Notes from a Foreign Field: Lesotho Accepts the Basic Structure Doctrine [Guest Post]

[This is a guest post by Masoom Sanyal.]

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The Unconstitutional Constitutional Amendments Doctrine (‘UCA Doctrine’), that we in India refer to as the Basic Structure Doctrine (‘BSD’), has travelled to yet another constitutional jurisdiction. This time, the Lesotho Court of Appeal, the apex court in the Kingdom of Lesotho, has employed the BSD to invalidate the Ninth Amendment to the Lesotho Constitution. In this essay, I will analyse the judgement of the Lesotho COA in Democratic Congress and Others v. Puseletso and Others [2024] LSCA 1, holding that (i) Basic Structure Doctrine applies to the Constitution of Lesotho, (ii) ‘Responsible Government’ is an essential feature of Westminster-style parliamentary democracy and a basic structure of the Lesotho Constitution, and (iii) the Ninth Amendment to the Constitution, passed last year, violates the basic structure of the Constitution and is therefore invalid. However, the COA applies another doctrine that has found roots in Indian and other commonwealth constitutional jurisprudence, i.e. the doctrine of prospective overruling, while invalidating the Ninth Amendment. I also analyse this aspect of the judgement.

The Ninth Amendment to the Lesotho Constitution

Section 1 of the Lesotho Constitution declares it to be a “sovereign democratic kingdom.” The King of Lesotho is the Head of the State who acts on the aid and advice of the Council of State (equivalent to the Council of Ministers in India). Prior to the Ninth Amendment, if a resolution of No Confidence in the government was passed, the Prime Minister had two options at his disposal – (a) resign within three days, or (b) advise the King to dissolve the parliament, thereby necessitating fresh snap elections [see Section 83(4)(b) and Section 87(5)]. The King, acting on the advice of the Council, could refuse to dissolve the parliament if he believes that the government can be carried on without need for dissolution, i.e. if another person could muster the necessary majority vote in the National Assembly, or if the dissolution was not in the national interest [see Section 83(4)(a)].

The Ninth Amendment changed this and allowed the Prime Minister only one option once a resolution of No Confidence in his government is passed and the name of another member of the National Assembly is proposed to be appointed the prime minister, i.e. resignation [see Para 165 of the Judgement]. Put evocatively by Justice Damaseb, “a resolution of a vote of no confidence – accompanied by a proposed name of a new Prime Minister – seals the fate of the incumbent.” [Para 167] After the amendment, the incumbent Prime Minister cannot advise the dissolution of parliament unless it is supported by a resolution of two-thirds majority of the members of the National Assembly (Lower House of the Parliament). At first blush, this may seem like a bona fide attempt at stabilising parliament and strengthening parliamentary performance by ensuring that snap elections are not frequently necessitated, especially in the political context that Lesotho has seen three elections in a span of five years between 2012 and 2017, due to dissolution of parliament recommended by prime ministers who had lost the vote of confidence.

However, the amendment results in a curious situation, which Justice Damaseb has captured in his concurring opinion. The vote of No Confidence itself does not require a two-thirds majority, but merely a simple majority. However, once a motion of No Confidence is passed against the incumbent’s government, he is left with no option but to resign. He can only advise dissolution if he is supported by a resolution to that effect passed with a two-thirds majority of the National Assembly – the same body that had withdrawn its confidence in that same Prime Minister. This leads to an absurd situation where the prime minister is required to obtain the support of two-thirds majority in the same National Assembly where he had not even been able to garner the support of a simple majority to express its confidence in him – a feat patently impossible to achieve.

Justice Damaseb notes, “The Ninth Amendment has therefore made it so much easier for members of the NA to remove the Prime Minister through a vote of no confidence; and well-nigh impossible for the Prime Minister to test the strength of his popularity and acceptance by the general public, by means of a fresh election. The King’s role and that of the Council of State in the dissolution process have also effectively been removed.” [Para 170]

In typical Westminster-style Parliamentary Democracies, the dissolution of Parliament is a prerogative of the Head of the State (for example, the Monarch in the UK, and the President in India) acting on the advice of the Prime Minister and his council. The Ninth Amendment to the Lesotho Constitution makes a “stark revolutionary departure” from that feature of a typical Westminster-style democracy and ultimately endangers the Constitution’s Basic Structure.

