In 2023, when Replika users lost their AI companions due to software updates, it was not a minor software issue for them, but the loss of a “wife,” a “best friend,” or “a better sexting partner”. A similar situation occurred in 2025, when the AI companion Dot shut down, prompting users to hold digital funerals, sharing final screenshots and farewell messages as if real people had died.

If an AI companion is becoming so psychologically significant to people, any interference with the human-AI relationship may affect the user’s emotional stability, mental well-being, or psychological integrity, thereby violating the rights protected by the Convention. One obvious example of such a violation is a violation of the rights declared in Article 8, which protects everyone’s private and family life and safeguards the right to establish and develop relationships with the outside world, as was mentioned by the European Court of Human Rights (‘the Court’) in Bensaid v. United Kingdom. Continuing this line of reasoning, the Court has held that mental health should be regarded as a crucial part of private life, associated with moral integrity, and protected under Article 8 of the Convention.

Due to lack of regulation, users of AI companions face uncontrolled third-party intervention in the human-AI relationship, potentially violating the principle of personal autonomy. As owners of AI companions, private companies can alter, suspend, delete, or redesign the human-AI relationship without any user’s consent and without legal consequences. Such uncontrolled company actions, in the absence of proper governmental control and regulation, can affect people’s moral integrity, psychological health, and the private life rights protected by the Convention.

Being obliged to protect human rights and freedoms enshrined in the Convention, countries have not only obligations to prevent government violations but also positive obligations to adopt measures to secure human rights, as recognised in cases such as X and Y v. The Netherlands. That is why the lack of governmental regulations governing human-AI relations, aimed at protecting the Convention’s standards and principles in such cases, also constitutes a human rights violation.

On the one hand, adopting instruments such as the Framework Convention and the EU AI Act gives rise to hope for human rights protection in Europe. But on the other hand, we should be realistic: we are only at the start of the way, and the one thing countries can do now is react quickly and sometimes be more flexible and less bureaucratic to address the challenges of these new times.

The lack of specific laws on AI companions in the EU, as well as the absence of a comprehensive set of regulations governing human-AI relations and protections, will likely prompt the Court and local courts in Europe to issue rulings without waiting for governmental regulations.

Very soon, we will face a growing number of the above-mentioned issues arising from the need to expand the scope of human rights protection in human-AI relations. Notably, while human-AI relationships may pose emotional risks and negative consequences for the person, they also play a very positive role, helping lonely and elderly people. That is why, in its early cases involving human-AI relations, the Court should be very careful in interpreting the Convention and in determining who is violating rights and freedoms and how. In some cases, the harm may be caused by AI companions, but in others by governments or by providers of AI companions.

The era of human-AI relations has only just begun and will bring many surprises. Human-AI relations are no longer solely a matter of software use or service provision but fall within the scope of rights and freedoms already protected by the Convention, so states should no longer avoid their obligations.

While a mother is now considered a ‘complete parent’ for a child’s civic identity, Hindu inheritance laws still treat her as an incomplete parent who can function as a primary caregiver and guardian but  not as a source of legal continuity for the transmission of ancestral property. Customarily, ownership of ancestral property (mitakshara coparcenary) under Hindu law was restricted to four generations of male members born into the family, giving little to no ownership rights to the female members. Far-reaching reforms were made to Hindu females’ inheritance rights through the Hindu Succession Act, 1956, especially by the 2005 amendment, which gave daughters ownership rights by birth in their father’s ancestral property. Yet these reforms have not entirely unsettled the deeper patrilineal structure of the joint family and the rights that flow from it. Rather, the provisions remain silent on the extent to which these rights can be practiced by the daughters, often used to limit their rights during interpretive challenges in the courts.

On the one hand, the Delhi High Court has adopted a progressive stance in Manu Gupta v Sujata Sharma, ruling that daughters enjoy equal rights in all aspects of the joint family, including the right to act as Karta (the head of the family responsible for making all the welfare-based decisions for the family and property). Conversely, the Bombay High Court in Vishwambhar v. Sunanda took a restrictive view by denying birth rights to daughters’ children in the joint family property coming from their maternal ancestors.

