Author: Anushka, Babu Jagjivan Ram Institute of Law, Jhansi
Abstract
The legal status of same-sex marriage in India lies at the crossroads of constitutional principles of equality and the nation’s entrenched socio-religious norms. While the judiciary has progressively affirmed the rights of LGBTQIA+ individuals, marriage as an institution remains legally inaccessible to queer couples. The Supreme Court’s 2023 ruling in Supriyo Chakraborty v. Union of India was a pivotal moment, as the court refrained from extending marital rights and instead left the matter to legislative deliberation. This article examines the constitutional foundations, judicial interpretations, statutory constraints, and the broader ramifications of withholding marital recognition from same-sex couples. It critically assesses whether such exclusion aligns with the principles of transformative constitutionalism and fundamental rights, particularly in a democratic framework that upholds equality and human dignity.
To the Point
In India Same Sex is not Legally Acceptable. Despite judicial recognition of the right to privacy, dignity, and identity for LGBTQIA+ individuals, the 2023 Supreme Court ruling has made it clear that the legal framework for marriage does not extend to same-sex couples. The responsibility to change this now rests with the Parliament.
Legal Development and Constitutional Grounding
The legal journey toward queer recognition began with the historic judgment in Navtej Singh Johar v. Union of India (2018), where the Supreme Court decriminalized homosexuality by reading down Section 377 of the Indian Penal Code. The judgment was a breakthrough in confirming the rights to dignity, privacy, and sovereignty under Article 21 of the Constitution. Yet, it did not go far enough to recognize positive rights such as the right to marry, adopt, or form a family.
The Constitution of India guarantees equality before law under Article 14 and prohibits discrimination based on sex under Article 15. In interpreting these provisions, the Supreme Court has often expanded the scope of constitutional protections. In Justice K.S. Puttaswamy v. Union of India (2017), The Supreme Court recognized that the right to privacy includes autonomy over intimate decisions, notably one’s sexual orientation. Similarly, in Shafin Jahan v. Asokan K.M. (2018), it upheld that the liberty to select a spouse is a fundamental element of personal freedom under Article 21.
These cases collectively created a strong constitutional foundation for marriage equality. However, they stopped short of a direct confrontation with the marriage laws themselves, which continue to reflect heteronormative assumptions.
Judicial Deference in Supriyo Chakraborty v. Union of India (2023): The Supreme Court’s Reluctance to Extend Marriage Rights”
In Supriya Chakraborty v. Union of India, a five-judge Constitution Bench was tasked with determining whether same-sex couples could be allowed to marry under the Special Marriage Act, 1954. Petitioners argued that denying marriage rights violated Articles 14, 15, 19, and 21, and was inconsistent with the Court’s prior jurisprudence.
Chief Justice D.Y. Chandrachud and Justice Kaul endorsed civil unions for same-sex couples, asserting that the State must not deny equal protection to queer citizens. However, the majority (Justices Bhat, Kohli, and Narasimha) declined to read down or reinterpret the Special Marriage Act to include non-heterosexual relationships. The majority emphasized the principle of judicial restraint, holding that the Court cannot rewrite legislation. The Chief Justice’s opinion, although progressive, did not amount to a binding majority on the issue of civil unions.
The judgment underlined that the right to marry is not explicitly guaranteed under the Constitution. It maintained that marriage, being a socio-legal institution regulated by law, falls within the exclusive domain of the legislature. Thus, while the right to choose a partner and cohabit is protected, the institution of marriage itself remains reserved for heterosexual couples under current statutes.
Statutory Limitations and Personal Law Constraints
India lacks a uniform civil code governing marriage. Instead, marriage is governed by a complex mix of religious and secular laws. The Hindu Marriage Act, 1955, defines marriage as a union between a “bride” and “bridegroom,” clearly excluding same-sex couples. Muslim personal law, Christian marriage law, and Parsi and Jewish matrimonial laws similarly do not accommodate non-heterosexual unions.
The Special Marriage Act, 1954 which was central to the litigation in Supriyo Chakraborty was seen as a possible secular route to recognition.
However, the Court refused to “judicially legislate” the Act to include queer couples, citing institutional boundaries. This reveals the limitation of legal reform when it comes through adjudication rather than legislation.
Furthermore, the absence of recognition excludes same-sex couples from numerous associated legal rights: adoption under the Juvenile Justice Act, succession under the Indian Succession Act, and access to benefits like spousal pensions or insurance.
Transformative Constitutionalism vs. Legislative Restraint
The idea of transformative constitutionalism a concept developed by the Indian judiciary implies that constitutional interpretation must enable the evolution of society toward liberty and equality. In this context, exclusion from marriage contradicts the transformative spirit of the Constitution.
