Author: Anirudh Gupta & prestige institute of management and research
To the Point
The Supreme Court’s decision in Supriyo v. Union of India (2023) is significant turning point in India’s constitutional trajectory towards LGBTQ+ inclusion. Although the Court categorically acknowledged the dignity, autonomy, and equal personhood of queer people, it avoided enlarging marriage rights under the Special Marriage Act by invoking the doctrine of separation of powers and judicial restraint. The ruling reveals a basic tension between constitutional morality, which insists on the safeguarding of minority rights against majoritarian lethargy, and institutional deference, which postpones transformative change to the legislature.
The majority’s denial of reading down gendered language in the Special Marriage Act, though accepting the exclusion suffered by same-sex couples, is indicative of a conservative attitude towards constitutional interpretation. In contrast, the dissenting judgments called for a purposive interpretation of the statute according to changing social realities and the overall constitutional imperative of equality and non-discrimination.
Finally, the judgment is both affirming and exclusionary—it affirms queer identity but excludes legal recognition of queer relationships. By doing so, it puts the LGBTQ+ community in a state of liminal legality, recognised but not fully empowered. It is now Parliament’s duty to turn constitutional principles into legislative reality and to provide a guarantee of equality that is not symbolic but substantively actualised.
Abstract
The Supreme Court judgment in Supriyo v. Union of India (2023) represents a watershed moment in the continuing constitutional development of LGBTQ+ rights in India. While the Court by consensus confirmed the fundamental rights of queer persons to dignity, equality, and non-discrimination, it refused to judicially recognize same-sex marriage citing the principles of separation of powers, legislative jurisdiction, and institutional restraint. This piece is a critical analysis of the constitutional jurisprudence expressed in the majority and dissenting judgments, with an examination of the tensions between transformative constitutionalism and formalist statutory interpretation. In asking questions of the boundaries of judicial intervention in the context of social inequality, the analysis puts the concept of constitutional morality at the centre as a counter-narrative to legislative inertia. It also analyzes the consequences of the judgment on the constitutional protection of queer relationships, enforceability of the Court’s orders, and the larger query as to whether symbolic recognition in the absence of substantive relief advances or delays the constitutional guarantee of equality. This way, the article places Supriyo within the broader comparative and doctrinal analysis of queer constitutionalism and judicial stewardship in diversely democratic polities.
Use of Legal Jargon
The Supriyo v. Union of India judgment is a doctrinal furnace in which central axioms of Indian constitutional jurisprudence intersect and collide. Central to the ruling is the contentious application of constitutional morality, a jurisprudential device created by way of cases such as Navtej Singh Johar v. Union of India and Indian Young Lawyers Association v. State of Kerala (Sabarimala). Constitutional morality in its mature form requires courts to interpret laws not so much by their literal stiffness but within the vision of change of the Constitution—most importantly, its pledge to human dignity, fraternity, and substance equality.
The majority judgment relies largely on traditional separation of powers, stating that acknowledging same-sex marriage is a policy determination belonging to the legislative sphere. This invocation of institutional restraint is an expression of a positivist conception of judicial role, in which courts decline to intervene in judicial overreach or judicial legislation—regardless of the presence of a rights claim based on Part III of the Constitution. The focus on legislative priority and democratic process theory represents the Court’s commitment to structural constitutionalism even where such commitment will thwart individual rights.
By contrast, the dissenting judgments adopt teleological interpretation and transformatory constitutionalism—a doctrine first enunciated in Navtej and Joseph Shine v. Union of India—enabling constitutional courts to become a force for social emancipation. In standing up for a gender-neutral interpretation of the Special Marriage Act, the dissent resorts to reading down and harmonious construction, tools of doctrine well acknowledged by Indian courts to maintain constitutional validity and widen rights without annulling statutes flat.