The continuing emphasis on the male line as the only recognised source of ancestral property shows how inheritance laws are still linked to outdated assumptions of lineage being paternal and heavily dependent on the marital status of the parents. This not only reinstates the inferior position of a mother in traditional families but is out of step with the social reality of other non-traditional forms of families including single mothers with sole custody, or unmarried females who have legally adopted a child. In these cases, a child is raised solely by the mother and her family, but when it comes to the birthrights in the property, the law will be on the lookout for the father, who could be absent, untraceable, unbothered, or non-existent.

This rigid imagination further marginalises children who are born outside of wedlock, leaving them financially and legally vulnerable. By categorising them as ‘illegitimate,’ the law restricts their inheritance rights solely to their mother’s property, expressly excluding them from the paternal line and the broader maternal line of relatives. If the child’s mother dies, this child could be left destitute, having no rights to the properties held by the paternal or maternal lines, depending entirely on wills or gifts for financial security.

In Mamta Vakil v. Bansi Wadhwa, the same court affirmed that prioritising agnates (male-line descendants) over cognates (female-line descendants) for inheritance of self-acquired property is gender-discriminatory and violates Article 15(1) of the Constitution. This constitutional scrutiny must now be applied to ancestral property rights. Interpreting the law to restrict birthrights to sons’ children while excluding daughters’ children results in the perpetuation of discrimination based on birth and gender. However, focusing only on judicial interpretations is insufficient until the law breaks the rigid imagination of a traditional family unit, that the State actively preserves, and the judiciary defends by employing age-old precedents. Instead, the 2018 Law Commission Consultation Paper’s recommendation to abolish the joint family property scheme of succession altogether requires urgent reconsideration.

In 2025, the Allahabad High Court took suo motu cognisance of what it viewed as a rise in fake temple societies that were issuing fabricated marriage certificates to eloping couples. According to the court, these fake certificates allowed them to circumvent statutory provisions, thereby degrading “the sanctity of marriage.” Earlier, registration of marriages required proof of age, birth, and marriage, along with three witnesses in the district where either spouse resided. The High Court restricted marriage registration to the couple’s or parents’ ordinary residence, requiring video recordings of the ceremony and the officiant’s physical presence at the registrar’s office. The registrar can waive these requirements only if family members are present during registration.

Through these guidelines, the court intends to protect minors from child marriage and potential sexual or labor exploitation. However, the court has imposed these restrictions upon all couples, including consenting adults. In doing so, it has significantly endangered inter-caste and inter-religious marriages, which may be solemnised against the consent of the families. The trajectory of the proposed Gujarat law is along similar lines—surveillance under the guise of protection. The dangers of mandating parental consent can act as a weapon in the hands of family members who often misuse the administrative machinery to threaten these couples with false kidnapping or abduction charges, something that has already been dissuaded by the Supreme Court in Lata Singh v State of UP.

Even when the outcome protected the freedom to choose a partner, the process of arriving at it was a punishment in itself. In Shafin Jahan v KM Ashokan, the Supreme Court held that the right to marry a person of one’s choice is part of the right to life (Article 21 of the Constitution of India). The court also cautioned against unbridled use of parens patriae jurisdiction by holding that it cannot be used to determine “the suitability of partners to a marital tie.” While the final decision was a welcome outcome and landmark precedent, the choice of the adult woman was subject to extraordinary scrutiny. The Kerala High Court had initially invalidated the voluntary marriage and granted custody to Hadiya’s father.  It took several months of hearings before the Supreme Court finally overruled the Kerala High Court’s decision.

These measures risk framing individuals, particularly women, as inherently vulnerable children of the state whose choices require supervision. This reinforces patriarchal control that undermines autonomy and dignity under the garb of welfare. Intimate relationships may often be sites of gender inequality and consequent power imbalances. While the state should address power imbalances, regulation must not convert into surveillance. Laws that question the choice of partner or mandate familial consent do not empower individuals. Even if the state creates such laws, the courts must fulfill their role as guardians of fundamental rights. This piece highlights that the courts have not always undertaken this task and many times even initiated paternalistic scrutiny. However, there are also instances where the courts have meaningfully examined law created by the State. In Safiya Sultana v. State of UP, the Allahabad High Court read the requirement of a thirty-day notice to the public before marriage under the Special Marriage Act 1954 as optional. It held that the mandatory application of these provisions violates the fundamental right to privacy and liberty, including the freedom to choose one’s partner without state interference. It also noted that such a notice requirement was peculiar to the SMA and no other personal laws required this. Therefore, courts ought to follow this trajectory and adopt robust methods to defend fundamental rights.