Importing the Basic Structure Doctrine to the Lesotho Constitutional Landscape

Although the Amendment has been declared invalid by a 3:2 majority (President Mosito, and Justices Damaseb and Musonda writing for the majority; while Justices Van der Westhuzein and Chinhengo dissent), the majority and minority both have recognised the existence an implied limitation on the amending power of the parliament, i.e. the basic structure doctrine [Para 190 and 191]. President Mosito, writing for the majority, notes, after a careful and thorough analysis of legal literature as well as judicial precedent, like Kesavananda Bharati and Minerva Mills from India and Anwar Hussain Roy Chowdhury from Bangladesh, that “certain fundamental features of Lesotho’s Constitution… form part of the basic structure and cannot be abrogated or diminished through the amendment process.” [Para 65] Similarly, Justice Musonda, in his concurring opinion, refers to the BSD as a doctrine of “Indian ancestry” and refers Kesavananda Bharati, Minerva Mills and Waman Rao to discuss the doctrine of basic structure, or the doctrine of implied limitations on amending power of the parliament. The minority judgement by Justice Van der Westhuzein also refers to Kesavananda Bharati and recognises the Basic Structure Doctrine and extends its application to Lesotho’s constitutional landscape [Para 334]. Where the minority differs from the majority is in determining whether the Ninth Amendment is destructive of the Basic Structure of the Constitution. Therefore, on the point of adoption of the Basic Structure Doctrine to the constitutional landscape in Lesotho, there is unanimity between all the judges on the bench.

Ninth Amendment: Revolutionary Departure from Typical Westminster Model and Disturbance to the Delicate Balance of Power

An engaging discussion on the aspect of basic structure is found in the judgements authored by President Mosito and Justice Damaseb. The core argument against the validity of the Ninth Amendment, in the opinion of the majority, rests on the premise that the Amendment endangers the “delicate balance of power” between the Legislature and the Executive. For President Mosito, it also strikes at the heart of the principle of Responsible Government. In the opinion of Damaseb, J, the amendment makes a revolutionary departure from the typical model of Westminster-style parliamentary democracy. Let us unpack these concerns one by one.

Holding that the principle of Responsible Government is the foundation of Lesotho’s parliamentary democracy and is, therefore, a basic feature of the Lesotho Constitution, President Mosito embarks upon a careful analysis. He writes, “[t]he impugned amendment, by denying the Prime Minister the crucial power to request a dissolution of Parliament when faced with a no-confidence vote, effectively allows a government to remain in power despite losing the confidence of the National Assembly. This undermines the essence of responsible government…” [Para 114]. This outcome is necessitated if the National Assembly expresses no confidence in the incumbent government, but does not recommend the name of a member who may be appointed the prime minister instead. The resignation of the Prime Minister, as required by the amended Section 83, is only mandatory if an alternative name is recommended – but what if, President Musito seems to ask, such a name is not agreed upon? This outcome would be what Mosito foresees and holds to be an unconstitutional possibility.

President Mosito further relies on the diminution of the King’s role as a mere symbolic head, since he no longer has the prerogative of dissolving the parliament without the parliament itself recommending such a dissolution by a 2/3rd majority of the National Assembly. This point – and its unconstitutionality – is emphasised more clearly in Justice Damaseb’s words. Justice Damaseb argues that the power of dissolution is exercisable by the King in audience with the Prime Minister through whom he exercises his powers under Section 86 of the Constitution. This is in line with the tradition of Westminster-style parliamentary democracies, where the power of dissolution of parliament normally rests with the Monarch or the President, acting on the advice of the Prime Minister. The Constitution empowered the Monarch to refuse such a dissolution, as discussed above [also see Para 174]. Therefore, there existed a delicate balance and division of powers within the constitutional scheme. The Ninth Amendment disturbs this delicate balance, since, as Justice Damaseb cogently points out, “the Prime Minister may no longer dissolve Parliament so that the electorate choose a new Government: the Legislature has in effect usurped that power. They [the Legislature] will tell the nation and their King who will be their next Prime Minister.” [Para 177] The legislature, thus, arrogates itself to exercise a power that is traditionally reserved for the Monarch and the Prime Minister, which strikes at the heart of the doctrine of separation of powers [see Justice Musonda, at Para 223].

