Authored By: SOORAJ KR
Government Law College Thrissur
ABSTRACT
The Supreme Court’s decision in Supriyo v. Union of India[1] marked a critical juncture in India’s constitutional journey toward LGBTQ+ equality. Despite the progressive tenor of earlier verdicts like Navtej Singh Johar v Union of India[2] and K. S Puttaswamy v Union of India,[3] the refusal to legalize same-sex marriage underscored the judiciary’s reluctance to extend marriage rights beyond heteronormative frameworks. This paper critically examines the constitutional implications of the verdict through the lens of Articles 14,[4] 15,[5] and 21,[6] exploring the doctrine of non-arbitrariness, privacy, dignity, and equal protection. It further analyzes the legislative vacuum that persists in recognizing same-sex partnerships and the socio-legal impact of excluding queer couples from civil rights such as adoption, inheritance, and medical decision-making. By synthesizing global jurisprudence, Indian case law, and socio-political realities, the paper proposes actionable legislative reforms and outlines a path for the recognition of same-sex unions within India’s constitutional morality framework.
KEYWORDS
Same-sex marriage, LGBTQ+ rights, Article 14, Supriyo v. Union of India, constitutional equality, queer rights
INTRODUCTION
The Constitution of India guarantees every citizen the fundamental rights to equality, dignity, and liberty under Articles 14[7], 15[8], and 21[9]. These rights are not conditional upon one’s gender identity or sexual orientation, but are universal and intrinsic to the idea of personhood. Over the past decade, the Indian judiciary has played a transformative role in interpreting these rights inclusively and progressively. One of the most significant milestones in this journey was the Supreme Court’s landmark ruling in Navtej Singh Johar v. Union of India[10], where a five-judge constitutional bench unanimously decriminalized consensual same-sex relations by reading down Section 377 of the Indian Penal Code.[11] The Court, speaking through Justice Chandrachud and others, emphasized that the Constitution does not tolerate discrimination based on sexual orientation and that queer individuals are entitled to live with dignity and without fear.
Despite this historic verdict, the legal recognition of same-sex relationships remains incomplete. The right to marry, which carries with it a host of civil, social, and economic benefits—such as joint adoption, inheritance, next-of-kin status, and access to spousal benefits—is still reserved for heterosexual couples under Indian law. This lacuna in the legal framework became the focus of national attention in Supriyo v. Union of India[12], where a series of petitions were filed before the Supreme Court by same-sex couples and activists demanding recognition of their right to marry under the Special Marriage Act, 1954.[13]
The petitioners in Supriyo[14]argued that the denial of marriage rights to same-sex couples amounts to a violation of their fundamental rights to equality (Article 14),[15] non-discrimination (Article 15),[16] and life and personal liberty (Article 21).[17] They contended that marriage is not merely a social institution but a legal recognition of intimate personal relationships that the Constitution protects. In response, the Union Government maintained that marriage falls within the legislative domain and is governed by existing personal laws that reflect traditional Indian family structures.
In a split verdict delivered in October 2023, the Supreme Court declined to recognize same-sex marriages. While Chief Justice D.Y. Chandrachud, in his opinion, supported the recognition of civil unions and affirmed the fundamental right to choose one’s partner, the majority opinion held that extending marriage rights to same-sex couples requires legislative action and cannot be achieved through judicial interpretation alone. The decision, while acknowledging the discrimination faced by queer individuals, stopped short of offering a concrete remedy, thereby leaving them in a legal vacuum.
This paper critically examines the Supriyo[18] judgment through a constitutional lens. It explores the inconsistencies between the Court’s reasoning and earlier rulings such as Navtej[19] and Puttaswamy,[20] which championed privacy, autonomy, and non-discrimination. It also highlights the tangible consequences of excluding queer individuals from marital recognition and calls for legislative reforms to address this structural inequality. By situating the debate within the broader constitutional framework, the paper aims to articulate a rights-based approach to marriage equality in India.
RESEARCH METHODOLOGY
This research adopts a doctrinal legal methodology, primarily focusing on a black-letter law approach to critically evaluate the constitutional dimensions of Supriyo v. Union of India[21] The doctrinal method is well-suited for examining developments in constitutional interpretation, statutory limitations, and the evolving jurisprudence concerning same-sex unions in India.
