ABSTRACT
This paper analyzes the reasoning behind the 2023 Supreme Court of India judgement on the judicial acceptance of same sex marriage which has profound consequences for India’s constitutional democracy and social justice. In this case, the Court of Constitution Bench of five judges, ruled with a 5:0 majority that same sex marriages cannot be treated as legally recognized marriages because the right to marry is not a fundamental right under the Constitution. Even so, the court was deeply divided on other important questions such as the nature of State obligations, the degree of judicial review, and the scope of equality as provided by Articles 14, 15, and 21.
This work analyzes the legal reasoning of the majority and minority opinions in the context of the Constitution alongside the foundational precepts of Navtej Singh Johar v. Union of India (2018) and KS Puttaswamy v. Union of India (2017). It further evaluates the impact of the judgment within the social context of India’s LGBTQIA+ community to determine if the judgment embodies a progressive recognition of rights or a more timid defiance of the dominant socio-political culture.
Through the study of judicial writings, court opinions, and public reception, this paper attempts to study the impact of the judgment on the Indian legal system and the ongoing quest for equality and non-discrimination, integrating all the dimensions that are crucial to understanding this judgment.
3. KEYWORDS
- Same-Sex Marriage, 2. Supreme Court of India, 3. Constitutional Rights, 4. LGBTQIA+ Rights, 5. Equality and Non-Discrimination, 6. Judicial Reasoning.
4. INTRODUCTION
The year 2023 was a watershed moment in the field of Indian constitutional jurisprudence that started with the Supreme Court’s judgment in Supriyo v. Union of India which brought the issue of legal recognition of same-sex marriages before the highest court of law in India. The case was filed as a batch of petitions under Article 32 of the Constitution, which challenged the statutory regime that currently only recognizes heterosexual marriage as legal marriage, on the basis that this regime excluded non-heterosexual marriages and therefore, violated the fundamental rights of the petitioners under Articles 14, 15, 19 and 21 of the Indian Constitution. The original petitioners, who identified as queer individuals or same-sex couples, sought recognition of civil marriage rights under laws applicable for all citizens, primarily, the Special Marriage Act, 1954.
The case was heard by a Constitution Bench of five Justices (Chief Justice D.Y. Chandrachud and Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha.) Although the Court delivered a unanimous judgment dismissing the petitions and rejecting legal recognition of same-sex marriage, the Bench was divided starkly in its reasoning. The majority of the opinions, which included Justice Bhat’s opinion (for himself and two others), determined that there is no fundamental right to marry under the Indian Constitution. The majority opinion added that there was a clear separation of powers in this case, declaring that the judiciary cannot create a legal regime when none exists in statutory law. The minority opinion (by Chief Justice Chandrachud, and Justice Kaul), determined that the right to form civil unions exists and that the State should be required to exercise its powers to ensure that civil partners can access welfare and legal entitlements.
This divide has useful consequences. On one hand, it reveals judges’ hesitance to read socio-legal institutions like marriage through a constitutional lens. On the other, it signifies a continuing debate about whether the judiciary is required to engage in remedying structural discrimination in the legislative silence. In particular, the judgment raises questions about the epistemic limits of the transformative Constitution doctrine—for there is a view that constitutional interpretation is not only about textualism and clarity but also about using constitutional interpretive norms as an avenue for social change.
The Supriyo ruling represents not merely a jurisprudential ruling but also and equally a historical moment of reckoning for India’s LGBTQIA+ community, which in recent years enjoyed important moments of victory, such as decriminalization of Section 377 in Navtej Singh Johar v. Union of India and the recognition of privacy rights in Justice K.S. Puttaswamy v. Union of India. Given that progressive backdrop, denial of marriage equality takes the form of a dramatic backward step or at least a standstill in the process of expanding equal rights. This research paper is intended to critically analyze the rationale adopted by the majority and minority opinions in the Supriyo matter. It will place this judgment within the larger structure of Indian constitutional law and consider its impact upon equality, liberty, and the rights of sexual minorities. It will also consider and assess the social significance of the judgment and whether it advances or hinders inclusive citizenship in a pluralistic democracy like India. Through an analysis of judicial opinions, relevant precedents, and academic commentary, it seeks to determine if the Court’s approach supports the notion of constitutional morality or yields to legislative inertia and social conservatism.
5. RESEARCH METHODOLOGY
This research paper adopts a doctrinal and qualitative methodology that is primarily concerned with reviewing and analyzing laws, constitutions, case law, and scholarship. The purpose of this research is to analyze and critically assess the reasoning and effect of the Supreme Court’s 2023 judgement in Supriyo v Union of India as it related to constitutional rights, equality, and LGBTQIA+ justice.
