Author: Divya Mishra, City Law College
To the Point
The question of same-sex marriage is no longer confined to moral debates or cultural discomfort; it has become a pressing constitutional concern. At its heart lies a simple yet profound inquiry: can a constitutional democracy that guarantees equality, dignity, and personal liberty continue to deny a section of its citizens access to the institution of marriage solely on the basis of sexual orientation?
In India, marriage is far more than a private arrangement. It is a legally recognised status that unlocks a wide spectrum of civil, social, and economic rights. From inheritance and maintenance to medical consent and social security, marriage functions as a gateway to full participation in civic life. The exclusion of same-sex couples from this institution, therefore, is not a symbolic denial—it is a material deprivation with real-world consequences.
The Supreme Court’s decision in Supriyo @ Supriya Chakraborty v. Union of India (2023) brought this issue into sharp focus. While the Court acknowledged that queer individuals possess the right to form intimate relationships and live with dignity, it refrained from recognising same-sex marriage, deferring the matter to the legislature. This judicial restraint has created a constitutional contradiction: relationships are recognised, but the legal framework necessary to protect them remains absent.
Globally, constitutional courts have increasingly interpreted equality and liberty to include the right to marry irrespective of sexual orientation. India now finds itself at a decisive moment—whether to allow constitutional promises to remain abstract or to translate them into lived equality for all citizens.
Use of Legal Jargon
The legal discourse surrounding same-sex marriage is firmly rooted in constitutional doctrine. Article 14 of the Indian Constitution enshrines the principle of equality before the law and equal protection of laws. Any exclusionary legal framework must satisfy the test of reasonable classification, which requires an intelligible differentia and a rational nexus with the object sought to be achieved. Denying marriage to same-sex couples fails this test, as sexual orientation bears no rational connection to the objectives of marriage laws.
Article 15 prohibits discrimination on grounds of sex, a provision that has been judicially interpreted to include sexual orientation. Article 19(1)(a) protects expressive freedom, which encompasses the right to express one’s identity and relational choices. Article 21, perhaps the most dynamic provision, guarantees the right to life and personal liberty, which has evolved to include dignity, decisional autonomy, and intimate choice.
The doctrine of constitutional morality plays a central role in this debate. It requires that constitutional values prevail over prevailing social prejudices. Closely linked is the concept of transformative constitutionalism, which envisions the Constitution as an instrument to redress historical injustices and restructure unequal power relations.
Marriage laws such as the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 operate within this constitutional framework. When statutory provisions conflict with fundamental rights, constitutional supremacy mandates reform. The continued heteronormative interpretation of marriage statutes thus raises serious concerns of indirect discrimination and arbitrariness.
The Proof
The constitutional justification for recognising same-sex marriage emerges from both judicial reasoning and practical realities. Over the decades, the Supreme Court has consistently expanded the scope of fundamental rights to reflect evolving understandings of liberty and dignity. This evolution underscores the principle that constitutional interpretation cannot remain frozen in time.
In Justice K.S. Puttaswamy v. Union of India (2017), the Court unequivocally recognised privacy as a fundamental right. More importantly, it affirmed that sexual orientation is an intrinsic part of individual identity and autonomy. This judgment dismantled the notion that the state can intrude into private, consensual relationships based on moral disapproval.
This reasoning found concrete application in Navtej Singh Johar v. Union of India (2018), where the Court decriminalised consensual same-sex relations. The judgment acknowledged the profound harm inflicted by decades of criminalisation and affirmed that constitutional morality must override social morality. However, while Navtej removed the threat of criminal sanction, it did not address the absence of legal recognition for same-sex relationships.
The gap between decriminalisation and recognition has tangible consequences. Same-sex couples remain excluded from protections relating to inheritance, adoption, spousal benefits, and medical decision-making. In moments of crisis—hospitalisation, death, or separation—this exclusion becomes acutely visible. The law’s silence translates into vulnerability.
Comparative evidence further strengthens the case for recognition. Jurisdictions that have legalised same-sex marriage report no adverse impact on heterosexual marriages or social stability. Arguments based on procreation are inherently flawed, as Indian law does not condition marriage on the ability or intention to have children. The persistence of such arguments reflects social anxiety rather than constitutional reasoning.
