Author: Hitesh Dhamat, National Law University Tripura
To the Point
The legal recognition of same-sex marriage in India remains a contentious issue, caught between evolving societal norms and a rigid legal framework rooted in traditional personal laws.In its 2023 ruling in Supriyo v. Union of India, the nation’s highest court denied same-sex marriages constitutional status, instead referring the issue to Parliament. This article examines whether the denial of same-sex marriage infringes fundamental rights under the Indian Constitution, particularly the rights to equality (Article 14), non-discrimination (Article 15), and personal liberty (Article 21). It analyzes the judicial reasoning, the interplay between constitutional and personal laws, and the broader socio-legal implications, advocating for legislative reform to align with India’s constitutional ethos of inclusivity.
Use of Legal Jargon
The discourse on same-sex marriage engages several legal doctrines, including the right to equality before the law, non-discrimination on grounds of sex, and the right to life and personal liberty. The judiciary’s interpretation of “reasonable classification” under Article 14, the scope of “sex” under Article 15, and the concept of “dignity” under Article 21 are pivotal. Although the Supriyo ruling emphasises judicial prudence in enlarging marriage laws, the principle of stare decisis ties courts to decisions such as Navtej Singh Johar v. Union of India, which decriminalised homosexuality. The tension between constitutional morality and statutory personal laws, governed by enactments like the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, underscores the legal complexity. Terms like locus standi, public interest litigation (PIL), and ultra vires are relevant in assessing the judiciary’s role in redefining marriage.
The Proof
The Indian Constitution guarantees fundamental rights that form the bedrock of arguments for same-sex marriage. Article 14 ensures equality before the law and equal protection of laws, subject to reasonable classification based on intelligible differentia and a rational nexus to a legitimate state objective. Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth, with “sex” increasingly interpreted to include sexual orientation following Navtej Johar (2018). Article 21, encompassing the right to life and personal liberty, has been expansively interpreted to include the right to privacy, dignity, and autonomy, as seen in Puttaswamy v. Union of India (2017).
The Supriyo case (2023) involved multiple petitions seeking recognition of same-sex marriage under the Special Marriage Act, 1954, and other personal laws. Petitioners argued that denying same-sex couples the right to marry violates their fundamental rights, citing global precedents like Obergefell v. Hodges (2015) in the U.S. The Union Government opposed the petitions, asserting that marriage is a socio-cultural institution defined by heteronormative norms and that redefining it falls within Parliament’s legislative domain.
Public sentiment, as reflected in surveys like the 2023 Pew Research Center study, shows growing acceptance of same-sex relationships in India, with 53% of urban respondents supporting marriage equality. However, personal laws, rooted in religious traditions, define marriage as a union between a man and a woman, creating a legal barrier. For instance, Section 5 of the Hindu Marriage Act, 1955, explicitly refers to marriage between a “bride” and “bridegroom.” Similarly, the Special Marriage Act, 1954, uses gendered language, complicating its application to same-sex unions.
Abstract
This article explores the legal battle for same-sex marriage in India through the lens of constitutional rights, focusing on the Supreme Court’s 2023 Supriyo v. Union of India ruling. It investigates whether it is against Articles 14, 15, and 21 of the Constitution to refuse same-sex couples the opportunity to get married. By analyzing judicial precedents, statutory provisions, and societal shifts, the article argues that the judiciary’s deference to Parliament reflects a cautious approach but leaves a gap in protecting marginalized communities. It proposes legislative amendments to the Special Marriage Act to ensure marriage equality, aligning with India’s constitutional commitment to equality and dignity.
Case Laws
1. Navtej Singh Johar v. Union of India (2018): The Supreme Court decriminalized consensual same-sex relationships by striking down parts of Section 377 of the Indian Penal Code, 1860. The Court held that sexual orientation is an intrinsic aspect of identity protected under Article 21’s right to dignity and privacy. This precedent laid the foundation for marriage equality arguments, emphasizing constitutional morality over societal prejudice.