The Doctrine of Prospective Overruling

After holding the Amendment destructive of the Basic Structure Doctrine, the Court asks another crucial question: does the declaration of invalidity apply ex nunc (prospectively) or ex tunc (retrospectively)? Much turns on this, because since the amendment had already come into effect, the then-Prime Minister has been ousted by no-confidence and, in his place, another member of the NA has been appointed the PM. If the Amendment is held unconstitutional from its inception, this would necessarily have to be undone. After referring to Linkletter v. Walker and Stovall v. Denno, American landmarks on Doctrine of Prospective Overruling – but, alas, not the Indian milestone in I C Golaknath, which, in the author’s opinion, has more direct application since that case also concerned an invalid amendment – President Mosito notes that the Court must consider potential disruption to ongoing governance and the delivery of essential public services. He notes, “[a] retrospective application of the declaration could potentially paralyse the government’s ability to function effectively, leading to a vacuum of leadership and decision-making when the nation may face critical challenges or emergencies.” Thus, the majority holds that there are “compelling reasons” to justify ex nunc (prospective) invalidation of the Amendment, which would ensure that the sanctity of the actions taken under presumed constitutionality of the amendment is preserved while also ensuring that the future actions conform to the court’s judgement [Para 128].

Conclusion

The judgement of the Lesotho Court of Appeal is a significant landmark in Lesotho’s constitutional landscape, opening the door for the scrutiny of all future amendments to the Lesotho constitution on not just procedural but substantive grounds, including the Basic Structure Doctrine, which is often the only effective weapon in the arsenal of a constitutional court to preserve (or guard, if you will) the Constitution. The judgement contains erudite opinions and cogent analysis by the majority as well as the minority. Holding the Ninth Amendment unconstitutional, the judgement restores the delicate balance of power between the Executive and the Legislature. However, one may be moved to ask that once an amendment is found to be destructive of the Basic Structure of the Constitution and thus invalid, can the Court exercise its discretion in holding that the amendment would be invalidated henceforth and not since its inception? Can expediency justify condonation of unconstitutionality?

Guest Post: The Bounded Deliberative Model of Judicial Review against Legislative Inertia in Campaign Finance

[This is a guest post by Tanmay Durani.]

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Introduction

A lot has transpired since the electoral bonds verdict was passed, with calls to establish, or perhaps reinstate, a level playing field for all political parties concerning their election campaigning. Senior Advocate Kapil Sibal has emphasized the significance of the electoral bonds verdict, but also acknowledged that it has not had a transformative or practical impact, as it failed to address the substantial sums already amassed through donations. Most of the money was already been spent, in advance of the 2024 elections. In future elections, there’s a little ray of hope that, with electoral bonds no longer being valid, there will be less scope for uneven money power in election campaigning. However, it is not entirely assured.

Why? Because there is still lack of a maximum cap on campaign spending by a political party. Section 77 of the Representation of the People Act, 1951 faced judicial scrutiny, and the argument presented was that the absence of such a cap undermines the principles of free and fair elections and political equality, as financial resources can be used to influence electoral outcomes.

[Before proceeding, a clarifying note is warranted: Section 77 of the RPA imposes a cap on the amount that can be spent by a candidate for their own campaigning. However, concerning political parties and their advertisements, if an advertisement does not endorse a specific candidate but rather a particular party, it is not subject to a maximum cap.]

The Supreme Court dismissed the petition on grounds of judicial restraint, holding that to bring any change in this regard is the sole prerogative of the legislature. In the analysis of the separation of powers within the context of electoral expenditure, I shall purposefully refrain from engaging in the debate over whether a maximum cap on political party expenditures should be instituted, a proposition advocated by former bureaucrats. This article’s primary aim does not encompass such discussions. I argue that, given court’s prior observations and empirical research of think-tanks, the Supreme Court can, and holds the potential to address this issue judicially, in pursuit of establishing political equity.

Level Playing Field: Is this a rule in itself?

In M/S.Sri Adinath Traders vs The Union Of India, the classification of importers into Category ‘A’ and Category ‘B’ was challenged due to its impact on creating a non-level playing field. Category ‘A’ comprised importers who had consistently imported poppy seeds for three out of the preceding five financial years, while Category ‘B’ included importers who did not meet this criterion. The objective of this classification was to distribute the country cap on poppy seed imports among numerous applicants. However, the nexus between the classification and the lack of a level playing field became evident, as it favored Category ‘A’ importers who had imported for more years, even if some Category ‘B’ importers had imported higher quantities. This disparity disadvantaged Category ‘B’ importers, as they faced challenges in obtaining allotments and were unlikely to transition to Category ‘A’, leading to unfair monopoly and discrimination. Ultimately, the Court decided that classification of importers into Category ‘A’ and Category ‘B’ failed the test of reasonableness, and did not uphold the principles of a level playing field and fair competition.