Additionally, the dissent bases its reasoning on Article 21’s promise of personal liberty and autonomy and associates it with decisional privacy, bodily integrity, and the right to enter into intimate associations, as enshrined in Justice K.S. Puttaswamy v. Union of India. In refusing marriage equality, the majority arguably strays from the doctrine of non-arbitrariness under Article 14, requiring that any classification, in order to be constitutionally acceptable, should be founded on intelligible differentia and should have a rational nexus to a legitimate goal.
The High Court’s order to the executive to constitute a high-powered committee—without binding enforceability—is problematic on issues of justiciability, positive obligations, and the boundaries of structural relief in public interest litigation. The judgment thus reflects a larger tension in Indian constitutional law: between symbolic acknowledgement of marginalised identities and the real implementation of rights through enforceable legal mechanisms.
In summary, Supriyo uncovers the federalist dialectic between structural deference and rights-based adjudication that calls scholars and courts to revisit the judicial role of fulfilling constitutional assurances in a democratic state.
The Proof
The Supreme Court decision in Supriyo v. Union of India (2023) gives rise to a constitutional paradox: acceptance of queer personhood without granting complete legal agency. This inconsistency is found in the Court’s concomitant upholding of equality and dignity on the one hand, and denying same-sex couples access to the institution of civil marriage on the other. The reasoning of the majority rests on a conservative interpretation of the Special Marriage Act, 1954, perceiving its heteronormative framework as unchangeable unless altered by Parliament. This is evidence of a formalist method of statutory interpretation, favoring textual stringency over a purposive, dynamic reading that is sympathetic to constitutional principles.
Although the universal recognition that queer people are subjected to institutional marginalisation, the majority abstained from utilising principles like reading down, progressive realisation of rights, or harmonious construction in order to interpret the Act in an inclusive way. Contrarily, the dissenting judgments make reference to transformative constitutionalism, which situates the Constitution not as a frozen document but as a living instrument meant to eliminate past injustices and foster substantive equality.
From a legal perspective, the right to marry, though not mentioned explicitly, has been construed into Article 21’s promise of personal liberty and agency. Precedents in cases of Lata Singh v. State of U.P. and Shafin Jahan v. Asokan K.M. have established the right to select one’s spouse as an aspect of individual liberty and decisional privacy. However, the majority in Supriyo distinguishes the right to unionise, which it acknowledges, from the institutional status of marriage, which it considers a legislative creation. This bifurcation of concept results in a diluted remedy that acknowledges harm but refuses to remedy it.
Secondly, the reliance of the judgment on the doctrine of separation of powers—although institutionally correct—gives rise to normative questions about the interventionist role of the judiciary in upholding minority rights when the legislative branch is paralysed. The Court’s refusal to act judicially, based on evidence of under-inclusiveness and discriminatory impact, arguably tames the anti-subordination culture of Article 14 and the intersectional protection contemplated under Article 15(1), particularly when interpreted together with the intersection of sexual orientation, gender, and relational autonomy.
The Court’s instructions to the Union Government to set up a committee for the recognition of limited civil rights—like succession, insurance, and consent to medical treatment—are significant but not justiciable. These instructions are not binding in their nature, have non-enforceable effect, and don’t grant legal parity, thus reiterating the secondary legal nature of queer relationships. This makes the result typical of rights without remedies, which was long decried in public law literature.
Comparative constitutional traditions provide counterpoints. In Obergefell v. Hodges (U.S.), Minister of Home Affairs v. Fourie (South Africa), and Goodwin v. United Kingdom (ECHR), courts have identified marriage equality as a sine qua non of human dignity, abandoning the deferential approach taken in Supriyo. These cases illustrate how constitutional courts can be catalysts for social change without crossing institutional limits, thus realizing their counter-majoritarian role.
Overall, Supriyo uncovers the Indian judiciary’s inner conflict between judicial deference and constitutional courage, and between symbolic legitimation and substantive change. It gives doctrinal evidence of a developing but incomplete constitutional promise—where recognition is extended, yet complete equality is postponed.