The study is based on primary sources, including:
- The judgement of the Constitution Bench of the Supreme Court in Supriyo v. Union of India, [(2023) SCC OnLine SC 1461];
- The previous landmark constitutional cases of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, decriminalization of homosexuality, and Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, where the right to privacy was upheld;
- Constitution Articles: Article 14 (Right to Equality), Article 15 (Prohibition of Discrimination), Article 19 (Freedom of Expression and Association), and Article 21 (Right to Life and Personal Liberty).
Secondary sources consist of research articles, journal articles, news commentaries, and reports by legal scholars and organizations. They help explain the social and constitutional implications of the ruling and provide insight into the reaction of civil society and the LGBTQIA+ community to the decision.
The research also presents how comparative analysis can assess the variation between the majority and minority opinions in the judgment. In other words, its understanding of the constitutional rights at issue and whether it upholds or deviates from the transformationist spirit of the Indian Constitution.
This was beneficial in situating the ultimate and wider legal and social implications of the Court’s decision and whether these are compliant or contrary to the advancement of, equal rights for queer people.
6. LITERATURE REVIEW
The discussions around same-sex marriage in India over the last ten years have been thoroughly developed by important judicial decisions and new academic and theoretical interpretations. However, the Supreme Court ruling in Supriyo v. Union of India [(2023) SCC OnLine SC 1461] has generated significant critical academic scholarship since it refused to legally recognize same-sex marriages, even while recognizing the validity of contradictory personal laws. This review has examined the literature on LGBTQIA+ rights, constitutional morality, and development in equality doctrine in India to help contextualize the decision-making in the Supriyo case.
A central document in this analysis is the Supreme Court’s decision affirming Navtej Singh Johar v. Union of India, [(2018) 10 SCC 1], which decriminalized consensual same-sex relations by reading down Section 377 of the Indian Penal Code. The Court embraced individual dignity, autonomy, and identity as central concepts in Article 21, which is highly regarded innovation. There was a great deal of academic commentary released in the wake of this ruling and it was almost uniformly positive, praising the court for taking what was acknowledged as a pivotal step towards recognizing LGBTQIA+ rights. Danish Sheikh calls it a “movement” away from moral conservatism and a “jurisprudential shift” towards a framework based on constitutional morality and human rights in his article “Queer Constitutionalism.” Sheikh argues that, through Navtej, the judiciary gave a close place to dignity in legal recognition establishing a capricious defined dignity that now functions as a part of a continuum of equality based claims, such as marriage.
Further constitutional “scaffolding” was established in Justice K.S. Puttaswamy (Retd.) v. Union of India, [(2017) 10 SCC 1], where a nine-judge bench upheld the fundamental right to privacy as “incidental to Life, and Liberty”. Scholars like Gautam Bhatia have noted that this decision provided a significant conceptual scaffolding for seeing LGBTQIA+ relationships as encompassed in the Constitution’s “intimate zone.” Bhatia further argues that if the right to privacy embodies decisional autonomy regarding matters of intimacy, then advancing a separate status for recognition of same-sex unions is inconsistent with the Court’s prior decisions.
Even with these precedents, it is fair to say that the Supriyo judgment elicited some criticisms. The Court acknowledged the social and legal difficulties that queer couples experience; however, it declined to direct the legislature to create a regime to recognize same-sex marriages/civil unions. Arvind Narrain—a prominent legal academic and LGBTQIA+ activist—characterizes this development as a “retreat from constitutional morality.” He argued that by not responding meaningfully, the majority opinion effectively forsook the momentum created by Navtej and Puttaswamy in favour of inertia that privileged legislatures over substantive justice at the individual level. He characterised the judgment as a form of judicial crisis of imagination where the Court refused to engage with the Constitution as a document in relation to the art of governance, with a focus on ensuring full citizenship for all.
Another key voice is Anup Surendranath who notes the reliance on separation of powers by the Court is problematic when fundamental rights are in question. He points out that constitutional courts are expected to step in when majoritarian institutions fail to provide dignity to marginalized groups. In this case, the Court’s refusal to recognize marriage or civil unions for queer couples altogether puts them in a state of legal limbo, and this means they do not have, as a matter of course, any of the rights, protections, or entitlements that heterosexual couples casually enjoy.
