Guest Post: Marriage Equality, Separation of Powers, and the Burden of Inertia

[This is a guest post by Rushil Batra.]

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As the Supreme Court heard the case for recognizing marriage equality earlier this summer, one constant argument by the State related to separation of powers, i.e., that the Parliament is the right forum to adjudicate on social issues like marriage equality. The argument primarily is that the state has a ‘legitimate interest in maintaining a societal equilibrium and ensuring cultural ethos’. Simply put, as was argued by one of the lawyers, “the petitioners may have a valid cause, but not a valid case.”

This essay aims to unpack this argument by using Rosalind Dixon’s framework of responsive judicial review. In doing so, I first explore the current status of the ‘right to marry’ under the Indian Constitution. Second, I argue that given the right to marry exists for heterosexual couples, it is not apt to leave this issue to the ‘wisdom of the parliament’ and the Court should recognize the potential burdens of inertia that exist in that regard. Third, assuming that the Court holds that there exists a fundamental right to marry (as it has previously done), it should, however, understand its own capacity constraints and use the suspended declaration of invalidity as a suitable remedy as opposed to reading in ‘persons/spouse’ in place of gendered language.

The Right to Marry

The primary question that the Court must answer is whether there exists a ‘right to marry’. It is unclear why this was a hotly debated question in the first place. In Hadiya’s case, the Court had held that ‘the right to marry a person of one’s choice is integral to Article 21 of the Constitution’. It is important to note that the word used here is ‘person’ as opposed to a gendered version of the term. Similarly, in Shakti Vahini v Union of India, it has been held that ‘when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution’.

One counter-argument could possibly be that the State has always seen marriage as a union of a man and a woman, and hence the right to marry does not contain the right to marry same-sex partners. However, in NALSA v Union of India, the Supreme Court explicitly held that trans-persons had the right to marry. If the right to marry was limited to persons who were biologically male and female, it is unclear how trans-persons could have the same right (The Transgenders Persons Act, expressly includes people of intersex variations as trans-persons). Hence, it is fair to infer that in recognizing the right to marry in NALSA, the Court also recognised the ‘right to marry’ in a wider sense.

Interestingly, one may not even need to prove the existence of a ‘right’ to marry. Instead, a claim can be made under Article 14 arguing that even if recognition of marriage is a privilege as opposed to a right, even such privilege/largesse by the State cannot be selectively denied to persons based on their sexual orientation. While the possibility of levelling down, i.e., denying the said privilege to all groups would arguably exist, it is highly unlikely that the State would be willing to do away with the institution of marriage itself – especially in the Indian context.

Hence, the Court can (and should) interpret the right to marry in such a way as to include same-sex partners. This is made clearer by a reading of Navtej wherein it was held that members of the LGBTQ community are ‘entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution’.

Burdens of Inertia in LGBTQ Rights

A key argument made by the State is that of separation of powers. It is argued that it is Parliament and not a Court of law, that should be the body that first discusses, debates and finally frames a law in this regard – if it deems fit.

The problem with this argument is what Rosalind Dixon calls the ‘burdens of inertia’ that may exist on particular issues in Parliament. Dixon argues that in deciding whether to entertain claims of hitherto unrecognized rights (assuming that the right to marriage does not exist for same-sex couples), the Court should recognize that every Parliament has priority-based burdens of inertia: that is, due to the time-consuming nature of the legislative process, often there is little time allocated to give priority to rights-based claims made by a small minority, especially if those claims do not have majoritarian support. In doing so Dixon assumes that even if the legislature wants to act in a constitutionally compliant manner, it cannot do so, because of its inherent capacity constraints.

Furthermore, in this case, the LGBTQ+ community has historically been ostracised by the State and almost all possible ‘advancements’ have been court-led. It is also important to remember that this is not an absolutely new right, it is merely an extension of a right already existing with heterosexual couples. As William Eskridge argues, it thus becomes imperative in situations like these for the Court to reverse this burden of inertia and not simply ‘leave it to the wisdom of parliament’.

Judicial Constraints and Suspended Declaration of Invalidity

But how can the Court reverse this burden while being cognizant of its own institutional limits? It has been argued by various scholars (see here, here and here), that the best possible remedy in the given instance may be the suspended declaration of invalidity (‘SDI’) – which is also commonly referred to as the Fourie remedy. In most jurisdictions, wherever courts have recognised marriage equality for same-sex couples, it has mostly been done using the SDI. By this unique remedy, while the Court declares that certain provisions under the current legal regime are unconstitutional, instead of striking them down and thereby creating a possible vacuum, it gives the Parliament an opportunity to cure the defect. Under an SDI, the Court still gives directions for the realization of the right, but suspends its operation for a given time period to allow Parliament to make the impugned provisions constitutionally compliant. In case Parliament fails to do so, the Court’s order comes into effect. Hence, it is also premised on the assumption that Parliament may debate the modalities of how the right is to be effectuated and thereby uphold the separation of powers.

