This article is written by Tamanna, KCC Institute of Legal Studies and Management, Gr Noida
Throughout history, marginalized groups have relied on courts to protect their rights when majorities fail them. Courts can strike down discriminatory laws, but a key constitutional question arises when they are asked to create new legal institutions rather than interpret existing law.
This tension was central to Supriyo v. Union of India (2023), where the Indian Supreme Court considered granting legal recognition to same-sex marriage. Despite acknowledging the rights and dignity of LGBTQ+ individuals, the five-judge Constitution Bench unanimously refused legalization, citing limits imposed by the separation of powers.
The judgment clarified that while courts may safeguard fundamental freedoms, creating a new social institution – and the complex legal framework supporting it – falls within the legislature’s domain, even if legislative action is slow.
From Decriminalization to the Fight for Marriage
To understand the Supriyo case, it is important to trace the development of LGBTQ+ rights in India. For many years, the queer community faced discrimination under Section 377 of the Indian Penal Code, a colonial-era law that criminalized same-sex relations.
The legal position changed significantly in 2018 when the Supreme Court, in Navtej Singh Johar v. Union of India, decriminalized consensual same-sex relations. The Court held that sexual orientation is a fundamental part of dignity, privacy, and personal autonomy, and affirmed that queer individuals are entitled to equality and non-discrimination.
After decriminalization, the demand shifted toward equal civil rights, especially the right to form legally recognized families. In 2022, several same-sex couples, including Supriya Chakraborty and Abhay Dang, filed petitions in the Supreme Court challenging the Special Marriage Act (SMA), 1954. The SMA is a secular law intended to allow marriages outside traditional religious personal laws.
The Petitioners’ Constitutional Arguments
The petitioners based their arguments on Part III of the Constitution, claiming that restricting marriage to heterosexual couples violates equality and non-discrimination under Articles 14 and 15. They argued that marriage grants essential legal benefits such as inheritance, taxation rights, and emergency decision making, which cannot be denied on the basis of sexual orientation.
They also invoked Article 19(1)(a), viewing marriage as a public expression of commitment, and relied strongly on Article 21. Citing privacy and autonomy judgments such as Puttaswamy and Shafin Jahan, they argued that the right to life and liberty includes the freedom to choose one’s partner.
Instead of striking down the Special Marriage Act, the petitioners proposed reading down the law by interpreting terms like “husband and wife” as “spouse and spouse,” thereby extending legal recognition to queer couples within the existing framework.
The State’s Defense: The Domino Effect
The Union of India opposed the petitions by framing the issue as one of constitutional authority rather than personal liberty. The government argued that marriage is not a fundamental right but a legal institution regulated by the State.
It warned that altering the Special Marriage Act would trigger widespread legal complications, since marriage forms the basis of many gender specific laws involving maintenance, domestic violence, adoption, and property rights. Any judicial modification, according to the State, could destabilize the broader framework of Indian family law.
The government described the matter as a polycentric dispute involving multiple interconnected legal consequences. It maintained that such complex reforms require democratic debate and legislative action, not judicial intervention.
The Unanimous Verdict: The Limits of the Court
The five-judge bench gave a staggering 366-page verdict on October 17, 2023. Although the judges showed real empathy towards the struggles of the LGBTQ+ community on a day-to-day basis, the verdict was a real hard lesson in judicial restraint.
One thing that all five judges agreed on was that the Constitution does not provide a fundamental right to marry. Although Article 21 of the Indian Constitution provides you with the right to choose your partner and live together, marriage is a State-made construct and not a human right per se.
The Court simply and categorically refused to strike down or modify the Special Marriage Act. To strike down the Act completely would deprive the much-needed protection of inter-faith and inter-caste couples. On the other hand, modifying the Act to make it gender-neutral would be a major constitutional overreach. The Court’s role is to strike down an unconstitutional law, not to make a new one.
In the end, the judges held that it is “judicial legislation” to build a framework for queer marriage, which is the sole domain of Parliament.
The 3:2 Split: Civil Unions and the Boundary of Rights
Although the bench was unanimous in refusing to recognize same-sex marriage under the Special Marriage Act, it split 3:2 on civil unions and joint adoption rights, revealing differing judicial approaches to civil rights enforcement.
Minority View (CJI D.Y. Chandrachud and Justice S.K. Kaul):
The minority adopted a rights-based interpretation, holding that queer couples possess a fundamental right to intimate association under Article 21. They argued that the State has a constitutional obligation to recognize such relationships, since denying legal benefits available to married couples violates equality and dignity. They supported legal recognition of civil unions and viewed restrictions on joint adoption by queer couples as discriminatory.
Majority View (Justices Bhat, Kohli and Narasimha):
The majority accepted that queer individuals have the right to cohabit without State interference. However, they held that creating civil unions and extending related legal benefits falls within the legislature’s authority. Courts cannot direct Parliament to establish new legal frameworks or grant adoption rights without statutory backing.
Unanimous Affirmations for the Queer Community
Although the Court refused to recognize marriage equality, the Supriyo judgment still affirmed several important protections for queer individuals:
Protection from Violence:
The Court directed governments and police authorities to protect queer persons from family and social violence and to prevent harassment of queer couples.
Right to Cohabit:
The Court reaffirmed that queer individuals have a fundamental right to live together and maintain intimate relationships without discrimination or interference.
Transgender Marriages:
The Court clarified that transgender persons in heterosexual relationships have the right to marry under existing personal and secular laws, recognizing their legal gender identity within traditional marriage laws.
Conclusion
The Supriyo v. Union of India judgment reflects a major paradox in civil rights law. The Supreme Court strongly affirmed the dignity, identity, and equality of the LGBTQ+ community and acknowledged the discrimination they face. At the same time, it set clear limits on judicial power by refusing to legalize same-sex marriage or mandate civil unions.
The Court emphasized that the judiciary cannot resolve every social inequality. When a demand requires the creation of new legal institutions and changes to family laws, it becomes the responsibility of the legislature rather than the courts.
The judgment did not declare same-sex marriage unconstitutional or morally wrong; instead, it stated that the Supreme Court is not the appropriate forum to introduce such changes. The struggle for marriage equality has therefore shifted from the courts to Parliament, where the responsibility now lies with elected representatives.
Frequently Asked Questions
What was the core issue in Supriyo v. Union of India?
The case involved multiple petitions asking the Supreme Court of India to recognize same-sex marriage. The petitioners primarily argued that the Special Marriage Act (SMA), 1954, should be interpreted or struck down in a way that allows non-heterosexual couples to marry, citing fundamental rights to equality, freedom of expression, and dignity.
Did the Supreme Court legalize same-sex marriage in this verdict?
No. In October 2023, a five-judge Constitution Bench unanimously ruled against legalizing same-sex marriage. The Court concluded that it could not read words into the Special Marriage Act to include same-sex couples, as doing so would amount to rewriting the law.
Why did the Court say this was a matter of “Judicial Power”?
The central theme of the verdict was the Separation of Powers. The Supreme Court reasoned that amending marriage laws requires complex policy changes that affect various other laws (like adoption, succession, and divorce). The Court held that creating or altering such a broad social and legal institution falls strictly within the domain of the legislature (Parliament), not the judiciary.
Did the Court recognize a “fundamental right to marry”?
No. The Constitution Bench unanimously agreed that there is no unqualified “fundamental right to marry” explicitly guaranteed under the Constitution of India. Marriage is viewed as a statutory right, meaning it is governed by laws passed by the state rather than being an inherent constitutional guarantee.