Comparative constitutional law offers us an important framework through which to assess the position taken by the Indian Supreme Court. Other jurisdictions, such as South Africa (Minister of Home Affairs v. Fourie, 2005 (1) SA 524 (CC)), the United States (Obergefell v. Hodges, 576 U.S. 644 (2015)), and Taiwan (Interpretation No. 748, Judicial Yuan, 2017), have normalized same-sex marriage with a corresponding recognition of equality and human dignity. Holning Lau suggests that in his comparative LGBTQIA+ rights work, courts in these jurisdictions recognized the need for cultural sensibilities, but generally, all eventually allowed constitutional values to trump social conservatism. India’s Supriyo ruling illustrates how the Supreme Court was unable to implement these values, despite the ability to take a broad interpretation of equality under Article 14 and non-discrimination under Article 15 that textually exists through constitutional provision and precedent.
In sum, these legal and scholarly sources highlight the distance between the constitutional promise and judicial action in Supriyo. The scholarship documents the way the decision departs from a progressive trajectory of jurisprudence and exposes an indeterminate ambivalence between judicial deference to Parliament and the transformative urges of the Constitution. This paper will draw upon these scholarly sources in order to critically evaluate whether the Court’s reasoning is aligned with India’s constitutional commitments or reflects a retreat before societal inertia and heteronormativity.
7. METHOD
The process was carried out procedurally and sequentially, allowing me to produce a more comprehensive understanding and analysis of the 2023 Supreme Court ruling on same-sex marriage in Supriyo v. Union of India. The procedure consisted of the following steps:
- Case Selection and Reading
The research process began with selecting Supriyo v. Union of India as the focus case study. The full judgment text, including both the majority and minority opinions, were read in their entirety to help me identify the relevant legal arguments and constitutional readings.
- Identifying Core Constitutional Provisions
Articles 14, 15, 19, and 21 of the Indian Constitution were recognized as key provisions in this case. Investigation of these articles was done through various constitutional texts, marked case law, and jurisprudential interpretations to disentangle interpretations of these articles previously.
- Doctrinal legal analysis
The doctrinal approach considered the reasoning of the justices by analyzing the procedural structure of the majority and dissenting opinions to identify how the justices affirmed and interpreted fundamental rights in the pursuit of marriage equality.
- Comparative Legal Study
The Indian position was compared with those of foreign constitutional courts that recognized same-sex marriage. Specifically, the case law from the United States (Obergefell v. Hodges, 576 U.S. 644 (2015)), South Africa (Minister of Home Affairs v. Fourie, 2005 (1) SA 524 (CC)), and Taiwan (Interpretation No. 748, Judicial Yuan, 2017) were studied to assess how other constitutional systems dealt with these or similar questions.
- Secondary Literature Review
The bibliographic sources were legal literature, such as law review articles and articles from primary databases such as SCC Online and JSTOR, policy papers and media commentary from sources such as LiveLaw, The Hindu, and The Wire. The secondary literature was used to demonstrate the wider academic and public reaction to the judgment.
- Social Impact Assessment
To assess the social impact of the judgment, available reports and interviews with LGBTQIA+ organizations and civil society reaction were consulted. This is an important step to determine whether the judgment was a positive or negative step) for equality, in practice.
- Synthesis and Critical Reflection
All of the data was synthesized and we reflected on whether the judgment upheld the transformative spirit of the Constitution or denied the rights of marginalised communities. While the critique and reflection was built upon legal principles, there was also the recognition of social realities.
By following a systematic approach, the research was able to provide a comprehensive and all-around examination of the Supreme Court’s judgment, with respect to constitutional rights and social justice within India.
8. SUGGESTIONS
The 2023 Supreme Court judgement in Supriyo v. Union of India presented complicated questions concerning the parameters of constitutional rights and the extent of the judiciary in effecting social change. The court ruled as a bench of nine that there is no fundamental right to marry in the Constitution, but the extent to which the court refused to afford same-sex unions any type of recognition—even if merely a form of social or formal relationship–while recognizing both the dignity and autonomy of LGBTQIA + people, underscores the need for legislative and administrative intervention. I suggest the following steps as a means to
advance the rights of same-sex couples under the constitutional banner:
1. Establishment of a Civil Union Statute
India can consider paying attention to various international models that define civil unions or civil partnerships as a legal status distinct from marriage which offers most of the same rights and obligations as marriage for same-sex couples, and which allows those couples, should they so choose, to engage in certain behaviors using terminology that has no connection to marriage. A significant example is France’s Pacte Civil de Solidarité (PACS), introduced by Law No. 99-944 of 15 November 1999 and was used to legally recognize same-sex parties in a civil partnership without recognizing them as married. The PACS, and civil unions in general, was a substantial legal development which helped maintain balance in society.
A non-religious, civil union statute—which would occur outside of personal laws—would comply with and satisfy the equality guarantees in Article 14 and 15, and dignity and autonomy guarantees in Article 21.
