LEGAL REALISM VIA CONSTITUTIONAL MORALITY IN INDIA
A CRITICAL ANALYSIS
The current times have witnessed the Hon’ble Supreme Court of India springing with ideas that seem alien to the traditional Indian societal perceptions and culture. The apex court is being hailed, as is being highlighted, for its progressive stand on divergent issues like homosexuality, individual sexual orientations, gender justice, matrimonial rights, rights pertaining to religious practices, etc., The fact of matter in analyzing the Judicial response towards all such issues reflects that the apex court, while coming up with unconventional approach, has been supporting its stand in the light of Constitutional Morality when, in fact, it appears more to be inspired by the morality and thought process of the Judges on the Bench. Constitutional Morality is a refined idea which tends to guide as well as bind every stakeholder in constitutional governance, be it the legislator, the executive or the judiciary to perform its part of constitutional obligation in a form that gels with the ideology of the founding fathers based particularly on the inherent psyche of the Indians. Any attempt to substitute the inherent societal scheme by one’s own personal opinion and then seeking solace in Constitutional Morality, when there is available an explicitly well drafted Constitution, does not do justice to its benevolent theme rather is realism at its best. Further, the utility of such realism needs to be seen in practical terms upon application in the society.
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