Abstract
The question of validating same – sex marriage in India reached its climax in Supriyo @ Supriyo Chakraborty v. Union of India (2023). A five-judge Constitution Bench of the Supreme Court of India gave a split verdict. All the judges agreed the LGBTQIA+ persons have dignity, equality, and freedom of choice, but the court refused to legalize same sex marriage and leave the matter to the legislature. The court refused to read gender- neutral terms into the Special Marriage Act, 1954 (SMA). This research paper studies the background of the case, the reasons given by both the majority and minority judges and link the case with the earlier judgements like Navtej Singh Johar (2018) and K.S. Puttaswamy (2017), where court validates privacy, dignity, and autonomy of individuals. This research further compares India’s approach with other countries where same-sex marriage is legal. Finally, it suggests possible reforms like amending the Special Marriage Act, creates civil union laws, and spread awareness for social acceptance. In response, the Union Government constituted a committee (2024) to explore non-marital rights and administrative measures for queer persons (e.g., joint bank accounts, ration cards, hospital visitation), but legislative movement on marriage remains absent. This paper concludes that though the judgement was cautious, it kept the doors open for future progress.
Keywords
Same- sex marriage; Marriage equality; Dignity; Special Marriage Act; LGBTQIA+ rights; Supriyo v. Union of India; constitutional law; Supreme Court; Gender-neutral; Adoption
1. Introduction
In India, Marriage has been considered a sacred bond since ancient times. It is not only a personal or emotional decision but also a legal relationship, follows with rights & duties. It affects many aspects of life like inheritance, adoption, taxation, and medical decisions, and social recognition. To deny marriage rights to same-sex couples means denying them access to all these protections.
The Supreme Court’s judgement in Navtej Singh Johar v. Union of India (2018), which decriminalized same-sex relations by striking down section 377 of the IPC, a new question naturally came up whether same –sex couples could marry? The petitioners before the Court argued that without having right to marry, LGBTQIA+ community will always remain unequal citizens.
This issue again arises before the Supreme Court in 2023 in Supriyo@ Supriya Chakraborty v. Union of India. Though Court strongly supported the dignity of the queer persons, but refused to give marriage rights, and stated that any amendment relating to marriage laws was not their role, it can only be done by the legislatures as only Parliament had the power to make such amendment.
This research paper tries to explain and analyze the case, the judges’ opinions, and its significance, and it also look at the Constitutional provisions, views of different Scholars, and international comparisons, while giving some suggestions for reforms.
2. Research Methodology
This research paper uses doctrinal and analytical methods. The primary sources include the interpretation of the Supreme Court cases such as Supriyo (2023), Navtej Johar (2018), NALSA v. Union of India (2014), K.S. Puttaswamy (2017), and Shafin Jahan (2018), statues (SMA, JJ Act/ Adoption Regulations), official documents (PIB), and reputable explainers, with light comparative references (Nepal; global snapshots) to contextualize legislative options.
The secondary sources include commentaries, law review articles, SCC Online blogs, and comparative legal studies. The research methodology is analytical as it studies how the Court interpreted Articles 14, 15, 19 and 21, and why it left the decision to Parliament.
3. Review of Literature
The topic of same-sex marriage has been widely debated in recent years, especially after the 2018 Navtej Johar judgement. Many scholars discussed different ways to bring marriage equality in India. Some writers felt that SMA could be read in a way to allow same-sex marriages, but others warned that rewriting of family laws by judges could disturb the balance of powers between the legislature and judiciary.
- Gautam Bhatia (Indian Constitutional law and Philosophy Blog, 2023) argues that the Court affirmed dignity but failed to extend full equality, creates a gap between rights in theory and rights in practice.
- Alok Prasanna Kumar (2023), Indian Law Review) writes that the Court’s refusal shows “judicial restraint” but at the cost of LGBTQIA+ persons who faces discrimination in family law continuously.
- SCC Online Blog (2023) highlights that although the CJI accepted the idea of “civil unions”, but due to lack of proper law the queer couples still remain unprotected.
- Arvind Narrain (2023) explained that Constitutional law of India has slowly developed like from decriminalizing homosexuality (Navtej Johar case), then moving to the right to privacy and personal freedom ( Puttaswamy case). But still marriage rights are not given, true equality is still missing.
- International writers like Mark Wojcik (Comparative Family Law, 2019) say that in many countries, marriage equality is treated as part of basic human rights.