From this, the Doctrine of the Level Playing Field emerged, which can perhaps shed light on a fundamental aspect of political dynamics- highlighting the inherent discrimination resulting from the absence of an objective expenditure limit. This lack of regulation disproportionately disadvantages parties with limited financial resources, particularly in comparison to the ruling party, which, historically speaking, and for structural reasons, receives the majority of donations. The resulting financial disparity between the ruling party and its challengers leads to an inequitable influence on electoral outcomes.

In support of this argument, summary of Paragraphs 47-51 of the Electoral Bonds verdict is reproduced, which elucidate the significant impact of financial resources on electoral results:-  

Vote Buying: Directly purchasing votes.

Campaign Expenditure: Spending on ads, events, and canvassing, which significantly impact voter behaviour.

Innovative Campaigning: Sponsoring events and competitions to engage voters, especially the uninformed.

Entry Barriers: Favouring self-financing candidates, disadvantaging socio-economically weaker candidates.

Exclusion of New Parties: Financial constraints force new and marginalized parties to form coalitions, diluting their ideologies and reducing democratic participation.

(For reading more on the impact of money in electoral politics, refer to these hyperlinks – 1, 2, 3, 4)

Even in Kanwar Lal Gupta v. Amar Nath Chawla, the court long back had recognized the profound impact of substantial financial resources on electoral outcomes. Wealth grants political parties a significant advantage, enabling them to promote their agendas more effectively than their competitors, which leads to political inequality and significant discrimination. Consequently, voters are deprived of an equal voice, and candidates are denied an equal opportunity in the electoral process due to the overwhelming influence of financial power. This situation contradicts the principles of participatory democracy and political equality, prejudicing parties competing on an uneven playing field and disenfranchising voters by impeding their ability to make well-informed electoral decisions.

In this context, although the doctrine of a level playing field could have undoubtedly provided assistance, its potential limitation – if by any chance it arises – will arise from its compatibility with Article 19(1)(g). The case of Reliance Energy Limited characterizes the doctrine as a derivative and embodiment of Article 19(1)(g), which guarantees the right to engage in any profession, occupation, trade, or business.

A bare reading of Article 19(1)(g) and the pattern of cases involving the application of the doctrine reveal that it has predominantly been active in matters related to contractual disputes within business operations. For instance, in the Reliance Energy case, the central issue was the fairness of the bidding process, emphasizing that all bidders should have an equal opportunity to participate without financial advantages. This case significantly contributed to the development of the doctrine. Similarly, in other cases where this doctrine has been applied (like Sri Adinath Traders), the focus has remained on ensuring a level playing field in business contexts. However, here’s the catch: the case recognises the “right to a fair opportunity” under Article 21, coupled with the principle of non-discrimination. The court in Reliance Energy case observed (para 22):

“…We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of “non-discrimination”. However, it is not a free- standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to “right to life”. In includes “opportunity”.”

… there is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of “level playing field”. According to Lord Goldsmith – commitment to “rule of law” is the heart of parliamentary democracy. One of the important elements of the “rule of law” is legal certainty. Article 14 applies to government policies and if the policy or act of the government, even in contractual matters, fails to satisfy the test of “reasonableness”, then such an act or decision would be unconstitutional.”

The second part of Para 22 goes on to show that while the doctrine of a level playing field aims to create a fair and equal competitive environment, it’s not a standalone principle. It draws its strength from three key legal conceptions: the Right to Equality (Article 14), Right to Fair Opportunity (Article 21) and the Test of Reasonableness. Unreasonable laws can disrupt this level playing field. For example, overly complex regulations that unfairly burden small businesses or laws that give certain entities special advantages without justification would be unreasonable. The Test of Reasonableness acts as a filter, ensuring that laws are fair, logical, and achieve their goals without creating unfair advantages or disadvantages. Thus, considering that the doctrine of a level playing field is merely another construct stemming from the Test of Reasonableness, there exists no reason for the court, notwithstanding its acknowledgment of the influence of financial resources on electoral outcomes and resultant political inequality, to not extend the application of the Doctrine of a Level Playing Field into the electoral domain.

