The Marriage Law Amendment Bill, 2010: Through a Gendered Lens

India has taken a big step in the year 2005 by amending the Hindu Marriage Act, 1955, giving women the equal right of inheritance as their male siblings. However, there remains a loophole where women are still marginalized when it comes to the division of property; the division of matrimonial property after separation. It is observed that divorce leads to women facing several hurdles starting from the legal system to their natal homes; the conditions are not suitable for women to have a good life after divorce due to loopholes in the legal system in India. Due to these issues faced by women, they are forced to stay loyal to their exploitative marriage for the rest of their lives. The introduction of the Marriage Law Amendment Bill of 2010, which eases the laws on divorce, brings further problems for women as they subjected to a rough legal system that upholds social morality over constitutional morality.

Regressive Religious Practices; A Threat to the Fundamental Rights of Women

The paper aims to provide an insight into the famous and revolutionary Sabarimala Judgement - Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors.2 The paper throws light on the background of the case and closely analyses the judgement so pronounced and its consequences. Since the practices of the temple were seen as exclusionary in nature, the implications of a judgement so grave have serious consequences on the immediate category of people directly affected and the society at large. The primary issues addressed in the case; whether or not the said practice is discriminatory and so a violation of Article 17, and whether or not the practice violates the right to equality by lacking an intelligible differential and a reasonable nexus (pertaining to Article 14) have been further deconstructed to paint a better understanding of the interpretation of the Constitution of India.Furthermore, an attempt has been made to establish the judiciary’s primary objective, whether it is to strike a balance between the conflict of liberty, equality, public interest and affected groups of people has been fulfilled in this judgement or not. The main task of the judgement was to figure out whether the exclusionary practice is essential for the religion so as to deem it to be violative of the fundamental right to religion, as granted to the citizens of the country by the Constitution. One of the striking features of this judgement is the dissenting opinion of Justice Indu Malhotra, who, reasoning through constitutional morality: the harmonisation of fundamental rights of every individual citizen, religious denomination to practise their faith in accordance with the tenets of their religion irrespective of it being rational or logical has concluded that the practice is neither exclusionary, nor discriminatory in nature. The paper delves into this dissenting opinion, and proposes a possible approach to balancing public interests and rights of the affected categories.

Interpreting Citizenship Amendment Act: Its Content and Context

India is endowed with a proud history of inclusive government and religious tolerance. Indian citizenship has always been firmly rooted in the country’s constitution, which lays priority on equality, regardless of gender, caste, religion, class, community or language. Attaching citizenship rights to religious affiliation runs counter to the letter and spirit of India’s Constitution and constitutional morality. The major thrust of the present article is to project government’s stance on the Citizenship Amendment Act, 2019, constitutional provisions in relation to the Act, thematic arguments of critics and constitutional experts on the matter, multifarious challenges ahead in respect of its implementation, by establishing the fact that any measure taken must remain in conformity with international norms and values and necessity of amending the law to do away with the arbitrary selection of countries and religious groups so that the current agitation can be easily tranquilised.

The Misconceived Quest for the Elusive Right Answer or Dedication to a Process, Not a Result

This chapter assesses whether the exercise of judicial discretion in answering pivotal legal questions is necessarily illegitimate in a constitutional democracy. It argues that legitimacy does not necessitate existing right answers and a rejection of judicial discretion. This argument rests on two factors: first, the difficulty of determining, in any particular case, whether there is a right answer and what that might be; and second, the fact that judicial discretion does not consist in unbridled choice on the part of one who exercises it. The answer to the interpretative concerns over constitutional judges should not be overcome by relying on the idea of a unique correct answer, but rather by a dedication to the decision-making process. The chapter then considers the idea of the 'Community Constitutional Morality', under which each legal system instantiate a set of moral values embedded in its constitution, from which judges should not depart. It is the constitution and the local social practice that determines such 'constitutional morality', and not an ideal set of external objective morality. This idea mitigates the 'counter-majoritarian' objection, as judicial review would reflect the commitments deeply held by the society where it is being exercised.

Indian Constitution Vis-À-Vis The Idea of Secularism: The Role of State in The Ongoing Trends

We, the people of India, when the Constitution was drafted, adopted the magnificent path for the equal freedom of right to religion (under Article 25). However, 42nd Amendment, 1976 categorically made this path crystal clear by inserting the term “secular” within the preamble. It is, therefore, the intention of the Constitution makers which endorses the idea of secularism in India. India, that is to say, as a state has no religion but comes out as neutral towards the concept of religion. The Constitution, furthering the idea of values enshrined in the preamble, equally preserves and protects all religions. In this way, the state is certainly bound to abide by the Constitutional virtues of secularism; however, the ongoing trends in India depict otherwise. This paper, therefore, investigates these trends which seem to violate the secular idea of the Indian Constitutional philosophy. The researcher intends to establish as to how the state, in recent times, is involved in matters based on a specific religion and how it affects the very principles which were set by the Constitution makers. It is established that the ongoing trends in India have tremendously impacted the Constitutional ethos (including Constitutional morality) of secularism in India and the state has failed to keep them intact.