Overall literature shows that while Indian Courts have respected the dignity and privacy for queer people but not yet legalize the marriage rights for them unlike many other countries.[9]
4. Analysis of the 2023 judgement
Background:
The petitioner argued that Special Marriage Act, 1954 (SMA) should be read in a gender-neutral way and excluding the queer peoples from the Act violated their fundamental rights enshrined under Articles 14, 15, 19, and 21 of the Constitution.
The Union government opposed the petitions, and sates that marriage is a matter of social policy and only Parliament has the power to decide.
Main issues before the Court
- Does the Constitution give the fundamental right to same –sex marriage?
- Whether the SMA can be interpreted to include same –sex couples?
- What is the role of the judiciary in recognizing new forms of marriage?
Judgement
- CJI Chandrachud & Justice Kaul (Minority): They said that same-sex couples have the right to form unions, and the State must recognize them with legal benefits. CJI also said that adoption rights should be available to queer couples.
- Justice Bhat, Justice Narsimha & Justice Kohli (Majority): They rejected the marriage rights as well as adoption rights for same sex couples and states that the Court can’t amend the SMA.
The Court held there is no constitutional right to marry per se; marriage is largely statutory. Thus, recognition of same-sex marriage under SMA lies with Parliament. The Court reaffirmed LGBTQIA+ persons dignity but declined to rewrite SMA. Adoption split the bench: the majority upheld marital requirements for adoption, while the dissent criticized the assumption that marriage ensures stability.
6. Analysis: Constitutional Principles and Institutional Design
The case reflects the tension between equality principles and statutory heteronormativity. The majority showed restraint, focusing on separation of powers whereas the minority wanted judicial activism to fill the gap where Parliament has failed. On adoption, the majority relied on assumptions rather than evidence. Future reforms should recognize civil effects of relationships, even absent marriage.
7. Comparative Perspective
- U.S. (Obergefell v. Hodges): considered the same-sex marriage a part of the right to liberty and equality.
- South Africa (Minister of Home Affairs v. Fourie, 2005): Constitutional court validate same-sex marriage legal.
- Taiwan (2019): This is the first Asian country who allow same-sex marriage through legislation.
By comparing, India despite constitutional jurisprudence on dignity, remains conservative.
8. Suggestions (Law-Reform Blueprint)
1. Enact a Civil Union Act with equal civil effects.
2. Amend SMA to use gender-neutral terms.
3. Reform adoption law to allow joint adoption by any two adults.
4. Issue administrative orders for non-marital rights (bank accounts, hospital visitation).
5. Pass a comprehensive anti-discrimination law covering sexual orientation and gender identity.
9. Conclusion
The 2023 Supreme Court judgment reflects both progress and restraint. On the one hand, it validates the dignity, identity of LGBTQIA+ people but on the other hand, a step backward in terms of actual rights.
By refusing to allow same-sex marriage, the Court left the matter to Parliament.
While this may be correct from the point of separation of powers, it has delayed justice for same-sex couples. True equality requires not just the decriminalization of same-sex relationships but also giving them the right to marry and form families like everyone else.
India now faces a choice: to continue limiting queer rights or to move towards full marriage equality.
References (Bluebook 20th Edition)
- Supriyo @ Supriya Chakraborty v. Union of India, (2023) SCC SC 1515.
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- NALSA v. Union of India, (2014) 5 SCC 438
- Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368
- Obergefell v. Hodges, 576 U. S. 644 (2015)
- Minister of Home Affairs v. Fourie, 2005 (1) SA 524 (CC)
- Civil Marriage Act, S.C. 2005, c. 33 (Canada)
- Marriage (Same Sex Couples) Act 2013 (UK)
- Tiawan Const. Ct. Interpretation No. 748 (2017)
- Supreme Court of Nepal, Sunil Babu Pant v. Nepal Government (2007)
- Alok Prasanna Kumar, Marriage Equality and Judicial Restraint, 12 Indian L. Rev. 45 (2023)
- Gautam Bhatia, Equal Dignity and Marriage Rights in India, Indian Const. Law & Phil. Blog (2023)
- SCC Online Blog, Same-Sex Marriage Judgement: Key Takeaways, Oct. 2023
Prepared by:
Name: Ekta Agarwal
LLB Final Year
Institution Name: SCLC, Pune