2. Administrative and Welfare Reforms
Until legislation exists, the Union and State governments must act affirmatively to curb administrative discrimination against same-sex couples at the administrative level. These could include:
- Recognizing same-sex partners as “family” under hospital visitation policies;
- Allowing partners to be included as nominees for insurance policies and pension benefits;
- Allowing partners access to co-parental rights for adoption and guardianship;
- Recognizing shared tenancies, inheritance and succession rights; and
- Using gender-neutral language in government forms and policies.
These are all measures that are consistent with the notion of constitutional morality – a concept endorsed by the Supreme Court in Navtej Singh Johar and Joseph Shine – and which mandates that the State protect rights even in the absence of statutory backing.
3. Formation of a National LGBTQIA+ Commission
To address systematic discrimination and create policies that serve to include, a National Commission for LGBTQIA+ Persons should be established, as it has been done for the National Commission for Women (NCW) and the National Commission for Minorities (NCM). This legislation-based national level body should have powers to audit States’ compliance in performing their obligations under fundamental rights and accept complaints and recommend legislative or other changes.
The Commission would also support awareness and sensitizing programs and provide training for police, health professionals and educators. In NALSA v. Union of India, the Supreme Court called for the State to protect the dignity and identity of gender and sexual minorities.
4. Comprehensive Anti-Discrimination Legislation
India does not currently have a consolidated anti-discrimination law that violates differential treatment including discrimination on the basis of sexual orientation or gender identity. India needs to have an inclusive law such as the UK Equality Act 2010 which applies to the public and private sectors and holds institutions accountable.
A consolidated law would set out enforceable protections and remedies to individuals in employment, housing, education, and health. The Supreme Court’s progressive reasoning in K.S. Puttaswamy noted that privacy and dignity was fundamental to the right to life and will necessarily include sexual autonomy and identity.
5. Judicial and Legal Education Reforms
In order to move toward creating a more inclusive legal culture overall, it is critical for the Bar Council of India and the Judicial Academies to include a module on LGBTQIA+ sensitivity and anti-discrimination as a part of their syllabi and training programs. This is important to ensure new judges and lawyers can internalize the lived experiences of queer persons in addition to understanding the constitutional rights of individuals.
The Court in Supriyo articulated that for a meaningful conversation that engenders change, we must transform society through legal and political methods, but that we also have a duty to reflect internally as a judiciary to avoid intervening passively with the same approaches that will perpetuate discrimination as status quo.
9. CONCLUSION
The judgment of the Supreme Court of India in Supriyo v. Union of India (2023) is a momentous stage in the response of Indian constitutional jurisprudence to the challenges presented in this case. The question in this case involves not just the straightforward inquiry of whether same-sex couples have a right to marry, but also a more fundamental query into how the Indian judiciary interprets and applies abstract constitutional values, such as dignity, equality, liberty, and non-discrimination, to a marginalized social group.
Though the Court’s unanimous ruling held that same-sex marriage could not be legally recognized, the plurality of opinions revealed a sharp divergence among the constitutional bench concerning the judiciary’s role to enforce fundamental rights when a statute is silent. The majority opinion, particularly that of Justice Bhat, obsessed with the separation of powers doctrine, emphasized the bounds of judicial engagement regarding topics considered legislative turf. This orientation, while preventing unconstitutionality, is recognized by many as abandoning the transformative character of the Indian Constitution found in earlier judgments such as Navtej Singh Johar v. Union of India and Justice K.S. Puttaswamy v. Union of India.
In contrast, the minority opinion, in particular that of Chief Justice D.Y. Chandrachud, reiterated the judiciary’s ethical obligation to ensure that queer families have civil union rights and the legal benefits available under the Constitution. His acknowledgement of the right to intimate association and the obligation of the State to provide equivalent legal frameworks for every partnership that is not heterosexual, needed to reflect the purpose of constitutional morality and inclusion.
This decision presented a contradiction; it accepted the legality of queer identities, but this decision lacked the corresponding institutional support of legality. This decision also indicated the limits of judicial power regarding legislative and social action. The rejection of same-sex marriage means a limitation on substantive equality under Articles 14, 15, and 21 of the Indian Constitution. and at the same time, there are continued possibilities for civic and legislative initiatives for LGBTQIA+ in India.
This study has scrutinised the legal rationale, doctrinal conflicts, legal and social ramifications of the judgement. It finds that while the judgement may be constitutionally limited, it does not serve to fully realise the constitutional promise of equality and dignity for all. The future of marriage equality in India is now largely dependent on legislative reform and continuous public campaigning. Until that occurs, the LGBTQIA+ community remains in a legal limbo, duly acknowledged in identity but not in law.
AUTHOR:
Richa Coutinho.
NMIMS, Kirit P Mehta School Of Law.