Constitutional Morality and Societal Morality: An impact over Live in Relationship

This paper focuses on the aspect of Constitutional morality and societal morality in the present scenario and its relevance in all the modern societies. As we all know that morality is the very basis of law and therefore a law reflects the idea of morality. The concept of live in relationship is one of the issues which is related to Constitutionality and societal morality. The concept of live in relationship although is a part of Constitutional morality under Article 21 of Indian Constitution, but fails to be within the ambit of societal morality in context of the Indian society. The paper discusses the difference and the relationship between Constitutional morality and societal morality and its impact on live in relationship. As it said that a society grows only if it adapts itself with the changing time and thereby widening the scope of societal morality by accepting the new concept like live in relationship. The goal of this study is to develop a balance between the constitutional and societal morality in order to give recognition to the concept of live in relationship thereby not limiting itself within the principles of morality

Membangun Constitutional Morality Hakim Konstitusi di Indonesia

Penelitian ini mengenai constitutional morality hakim konstitusi pasca reformasi di Indonesia yang menimbulkan persoalan independensi, imparsialitas dan akuntabilitas peradilan. Tujuan dalam penelitian ini adalah memberikan desain konstruksi moralitas konstitusi, sekaligus membongkar dan menata kembali constitutional morality dalam putusan MK dan perilaku hakim konstitusi. Metode penelitian yang digunakan adalah penelitian hukum normatif dengan mengutamakan data sekunder, dengan pendekatan perundang-undangan (statute approach) dan pendekatan kasus (case approach). Data yang diperoleh dianalisis menggunakan metode deskriptif kualitatif. Hasil penelitian menunjukkan bahwa bangunan moralitas terkandung dalam Pancasila dan UUD 1945, baik dalam kategori nilai (nilai hukum dan moral), asas/ prinsip, kategori norma/ kaidah (norma hukum dan norma moral). Dalam putusan MK, moralitas konstitusi digunakan sebagai tolok ukurnya, sekalipun faktanya ada beberapa putusan yang kering dari moralitas konstitusi. Dalam konteks perilaku hakim, beberapa kasus terjadi, kasus kategori pelanggaran ringan, seperti: kasus Hakim Konstitusi Arsyad Sanusi, kasus Hakim Konstitusi Arief Hidayat. Kasus pelanggaran berat, seperti: kasus Akil Mochtar dan kasus Hakim Konstitusi Patrialis Akbar. Sehingga kedepan, perlu penguatan moralitas konstitusi dalam proses rekrutmen dan akuntabilitas hakim konstitusi dengan mempertajam dimensi moralitas konstitusi, misalnya syarat bertakwa kepada Tuhan Yang Maha Esa, syarat integritas hakim dan syarat berakhlak mulia.

The Democracy Dichotomy: Framing the Hong Kong 2019 Street Protests as Legitimacy Counterclaims against an Incoherent Constitutional Morality

This article evaluates the 2019 street protests in Hong Kong following the proposal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, in light of the constitutional settlement of the region. Firstly, it examines the ‘constitutional morality’ of Hong Kong, that is, the moral principles underlying its foundational claims to moral authority. Secondly it analyses whether the Administration’s ‘legitimacy claims’ – its rational-normative arguments for obedience to law – follow from these constitutional moral principles. Concluding that the legitimacy claims of the Administration pursuant to the Bill proved morally unintelligible, this research finds that protest action by citizens was a logical and rational response to a perceived legitimacy claim failure. It suggests that similar protests are likely to occur for the foreseeable future given the instability of the region’s constitutional morality.

Interconnected Rights

This final chapter focuses on the relationship between rights-based struggles and social transformation goals of sexual minorities. In September 2018, the Supreme Court of India reversed the Koushal judgment and declared Section 377 unconstitutional. This was a huge success for sexual minorities who rallied against the law for almost two decades and saw it as a symbol of state-sponsored homophobia. The two decades of sexual minority politics in India have not only foregrounded sexual orientation and gender identity as important constitutional rights but also strengthened the idea of constitutional morality. Constitutional morality, defined as respecting diversity and difference and protecting the most marginalized sections of the society, has helped sexual minorities to fight a growing populist morality that quintessentially defines India as Hindu and heteronormative. These successes also indicate that biopolitical mandates can be strategically used to fight popular morality and norms. In addition, by articulating sexual rights as interconnected with other social justice goals, sexual minorities in India also showcase the importance of intersectional struggles. The conclusion also touches upon challenges and opportunities for alliance building across sexual minority groups.