The study is grounded in an extensive analysis of primary legal materials, including constitutional provisions such as Articles 14,[22] 15,[23] and 21[24] of the Constitution of India, relevant statutes like the Special Marriage Act, 1954,[25] and judicial decisions from both Indian and foreign courts. Key case law includes Navtej Singh Johar v. Union of India,[26] Justice K.S. Puttaswamy v. Union of India,[27] and Obergefell v. Hodges[28] from the United States. These cases form the backbone of the doctrinal inquiry, helping to assess whether the reasoning in Supriyo[29] aligns with established constitutional principles and comparative international standards.
Additionally, secondary sources such as scholarly articles, commentaries by constitutional experts, law commission reports, and LGBTQ+ rights advocacy literature have been referred to in order to understand broader socio-legal contexts and academic perspectives. The research applies a comparative analytical lens by juxtaposing Indian jurisprudence with foreign judgments that have recognized marriage equality, thereby shedding light on the global trajectory of constitutional protection for same-sex couples.
Furthermore, this study integrates a normative evaluation by assessing the implications of the Supriyo[30] decision on fundamental rights and judicial accountability. The absence of empirical data does not weaken the argumentation, as the focus remains on legal reasoning, doctrinal coherence, and the constitutional mandate for inclusion and equality.
REVIEW OF LITERATURE
The academic and legal discourse surrounding LGBTQ+ rights in India has undergone a profound transformation, particularly in the wake of landmark judicial pronouncements that have foregrounded constitutional values such as dignity, liberty, and equality. Central to this evolving narrative is a growing recognition of the inadequacy of heteronormative legal frameworks and the urgent necessity for a constitutional realignment that includes sexual and gender minorities. Scholars, legal theorists, and jurists alike have contributed to this discourse, building a layered body of literature that challenges both social orthodoxy and institutional inertia.
One of the foremost contributors to this body of scholarship is Arvind Narrain, a pioneering queer legal theorist whose work has consistently challenged the foundational assumptions of Indian constitutional law regarding sexuality and identity.[31] In his writings, Narrain critiques the deeply embedded heteronormative structures within Indian jurisprudence and argues that any meaningful recognition of LGBTQ+ rights must be rooted in the Constitution’s commitment to dignity and equality. He posits that the concept of dignity is not a vague moral aspiration but a justiciable and enforceable right under the Indian Constitution. For Narrain, dignity encompasses the ability of individuals to live life according to their own values and choices, including choices about love, intimacy, and family formation. This framing becomes essential when analyzing the exclusion of same-sex couples from legal marriage, which he views as a denial of the full citizenship of queer persons.
Narrain’s emphasis on constitutional morality finds doctrinal support in Justice D.Y. Chandrachud’s concurring opinion in the landmark case of Navtej Singh Johar v. Union of India.[32] In this judgment, the Supreme Court of India unanimously struck down Section 377 of the Indian Penal Code to the extent it criminalized consensual same-sex relationships. Justice Chandrachud articulated a robust vision of constitutional morality, one that is not beholden to majoritarian morality or traditional societal values. He distinguished between “popular morality” and “constitutional morality,” affirming that the latter must prevail in safeguarding the rights of minorities. This distinction is particularly significant in the context of marriage equality, where prevailing social prejudices are often invoked to justify legal exclusion.
Justice Chandrachud further asserted that the right to intimacy and the right to sexual orientation are intrinsic components of the right to privacy and dignity under Article 21 of the Constitution. This constitutional reasoning builds directly upon the Court’s earlier decision in Justice K.S. Puttaswamy (Retd.) v. Union of India,[33] where a nine-judge bench unanimously held that the right to privacy is a fundamental right, and that privacy protects individual autonomy in matters of sexual orientation and personal relationships. These judgments collectively signal a transformative shift in the constitutional understanding of LGBTQ+ rights , one that moves beyond mere decriminalization towards affirmative recognition and inclusion.
