his words, the Executive has a sword, the legislature has a purse, but the court has only judgment. Whether judgment is sufficient for the progressive implementation of the judgment? This question requires a nuanced exploration only then the Court's potentialities and its limitations can be understood. 


Bruce Ackerman rightly said that in normal politics, judges carry forward the previous constitutional politics, until the political consciousness of people leads towards a new constitutional moment codified by the Constitutional courts. There is another function of the Court that it also participates in the "communicative action" (Habermas, see also Tom Ginsberg). The widespread discourse in India on Same Sex Marriage has already signalled a future to come. That future will be created by the politics of hope. After all politics is law by other means.


Comments

Post a Comment

Popular posts from this blog

Meeting Justice Rohinton Nariman in a Sunday Morning

Aristotle once wrote in his Nicomachean Ethics that there are four significant virtues for human beings, namely Prudence, Temperance, Justice, and Courage. There are a few judges who have courage and sense of justice, both. Hon'ble Mr. Justice Rohinton Nariman has been truly an exemplar judge and erudite historian, theologian and philologist, a great scholar of music as well as a courageous and meticulous jurist of our country. He did his Master of Laws from Harvard Law School in 1980-81 and taught by one of the finest jurists of the last century, Roberto Unger. He became Senior Advocate in 1993 in the age of 37 and also served as Solicitor General of India in 2011 before he was elevated as a judge of the Supreme Court of India in 2014. He delivered many landmark judgments, including Shreya Singhal v. Union of India. There are a few people with whom time moves too fast, but to count that experience takes ages. Justice Rohinton Nariman is one of those great jurists with whom a meet...
1 comment
Read more

The Rhythm of Law: A Book Review

Book Cover of the Book Law is the subject and object of curiosity since the ancient civilizations started its journey of contemplation about the order within the nature; its mysterious paths inspired the germination of metaphysics. Initially, human's mode of existence lived as instinctual life as per the call of nature. Instincts were primarily used as a medium for survival and to receive the call of wisdom from the “order of nature”. Humans are primarily one of the modes of expression of the nature, as Spinoza calls it attributes which express the essence of God and modes which are derived from the essence of God or nature (Spinoza, Ethics). The doorway of all the laws, as brooding presence of harmony, may be received if one is alert to recognize its call. Prof. Raman Mittal has penned a beautiful book titled “The Rhythm of Law”. The uniqueness of the book is its potentialities to express the inexpressible wisdom. Martin Heidegger in his Magnum Opus, Being and Time, expresses the ...
Post a Comment
Read more

Violence of Law and Ethics of Care

The worldliness of world is constituted by care (Martin Heidegger). Only in our concernfull dealing with the things around, the existence of being may be understood. In our everydayness of care and concern the world appears to our consciousness. Care is the language, a nomos of our existence, yet it is hardly perceptible in a world of law, which was rightly defined by Hans Kelsen and Max Weber as “legitimate use of violence”. The monopoly of political state over the violent nature of law makes it the most elevated institutions in relation to various social orders co-existing with the political state. Politics, once conceived as “an art of possibilities” by Harold Laski, is now becoming merely a language of allegations, counter-allegations, trickery and manipulation, in one statement, it symbolizes the archetypical character of violence whose expression is apparent in the existence of law. Violence has become our mode of existence in a sense that it speaks through us when the humanity f...
Post a Comment
Read more