However, the judiciary has adopted a more restrained posture post-Navtej Johar. The Supriyo Chakraborty ruling reflects a broader judicial philosophy that favors democratic deliberation and parliamentary sovereignty, especially on socially sensitive matters. This marks a shift from the more activist stance in earlier LGBTQIA+ rights cases and indicates an evolving institutional conservatism within the Court.
International Perspective and Human Rights Obligations
Globally, over 35 countries have legalized same-sex marriage. Nations like Canada, Spain, South Africa, the UK, and the USA have recognized the right to marry as critical to dignity and equality. The U.S. Supreme Court in Obergefell v. Hodges (2015) held that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection clauses of the Fourteenth Amendment.
India, as a signatory to international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), is bound to uphold non-discrimination and equality. The denial of marriage rights can be seen as contravening these international obligations.
Moreover, in Asia, Nepal has taken steps to legally recognize same-sex marriages following a 2023 Supreme Court directive. The Country which legally accept the same sex marriage is Taiwan in 2019. India’s delay in legislating marriage equality raises concerns about its global human rights standing.
Case Laws
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 – Decriminalized consensual homosexual acts, affirming dignity and privacy.
Supriyo Chakraborty v. Union of India, W.P. (C) No. 1011/2022 – Declined to legalize same-sex marriage; held that it is the legislature’s role.
Nalsa v. Union of India, (2014) 5 SCC 438 – Recognized transgender persons’ right to self-identify.
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 – Affirmed the right to marry a person of one’s choice.
Conclusion
The legal denial of same-sex marriage in India is not merely a policy gap but a profound constitutional omission. While the judiciary has taken bold steps in recognizing the identity and dignity of LGBTQIA+ individuals, it has stopped short of affirming their right to form legally protected familial relationships. By deferring the matter to the Parliament, the Supreme Court has highlighted the necessity of legislative action to resolve the issue. Yet, in a democratic and constitutional republic, the denial of marital rights must eventually be reconciled with the values of liberty, equality, and justice. The path forward lies in a synergistic relationship between judicial principles, legislative courage, and social advocacy.
FAQS
Q1. Is same-sex marriage legal in India?
No. As of now, same-sex marriage is not legally recognized in India.
Q2. What did the Supreme Court say in 2023 about same-sex marriage?
The Court declined to legalize same-sex marriage, stating that it is for the Parliament to decide. It sustained the right of same-sex couples to live together but not to marry.
Q3. Can same-sex couples adopt children in India?
At present, same-sex couples are not legally permitted to adopt children jointly. Adoption rights remain limited to single individuals or heterosexual married couples under existing laws.
Q4. Explain civil unions, and does Indian law recognize them?
Civil unions are legally recognized partnerships that grant many rights similar to marriage without conferring the full status of marriage itself. While some judges in Supriyo Chakraborty v. Union of India (2023) recommended the idea of civil unions for same-sex couples, Indian law currently does not provide for or recognize civil unions.
Q5. Are there ongoing efforts to legalize same-sex marriage in India?
Yes, various activists, NGOs, and civil society organizations continue to push for legislative reforms to legalize same-sex marriage. However, progress remains slow due to political reluctance and prevailing social conservatism.
Q6. Does the Indian Constitution guarantee the right to marry?
While the Constitution does not explicitly mention the right to marry, the Supreme Court has interpreted it as part of the fundamental right to personal liberty under Article 21. Nevertheless, the Court has clarified that this does not compel Parliament to amend existing marriage laws.
Q7. What role does the Parliament play in legalizing same-sex marriage?
The Parliament holds the exclusive authority to enact or amend laws—such as the Special Marriage Act, 1954—to legally recognize same-sex marriages. Until such legislative changes are made, the judiciary has chosen not to extend marriage rights through interpretation alone.
Q8. How is India’s position on same-sex marriage viewed internationally?
Compared to many democracies that have legalized same-sex marriage, India is often perceived as lagging behind on LGBTQIA+ rights. The absence of marriage equality negatively impacts India’s reputation in the global human rights community.
Q9. Have any religious bodies in India expressed support for same-sex marriage?
Currently Most of the Religious Institution not accept same sex marriage legal. Court discussions on the issue remain predominantly secular and legal rather than religious in nature.
Q10. What are the likely next steps for advancing queer rights in India?
Future progress depends on persistent legal challenges, increased public awareness, and sustained legislative advocacy. Ultimately, political will and evolving societal attitudes will be crucial in shaping the pace and extent of change.