Gautam Bhatia, in his seminal work The Transformative Constitution,[34] extends and deepens this constitutional conversation. Bhatia characterizes the Indian Constitution as a transformative document that was designed not merely to limit state power, but to reconstruct society and dismantle embedded hierarchies, including those based on caste, gender, and sexuality. He argues that the Constitution mandates a dynamic and evolving interpretation of rights that responds to changing social contexts. Bhatia identifies sexual orientation and gender identity as structurally marginalized axes that require affirmative state action to ensure substantive equality. In doing so, he lays the theoretical groundwork for recognizing marriage equality as a constitutional imperative rather than a matter of legislative grace.
Bhatia’s scholarship also critiques the formalist approach of the judiciary in cases like Supriyo v. Union of India,[35] where the Supreme Court refused to recognize a fundamental right to same-sex marriage. While the Court did acknowledge the discrimination faced by queer couples and called for civil union frameworks, it ultimately deferred to Parliament, citing separation of powers. Legal commentators have interpreted this as a regressive retrenchment from the transformative potential of Navtej[36] and Puttaswamy,[37] highlighting a persistent gap between the rhetorical affirmation of LGBTQ+ dignity and the denial of concrete legal entitlements.
In a comparative perspective, international jurisprudence offers instructive parallels. Notably, the United States Supreme Court’s decision in Obergefell v. Hodges[38] held that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court emphasized that marriage is a cornerstone of both personal dignity and societal recognition, and that exclusion from marriage constitutes a serious constitutional injury. The opinion, authored by Justice Anthony Kennedy, resonates with Indian constitutional values of dignity and equality, and serves as a persuasive precedent for expanding the rights of LGBTQ+ individuals in India.
Legal scholars in India have engaged with Obergefell[39] to critique the Indian judiciary’s reluctance to go beyond recognition toward full legal realization. They argue that the Court in Supriyo[40] missed an opportunity to affirm marriage as a fundamental right accessible to all, regardless of sexual orientation. Moreover, they emphasize that rights like adoption, succession, and spousal benefits are inextricably linked to marriage, and any denial thereof reinforces the second-class status of queer persons.
In sum, the academic discourse reveals a dynamic interplay between constitutional jurisprudence, legal scholarship, and global human rights principles. It foregrounds the pressing need for the Indian legal system to move beyond symbolic recognition and embrace substantive equality for LGBTQ+ individuals. Scholars like Narrain and Bhatia advocate for an interpretation of the Constitution that is empathetic, inclusive, and transformative, one that recognizes that the right to love, marry, and form a family is not a privilege but a fundamental human right.
METHOD
The crux of the constitutional debate following the Supriyo v. Union of India[41] verdict lies in whether the right to marry constitutes a fundamental right under Indian law. The petitioners contended that the continued denial of marriage rights to same-sex couples violates the core guarantees enshrined in Articles 14,[42] 15,[43] and 21[44] of the Constitution. Specifically, they argued that the exclusion is not only discriminatory on the grounds of sexual orientation, but also denies queer individuals the autonomy, dignity, and liberty that form the essence of a meaningful life.
In its majority opinion, however, the Supreme Court took a conservative stance, holding that marriage, being governed by personal and statutory law, does not fall within the ambit of fundamental rights. The Court emphasized that any recognition of same-sex unions must originate from legislative enactment, not judicial pronouncement. This formalist view reflects a strict adherence to the doctrine of separation of powers, reinforcing the idea that social change must be effectuated through Parliament, not the judiciary. This approach, however, appears inconsistent with prior constitutional jurisprudence. In Shafin Jahan v. Asokan K.M.,[45] the Court categorically held that the right to choose a life partner is a facet of personal liberty under Article 21.[46] Similarly, in Navtej Singh Johar,[47] the Court held that intimate relationships and the expression of love fall within the protected zone of constitutional liberty and privacy. These judgments affirmed that the Constitution safeguards not merely life and liberty in a narrow sense but guarantees a life of dignity, autonomy, and self-determination. Notably, the Supriyo[48] verdict overlooked the real and tangible consequences of excluding queer couples from the institution of marriage. Denial of legal recognition affects access to critical civil entitlements such as joint adoption, inheritance rights, taxation benefits, pension eligibility, and even next-of-kin status in medical emergencies. The absence of these rights perpetuates structural disadvantage and reinforces the second-class citizenship of queer individuals, directly undermining the principle of substantive equality laid down in State of Kerala v. N.M. Thomas,[49] . Internationally, courts have moved toward affirming that exclusion from marriage impairs human dignity and equality. The U.S. Supreme Court in Obergefell v. Hodges[50] held that same-sex couples possess a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Similarly, the Constitutional Court of South Africa in Minister of Home Affairs v. Fourie[51] recognized that denying same-sex couples the status, benefits, and responsibilities of marriage violates the right to equality and dignity. Taiwan’s Constitutional Court went further, mandating the legislature to legalize same-sex marriage within two years, becoming the first in Asia to do so.