The applicant stated that since 2013, he and his boyfriend had been living together as a family. After four years of living together, they held a social marriage ceremony, and then in May 2021, they were married (online) in the city of Provo, Utah County, Utah, United States of America. On June 10, 2024, his partner was appointed to the position at the Embassy of Ukraine in the State of Israel, and he was seconded to the State of Israel. Understanding that such a long-term assignment would cause long-term separation, the applicant decided to go with his partner. However, the Ministry of Foreign Affairs of Ukraine did not approve the assignment as Ukrainian law defines the concept of marriage as a family union between a woman and a man, so the applicant cannot be recognised as a family.

The Court relied on the decision of the Constitutional Court of Ukraine dated June 3, 1999, No. 5-rp/99, which established that family members include persons who permanently live together and run a joint household, and they can do not have to be close relatives, but can also be other persons who do not share direct family ties. The Court in the current case stated that it was indisputably proven that the applicant and his boyfriend had lived together in the same living space for a long time, ran a joint household, shared a common life, divided responsibilities and expenses for maintaining the home, and mutually took care of each other, and were thus family members.

Additionally, the Court drew upon several decisions by the European Court of Human Rights (‘ECtHR’) and their respective arguments. The Court cited the Schalk and Kopf v. Austria case, in which it was stated that although the Convention does not obligate states to permit same-sex marriages, they must ensure the adequate protection of the family life of such couples. The court also mentioned the ECtHR’s logic from M.A . v. Italy that refusal to recognise same-sex partnerships violates the applicant’s right to respect for his family life. Further, the Maymulakhin and Markiv v. Ukraine case was used, arguing that same-sex couples are just as capable as heterosexual couples of entering into stable and committed relationships, and have the same needs for mutual support and help. Therefore, the Court stated that de facto marital relations between persons of the same sex can be recognised if there is evidence of cohabitation, joint household management, and the presence of mutual obligations and rights. This allows persons of the same sex to receive legal protection for their family relations.

Considering the above and the fact that family relations are among the most important areas of legal regulation, resolving the issue of whether a person belongs to a family in law can significantly affect the rights and obligations of persons in such relations. Being legally recognised as family members, each partner in same-sex couples gains rights in various spheres of daily life, such as access to medical procedures or protocols that apply only to family members, or being recognized as a family member for work/travel purposes, as was the case in the analysed case.

It is a genuinely progressive case where the Ukrainian court analysed the arguments and case circumstances about the rights of same-sex couples, and concluded that the applicant’s claims are justified, supported by appropriate evidence, and subject to satisfaction.

Despite the Ukrainian constitution banning same-sex marriages, such a decision is another step towards the Ukrainian Judiciary and lawyers accepting same-sex relations. Being only a small spark in the Ukrainian dark sky of “old viewers”, it is a very important one that can flare up in the future and illuminate the way for same-sex legal relations in Ukraine.

The case stemmed from a dispute over the estate of Salim Juma Hakeem Kitendo, a Muslim man who died intestate in 2015. The appellant, Fatuma Athman Abud Faraj, with whom the deceased had four children, sought to exclude the children born out of wedlock from inheritance, citing Islamic law as applied via Section 2(3) of the Law of Succession Act. The Supreme Court’s task was to interpret Article 24(4) of the Kenyan Constitution, which states that equality provisions may be “qualified to the extent strictly necessary for the application of Muslim law” in matters like inheritance before Kadhis’ courts.

The Court’s reasoning pivoted on the phrase “to the extent strictly necessary.” It held that this introduces a proportionality test, ensuring any deviation from equality under Article 27—guaranteeing equal protection—must be narrowly tailored, reasonable, and justified [para 53]. This approach prevents Article 24(4) from being a blanket exemption for religious law to override constitutional norms.

Drawing from international law, the Court likened “strictly necessary” to Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR),, which allows derogations only as “strictly required.” The UN Human Rights Committee’s General Comment No. 29 reinforces this, tying derogations to proportionality. Similarly, Article 15(1) of the European Convention on Human Rights uses parallel language, with the European Court of Human Rights in cases like Brannigan and McBride v United Kingdom (1993) emphasising proportionality.