While it has been highlighted that the Indian Supreme Court has in the past used this remedy multiple times in various cases (for instance see here and here), it is important to highlight its particular importance in a case like the one praying for marriage equality. This is because marriage is a bouquet of rights that has social and legal ramifications. Some laws are specifically premised on the power imbalance between men and women in a marriage. For instance, under maintenance law, the assumption is that the wife being unable to maintain herself after marriage may require maintenance. It is unclear how such provisions, which a priori assume a power hierarchy, would be interpreted if the Court decides to read in ‘persons’ for male and female – a proposition argued by various lawyers. Thus, this is an instance wherein recognising the right to marry for same-sex couples would lead to many other rights being automatically extended to them (adoption, guardianship, property rights etc.) Therefore, to avoid confusion and chaos in interpretation, and keeping in mind the actual capacity constraints faced by Courts, the SDI seems to be the most apt remedy.

Conclusion

Hence, it is abundantly clear that the right to marry exists as a fundamental right as part of Article 21. In any event, even if one assumes that the right to marry has not yet been extended to same-sex couples, then the Court should consider extending the same rights to them. Thus, the Court should, as a matter of constitutional duty, recognize the burdens of inertia and seek to reverse those. The best way to do that here would be via an SDI.

The Kenyan Finance Act Challenge: On Taxes and Equality

On this blog, we have discussed previously the ongoing constitutional challenges to the much-debated Kenyan Finance Act of 2023 (see here and here for analysis of the High Court’s conservatory orders, and here for the Court of Appeal’s order). After a see-saw battle up and down the courts that ultimately saw the Supreme Court reject an appeal to reinstate a stay on the Finance Act, the case was heard on merits yesterday before the High Court.

The importance of this case from a comparative perspective lies in the fact that it launches a frontal challenge to that has long been a pillar of “established wisdom”: that taxes cannot, in general, be struck down on grounds of fundamental rights violations (there are, of course, exceptions for punitive or confiscatory taxation, but they do not concern us here). The reasons for this are twofold: first, that taxation is one of the core incidents of sovereignty, and should therefore brook minimal interference from courts; and secondly, that as part of the annual financial budget, questions of tax require the kind of poly-centric decision-making that courts have neither the competence, nor the legitimacy, to review.

As has been discussed previously, the established wisdom is somewhat at odds with the fact that taxation is one of the most potent tools in the hands of the government when it comes to shaping public behaviour, incentivising or disincentivising (or even eliminating) certain choices, and so on. Taxation, therefore, would seem to merit more searching scrutiny on grounds of constitutional violations, rather than less. And in some cases, the Courts have indeed hewed to this logic: for example, during Covid, the Delhi High Court invalidated a tax on oxygen concentrators on substantive, constitutional grounds (the Supreme Court later stayed this in an unreasoned order); earlier this year, the Kenyan High Court itself, in Matindi, subjected an income tax exemption to scrutiny under the Constitution’s non-discrimination clause; and perhaps most famously, the Constitutional Court of Colombia struck down a tax on sanitary pads on the basis that it was, in effect, discriminatory against women (see also a similar discussion in the context of India).

What is, however, particularly interesting – and potentially radical – about the Finance Act challenge is that it invites the court to take one important step further. This is spelt out with clarity in the Written Submissions of the Petitioners, led by the Kenya Human Rights Commission: from paragraphs 10 to 27 of their written submissions, the Petitioners challenge a set of taxes imposed under the Finance Act on the basis that they are, in effect, regressive in character, and thereby unconstitutionally “shift the tax burden to … low income earners.” (paragraph 10, Written Submissions) They key thing here is that while this remains, in effect, a discrimination argument (on the lines of Matindi and the Colombian Constitutional Court), what it alleges is class discrimination: the category of people being discriminated against are “low income earners”, or – as stated elsewhere in the written submissions – “marginalised groups.”

This is a crucial argument, because – for obvious reasons – Constitutions (even the most progressive among them) have always had a blind spot when it comes to treating class as a ground of discrimination (because the moment you concede that class – or poverty – impacts constitutional equality, you will have to ask some very uncomfortable questions about the economic system as a whole); indeed, Article 27 of the Kenyan Constitution itself does not list “class” as a prohibited ground (this is why the Petitioners rely on other provisions – such as Articles 10 and 21(3), and expressly guaranteed principles of constitutional equity and fairness, especially in the context of taxation). But furthermore, the argument is particularly crucial in the Kenyan context, because recent Kenyan jurisprudence has gestured towards recognising class as an aspect of discrimination: in July, the Court of Appeal, in Nairobi Bottlers Ltd, held that providing differential nutritional information to consumers on the basis of differential “purchasing power” violated the Constitution.