The Indian context, therefore, necessitates either a gender-neutral civil union law or substantial amendments to the Special Marriage Act, 1954,[52] to uphold the constitutional promise of equality, liberty, and non-discrimination. The judiciary’s acknowledgment of discrimination, without offering enforceable relief, leaves a constitutional gap that demands urgent legislative correction.
SUGGESTIONS
In light of the Supreme Court’s decision in Supriyo,[53] there is an urgent need for legislative and policy interventions to secure the constitutional rights of LGBTQ+ individuals in India. The following suggestions are proposed:
Firstly, Parliament should consider enacting a gender-neutral civil union law that offers legal recognition to same-sex partnerships. Such a law should extend rights related to inheritance, adoption, insurance, healthcare decision-making, and pension benefits, ensuring that queer couples are not deprived of substantive legal entitlements merely because their relationships fall outside the framework of traditional marriage.
Secondly, the Special Marriage Act, 1954,[54] a secular legislation originally designed to facilitate interfaith and inter-caste marriages, should be amended to remove gender-specific terms such as “husband” and “wife.” This would render the statute inclusive of all consenting adult couples, regardless of sexual orientation or gender identity, without disturbing the personal laws of any religious community.
Thirdly, in the context of the directive under Article 44 of the Constitution[55] regarding a Uniform Civil Code, it is imperative that such a code, if developed, respects India’s pluralistic society and upholds the dignity and autonomy of all citizens, including LGBTQ+ individuals. The UCC must not become a tool of homogenization, but rather a framework of inclusive civil rights accessible to all.
Fourthly, public sensitization and education initiatives must be introduced to counter the entrenched societal stigma associated with queer relationships. These awareness campaigns, led by government bodies and supported by civil society, can play a transformative role in reshaping societal attitudes, thereby facilitating a more conducive environment for legislative reform.
Lastly, the Law Commission of India should be entrusted with a comprehensive study on marriage equality, drawing from both constitutional principles and comparative international jurisprudence. Such a study would provide a scholarly basis for parliamentary debate and encourage a structured, rights-based approach to recognizing same-sex unions in India.
CONCLUSION
The verdict in Supriyo v. Union of India[56] marks a sobering moment in the trajectory of queer constitutional rights in India. Despite the moral authority established in Navtej Singh Johar v. Union of India[57], where the Court emphatically recognized the dignity and autonomy of LGBTQ+ persons, the denial of marriage equality in Supriyo[58] signals a retreat into judicial restraint, privileging statutory limitations over constitutional commitments. While the majority’s deference to Parliament underscores the principle of separation of powers, it simultaneously dilutes the transformative potential of the Constitution—a document envisioned not as a static legal text, but as a living instrument committed to justice, inclusion, and social emancipation.
The majority opinion, by classifying marriage as a statutory rather than a fundamental right, elides the intersection of marriage with a host of constitutionally protected interests, privacy, choice, family life, and material entitlements such as inheritance, maintenance, adoption, and medical decision-making. In doing so, the Court failed to engage with the doctrine of substantive equality, which requires the law to recognize the real-life impact of exclusion on historically marginalized groups. The dissenting opinions particularly that of Chief Justice D.Y. Chandrachud, rightly emphasized the constitutional right to form partnerships and the need for legal recognition through civil unions. However, these observations remain recommendatory and non-binding, thereby offering little solace to queer individuals seeking concrete legal remedies.
