The question of same-sex marriage in India is not merely one of law but of justice, dignity, and constitutional morality. While the Supreme Court's historic decision in Navtej Singh Johar v. Union of India (2018) decriminalised consensual same-sex relations by reading down Section 377 of the Indian Penal Code, it left unresolved the more complex issue of marital recognition for queer...
The question of same-sex marriage in India is not merely one of law but of justice, dignity, and constitutional morality. While the Supreme Court's historic decision in Navtej Singh Johar v. Union of India (2018) decriminalised consensual same-sex relations by reading down Section 377 of the Indian Penal Code, it left unresolved the more complex issue of marital recognition for queer couples. Despite recognising the rights of LGBTQ+ persons to love and form intimate associations, the legal right to marry remains exclusively reserved for heterosexual unions under existing statutes like the Special Marriage Act, 1954. The Supreme Court's recent refusal in Supriyo v. Union of India (2023) to read same-sex marriage into the statute, despite acknowledging the hardships faced by queer couples, highlights the judicial ambivalence on the matter.
However, historical prejudices, colonial morality, and religious orthodoxy cannot be valid justifications for continued exclusion. If the Constitution guarantees equality, dignity, autonomy, and the right to life, it must, by necessity, guarantee the right to marry irrespective of gender or sexual orientation. In the absence of legislative will, judicial engagement becomes not only legitimate but necessary.
Historical Marginalization: From Sastric Texts to Colonial Laws
The discrimination against non-heteronormative individuals is not new. In classical Hindu legal texts, such as the Dharmashastras and Mitakshara, eunuchs or individuals with indeterminate sexual characteristics were subject to disabilities in matters like inheritance and social participation. These texts treated them as anomalies, often depriving them of full personhood. The colonial British regime further entrenched these attitudes by criminalising non-procreative sexual activity under Section 377 IPC, modelled on Victorian notions of morality and Christian sexual ethics.
This legal provision effectively turned queer individuals into criminals, rendering their love illicit and their relationships invisible in the eyes of the law. It wasn't until the 21st century that courts began challenging this embedded discrimination. However, even as eunuchs and transgender persons gradually found recognition—through cases like NALSA v. Union of India (2014) which upheld the right to self-identification—the broader queer community continued to face systemic legal exclusion, especially in areas of civil rights such as marriage, adoption, and succession.
Section 377: From Criminality to Constitutional Morality
The judicial journey from Naz Foundation v. NCT of Delhi (2009), through Suresh Kumar Koushal v. Naz Foundation (2013), to Navtej Singh Johar (2018) represents a slow but powerful evolution in Indian constitutional jurisprudence. The Naz Foundation judgment, delivered by the Delhi High Court, boldly decriminalised same-sex relations by recognising the dignity and autonomy of LGBTQ+ individuals. However, in Koushal, the Supreme Court reversed the verdict, stating that a “minuscule minority” could not dictate constitutional interpretation. This setback was met with national and international outrage.
Navtej Johar marked a triumphant return to reason. The Court not only struck down the offending part of Section 377 but also invoked constitutional morality, the right to privacy (as affirmed in Justice K.S. Puttaswamy v. Union of India, 2017), and the inherent dignity of the individual. Yet, by limiting the ruling to decriminalisation, it left untouched the systemic inequality experienced by queer couples in domains like marriage and family rights.
The Special Marriage Act and the Need for Reform
The Special Marriage Act, 1954 was enacted as a secular law allowing interfaith and civil marriages outside the fold of personal religious laws. However, it remains rooted in binary gender assumptions, requiring “male” and “female” designations. Thus, even this progressive statute is inaccessible to same-sex couples. In Supriyo v. Union of India (2023), petitioners argued for a reading of the Act that would allow marriage based on personhood rather than sex. The Court acknowledged the suffering of queer couples and recognised their right to form unions, but it ultimately deferred to the legislature for marriage equality. This judicial restraint reflects both the limits of interpretive activism and the weight of traditional societal resistance. Yet, contradictions abound. If queer couples can form relationships, live together, and exercise autonomy, the denial of legal recognition—especially in matters of inheritance, insurance, adoption, and hospital visitation—is arbitrary and unjust. The Court's own precedents on dignity, equality, and privacy demand a resolution that aligns rights with recognition.
Comparative Jurisprudence and International Momentum
Globally, courts and legislatures have increasingly moved toward recognising same-sex marriage as an essential component of human rights. In Obergefell v. Hodges (2015), the U.S. Supreme Court held that same-sex couples have a fundamental right to marry under the Fourteenth Amendment. The Court emphasised that marriage is a keystone of social order and denying it to same-sex couples demeans their dignity and status. Though the later reversal of Roe v. Wade by the same Court in Dobbs v. Jackson Women's Health (2022) casts doubt on the permanence of progressive rights in the U.S., the trend in many democratic countries—from Canada to South Africa and Taiwan—has been toward greater inclusivity. The Indian judiciary, long a pioneer in creative constitutionalism, has both the mandate and the legacy to pursue similar reasoning.
A Case for Judicial Engagement
When the legislature is reluctant or politically constrained, courts must act to uphold constitutional guarantees. This is not judicial overreach but constitutional fidelity. The Supreme Court in India has a proud tradition of recognising unenumerated rights under Article 21—from the right to a clean environment to the right to die with dignity. Marriage, as an institution tied to human fulfilment, falls well within the ambit of this evolving jurisprudence. Moreover, equality under Article 14 and protection against discrimination under Article 15 require that laws serve legitimate state interests, not majoritarian moralities. The exclusion of same-sex couples from civil marriage serves no such purpose. It is not the business of the state to validate love; it is its duty to ensure equal protection under the law.
The Way Forward: Cerebral Activism and Strategic Litigation
In the face of legislative inertia, reform must emerge through cerebral and strategic activism. The legal community, civil society, and academic scholars must work in concert to generate public discourse, refine legal arguments, and mount challenges that position same-sex marriage as a natural extension of existing rights. This includes challenging provisions of the Special Marriage Act and personal laws for their discriminatory impact, seeking declaratory reliefs, and utilising public interest litigation as a vehicle for social change. Success may also come through incremental victories—such as gaining inheritance rights, adoption rights, or recognition of civil unions—which may eventually culminate in full marital equality.
Same-sex marriage is not merely about ceremony or celebration; it is about legal protection, social validation, and human dignity. The Indian Constitution promises equality not just in theory but in the lived experience of its citizens. A democracy that excludes individuals from the right to marry based on their sexual orientation remains, in part, a democracy of exclusion. While the legislature has hesitated, the courts have the constitutional tools and moral responsibility to act. As history has shown—from Kesavananda Bharati to Navtej Johar—judicial courage can shape the nation's conscience. The path to same-sex marriage in India may be long and complex, but it is paved with reason, justice, and the quiet resolve of countless individuals who seek nothing more than the right to love—and to be loved—on equal terms.
Views Are Personal.
Author is a Former Judge of High Court of Punjab And Haryana.
The above is an excerpt taken from the book 'Medicine And Law' written by him and published by Thomson Reuters.
The book is Available in https://amzn.in/d/02RUSmj;