The Court also cited the Botswana Court of Appeal’s decision in Ramantele v Mmusi and Others [2013] BWCA 1, where customary law excluding women from inheritance was narrowly construed to align with equality. Applying this lens, the Supreme Court found no compelling justification for barring children born out of wedlock from inheritance. Such exclusion, based solely on parental marital status, was deemed arbitrary and disproportionate, failing the “strictly necessary” threshold [para 53].

The ruling harmonised Article 24(4) with Articles 27 (equality and non-discrimination) and 53 (application of rights to children) of the Kenyan Constitution. Article 53(1)(e) ensures children’s rights to parental care “whether [parents] are married or not,” while Article 53(2) prioritises the child’s best interests. The Court argued that penalising children for their parents’ actions undermines these protections and the Constitution’s transformative vision of equality and dignity, as per Article 20(3), which mandates interpreting laws to promote the Bill of Rights.

This judgement reaffirms that religious laws, even when constitutionally recognised under Article 170(5) for Kadhis’ courts, must align with fundamental rights. By rejecting a rigid application of Islamic inheritance rules, the Court ensured that Muslim law evolves with Kenya’s constitutional values, a stance echoing the African Court on Human and Peoples’ Rights in APD v Mali (2018), which struck down discriminatory inheritance laws.

This Supreme Court’s judgment marks a transformative moment in Kenyan jurisprudence, as it sets a precedent for balancing religious autonomy against the constitutional guarantee of equality and the best interests of the child. By insisting that Article 24(4)’s derogation from equality be interpreted through a strict proportionality lens, the Court reaffirmed that constitutional rights, particularly a child’s right to equal treatment cannot be sidelined by religious personal laws. This decision not only safeguards the inheritance rights of children born out of wedlock but also underscores the judiciary’s pivotal role in harmonising plural legal systems with the Constitution’s transformative vision.

In MŞD, the applicant’s former partner disseminated her intimate photographs to her family and friends by creating fake Facebook profiles under her friends’ names, while also posting the photos along with her name, address, and mobile number on websites advertising for escort services. In finding a violation of Article 8, the Court found that: first, Romanian national law was inadequate as it did not criminalise acts of ‘revenge porn’ where the victim had consensually shared intimate photographs with the perpetrator, who subsequently disseminated them non-consensually (paras 128-137); and, secondly, the national authorities had failed to promptly and thoroughly investigate the applicant’s complaints, leading to one of the offences becoming time-barred (paras 138-157), which mirrors the facts and the Court’s reasoning in both Buturugǎ and Volodina (No 2).

As I have argued elsewhere in respect of Buturugǎ and Volodina (No 2), the Court’s recognition of cyberviolence as an Article 8 violation is a positive step, especially given the historically fraught relationship between the field of international human rights law and the issue of violence against women. However, notwithstanding this progress, the judgment in MŞD is marred by the same analytical deficiencies as Buturugǎ and Volodina (No 2).

First, the framing of cyberviolence as an Article 8 (private life) violation rather than an Article 3 (prohibition on inhuman or degrading treatment) violation is inconsistent with the Court’s case law on “offline” instances of violence against women. Despite inconsistencies in its early case law on the subject, the Court’s recent judgments consistently characterise gender-based violence under the inhuman treatment limb of Article 3, with some judges even exhibiting a willingness to analyse it under the torture limb. Despite the Court’s insistence in Buturugǎ, Volodina (No 2) and MŞD that cyberviolence is as serious as, and frequently occurs in parallel with, “offline” violence, its judgments are inconsistent with these remarks.

Secondly, the Court’s reluctance to characterise cyberviolence against women under Article 3 undermines its gravity. Article 3 is an absolute right and peremptory norm of international law that permits no derogation (jus cogen). Indeed, the Court’s own case law recognises that a violation of Article 3 is viewed more seriously than a violation of Article 8, and such a recognition has driven feminist international lawyers to argue for the recognition of violence against women as torture. Such a recognition transcends symbolic significance: it sends a strong message to Member States that cyberviolence is as grave as other forms of violence against women and requires the same level of diligence, attention and resources.

