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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.


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