2. K.S. Puttaswamy v. Union of India (2017): The Court recognized the right to privacy as a fundamental right under Article 21, encompassing personal choices in relationships. The judgment’s emphasis on autonomy and dignity bolstered claims for same-sex marriage as an extension of personal liberty.
3. Shafin Jahan v. Ashokan K.M. (2018): The Supreme Court upheld the right to choose one’s partner as part of Article 21, invalidating a Kerala High Court order annulling an interfaith marriage. This case supports the argument that denying same-sex marriage restricts personal autonomy.
4. Shakthi Vahini v. Union of India (2018): The Court emphasized the right to marry as a facet of personal liberty, directing protections for couples facing societal opposition. While focused on inter-caste marriages, the ruling’s principles apply to same-sex unions, reinforcing the need for legal recognition.
Conclusion
The Supriyo verdict underscores a critical juncture in India’s journey toward marriage equality. While the Supreme Court’s deference to Parliament respects the separation of powers, it delays justice for same-sex couples seeking equal recognition under the law. The judiciary’s reliance on precedents like Navtej Johar and Puttaswamy establishes that sexual orientation is protected under the Constitution, yet statutory barriers in personal laws persist. The denial of marriage rights deprives same-sex couples of legal protections, such as inheritance, maintenance, and adoption rights, perpetuating systemic inequality.
The way forward requires legislative action to amend the Special Marriage Act, 1954, to adopt gender-neutral language, as seen in jurisdictions like Canada and South Africa. Parliament should prioritize a comprehensive Marriage Equality Act to harmonize personal laws with constitutional mandates. Additionally, public awareness campaigns can bridge the gap between legal reforms and societal acceptance. The judiciary, while constrained, can continue to play a transformative role by interpreting existing laws inclusively in future cases. Until legislative reform is achieved, same-sex couples remain in a legal limbo, underscoring the urgency of aligning India’s laws with its constitutional ethos of equality, dignity, and justice.
FAQS
Does the Indian Constitution explicitly recognize same-sex marriage?
No, the Constitution does not explicitly mention same-sex marriage. However, Articles 14, 15, and 21 provide a framework for arguing that denying such marriages violates fundamental rights to equality, non-discrimination, and personal liberty.
Why did the Supreme Court refuse to legalize same-sex marriage in 2023?
In Supriyo v. Union of India, the Court held that defining marriage is a legislative function, not a judicial one. The majority argued that personal laws, which govern marriage, are rooted in heteronormative traditions and require parliamentary amendments for change.
Can same-sex couples marry under the Special Marriage Act, 1954?
Currently, the Special Marriage Act uses gendered language, implying marriage between a man and woman. The Supriyo ruling clarified that without legislative changes, the Act does not apply to same-sex unions.
What rights are same-sex couples denied without legal marriage?
Without legal recognition, same-sex couples lack rights to inheritance, maintenance, joint property ownership, adoption, and spousal benefits, which are available to heterosexual married couples.
What is the role of personal laws in this debate?
Personal laws, such as the Hindu Marriage Act and Muslim Personal Law, define marriage in heteronormative terms, creating a legal barrier to same-sex marriage. These laws are religion-specific and vary across communities.
Are there any ongoing efforts to legalize same-sex marriage in India?
Post-Supriyo, advocacy groups and activists are pushing for legislative reforms. Petitions and public campaigns urge Parliament to amend the Special Marriage Act or enact a new law for marriage equality.
How does India’s stance compare globally?
Unlike countries like the U.S., Canada, and South Africa, which recognize same-sex marriage, India lags due to its reliance on personal laws and legislative inaction. However, Navtej Johar aligns India with global trends in decriminalizing homosexuality.
Can same-sex couples adopt in India?
Under current laws, only married couples or single individuals can adopt. Since same-sex marriage is not recognized, same-sex couples cannot jointly adopt, though individual adoption is possible.
