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Of constitutions and constitutionalisms

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Notes

  1. I use the term ‘same-sex marriage’ as that is the term being used to argue and report the case. The arguments in the case however seem to cover the LGBTQIA + population’s right to marriage and related rights (property succession, adoption, insurance policy nomination are some of these) in a wider sense.

  2. Although, non-heterosexual relationships were decriminalised by this Court in 2018 (See Navtej Singh Johar v Union of India (2018) 10 SCC 1) there is no statutory or legislative recognition of marriage in India between non heterosexual couples. The petitions being heard are asking for this recognition through the Supreme Court. The Petitions are largely relying on the fundamental rights guaranteed under Part III of the Indian Constitution to argue this.

  3. The arguments for the entire day can be accessed through the Supreme Court’s official YouTube channel here: https://www.youtube.com/watch?v=P37ps_mLqDg&t=4s Accessed 27 April 2023.

  4. See the live transcript of the arguments of day one at https://www.livelaw.in/top-stories/same-sex-marriage-supreme-court-hearing-live-226595 Accessed 27 April 2023. See also, ‘Preamble’, The Constitution of India https://dsel.education.gov.in/sites/default/files/Preamble-English.pdf Accessed 28 April 2023.

  5. Ibid.

  6. See Satyendra Wankhede, ‘Bar Council of India asks Supreme Court to leave the issue of same-sex marriage for legislative consideration’ (Bar and Bench 23 April 2023) https://www.barandbench.com/news/bar-council-of-india-asks-supreme-court-to-leave-the-issue-of-same-sex-marriage-for-legislative-consideration. Accessed 28 April 2023; Prashant Jha, ‘Same-sex marriage case: After BCI, Delhi bar associations also object to hearing in Supreme Court; say issue should be left to parliament’ (Bar and Bench 24 April 2023) https://www.barandbench.com/news/same-sex-marriage-case-after-bci-delhi-bar-associations-object-day-to-day-hearing-supreme-court-says-leave-parliament Accessed 28 April 2023.

  7. ‘Highly inappropriate’ : SCBA condemns BCI resolution on same sex marriage hearing’ https://www.livemint.com/news/india/highly-inappropriate-scba-condemns-bci-resolution-on-same-sex-marriage-hearing-11682671197020.html Accessed 28 April 2023.

  8. Saptarshi Das, ‘Students from 36 law schools criticise BCI’s resolution on marriage equality’ (Hindustan Times 27 April 2023) https://www.hindustantimes.com/india-news/36-lgbtqia-collectives-criticize-bar-council-of-india-s-statement-on-marriage-equality-hearing-in-supreme-court-bci-s-resolution-described-as-queerphobic-and-regressive-101682586880996.html Accessed 29 April 2023.

  9. Flavia Agnes, Family Law Volume 2: Marriage, Divorce, and Matrimonial Litigation (Oxford University Press 2012) 270–271.

  10. The Family Courts Act 1984.

  11. Ibid. Sections 7, 9 and 20.

  12. Ibid. Section 10.

  13. Ibid. Sections 5, 6 and 12.

  14. https://doj.gov.in/family-court/ Accessed 29 April 2023.

  15. Aneesha Kumar, ‘Law Minister Kiren Rijiju asks all states to set up family courts in every district’ (India Today, 27 July 2022) https://www.indiatoday.in/india/story/law-minister-kiren-rijiju-asks-all-states-to-set-up-family-courts-in-every-district-1980353-2022-07-26 Accessed 29 April 2023.

  16. https://districts.ecourts.gov.in/maharashtra-family-courts Accessed 29 April 2023.

  17. ‘Bombay HC asks family courts to work extra hours and on holidays’ (DNA, 1 November 2011) https://www.dnaindia.com/mumbai/report-bombay-hc-asks-family-courts-to-work-extra-hours-and-on-holidays-1605889 Accessed 28 April 2023.

  18. ‘Bombay HC pulls up Maharashtra over insufficient family courts, calls for action’ (Indian Express 23 December 2022) https://indianexpress.com/article/cities/mumbai/bombay-hc-pulls-up-maharashtra-over-insufficient-family-courts-calls-for-action-8339153/ Accessed 28 April 2023.

  19. Chaitanya Marpakwar, ‘Over 5,000 divorce cases pending, 17 new family courts to be set up in Mumbai’ (The Times of India, 4 March 2023) https://timesofindia.indiatimes.com/city/mumbai/over-5000-divorce-cases-pending-17-new-family-courts-to-be-set-up-in-mumbai/articleshow/98402177.cms Accessed 29 April 2023.

  20. Agnes, ‘Family Law’ (n 9) 272.

  21. https://districts.ecourts.gov.in/delhi-family-court Accessed 28 April 2023.