Bounded-Deliberative Review and Legislative Inertia

The Supreme Court’s refusal to entertain the petition lies in the principle of separation of powers. According to the court, it is Parliament, not the judiciary that should be responsible for initiating, debating, and ultimately formulating laws on this matter, if deemed necessary.

As a matter of fact, however, Indian courts have frequently engaged in collaborative governance, often addressing legislative deficiencies through judicial intervention. This approach is known as the “bounded-deliberative” model of judicial review. As argued here, Dixon’s model of responsive judicial review endorses bounded-deliberative model of judicial review by acknowledging the inherent legislative inertia and prioritization burdens faced by parliaments in context of law-making. In such instances, it becomes imperative for the court to step in. But what do they courts do after stepping in? Do they direct the Parliament to bring about a change in Section 77 of RPA in light of political inequality? Or do they themselves make a law on this? Perhaps the latter would be a clear violation of the doctrine of separation of powers.

In the same vein, there is a popular (mis)conception that courts wield unbounded authority to mandate parliamentary enactment of legislation on any subject, in order to direct the State to discharge its positive obligations. Instances frequently cited in this context include Vishakha and Common Cause (A Regd. Society) v Union of India, where the court delineated guidelines or laws in the absence of legislative provisions and/or directed parliament to promulgate legislation concerning the matter.

These views are incorrect, and I do not suggest that the Court proceed in this manner. In these cases, the Union of India implicitly consented to this power-sharing exercise (para 9, Vishakha; para 5, Common Cause) despite the existence of institutional incapacity on part of courts. By not objecting to the court’s intervention, the government essentially acknowledged the power vacuum on these matters it had chosen not to address legislatively. Deva observes that such conduct is common in cases of judicial review, where the legislative body or the government, which holds the power to pass laws, often delegates matters to the discretion of the court. This implies that the dynamics of power-sharing can only be realized if such a mode of governance has received endorsement from the legislature – a condition seemingly absent here, particularly in relation to Section 77 of the Representation of the People Act, where the ruling party appears reluctant to relinquish its advantage in an uneven playing field, maintaining a superior position in terms of economic resources and other factors.

What Is To Be Done?

Borrowed from South African constitutional jurisprudence, a suspended declaration of invalidity (the “Fourie Remedy”) can potentially be deployed to address this problem. This remedy entails the court acknowledging the unconstitutionality of specific provisions within the existing legal framework – on grounds of either unreasonableness, or the state not fully discharging its positive obligations (see here). However, rather than immediately striking down these provisions and potentially creating a legal void, the Court affords Parliament an opportunity to rectify the deficiency. Through this, the court issues directives for upholding constitutional rights, and temporarily suspends the enforcement of its decision, which grants Parliament a designated period to amend the impugned provisions to align with constitutional principles. By taking this cautious approach, the courts can largely avoid accusations of overstepping their bounds and interfering with the legislature’s lawmaking role.

Judicial review in this case would also be consistent with the representation-reinforcement theory of judicial review, by John Ely. He contends that judicial review of any governmental action or inaction gains legitimacy in situations where: 1) the ruling government obstructs political change by suppressing opposing voices or votes, and 2) minority interests suffer systematic disadvantage due to majority-favoring policies. The government’s persistence on retaining section 77, despite calls for its amendment to impose a maximum funding cap on political parties, illustrates its resistance to this political transformation – which perpetuates an advantage over other political parties.

In any event, as Bhatia argues (which is perhaps an extension/endorsement of Representation – Reinforcement theory), the basis for limited judicial review and the separation of powers between the legislature and the judiciary relies on the presumption that the legislature represents the popular will. However, when a party’s substantial economic resources can potentially enable it to sway voter allegiance, it raises questions about the democratic process. This scenario results in legislative acts or omissions no longer being a true reflection of the will of the people. Thus, the justification for judicial deference diminishes. Consequently, in cases like this, limited judicial intervention to create a level playing field is warranted.