Thus, the significance of the Petitioners’ arguments is twofold: not only do they invite the Court to further evolve the (globally nascent) jurisprudence on the relationship between tax and the Constitution, but they also invite the Court to further evolve the (nascent Kenyan) jurisprudence on the relationship between class, poverty, and the guarantee of constitutional equality and non-discrimination. It will be fascinating to see if – and if so, how – the Court accepts and engages with this invitation, especially in light of the transformative promise of the Kenyan Constitution.

There are a few other ground of challenge that are fascinating in their own right: Part (IV) (para 44 onwards) invites the Court to examine certain taxes on the touchstone of the climate crisis, again contributing to a globally nascent jurisprudence of the relationship between judicial review and the climate crisis; there is a submission on illegal certification of money bills, which will be extremely familiar to Indian readers (para 54 onwards); and there is a very interesting submission on effective public participation in fiscal policy (para 58 onwards), which calls for substantive public participation – and evidence that public submissions are engaged with by Parliament, before it dismisses them and passes the law regardless. Each of these submissions have the potential for significantly developing the law in their respective domains, and once again, it is worth following closely how the Court engages with them.

But for me, the most interesting aspect of these submissions remains the clear acknowledgment of the fact that at their core, taxes are (by definition) about redistribution, and the nature of that redistribution (in this case, upwards redistribution through a regressive tax) is something that should be subjected to scrutiny on the touchstone of constitutional equality and non-discrimination.

Guest Post: Authorisation versus Appointment – A Constitutional Tussle

[This is a guest post by Anshul Dalmia.]

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On 28 June 2023, a Division Bench of the Calcutta High Court (“High Court “) in the case of Dr. Sanat Kumar Ghosh v. Chancellor, Kalyani University (‘Sanat Kumar’), dismissed the requirement of consulting the Minister i.e., the state government while ‘authorizing’ professors to be interim Vice-Chancellors of state-run universities. This judgment is amongst the many decisions emanating from both the High Court and the Supreme Court reflecting a constant tussle going on between the West Bengal State Government and the governor, backed by the Central Government, to usurp the power to appoint the vice chancellors of these governmental institutes.

In October 2022, the Supreme Court in the case of State of West Bengal v. Anindya Sundar Das (‘Anindya Das’) quashed the re-appointment of the Vice-Chancellor of the prestigious Calcutta University on the grounds that the prior approval of the Chancellor i.e., the Governor had not been taken. Further, on 14 March 2023, the High Court, in Anupam Bera v. State of West Bengal (‘Anupam Bera’), rejected the appointment of 24 Vice-Chancellors of state-aided institutions terming them to be unsustainable and without the authority of the law.

Through this post, I seek to examine the judgment of the High Court in Sanat Kumar, in the backdrop of Anupam Bera and Anindiya Das, in an attempt to highlight the judicial transgression undertaken by the Court while dealing with the specific requirement of consultation of the state government while appointing Vice-Chancellors in state-run universities.

Sneak Peak in the Battlefield of Education

Professor Dr Sonali Chakravarti Banerjee was re-appointed as the Vice-Chancellor of the Calcutta University after her term had originally ended. The State Government had first approached the Governor to re-appoint Dr Banerjee. However, the Governor sought further clarifications and did not outrightly accede to the State’s request. This led the Special Secretary to the Government of West Bengal to issue an order re-appointing Dr Banerjee for a further term of four years. The High Court quashed the order of re-appointment and upheld the Chancellor to be the appointing authority under the Calcutta University Act 1979. This was further challenged in the Supreme Court. A two-judge bench headed by Justice Chandrachud (as he then was) examined the scheme of re-appointment enshrined in Section 8(2)(a) of the Act. The Court held that –

The expression “subject to the satisfaction of the State government” cannot by a process of inferential reasoning be construed to vest the power of reappointment in the State government. [..] While the eligibility for appointment is indeed determined by the State government’s satisfaction, the power of making the appointment continues to vest in the Chancellor in terms of the provisions detailed below.

More importantly, the Court observed that while the Chancellor had the power of re-appointment, the following conditions were imperative:

Significantly, Section 8(2)(a) speaks of the satisfaction of the State government and past academic excellence and administrative success during the term of office. Fulfilment of those conditions makes a person eligible for being reappointed as a VC.

