Authored By: Shreeya Vaish
S.S. Khanna Girls' Degree College, University of Allahabad
Citation: (2023) SCC Online SC 1348
Court: Supreme Court of India
Bench: Constitution Bench (5-Judge Bench)
Presiding Judges: Dr. D.Y. Chandrachud, Chief Justice of India, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, Justice P.S. Narasimha
Date of Judgment: October 17, 2023
Petitioners
Supriyo Chakraborty and his partner Abhay Dange, among several other same-sex couples and queer individuals. They brought the case seeking official recognition of their partnerships as marriages under Indian civil law. These petitioners had either held private ceremonies or lived in long-term relationships but were denied the legal and social benefits that come with state recognized marriage.
Respondents
The Union of India and various state authorities, represented by the Ministries of Law and Justice, Home Affairs, and other departments. The Union strongly resisted the petitions, arguing that marriage laws in India were not meant to cover same-sex couples and that such a transformation could only be brought about through Parliament.
Facts of the Case
The factual background of the case traces its roots to the aftermath of the Supreme Court’s 2018 ruling in Navtej Singh Johar v. Union of India,2 where consensual same-sex relations were decriminalized. That decision was widely celebrated for affirming the dignity of LGBTQIA+ individuals and recognizing their constitutional rights. However, decriminalization did not lead to any positive legal framework that recognized same-sex relationships in civil law. Same-sex couples, while no longer criminalized for their private relationships, continued to be excluded from legal protections enjoyed by married heterosexual couples.
The petitioners came from varied socio-economic and regional backgrounds. Some had lived together for years and had built lives akin to marriage, but were left vulnerable due to the absence of legal recognition. Their daily lives were affected in numerous ways, including the inability to nominate partners in insurance policies, the inability to take out joint loans, the denial of family medical benefits, and complications in the legal guardianship of children. The petitioners highlighted specific instances where one partner had been denied access to the other in a medical emergency, or where the law did not recognize them as next-of-kin.
In this context, the petitioners approached the Supreme Court under Article 32 of the Constitution3, asserting that the exclusion of same-sex couples from marriage laws—particularly the Special Marriage Act, 19544violated their rights to equality (Article 14)5, protection from discrimination (Article 15)6, freedom of expression and association (Article 19)7, and dignity and personal liberty (Article 21)8.
They argued that the denial of access to the institution of marriage was not only a social exclusion but a denial of a legal status that brought with it essential civil rights and protections. They submitted that the Special Marriage Act could be interpreted in a gender-neutral fashion, allowing for the inclusion of any two consenting adults, regardless of gender, to be married under law. This interpretation, they claimed, would be consistent with constitutional values and the transformative purpose of the Constitution, as reaffirmed in recent decisions like Navtej Singh Johar and Puttaswamy9.
The respondents, however, pushed back firmly. The Union of India contended that marriage is a socio-legal institution embedded in the cultural fabric of Indian society, traditionally understood to be a union between a biological man and woman. The government argued that statutes such as the Special Marriage Act10, the Hindu Marriage Act11, and other personal laws were all premised on this understanding. According to the Union, the demands raised by the petitioners required a policy decision with significant ramifications on several interrelated laws—such as those governing adoption, maintenance, inheritance, and property—and thus lay exclusively within the domain of the legislature.
Additionally, the respondents raised concerns about the potential societal impact of such a judicial declaration. They insisted that any redefinition of marriage would be a “profound social re engineering” and should be the result of broad-based public discussion in a parliamentary setting. While recognizing the dignity and rights of queer individuals, the government maintained that there was no constitutional obligation on the State to grant marital recognition to every form of intimate relationship.
Issues Raised
The Constitution Bench identified the following core legal issues:
- Whether there exists a fundamental right to marry under the Constitution of India12, and if so, whether it extends to same-sex couples.
- Whether the non-recognition of same-sex marriage amounts to a violation of Articles 1413 (equality before law), 1514 (prohibition of discrimination), 1915 (freedom of expression), and 2116 (right to life and personal liberty).
- Whether the Special Marriage Act, 195417 can be interpreted in a gender-neutral manner so as to allow same-sex couples to marry under its framework.
- Whether the refusal to allow same-sex couples to marry is arbitrary and discriminatory under the constitutional framework.
- Whether the judiciary has the power to read down or reinterpret legislative texts to bring them in line with constitutional morality, in the absence of legislative action. 6. Whether same-sex couples are entitled to the legal rights and protections available to heterosexual couples through civil unions or domestic partnerships, even if marriage is not granted.
- Whether the Court can issue directions to the executive or legislature to create a legal framework for the recognition of same-sex unions.
Arguments of the Parties
The petitioners contended that marriage is a deeply personal and civil institution, access to which is essential for the full and equal participation of LGBTQIA+ individuals in society. They argued that the denial of marriage rights infringes on multiple constitutional protections, especially the right to dignity and autonomy under Article 2118. Citing Navtej Singh Johar v. Union of India19, they emphasized that the decriminalization of homosexuality must be followed by affirmative recognition of queer relationships. They also referred to Justice K.S. Puttaswamy (Retd.) v. Union of India20, where the Supreme Court acknowledged that privacy includes decisional autonomy in matters of intimate life choices. Relying on these cases, the petitioners asserted that the right to choose a partner and to have that relationship legally recognized is a fundamental aspect of identity and liberty.