Usage of SDI by courts can be a classic way of materializing this ‘limited’ Judicial Intervention – which was advocated for in the same-sex marriage case by commentators (here and here) and the Petitioners themselves. Though, in that same case, the court was quick to discard (maybe) this South African import by observing (para 197):

Though facially the case mounted by the petitioners before us is similar to the case mounted by the petitioners in Fourie (supra), the legal and the constitutional regime in South Africa and India varies. First, it must be noticed that unlike the SMA, there was only one provision in the South African Marriage Act (that is, Section 30(1)) which made a reference to heterosexual relationships. However, as indicated above, various provisions of the SMA (Sections 4, 27(1A), 31, 36, and 37) confine marriage to a union between heterosexual persons. Second, various enactments in South Africa already recognised same-sex unions unlike the Indian legal landscape where no law even remotely recognises the union between a same-sex couple. Thus, the canvas of the challenge before the South African Constitutional Court in Fourie (supra) and the legal and constitutional regime in place varies widely from that in India.

Admittedly, there is ambiguity surrounding the potential abandonment of SDI. This stems from the absence of any explicit discussion within the dicta concerning the validity of SDI framework in light of Indian Jurisprudence. Despite the petitioners advocating for the use of SDI through the Fourie route, the court refrained from addressing the procedural legitimacy of this approach—specifically, whether the Fourie procedure, through which SDI is put into application, aligns with the Indian conception of Doctrine of Separation of Powers. Instead, the court adjudicated on the substantive aspects of the Fourie case. Upon comparing it with the Indian position, the court discerned a notable contrast. It highlighted that South Africa’s legal landscape presented a singular legal hurdle, with some existing recognition afforded to same-sex couples. Conversely, India’s legal landscape posed several obstacles, with no established recognition for same-sex partnerships. Thus, despite factual parallels between cases in the two jurisdictions, the court deemed it inappropriate to import the decision rendered in South Africa to India, given the divergent legal contexts and absence of recognition for same-sex relationships in the latter.

Given the absence of explicit rejection concerning the procedural aspect of SDI, and considering its extensive application in cases such as Indira Sawhney and Sampath Kumar and a catena of foreign cases in its support, it could be deemed applicable in the present circumstance. Here, where the legislative function has become impaired to the extent that it fails to adequately represent the will of the people, the principles underlying SDI may and should, be legitimately invoked.

In any case, by taking the Article 32 and 142 route, the powers of the supreme court will be plenary and unfettered to the extent that where political rights in terms of right of fair opportunity under Article 21 (as I submitted while explaining doctrine of level playing field) are violated, the court will be free to mould a new remedy in the interests of achieving equity and justice – which in this case would be, a fair, level playing field for other political parties to advance their agenda, without any influence of money power. Hari Karthik here has perfectly explained how the route of Article 32 and 142 in situations of absent legislative action is suited for the Supreme Court to issue Suspended declarations of invalidity.

Conclusion

In wrapping up, it’s clear that while Parliament holds the reins in legislative matters concerning electoral financing, there are lingering issues within the current system. The doctrine of a level playing field, rooted in fairness, highlights the need for balanced electoral conditions. Although the court refrains from direct legislative intervention, the evolving landscape of political financing calls for thoughtful consideration. Potential avenues for judicial action, like the application of Representation-Reinforcement theory via suspended declarations of invalidity, offer pathways to address systemic imbalances. In the absence of legislative action, the court’s role in upholding democratic principles becomes increasingly vital, requiring a careful approach within legal boundaries and constitutional principles.

Guest Post: Greek Legislation for Same-Sex Marriage – One Step Forward, Three Steps Back?

[This is a guest post by Acharaj Kaur Tuteja.]

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Greece has a rich cultural and historical background deeply rooted in Orthodox Christianity, which has traditionally influenced societal norms and values. As an Orthodox country, Greece has often adhered to conservative views on social issues, including marriage and family structures. The Orthodox Church plays a significant role in Greek society, shaping public opinion and influencing legislative decisions. However, taking a step towards equality, the Ministry of State in Greece finally passed a bill legalizing same-sex marriage in the country on 15 February 2024, making Greece one of the first Christian-orthodox countries to do so. The bill allows for both civil unions as well as religious weddings for same-sex couples. It also allows non-biological parents to adopt their spouse’s child in the marriage. However, the legislation does not recognise the LGBTQ+ community’s entitlement to parenthood under various circumstances.

As per Article 1458 of the Greek Civil Code read with Law 3305/2005, surrogacy is only permitted for heterosexual couples with infertility issues, and single women. This sidelines the opportunity for gay and intersex couples to access fertility treatments using a surrogate or a donor. It perpetuates inequalities and denies same-sex couples the opportunity to form families through surrogacy, despite their desire to become parents and their ability to provide a loving and supportive home for a child. Reproductive rights, are in fact human rights as has been stated in the International Conference on Population and Development of 1994 (ICPD) wherein all couples and individuals must have the right to freely choose the number of children they want, and to have the means to do so. This inherently links the Greek government’s responsibility to its obligations under the Programme of Action adopted at ICPD for ensuring adequate reproductive rights for the members of the LGBTQIA+ community.