Constitutional Morality vs. Majoritarian Morality
The concept of constitutional morality, articulated for the first time in Naz Foundation and developed further in Navtej Johar, necessitates that the state and the courts stand by values such as equality, dignity, and freedom above dominant social prejudices. The petitioners contended that refusing same-sex couples the right to marry is a breach of Articles 14, 15, 19, and 21 of the Constitution.
Though sympathetic in approach, the majority opinion was of the view that recognizing marriage is a policy issue that must be left to the legislature. Institutional constraints and democratic deliberation were the reasons advanced by the Court in upholding the doctrine of separation of powers.
The Verdict: Majority and Dissent
• Majority Opinion (CJI D.Y. Chandrachud, Justices Kaul, Bhat, Kohli, Narasimha)
Held that there is no right to marry under the Constitution.
Recognized discrimination against queer couples but held that judicial action in the Special Marriage Act would be tantamount to legislation.
Ordered the Union to form a committee to consider rights of queer couples such as in insurance, medical consent, and inheritance.
Dissenting View (Justice Chandrachud & Justice Kaul in part)
Preferred reading down gendered expressions in the Special Marriage Act to permit same-sex unions.
Emphasised that denying marriage equality amounts to systemic exclusion and discrimination.
Asserted that the constitutional promise of equality cannot be subordinated to legislative silence.
Judicial Restraint or Missed Opportunity?
The ruling has provoked a heated controversy. While some commend the restraint of the Court as respect for democratic practice, others condemn it as a refusal to defend constitutional rights against legislative passivity. The dissent forcefully argues that the judiciary should not evince such abdication of power when the issue at stake is fundamental rights.
The Court’s directions to the executive, although welcome, are not enforceable and do not constitute substantive equality. In the absence of legal recognition of marriage, same-sex couples remain excluded from rights in taxation, adoption, surrogacy, property, and so on.
International Jurisprudence
Most democracies, including South Africa, Canada, and the United States (Obergefell v. Hodges, 2015), have legalized same-sex marriage through court judgments, grounding such legalization in constitutional provisions of dignity and equality. The Indian Supreme Court could have joined this liberalizing trend but took a conservative path.
Case Laws
1. Supriyo v. Union of India (2023) SCC Online SC 1275
The leading case on hand, Supriyo, concerned a group of petitions that questioned the constitutionality of the Special Marriage Act, 1954 on the ground of its exclusion of same-sex couples. The Supreme Court collectively acknowledged the dignity and non-discrimination rights of queer individuals but gave a divided verdict on recognition of marriage. The majority opinion expressed that legalising same-sex marriage was not possible without legislative intervention, whereas the dissent expressed the need for an expansive interpretation of the statute in accordance with constitutional values.
2. Navtej Singh Johar v. Union of India (2018) 10 SCC 1
A milestones judgment where the Supreme Court de-criminalised same-sex relationships by reading down Section 377 IPC. The Court relied on constitutional morality, autonomy of individuals, and non-discrimination as being at the core of the constitutional ethos. This case was the foundation for the recognition of queer rights subsequently and was widely referred to in Supriyo.
3. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1
In confirming the right to privacy as a constitutional right, the Court recognized sexual orientation as a fundamental aspect of personal identity and autonomy. The case strongly supported the constitutional protection of LGBTQ+ individuals and guided the dignity-based rationale in Supriyo.
4. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
It is here that the Court revived the right of an adult to select their spouse as an essential element of Article 21, reaffirming decision-making autonomy. The ruling played a pivotal role in acknowledging relational liberty, a doctrine later enforced (albeit circumspectly) in Supriyo.
5. Lata Singh v. State of U.P. (2006) 5 SCC 475
The Supreme Court found that the choice of marrying someone of one’s own is under the protection of personal liberty. Though the case involved inter-caste marriage, it established the precedent of acceptance of the right to marry as constitutionally guaranteed—a position revisited in Supriyo, but not extended to same-sex couples.
Comparative Jurisprudence
6. Obergefell v. Hodges, 576 U.S. 644 (2015) – United States
The U.S. Supreme Court decided that same-sex couples possess an inherent right to marry under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The Court perceived marriage as being at the heart of human dignity and autonomy—principles reflected in Indian constitutional values but never fully actualised in Supriyo.