The petitioners further argued that the exclusion from marriage amounts to institutional discrimination. Under Article 1421 they claimed all persons are entitled to equal treatment by the state, and there is no rational basis for denying marriage rights based on sexual orientation. They also invoked Article 1522, arguing that discrimination on the grounds of sex and gender must be read expansively to include sexual orientation and gender identity. Additionally, by denying them access to a core social institution, the state was suppressing their ability to freely express their identity and relationships, in contravention of Article 19(1)(a)23. International decisions like Obergefell v. Hodges,24 were cited to show that legal recognition of same-sex marriages has become a part of global constitutional culture.
In contrast, the respondents argued that the right to marry is not a fundamental right under Indian constitutional jurisprudence. The Union of India maintained that marriage is governed by statutes and personal laws, and any broadening of its scope must come from legislative amendment, not judicial interpretation. They emphasized the separation of powers doctrine, arguing that judicial interference in such matters would violate the constitutional mandate. The respondents also pointed out that recognizing same-sex marriages would lead to significant changes in numerous interlinked laws, including those governing adoption, succession, and property.
The government cited Shayara Bano v. Union of India 25to reiterate that while the Court may intervene in personal law matters to uphold fundamental rights, it cannot legislate. The respondents further stressed that the Special Marriage Act26 was designed for heterosexual couples and reading it in a gender-neutral way would go beyond mere interpretation and amount to judicial rewriting. They maintained that the appropriate forum for considering such far-reaching societal changes is Parliament.
Judgment / Final Decision
The Supreme Court delivered a split verdict in this landmark constitutional matter. Three of the five judges on the Constitution Bench—Justices S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha—constituted the majority opinion.27 They held that while individuals possess the right to enter relationships of their choice, the right to marry does not find explicit mention in the Constitution and cannot be read into it by judicial fiat28. They stressed that marriage in India is a statutory creation, deeply embedded in cultural and legal traditions, and altering its scope through judicial interpretation would infringe upon the role of the legislature. The Bench concluded that any attempt to redefine marriage to include same-sex couples would require legislative intervention, not judicial reinterpretation.
The majority judgment specifically declined the request to read gender-neutral terms into the Special Marriage Act, 1954, reasoning that such a reading would be inconsistent with the statutory framework as enacted29. They acknowledged the social challenges faced by LGBTQIA+ individuals but stated that policy formulation in such sensitive areas should emerge from broad based public discourse through Parliament.
In contrast, the Chief Justice of India, Dr. D.Y. Chandrachud, and Justice Sanjay Kishan Kaul delivered concurring opinions that provided partial dissent30. They agreed with the majority that the judiciary should not legislate, but parted ways in their interpretation of constitutional protections. CJI Chandrachud held that the constitutional guarantees of equality, liberty, and dignity must be interpreted in a manner that affirms the identity and choices of queer individuals31. He recognized that while the institution of marriage itself may not be explicitly protected under fundamental rights, the underlying rights to form intimate relationships and cohabit are core constitutional entitlements.32 In his opinion, same-sex couples are entitled to enter into civil unions, which should be afforded the same legal recognition and benefits as marriage33.
Justice Kaul supported the idea of legally recognizing queer unions and noted that exclusion from marriage laws results in structural inequality. He advocated for legal protection of same-sex relationships, albeit outside the traditional institution of marriage34. Both dissenting judges urged the Union Government to create a legal framework that enables same-sex couples to access essential rights, including joint adoption, succession, insurance benefits, and next-of-kin status in medical decisions.
Importantly, the Court was unanimous in recognizing the right of queer individuals to cohabit, live in partnerships, and form families of choice. The justices agreed that such relationships fall within the protective ambit of Article 2135, and that they cannot be interfered with arbitrarily by the State. Although the plea for marriage equality was not granted, this recognition of queer relationships was considered a meaningful step forward.
As part of its operative directions, the Court instructed the Union Government to constitute a high powered committee, chaired by the Cabinet Secretary, to explore and recommend legal and administrative measures that would safeguard the rights of queer individuals in various domains of life. The Court also noted that the absence of legislative recognition should not be used to deny queer couples the basic entitlements available to all citizens36.
Legal Reasoning / Ratio Decidendi
The majority judgment’s core reasoning hinged on the principle of separation of powers. The judges cautioned that courts must not assume legislative functions, especially in areas like marriage which are intricately tied to social, religious, and cultural values. According to them, interpreting statutory language in a gender-neutral manner to include same-sex unions would go beyond permissible interpretation and amount to judicial legislation.37 They underscored that the judiciary cannot replace the wisdom and consultation inherent in parliamentary debate, especially on issues that demand wide-ranging societal participation.
Justice Bhat, writing for the majority, emphasized that constitutional courts must act with institutional restraint and avoid entering policy-making terrain38. The majority drew attention to the fact that the existing legal architecture around marriage—spanning adoption, maintenance, inheritance, and taxation—is based on a binary understanding of gender. Thus, judicially mandating recognition of same-sex marriage would have cascading effects on numerous other statutes, which require detailed consideration by the legislature.