Finally, the Court’s finding that it was unnecessary to examine whether there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 is problematic (paras 160-165). As Fleur van Leeuwen argued in relation to Buturugǎ, there is a strong connection between gender-based discrimination and violence, including cyberviolence. Further, the Court’s own case law on physical and psychological violence against women has recognised violations of Article 14 in conjunction with Articles 2, 3 and/or 8, yet the Court appears reluctant to do so in cases concerning cyberviolence, notwithstanding the Court’s exhortation that cyberviolence is closely linked to “offline” forms of violence. This omission is even more striking in MŞD than in Buturugǎ, given that the applicant expressly complained of a violation of Article 14 in conjunction with Article 8. Moving forward, it is hoped that the Court undertakes its analyses of cyberviolence against women under Article 14 in conjunction with Article 3.

While the Court’s recognition of cyberviolence against women as a violation of Article 8 is a welcome development and keeps the Court’s jurisprudence apace with the broader progress on this issue (such as the European Parliament’s recently adopted directive on combating violence, including cyberviolence, against women), the Court’s failure to characterise the issue under Articles 3 and 14 leaves its analysis wanting. Not only would framing cyberviolence as a violation of these provisions promote consistency with the Court’s case law on “offline” gender-based violence, it would also capture the gravity of the issue.

Traditionally, UDCW has been recognised in India under family and tort laws, where claims have arisen either due to divorce or death of the homemaker, respectively. Initially, the Indian courts recognised UDCW through the category of loss of services to the family. While they compensated by calculating the cost for replacement, for household help to cover the services, they did not account for the unpaid domestic care responsible for developing social, physical and intellectual capacities. This approach is attributable to the patriarchal perception of unpaid domestic care as a moral obligation of a woman, particularly, as a wife and a mother, which deprives it of the status of labour.

However, in later cases, such as Rajam v Manikya Reddy [1988] and National Insurance Co Ltd v Minor Deepika [2009], the courts resorted to a more nuanced approach towards UDCW, noting the narrow legal construction of ‘services’ provided by a homemaker, holding that such services cannot be entirely substituted by outsourcing domestic work. They expanded the understanding of a homemaker’s contribution to the household from unpaid domestic work required to run a household, to unpaid domestic care and work responsible for social reproduction.

In 2010, the Supreme Court also emphasised the unpaid care work done by a homemaker in cases arising under the Motor Vehicle Act 1988 (‘MVA’), a subset of tort law.  In Arun Kumar Agrawal v National Insurance Company, it disagreed with the Delhi High Court for allowing the use of minimum wages for a skilled worker as the baseline for compensating the contribution of deceased homemakers. It reasoned that such an approach inappropriately compared the homemaker to an employee working for a fixed time period and did not consider the ‘personal’ nature of care. Instead, the Court applied of the Second Schedule of MVA, 1988, which pegged the notional value of a homemaker’s income at a third of the husband’s income. In 2019, however, the Madras High Court rejected the application of Clause 6, stating that in an era where women were earning equally or more than their spouses, this was not acceptable. Instead, it awarded the deceased’s prospective wages and an additional 50% of them under the head of ‘future prospects’.

Despite differing approaches towards a homemaker’s contributions, courts in the cases discussed were reluctant to dissociate UDCW from its gendered entrapment and recognise unpaid care as invisibilised labour. UDCW continued to be viewed primarily in terms of familial loss, where the discussion of its nuances did not prompt cognisance of its overarching economic contribution. In Arvind Kumar too, the Supreme Court paid an ode to the altruistic caregiving expected from a woman in a patriarchal society and awarded a lump sum amount without discussing the cost of social reproduction.

Thus, it is unclear whether its reference to minimum wage indicates progress for UCDW and can nudge towards recognition of economic contribution of unpaid domestic care as labour. Such interpretation faces challenges, primarily from objections to commodifying familial ties and value systems. Additionally, MWA, 1948, covered within Indian Labour Law, excludes UCDW from ‘employment’ eligible for compensation. Even as notional value, minimum wage lowers the compensation bar since quantifiable domestic work is grossly underpaid in India. A fairer evaluation of the contributions of a homemaker is possible through the ‘partnership method’ adopted by the Court in Minor Deepika as it can pave the way for a ‘unified conception of worker’ that ties the roles of breadwinner and caregiver in the family as equal contributors to a household unit. The real challenge, thus, lies in whether the Courts can sidestep the rhetoric of UDCW being ‘invaluable’ and assess it as an economic contribution of an equal partnership.