  22. See Anurag Kamble ‘Mumbai: Judge vacancies continue to haunt Bandra family court’ (Mid-Day, 26 January 2023) https://www.mid-day.com/mumbai/mumbai-news/article/mumbai-judge-vacancies-continue-to-haunt-bandra-family-court-23267296 Accessed 29 April 2023. Mohamed Imranullah S.,‘State judiciary bogged down by unfilled vacancies’ (The Hindu, 1 January 2019) https://www.thehindu.com/news/national/tamil-nadu/state-judiciary-bogged-down-by-unfilled-vacancies/article25882272.ece Accessed 29 April 2023.

  23. This includes the issues of the regimes of maintenance, protection from domestic violence that women often seek from Family courts, as well as the concept of ‘saving the institution of marriage’ that these courts often adopt. For more on this see Agnes, ‘Family Law’ (n 9).

  24. In Shiju Joy A. v Nisha OP (FC) No.352 OF 2020 [Kerala HC, Judgement dt. 23 March 2021], Kerala HC commented on the hurdles in accessing Family courts in the State by remarking that ‘The delay involved in disposal of cases before the Family Courts cannot be signified for a singular reason. The problems faced are multifaceted and are of different dimensions. Lack of infrastructure, docket explosion, untrained officers and staff, inept case management etc., are a few to list.’ In S. Sumathi v R. Sharavanakumar CRP (PD) No.486 of 2013 [Madras HC, Judgement dt. 30 April 2013] the Madras HC lists these reasons as to why people cannot access family courts. See also Kamal v Varsha D.B. Civil Misc. Appeal No. 1037 of 2021 [Rajasthan HC (Jodhpur Bench), Judgement dt. 16 November 2021] See also Rupam Jain and Arpan Chaturvedi, ‘Indian judges concerned as government seeks bigger role in judicial appointments’ (Reuters, 19 January 2023) https://www.reuters.com/world/india/indian-judges-concerned-government-seeks-bigger-role-judicial-appointments-2023-01-19/ Accessed 04 June 2023.

  25. Roshni Brahma and Shilpa Chaya Mazumdar ‘Didn’t Receive Alimony Or Wages’: Women Voices In Family Courts During The Pandemic (Feminism in India, 18 January 2021) https://feminisminindia.com/2021/01/18/women-voices-in-family-courts-the-pandemic/ Accessed 29 April 2023; ‘Lady lawyer from Odisha tries to kill self in court over delay in divorce hearing’ (New Indian Express, 12 May 2022) https://www.newindianexpress.com/states/odisha/2022/may/12/lady-lawyer-from-odisha-tries-to-kill-self-in-court-over-delay-in-divorce-hearing-2452633.html Accessed 29 April 2023.

  26. Agnes, ‘Family Law’ (n 9) xxv.

  27. Maneka Gandhi v Union of India 1978 AIR 597.

  28. This was not discussed with respect to same sex marriages however. See Ananthakrishnan G, ‘Right to marry person of one’s choice is integral to right to life & liberty: SC on Hadiya’ https://indianexpress.com/article/india/right-to-marry-supreme-court-hadiya-case-5131055/ (Indian Express, 10 April 2018) Accessed on 01 May 2023.

  29. See Hussainara Khatoon & Ors v Home Secretary, State of Bihar 1979 AIR 1369; State Of Maharashtra v Champalal Punjaji Shah 1981 AIR 1675.

  30. Imtiyaz Ahmad v State of Uttar Pradesh & Ors. (2012) 2 SCC 688; Brij Mohan Lal v Union of India and Ors. (2012) 6 SCC 502.

  31. Tnd. Mercantile Bank Shareholders Welfare Association v S.C. Sekar and Others (2009) 2 SCC 784.

  32. Anita Kushwaha v Pushap Sudan Transfer petition (C) No. 1343 OF 2008 [Supreme Court, Judgment dt. 19 July 2016]. The court held: ‘The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion.’

  33. Martin Loughlin, ‘What is Constitutionalism?’ in Petra Dobner and Martin Loughlin (eds) The Twilight of Constitutionalism? (Oxford University Press 2010) 47.

  34. Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, ‘Locating Indian Constitutionalism’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds) The Oxford Handbook of the Indian Constitution (Oxford University Press 2016) 2.

  35. Ibid. 5.

  36. See e.g.‘Right to privacy’ in Puttaswamy and Anr. v Union of India and Ors. AIR 2017 SC 4161.

  37. Oishik Sircar, Violent Modernities: Cultural Lives of Law in the New India (Oxford University Press 2021) 8.

  38. Upendra Baxi, ‘Postcolonial Legality: A Postscript from India’ (2012) 45(2) Law and Politics in Africa, Asia and Latin America 185–186.

  39. The Marshall Judgements are three decisions of the US Supreme Court rendered by J. Marshall, and concern themselves with the land rights, sovereignty and dispossession of the Native American people. See more: Matthew L.M. Fletcher, ‘The Iron Cold of the Marshall Trilogy’ (2006) 82 North Dakota Law Review 627.

  40. Dobbs v Jackson Women’s Health Organization, No. 19-1392, 597 U.S.

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    Surabhi Singh

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Singh, S. Of constitutions and constitutionalisms. Jindal Global Law Review 14, 1–8 (2023). https://doi.org/10.1007/s41020-023-00199-8

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