Additionally, while a man in a heterosexual civil partnership is automatically considered the father of children born during the partnership, non-biological parents in a same-sex civil partnership are not granted any parental rights concerning the children born within the partnership. This is envisaged under Article 9 of Greek Law no.3719/2008 as amended in 2015. It is important to highlight that both heterosexual and same-sex couples in civil partnerships are limited to being foster parents and are not permitted to adopt as per Law 4358/2018. This situation results in discriminatory practices against couples in civil partnerships, depriving them of their rights in contrast to married couples. This directly goes against Article 4 of the Greek constitution that provides all Greeks as equal before the law. Additionally, the ECHR in Vallianatos & Ors v. Greece had stated that the Greek state lacked necessary claims to deny the right of civil unions to same-sex couples previously. It was further stated that the wish to preserve the ties of the traditional heterosexual family by its government could not constitute substantive grounds such as to justify treating same-sex couples differently. But even after having recognized those, civil unions still do not seem to be at par with married couples in the country in terms of the right to have a family.

Further, the Bill uses the term ‘presumption of paternity’ instead of a more neutral term ‘presumption of parenthood’. This leads to same-sex and transgender couples having to go through the lengthy ordeal of adopting their spouse’s child in order to be legally recognized as a parent. This will deter them from engaging in the lengthy adoption process. Additionally, it fails to amend the provision that disallows transgender people to change their gender on their children’s birth certificate at any given point of time. This is in violation of Article 14 of the EU Charter of Fundamental Rights that explicitly prohibits discrimination on grounds of sexual orientation. The European Court of Human Rights in L and V v. Austria clarified as to what falls under discrimination. The decision while interpreting Article 8 and 14 of the European Convention on Human Rights stated that a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim”. The Court accepted that protecting the rights of others is a legitimate aim. The Court then struck down Article 209 of the Austrian Code that had kept a separate age of consent for homosexual couples under the garb of protecting them from AIDS. The ECHR had highlighted the predisposed bias on the part of a heterosexual majority against a homosexual minority in Austria, and stated that these negative attitudes cannot of themselves be considered by the Court to amount to sufficient justification for the different laws for same-sex couples. Similarly, in the present scenario, denying surrogacy by only offering adoption as a choice for parenthood without it “protecting the rights of a third party”, is thus discriminatory in nature.

Hence, the Bill is a progressive step for the LGBTQIA+ community but lacks in certain aspects that must be amended to ensure equality and non-discrimination. Granting rights to the community should be coupled with allowing them the necessary means to have a family, by means of reproduction that they may choose. Discrimination over sexual orientation and gender preferences is far from what is desirable. Swift implementation of the present legislation must be carried out by the Greek government, along with incorporating the changes as are necessary. 

The Judiciary and the 2024 General Election: Round-Up

This is a round-up of the blog’s pieces on the judiciary and the 2024 General Election. Although the GE has now concluded, many of the issues discussed in these posts are bound to recur. The analysis and critiques on the blog, it is hoped, can spark a conversation about ensuring greater judicial consistency – and less arbitrariness – when it comes to courts and the elections.

1. A Critique of the Election Commission’s Order in the “Real NCP” Dispute (17 Feb 2024), by Yogesh Byadwal.
2. The Unexamined Law: On the Supreme Court’s Stay Order in the Election Commissioners Case (22 March 2024).
3. An Injudicious Judicial Opinion (27 April 2024).
4. Distortion begets Distortion: On the Arvind Kejriwal “Interim Bail” Order (12 May 2024).
5. The Supreme Court, the Election Commission and the 18th Lok Sabha Elections-I: On the SC’s refusal of a Stay Order in the Election Commissioners’ Case (22 May 2024), by Hardik Choubey.
6. The disclaimer shaped hole in India’s elections (22 May 2024), by Vasudev Devadasan.
7. The Supreme Court, the Election Commission and the 18th Lok Sabha Elections-II: The Court, the Commission, and the Enforcement Agencies (23 May 2024), by Hardik Choubey.
8. The Supreme Court’s Form 17-C Order: Three Issues (24 May, 2024).