In Anupam Bera, the High Court was concerned with the appointment of 24 Vice-Chancellors across several universities in the State of West Bengal. These institutions were governed by state acts and their corresponding regulations. It was argued that the selection of the Respondent Vice-Chancellors was in violation of the UGC Regulations 2018 which mandated a compulsory nominee of the UGC to be present in the Search Committee. The High Court following the decisions of the Apex Court in Gambhirdan K Gadhvi v. State of Gujarat and Professor (Dr.) Sreejith P.S. vs. Dr. Rajasree M.S, held that the UGC Regulations 2018 were an intrinsic part of the parent statute, which was the UGC Act 1956. Following the principle of repugnancy, enshrined in Article 254 of the Constitution, the Court held that delegated legislation under a central act would override and supersede a state act. (More about this can be read here) Hence, the Court struck down provisions of the West Bengal University Laws (Amendment) Act 2012 and West Bengal Laws (Amendment) Act 2014 to the extent they were in violation of the UGC Regulations 2018.

Thus, a Vice-Chancellor in a state-run university in West Bengal, could be appointed or re-appointed solely by the Governor, however in consultation and subject to the satisfaction of the Minister(s) of the state government. Further, the UGC Regulations 2018 regarding selection, appointment and eligibility criteria had to be strictly followed.

Reading Between the Lines

After the decision of the High Court in Anupam Bera, the Government of West Bengal made several amendments bringing the State Universities Act in tune with the UGC Regulations, 2018, by passing the West Bengal Universities Laws (Amendment Ordinance), 2013. Since the appointments of several Vice-Chancellors were quashed, an order was passed appointing certain professors as interim Vice Chancellors for a period of three months to exercise the powers and perform the duties of the Vice Chancellor as a stopgap measure. However, it was discovered that while the Minister-in-charge of the Department of the Higher Education, had proposed the names of professors for being appointed as Vice Chancellors for a tenure of six months, the Chancellor of the respondent Universities, without consultation with the Minister-in-charge had made series of appointments of Vice Chancellors. Thus, the orders of appointing professors as interim Vice-Chancellors were challenged before the High Court.

Since the statutes were identical, the Court referred to Section 9(5)(b) of the Kalyani University Act 1981 which provided the arrangement for appointing an interim Vice-Chancellor as follows:

When a vacancy occurs in the office of the Vice-Chancellor by reason of death, resignation or expiry of the term of his office or otherwise, then, pending the appointment of a Vice-Chancellor, the Chancellor in consultation with the Minister may appoint any person to exercise the powers and perform the duties or the Vice- Chancellor for any period not exceeding six months.

Literally interpreting the above provision, it is clear that the Minister i.e., a representative of the State Government has to be mandatorily consulted before appointing an interim head of an institution. However, the Court moved beyond the literal rule of interpretation and provided its imprimatur on the appointments undertaken by the Chancellor. The High Court observed that the order used the term ‘authorise’ and not ‘appoint’ and hence, the professors were not appointed as ‘interim Vice-Chancellors’. Accordingly, this scheme of authorization did not attract the requirement of consultation under Section 9(5)(b). Further, the professors were merely authorized to act on behalf of the Vice-Chancellors due to immediate necessity since the posts of the head of the institutions could not be left vacant.

While this observation seems logical at the outset, there are several ensuing issues. Firstly, it is imperative to go beyond the mere phraseology of the instrument of appointment/authorization and look at the true nature of the functions undertaken by the authorized individual. Any individual who is authorized to take up certain responsibilities, while not being appointed to that post, is undertaking all the functions and exercising all the powers associated with the post. Unfortunately, while the Court too exactly observed that the individuals would essentially be acting as ‘interim Vice-Chancellors’, it put a lot more emphasis on the words and terms used in the orders of appointment.

Secondly, it is contended that usage of the term ‘authorization’ is a mere smokescreen to circumvent the statutory conditions required for an interim appointment. Section 9 of the Act provides solely for the scheme of selection, appointment, and re-appointment. The absence of any procedure to ‘authorize’ individuals makes it obvious that the legislature did not intend to have any other alternative scheme of appointment. Thus, it is argued that the judicial approval of the Chancellor’s unilateral order of authorization is flawed since it permits the Governor to adopt an absolutely different method of ‘authorization’ which has not been statutorily provided for and allows the Governor to dispense away with the consultation of the state government, making the process of appointment of an interim Vice-Chancellor redundant. Thirdly, it is contended that necessity should not be a reason enough to authorize professors rather than to follow the procedure and appoint interim Vice-Chancellors as foreseen under the statutes. Rather than finding ways to navigate around the statutory provisions, the State Government and the Governor ought to come together in order to ensure that the integrity of education in the State is maintained.

The UGC Regulations 2018 highlight that a person who has the highest levels of competence, integrity, morals, institutional commitment and demonstrated academic leadership must be selected to be a Vice-Chancellor. Hence, it is imperative that in order to govern universities effectively, appointments are made following the correct procedure, at the earliest. However, if due to exigencies, appointments are not made as per timelines, re-appointment or appointment of interim Vice-Chancellors should be made solely as per the scheme provided. It is imperative that the Courts actively prevent the ‘unilateral authorization’ of professors to these essential posts and rather foster a collective semblance of appointment.