In dissent, Chief Justice Chandrachud adopted a rights-based framework. He observed that the Constitution is a living document and must respond to the evolving needs of its citizens. Drawing from the precedents in Navtej Singh Johar39 and Puttaswamy40 He reiterated that the right to privacy and autonomy includes the right to form and maintain relationships without state interference. He argued that the exclusion of same-sex couples from any form of legal recognition undermines their dignity and entrenches structural discrimination41. He proposed that civil unions be legally recognized and made equivalent in rights and obligations to marriage.42
Justice Kaul, concurring with this view, highlighted the need for an inclusive interpretation of constitutional values and urged the executive to enact reforms that reflect the aspirations of all citizens, irrespective of sexual orientation43. Both judges highlighted the State’s affirmative obligation to ensure equal treatment under Article 1444 and protection against discrimination under Article 1545.
Conclusion / Observations
Although the Supreme Court refrained from declaring a fundamental right to marry for same-sex couples, the judgment marked a pivotal development in India’s constitutional journey on gender and sexuality rights. The Court’s decision to acknowledge the legitimacy of queer relationships— while falling short of legalizing marriage—has opened important constitutional and political conversations about the future of marriage equality.
The judgment underscores the growing tension between judicial restraint and the need for transformative constitutionalism. While the majority adopted a cautious approach rooted in procedural boundaries, the dissenting judges advocated for a more proactive role in realizing substantive equality. The Court’s decision to the executive to constitute a high-level committee shows that it was not indifferent to the grievances raised but preferred to act within perceived institutional limits.
For the LGBTQIA+ community, this judgment is a mixed outcome. On one hand, it denied the immediate legal right to marry, thereby delaying formal equality in marital rights. On the other hand, it legitimized queer partnerships in the constitutional sense, affirming that such relationships are deserving of respect and protection. The call for a committee headed by the Cabinet Secretary could pave the way for gradual but meaningful administrative reforms.
In the broader constitutional landscape, Supriyo v. Union of India signals the increasing judicial recognition of sexual minorities as rights-bearing citizens. The case reflects a growing acceptance of the view that dignity, equality, and freedom must be interpreted inclusively. While marriage equality remains an unfulfilled goal, the affirmation of queer identity, the call for legislative reform, and the expansion of constitutional protections to same-sex couples make this judgment a landmark in India’s human rights discourse.
The judgment’s legacy may well depend on how quickly the political and legal institutions respond to the Supreme Court’s invitation to act. In this respect, the case could prove to be a catalyst for future legislative reform, echoing past constitutional battles such as those fought over decriminalization, privacy, and gender justice.
Reference(S):
1 Supriyo @ Supriya Chakraborty v Union of India (2023) SCC Online SC 1348.
2 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
3 Constitution of India, art. 32.
4 The Special Marriage Act 1954, No 43 of 1954, India Code (1954).
5 Constitution of India, art. 14.
6 Constitution of India, art. 15.
7 Constitution of India, art. 19.
8 Constitution of India, art. 21.
9Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
10 Supra.
11 The Hindu Marriage Act 1955, No 25 of 1955.
12 Constitution of India (1950).
13 Constitution of India, art 14.
14 Constitution of India, art 15.
15 Constitution of India, art 19.
16 Constitution of India, art 21.
17 The Special Marriage Act 1954, No 43 of 1954.
18 Constitution of India, art 21.
19 Navtej Singh Johar v Union of India (2018) 10 SCC 1.
20 Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
21 Supra.
22 Supra.
23 Constitution of India, art 19(1)(a).
24 Obergefell v Hodges 576 US 644 (2015) (US Supreme Court).
25 Shayara Bano v Union of India (2017) 9 SCC 1.
26 The Special Marriage Act 1954, No 43 of 1954.
27 Supriyo @ Supriya Chakraborty and Anr v Union of India and Ors (2023) SCC Online SC 1348 [per Bhat J (majority opinion)].
28 Constitution of India, art 21.
29 The Special Marriage Act 1954, No 43 of 1954.
30 Supriyo v Union of India (n 1) [per Chandrachud CJ, Kaul J (concurring)].
31 Constitution of India, arts 14, 15, 19 and 21.
32 Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
33 Supriyo v Union of India (n 1) [Chandrachud CJ, para 563].
34 ibid [Kaul J, para 711].
35 Constitution of India, art 21.
36 Supriyo v Union of India (n 1) [para 553].
37 Supriyo @ Supriya Chakraborty and Anr v Union of India and Ors (2023) SCC Online SC 1348 [paras 123–130] (per Bhat J).
38 Supriyo v Union of India (n 1) [para 127] (per Bhat J).
39 Navtej Singh Johar v Union of India (2018) 10 SCC 1
40 Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
41 Supriyo v Union of India (n 1) [para 563] (per Chandrachud CJ).
42 ibid [paras 133–137].
43 ibid [para 711] (per Kaul J).
44 Constitution of India, arts 14.
45 Constitution of India, arts 15.