Background: the Draft Law of 2023

In March 2023, Ukrainian MPs prepared a Draft Law creating an institute of ‘registered partnerships’, according to which same-sex couples could register their relations as an official family union. This would have put same-sex couples in almost the same position as different-sex cohabiting couples. But, the Ukrainian Ministry of Defense strongly opposed the Draft Law, arguing that if such a union were equal to marriage, it could contradict constitutional provisions.  In fact, however, the Draft Law was designed to give a legal status to same-sex relations without engendering constitutional violations, which is why it had proposed a new institute of registered partnerships.

The European Court’s Decision

Despite resistance to the legalization of same-sex relationships from some Ukrainian authorities, it seems that the cause may move forward with the help of a recent decision of the European Court of Human Rights: Maymulakhin and Markiv v Ukraine. The applicants were two Ukrainian men who live as a couple. One was a soldier, who joined the National Guard of Ukraine on 24^th February 2022 to protect his motherland, but after a year, resigned for health reasons. The applicants were not able to register as family members, and hence they had limited rights in Ukraine’s domestic law.

The Court decided that the denial to the applicants, as a same-sex couple, of any form of legal recognition and protection of their relationship entailed a violation of Article 14 of the Convention (freedom from discrimination), read with Article 8 (right to respect for private and family life). The Court noted a clear, ongoing trend at the European level towards legal recognition and protection of same-sex couples within the member States of the Council of Europe, and concluded that Ukraine had failed to provide any justification for treating the applicants differently as a same-sex couple, as compared with different-sex couples.

Commentary on the Court’s Decision

Analyzing the case, the Court highlighted some very important points, of which Ukrainian officials ought to take heed. As the Court rightly pointed out, the Ukrainian National Human Rights Strategy identified preventing and combating discrimination as one of its strategic areas. The implementation of this Strategy includes putting into effect an Action Plan for the legalization of registered civil partnerships for different-sex and same-sex couples. But unfortunately, in 2019 and 2020, the Ministry of Justice reported receiving a significant number of petitions from some regional, city, and district councils, non-governmental and religious organizations arguing that the Action Plan was inadmissible regarding same-sex couples. Because of this, the Ministry of Justice decided that implementing this aspect of the National Human Rights Strategy would be impossible.

However, the Court pointed out (at paragraphs 23-24 of the judgment) that Ukraine’s path to membership of the European Union – often declared to be a goal of Ukrainian officials – includes the need to elaborate on the legislative possibility of marriage and the right to found a family for same-sex couples. But in response, the Ukrainian Government stated simply that ‘Ukrainian legislation does not provide the opportunity of marriage for same-sex couples [and for] the time being, the Government of Ukraine [was] taking measures to improve and study the issue of same-sex partnerships legalisation’.

The Court pointed out that, under its case law, Ukraine is free to restrict access to marriage to different-sex couples only. Still, the Ukrainian Government did not give reasons for its decision to exclude same-sex couples from legal status as a de facto family union, and people like the applicants should expect to be afforded adequate legal recognition and partnership protection. The Court considered that the protection of the family in the traditional sense (often given as a reason for excluding same-sex couples from certain legal rights) is a rather abstract aim, and that the concept of ‘family’ is necessarily evolutive.

After the Court’s decision, there is a glimmer of hope that same-sex couples in Ukraine will have real rights and a legislative basis for the official registration of their relations. But on the other hand, distracted by the war and other problems, the Ukrainian government may continue to act like the country is in the ‘dark ages’, and not a modern European democratic country, by denying same-sex couples any form of legal recognition.

Want to learn more?

• Read: Perspectives on Same-Sex Marriage Legalisation in Ukraine
• Read: Advancing Sexual Orientation and Gender Identity Equality Through CEDAW
• Listen: Gendered Constitutionalism RightsUp Podcast

The Digashu ruling serves as a beacon of hope for LGBTQ rights in Namibia, following a series of cases where the SC had previously adopted a conservative approach. For example, in March 2023, the SC ruled in favour of government in a case where a four-year-old boy, born to a same-sex couple through surrogacy, sought Namibian citizenship through decent. Here, the Court did not engage the substantive issues involving the consequences of same-sex marriages, and instead directed the applicants to follow the proper registration process as prescribed by the Citizenship Act 14 of 1990. In the same month, the High Court heard arguments in a matter challenging the common law of sodomy and related offences, from which a ruling is pending.

