Abstract
This article examines the evolving legal and constitutional debate surrounding the recognition of same-sex marriage in India. While the Supreme Court’s decision in Navtej Singh Johar v. Union of India decriminalized consensual same-sex relations, marriage equality remains unrecognized. Through an analysis of landmark judgments, statutory frameworks, and comparative global developments, this article highlights the constitutional principles of equality, liberty, and dignity that demand reform. It argues that extending marriage rights to same-sex couples is not merely a legal issue but a moral obligation under constitutional morality. The discussion concludes that India stands at a pivotal moment—where compassion and constitutional values must guide the law toward true inclusivity.
Keywords: Same-Sex Marriage, LGBTQ+ Rights, Constitutional Morality, Article 21, Equality, Human Rights
Introduction
India is known for its rich culture and traditions but when it comes to the topic of same sex marriage, the country finds itself standing between centuries old customs and promise of equality under the Constitution. Over the years the debate for same-sex marriage has evolved from hushed conversations to a widely discussed topic through many mediums. Still, for most of the LGBTQ+ Indians, the denial of marriage rights has not just been a legal gap but a daily lived injustice. This article explores the legal background, highlights landmark cases, brings in recent developments, and argues for a truly inclusive future.
Historical and Legal Background
India’s history is rich with examples of fluid gender and sexual identities, from the Mahabharata’s Shikhandi to the respected Hijra community. However,back in the colonial-era, the British imposed Section 377 of the Indian Penal Code (IPC)in 1861 which criminalized sexual acts that didn’t fit the ‘norm’affecting non-heterosexual relationships for over 150 years.
A long battle for dignity and recognition resulted in the Supreme Court’s landmark ruling in Navtej Singh Johar v. Union of India[1]. The Court unanimously read down Section 377, decriminalizing consensual same-sex relations between adults and declaring, “history owes an apology to members of the community for the delay in ensuring their rights.” This judgment was a turning point in Indian law, yet it left matters of marriage, inheritance, adoption, and spousal rights unresolved.
Key Landmark and Recent Case Laws
The case of Navtej Singh Johar was inspired from many other crucial judgments. In the case of Justice K.S. Puttaswamy (Retd.) v. Union of India[2], the Supreme Court declared that the right to privacy is a fundamental right, forming the base for the protection of a person’s sexual orientation. In NALSA v. Union of India[3], the Court recognized the rights of the transgender community, affirming the critical link between dignity, autonomy, and legal recognition.
The right to marry a person of one’s choice was reaffirmed in the case ofShafin Jahan v. Asokan K.M.[4], where the Supreme Court struck down barriers to interfaith marriage, holding that personal liberty under Article 21 includes the freedom to choose one’s partner. LGBTQ+ activists frequently cite this reasoning, arguing that it should apply regardless of gender.
In the most recent case ofSupriyo v. Union of India[5]wherein a five-judge bench of the Supreme Court considered petitions seeking recognition of same-sex marriage under the Special Marriage Act and other statutes. While the Court acknowledged the discrimination and hardships faced by same-sex couples, it ultimately held that granting marriage rights was a matter for Parliament to decide. The judgment left many disappointed, but it did not close the door to future progress.
State High Courts have also played a crucial role in this regard. The Delhi High Court is currently hearing petitions on marriage equality, keeping the debate alive. In S. Sushma v. Commissioner of Police[6], the Madras High Court issued directives to protect LGBTQ+ persons from harassment and advocated for sensitization of police and government officials. These judicial interventions, though not granting marriage rights outright, have improved legal protections and heightened public awareness.
Constitutional Arguments and the Human Dimension
The Indian Constitution outlines the provisions of equality before law (Article 14), prohibits discrimination on grounds of sex (Article 15), and guarantees personal liberty (Article 21). Denying marriage rights to same-sex couples directly contradicts these values. In Navtej Singh Johar case, the Hon’ble Supreme Court resonated with humanity, stating that sexual orientation is essential to one’s identity and that the LGBTQ+ community possesses equal rights as any other citizen.
But these principles remain unfulfilled in everyday life. Same-sex couples are denied basic rights – inheritance, joint property, adoption, insurance, medical consent, and next-of-kin status. These legal exclusions leadto social stigma, financial insecurity, and emotional distress. Many couples must hide their relationships, fearing discrimination by landlords, employers, or even their own families. In moments of crisis – hospitalization, accidents, or death, partners find themselves powerless or excluded.
Studies by Indian and global mental health organizations show that legal exclusion and social stigma is the cause of increased rates of anxiety, depression, and suicidal thoughts among LGBTQ+ individuals. Legal recognition of marriage is about more than paperwork; it’s about dignity, safety, and belonging.
Arguments Against Legalization
Opponents of same-sex marriage often invoke tradition, religious doctrine, and the sanctity of the families. Many hold that marriage, as defined in personal laws like the Hindu Marriage Act (1955) or the Muslim Personal Law, is union between a man and a woman – a foundation for procreation and lineage. Religious leaders from various faiths have expressed concerns that this will corrupt their cultural values and destabilize family structures.
Legal scholars and government representatives argue that Indian laws, including the Special Marriage Act (1954), were never intended to recognize same-sex unions, and any change should come from Parliament, not the courts. The government’s affidavits in the Supriyo case emphasized that same-sex marriage is not compatible with the traditional Indian family concept. There are also fears that judicial intervention could provoke social backlash or undermine social harmony.