What is particularly disquieting is the contrast between India’s current position and the progressive jurisprudence emerging from comparative jurisdictions such as South Africa, Taiwan, and the United States. In Obergefell v. Hodges,[59] for instance, the U.S. Supreme Court held that the denial of marriage equality undermines both dignity and equal protection. South Africa’s Constitutional Court, too, recognized that marriage carries both symbolic and tangible value, and its denial perpetuates structural inequality. These jurisdictions have recognized that mere tolerance is insufficient; equality demands affirmation, recognition, and inclusion.
In India, the absence of legal recognition perpetuates a regime of invisibility. Without marriage or civil union rights, LGBTQ+ persons remain excluded from the benefits and protections conferred by family law, resulting in material and emotional harm. This legislative void undermines the constitutional ethos and perpetuates a second-class citizenship for queer individuals.
To redress this constitutional failure, there is an urgent need for transformative legal reform. The enactment of a gender-neutral civil union framework, reform of the Special Marriage Act,[60] and public sensitization initiatives must become part of a broader state project to affirm queer personhood. Parliament, in consultation with the Law Commission and civil society, must act to harmonize India’s family law regime with its constitutional values.
Ultimately, India’s journey toward LGBTQ+ inclusion must transcend symbolic victories and translate into enforceable legal rights. As Justice Chandrachud noted in Navtej Singh Johar,[61] the Constitution is not a mere charter of aspirations; it is a mandate to eradicate discrimination and enable the full expression of individual identity and autonomy. To realize that mandate, the law must evolve beyond heteronormative frameworks and embrace the plurality of love, relationships, and families that define modern India. Only then can the promise of equality, dignity, and liberty become a lived reality for all citizens.
Referece(S):
[1] Supriyo v. Union of India, W.P. (C) No. 1011 of 2022, Diary No. 36593 of 2022 (India Sup. Ct. Oct. 17, 2023)
[2] Navtej Singh Johar v. Union of India, Writ Pet. (Crl.) No. 76 of 2016, (2018) 10 S.C.C. 1 (India).
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India, Writ Pet. (C) No. 494 of 2012, (2017) 10 S.C.C. 1 (India).
[4] India Const. art.14
[5] India Const. art.15
[6] India Const. art.21
[7] Supra note 4
[8] Supra note 5
[9] Supra note 6
[10] Navtej Singh Johar v. Union of India (2018) 10 S.C.C. 1.
[11] § 377, Indian Penal Code, No. 45 of 1860 (India).
[12] Supra note 1
[13] Special Marriage Act, No. 43 of 1954 (India).
[14] Supra note 1
[15] Supra note 4
[16] Supra note 5
[17] Supra note 6
[18] Supra note 1
[19] Supra note 2
[20] Supra note 3
[21] Supra note 1
[22] Supra note 4
[23] Supra note 5
[24] Supra note 6
[25] Supra note 13
[26] Supra note 2
[27] Supra note 3
[28]Obergefell v. Hodges 576 U.S. 644 (2015)
[29] Supra note 1
[30] Ibid
[31] LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW (YODA PRESS, 2011).
[32] Supra note 2
[33] Supra note 3
[34] THE TRANSFORMATIVE CONSTITUTION: A RADICAL BIOGRAPHY IN NINE ACTS (HarperCollins India, 2019)
[35] Supra note 1
[36] Supra note 2
[37] Supra note 3
[38]Supra note 28
[39] Ibid
[40] Supra note1
[41] Supra note 1
[42] Supra note 4
[43] Supra note 5
[44] Supra note 6
[45] Shafin Jahan v. Asokan K.M., (2018) 16 S.C.C. 368 (India)
[46] Supra note 6
[47] Supra note 2
[48] Supra note 1
[49] State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
[50] Supra note 28
[51] Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC)
[52] Supra note 13
[53] Supra note 1
[54] Supra note 13
[55] India Const. art. 44.
[56] Supra note 1
[57] Supra note 2
[58] Supra note 1
[59] Supra note 28
[60] Supra note 13
[61] Supra note 2