Abstract
This article critically examines the legal and constitutional dimensions of same-sex marriage in India. It traces the judicial journey from criminalisation to conditional acceptance of LGBTQ+ identities and evaluates the Supreme Court’s reluctance to extend marital recognition. The article situates the Supriyo judgment within the broader framework of constitutional morality and separation of powers, highlighting the resulting tension between rights recognition and remedial action.
By engaging with comparative constitutional jurisprudence, the article demonstrates that marriage equality is neither unprecedented nor radical. Instead, it is a logical extension of established rights to dignity, autonomy, and equality. The article also explores the socio-legal implications of non-recognition, particularly in relation to family law, succession, and social welfare. It concludes that legislative intervention is essential to fulfil the Constitution’s transformative promise.
Case Law
Indian Jurisprudence
National Legal Services Authority v. Union of India (2014)
This landmark judgment recognised transgender persons as a distinct legal category and affirmed the centrality of self-identification. The Court emphasised that fundamental rights are not contingent on societal approval, laying a foundational principle for LGBTQ+ equality.
Justice K.S. Puttaswamy v. Union of India (2017)
The Court elevated privacy to the status of a fundamental right and explicitly acknowledged sexual orientation as a protected aspect of identity. This decision decisively rejected moral paternalism in matters of personal choice.
Navtej Singh Johar v. Union of India (2018)
By reading down Section 377 of the IPC, the Court decriminalised consensual same-sex relations. The judgment recognised the historical marginalisation of the LGBTQ+ community and reaffirmed the supremacy of constitutional morality.
Shafin Jahan v. Asokan K.M. (2018)
The Court upheld the right to choose one’s partner as an essential aspect of personal liberty, reinforcing decisional autonomy in intimate relationships.
Deepak v. State of Haryana (2019)
The Punjab and Haryana High Court extended constitutional protection to same-sex live-in couples, recognising their right to cohabit without interference.
Arunkumar v. Inspector General of Registration (2021)
The Madras High Court adopted an inclusive interpretation of marriage laws, emphasising gender identity and constitutional values over rigid statutory interpretation.
Supriyo @ Supriya Chakraborty v. Union of India (2023)
The Supreme Court declined to recognise same-sex marriage, citing legislative competence. However, it acknowledged the discrimination faced by queer couples and urged the State to ensure non-discriminatory access to certain civil entitlements.
Global Jurisprudence
Lawrence v. Texas (2003)
The U.S. Supreme Court invalidated laws criminalising same-sex intimacy, affirming the right to private, consensual conduct.
Goodridge v. Department of Public Health (2003)
The Massachusetts court held that denying marriage to same-sex couples violated equality guarantees and perpetuated stigma.
Obergefell v. Hodges (2015)
The U.S. Supreme Court recognised same-sex marriage nationwide, grounding its reasoning in dignity, autonomy, and equal protection.
Minister of Home Affairs v. Fourie (2005)
South Africa’s Constitutional Court held that excluding same-sex couples from marriage violated constitutional principles, prompting legislative reform.
These decisions reflect a global constitutional shift towards full recognition of LGBTQ+ relationships.
Conclusion
Same-sex marriage represents a claim to equal citizenship, not a demand for preferential treatment. The Indian Constitution promises dignity, liberty, and equality to every individual, irrespective of identity. While judicial decisions have progressively dismantled criminal and social barriers faced by the LGBTQ+ community, the absence of marital recognition remains a significant constitutional gap.
The Supriyo judgment underscores judicial caution but also exposes the limits of deference. Fundamental rights cannot remain perpetually contingent on legislative action. Article 14’s prohibition of arbitrariness and Article 21’s protection of dignity make continued exclusion increasingly untenable.
Marriage functions as a stabilising legal institution that protects individuals in times of vulnerability. Denying access to this institution perpetuates inequality and insecurity. Legislative reform—particularly through gender-neutral amendments to the Special Marriage Act—is essential to give meaningful effect to constitutional values.
Ultimately, constitutional morality requires more than tolerance; it demands inclusion. Recognising same-sex marriage would affirm the Constitution’s transformative vision and ensure that dignity is not selectively distributed, but universally guaranteed.