7. Minister of Home Affairs v. Fourie [2005] ZACC 19 – South Africa
The South African Constitutional Court ruled that the exclusion of same-sex couples from the right to marry was a violation of the right of equality and dignity in the Constitution. The Court postponed its declaration by a year, allowing the Parliament time to enact legislation—an exercise in judicial creativity within institutional boundaries that India’s Supreme Court might have followed.
8. Christine Goodwin v. United Kingdom, [2002] ECHR 588 – European Court of Human Rights
The ECHR acknowledged that refusal of legal recognition of gender identity (and correlated rights like marriage) offended Article 8 (private life) and Article 12 (right to marry). The case captures how courts have employed evolutionary interpretation of rights to grant legal recognition to marginalized identities.
Conclusion
The Supriyo ruling is a classic example of the constitutional struggle between symbolic affirmation and substantive justice. While the Supreme Court rightfully reaffirmed the dignity, identity, and equal citizenship of queer people, its failure to grant legal recognition to same-sex marriages leads to a dignity without deliverables. Through its deference to institutional restraint over transformative adjudication, the Court opted to postpone a compelling rights-based argument to the legislature—an institution that has consistently been resistant to legislating issues concerning sexual minorities.
This ruling is a jurisprudential contradiction. On the one hand, it supports the constitutional ideals of liberty, privacy, and equality, but on the other hand, it refuses to implement those very values when their non-existence leads to legal exclusion. The ruling highlights the vulnerability of being governed by judicial empathy without judicial enforcement, making the LGBTQ+ community constitutionally visible but legally exposed.
By reasserting legislative dominance in the domain of marriage law, the Court has de facto imposed the burden of rights realization on a political process that is hostage to majoritarian morality. Through this, it inadvertently enables a constitutional pecking order under which
queer rights are presented in abstract terms and not in tangible terms. The remedial guidelines directed—committee formation and administrative reception of
limited rights—short on enforceability and less than structural redress, providing only procedural gestures rather than legal assurances.
However, the ruling is not inconsequential. It establishes a normative basis for future litigation, civil society mobilization, and legislative change. It recognizes the lived experiences of queer citizens and creates constitutional space for expanded inclusion. But recognition in the absence of rights is a type of structural silencing, and until the legal framework of marriage equality is universalized, constitutional guarantees are aspirational.
The path to matrimony equality in India is thus not closed but rechanneled. Constitutional morality must continue to be the guiding force—both for legislators obligated to enact with empathy and audacity, and for citizens striving for a just and equal society. The call for equality of rights cannot be held hostage to political expediency; it has to be based on the urgency of justice.
Frequently Asked Questions (FAQs)
1. What was the central issue in Supriyo v. Union of India (2023)?
The petitioners sought legal recognition of same-sex marriages under the Special Marriage Act, 1954, arguing that its exclusion of queer couples violated their fundamental rights under Articles 14, 15, 19, and 21 of the Constitution.
2. Did the Supreme Court legalise same-sex marriage in India?
No. While the Court acknowledged the discrimination faced by queer couples and affirmed their rights to dignity and non-discrimination, it declined to grant legal recognition to same-sex marriages, holding that such recognition falls within the domain of the legislature.
3. What is meant by ‘constitutional morality’?
Constitutional morality refers to the adherence to the core values enshrined in the Constitution—such as equality, liberty, dignity, and justice—regardless of prevailing social or cultural norms. It was invoked to argue that the law must evolve to protect minority rights.
4. What was the rationale behind the majority opinion?
The majority held that the judiciary could not amend the gendered language of the Special Marriage Act to include same-sex couples without overstepping its jurisdiction. The judgment emphasised the separation of powers and deferred the matter to Parliament.
5. What did the dissenting judges say?
Justice D.Y. Chandrachud and Justice Kaul, in part dissenting opinions, argued in favour.