Perhaps most significantly, the Digashu Court rejected its own obiter statement in the Frank case (2001) that same-sex relationships do not warrant equal protection before the law, providing prospect and precedence for all future constitutional challenges to state sanctioned discrimination in Namibia.

The State’s Response to Digashu

The Digsashu judgment has been met with overwhelming opposition by the ruling party. On 16 June 2023, the SWAPO Central Committee resolved to direct government to ‘immediately’ take executive and legislative steps to define ‘spouse’ in the Immigration Control Act as a union between a man and a woman.

There is a prevailing attitude among the ruling elite that the SC judgment can be overturned by a subsequent Act of Parliament ‘prospectively, not retrospectively’. Concerningly, there have also been calls to put the issue to a referendum. To avoid a constitutional crisis, it is crucial to examine whether the constitutional framework in Namibia permits Parliament or alternatively a referendum, to override the SC’s interpretation of the constitution.

The Constitutional Framework of Namibia

In a system of parliamentary sovereignty, the legislature, through Acts of Parliament has the final say on the interpretation of the Constitution. It is a long-standing tradition in the United Kingdom and was the model through which British colonies were administered. The apartheid government in South Africa, which occupied Namibia, was able to enact discriminatory legislation and prevent judicial intervention due to its reliance on a system of parliamentary sovereignty.

Emerging out of the brutality of an unchecked parliament, Namibia joined other independent African states in 1990 by adopting a constitution in a move to a constitutional democracy. In a constitutional democracy, it is not parliament but the constitution that reigns supreme, and that constitutes the highest expression of the values of the people.

Though each constitution has its own perimeters in separating power amongst organs of the state, in Namibia, the courts are the guardians of the constitution, and are vested with the powers to interpret, implement, and uphold it (Article 79(2)).

Interpreting Article 81 of the Constitution

Article 81 of the Namibian Constitution states that SC’s rulings are binding on all courts and persons in Namibia, ‘unless it is reversed by the Supreme Court itself, or is contradicted by An Act of Parliament lawfully enacted.’

In the Frank case, O’Linn J took up a literal reading of Article 81, concluding that Parliament has the ultimate authority on the interpretation of the Constitution, even referring to the legislature as a ‘High Court of Parliament’. This is however a grave misinterpretation of the constitutional framework in Namibia and is contrary to practice.

Writing in a publication celebrating 30 years of the Supreme Court of Namibia, Schultz and Hijarunguru correctly conclude that ‘the court has no mandate to promote politics, that is majorities of the day, but it has to give effect to the eternal values arising from what we would call the deep structure of the Constitutional text.’

The Namibian Constitution was promulgated as the anti-thesis to its dark colonial past. It holds inside a vault, the fundamental and omnipotent values of the Namibian people that guide the cultivation of a society pillared on ‘the inherent dignity and equal and inalienable rights of all members of the human family’ (Preamble). One of the reasons for establishing a new legal system and granting the courts the authority to review all legislation was to safeguard the rights of minority groups and individuals who lack sufficient protection through democratic processes.

In fact, the Namibian Constitution has entrenched a Bill of Rights that cannot be amended in any manner (i.e., elected representatives, referendums or otherwise) that would serve to undermine or diminish these rights (Article 131) – in this instance, the rights to equality and dignity. Every decision by the court must therefore inch us closer to these aspirations, and every attempt to undermine them must by virtue of duty, be reckoned with by the court.

A slippery slide’

As former Judge of the Constitutional Court of South Africa, Yacoob J warns; ‘the absence of appropriate vigilance might result in the beginnings of a slippery and inevitable slide from constitutional supremacy to parliamentary supremacy.’ Returning to Digashu, – in upholding the right to equality and dignity of same-sex couples in Namibia – the SC has shown that it is committed to upholding the Constitution, protecting (unpopular) minorities, and is not subject to populist views of the majority, but to the principles, values and ideals enshrined in the Constitution.

The ball is now in the court of the executive and legislature. Though Namibia is celebrated for its adherence to the rule of law, the current climate on the issue of same-sex marriages summons the need for the ‘appropriate vigilance’ that Yacoob J cautions us about. It is important that the legislature be correctly advised that any law enacted to override the SC’s interpretation of the constitution, prospectively or retrospectively, and in Digashu and otherwise, would be a breach of the rule of law, blur the separation of powers, violate the rights of minorities, and ultimately pave the way for parliamentary sovereignty to creep through into the back door.

Want to learn more?

Read: The Respect for Marriage Act as Both a Gay Rights Victory and Defeat

Read: Marriage For All: Same-Sex Marriage in Japan

Read: Perspectives on Same-Sex Marriage Legalisation in Ukraine

Read: Freedom! ’21: Latest Developments in Same-Sex Marriage in Taiwan

Read: LGBTQ Liberty After the Fall of Roe v Wade

Recently, the Indian Supreme Court discussed the idea of expanding the traditional idea of a family unit in Deepika Singh v. CAT. The main issue in the case was the interpretation of Rule 43 of the Central Civil Service (Leave) Rules of 1972 regarding the maternity leave given to a female civil servant. This article discusses the above-mentioned case and analyses its far-reaching implications. 

Background

The appellant was a nursing officer at the Post Graduate Institute of Medical Education and Research (PGIMER) in Chandigarh. In 2014, she married Amar Singh, who already had two children from his previous marriage. The authorities at PGIMER rejected her application for maternity leave on the ground that she already had two surviving children and had availed of her childcare leave for two children born from her spouse’s first marriage. The appellant moved the Central Administrative Tribunal (CAT) against the decision by PGIMER. The CAT dismissed her application on the grounds that, per Rule 43 of the Central Civil Service Rules, maternity leave can only be granted to a female civil servant if she has less than two surviving children. The tribunal considered her first biological son as her third child and thereby held the decision by PGIMER as valid. The High Court upheld the judgment of the CAT and dismissed the petition filed by the appellant under Article 226 of the Constitution.    

Analysis of the judgment

The Supreme Court ruled in favour of the appellant who had been denied maternity leave, asserting that ‘family’ paradigms are changing. While dismissing the petition, the High Court declared that the appellant was not entitled to maternity leave because she had already taken childcare leave mentioned in the Rule 43 C of the Central Civil Service (Leave) Rules of 1972 for two children born out of her spouse’s first marriage. This reasoning is flawed because, as the Supreme Court rightly observed in Deepika Singh v. CAT, childcare leave and maternity are distinct from one another. Taking childcare leave should not preclude civil servants from accessing maternity leave. There are two significant aspects of this judgment; first, the employment of purposive construction by the court. By placing reliance on KH Nazar v. Mathew K Jacob and Badshah v. Urmila Badshah Godse, the Supreme Court held that the “provisions of Rule 43(1) must be imbued with purposive construction”. This implies that a statute must be interpreted in a way that gives effect to its legislative intent, thus allowing for a more expansive interpretation of rights. Second, the Court addressed the changing social realities of the family as a unit: “The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both the many circumstances which may lead to a change in one’s familial structure and the fact that many families do not conform to this expectation, to begin with.” This inclusive interpretation by the Supreme Court is welcoming as it makes space for households comprised of unmarried relationships, queer relationships, or guardians and caretakers. This is momentous not only because such families will be entitled to protection under the law, but also because they will receive social welfare benefits.

Inclusiveness

In rejecting the traditional socio-legal understanding of ‘family’ as defined by a married mother and father, this judgment takes forward the idea of inclusiveness that was first discussed in Naz Foundation where the Division Bench of the Delhi High Court declared Section 377 of the Indian Penal Code as unconstitutional. This Section criminalized sexual acts against the ‘order of nature.’ The court declared that ‘inclusiveness’ is the underlying theme of our constitution and those perceived by society as ‘different’ must not be excluded.      

Conclusion

This judgment is significant because it is a crucial step towards the re-imagination of family paradigms in India. This re-imagination is necessary because many families do not conform to orthodox paradigms of the nuclear family. This judgment reaffirms what Lawrence Friedman famously wrote in his 1969 paper titled, ‘Legal Culture and Social Development,’ that legal institutions are not only responsive to social change but also play a definite role shaping it.