Yet, these arguments are increasingly being questioned by youngsters, activists, and academicians. Urbanization, globalization, and exposure to diverse ideas have fostered greater acceptance, especially in cities. Public opinion surveys show a steady, though cautious, rise in support for LGBTQ+ rights.
Comparative Perspectives
Globally, over 30 countriesincluding South Africa, the United States, Canada, Germany, and Argentinahave legalized same-sex marriage. These reforms often followed landmark court rulings. Closer to home, Nepal’s Supreme Court in Sunil Babu Pant v. Nepal Government[7]directed the government to legally recognize same-sex relationships. In 2023, Nepal became the first South Asian country to register a same-sex marriage, setting a powerful regional precedent. Taiwan’s Constitutional Court paved the way for marriage equality in Asia,showing that legal reforms can spark broader social acceptance.
Studies from these countries show real benefits: better mental health for LGBTQ+ populations, increased social acceptance, and even economic gains due to greater inclusion.
Recent Developments
The 2023 Supreme Court decision in Supriyo v. Union of India left the door open for legislative action, urging Parliament to consider the issue. Since then, various advocacy groups have intensified their campaigns, urging lawmakers to amend the Special Marriage Act or introduce new legislation for same-sex marriage. The Law Commission of India has also been asked to study the matter, and several Members of Parliament have expressed support for reform.
Beyond the courts and legislature, civil society organizations like Naz Foundation, Lawyers Collective, and the Queer Collective are working tirelessly raising awareness, providing legal aid, and challenging discrimination. Social media campaigns and pride marches are giving LGBTQ+ people a platform and bridging generational gaps.
The Delhi High Court’s ongoing hearings continue to keep marriage equality in the public eye. Meanwhile, states like Tamil Nadu and Kerala have introduced sensitivity training for police and government officials, and several High Courts have issued guidelines to protect LGBTQ+ individuals from violence and harassment.
Impact of Non-Recognition
The absence of legal recognition affects every aspect of life for homosexual couples. Partners are denied the right to inherit property jointly acquired, adopt children together, or access spousal health insurance. In emergencies, they may be barred from hospital rooms or denied the right to make critical medical decisions. Many have shared stories of losing their homes after a partner’s death or facing legal battles for custody of children raised together.
A 2022 study by the Centre for Law and Policy Research documented dozens of cases where lack of legal status resulted in severe hardship for LGBTQ+ families. The lack of spousal rights also complicates access to government benefits, pensions, and tax advantages. These day-to-day hardships underscore that marriage equality is not just symbolic but a matter of basic rights and human dignity.
Legal Reform and Social Change
There are two main paths forward: judicial interpretation and legislative reform. The judiciary can interpret existing marriage laws in a gender-neutral way, as argued in the ongoing Delhi High Court cases. Parliament can amend the Special Marriage Act or enact a new law, following the Supreme Court’s suggestion in the Supriyo case.
Civil society, educators, and the media play an equally important role in this legal change. It is most effective when paired with education, representation, and open conversations. Sensitization efforts in schools, workplaces, and government offices can reduce stigma and foster empathy. In recent years, even films and web series have portrayed LGBTQ+ stories with sensitivity making the audience understand that love and identity is beyond gender.
Conclusion
The fight for same-sex marriage in India is about more than legal rights, it is about dignity, security, and the freedom to love. Landmark judgments have brought the country closer to fulfilling its constitutional promise, but the journey is not over.
India stands at a historic crossroads. With continued efforts and understanding from courts, lawmakers, and society, the promise of equality and justice for all is within reach. Other countries have proved that once marriage equality becomes real,acceptance is achieved. It is time for India to lead with compassion, reason, and constitutional morality.
References
- Dixit, P. (2019). Navtej Singh Johar v Union of India: decriminalising India’s sodomy law. The International Journal of Human Rights, 24(8), 1011–1030. https://doi.org/10.1080/13642987.2019.1690465
- Sikri, A. K. (2018). Justice KS Puttaswamy (Retd) vs Union Of India on 26 September, 2018.
- Jha, E. (2014). NALSA v. Union of India-the metamorphosis of gender recognition in India. CALJ, 2, 48.
- Vishwajeet, B. (2021). Shafin Jahan vs Ashokan KM: The Right to Marry. Jus Corpus LJ, 2, 101.
- Sasidaran, S. (2023). Analysing the Legal Implications: Supriyo v. Union of India. Jus Corpus LJ, 4, 8.
- https://www.scconline.com/blog/post/2021/07/08/lgbtqia-community/
- Raut, A., & Kumary, S. (2018). Judicial Activism in the protection and promotion of basic Human Rights in Nepal.
- Jain, M.P., Indian Constitutional Law, 8th Edition, LexisNexis, Gurgaon, 2018
- Centre for Law and Policy Research, “Queering the Law: Mapping Legal Hardships for LGBTQ+ Families in India,” 2022. Available at: https://clpr.org.in/publications/queering-the-law/Opens a new window
- Law Commission of India, Report No. 258: “Recognition of Same-Sex Marriage” (2023). Available at: https://lawcommissionofindia.nic.in/Opens a new window
- Ruth Vanita & Saleem Kidwai, Same-Sex Love in India: Readings from Literature and History, Macmillan, 2000.
- World Health Organization, “Mental Health and Sexual Minorities,” 2019. Available at: https://www.who.int/news-room/fact-sheets/detail/lgbtiqOpens a new window
[1]Navtej Singh Johar v. Union of India [(2018) 10 SCC 1]
[2]Justice K.S. Puttaswamy (Retd.) v. Union of India [(2017) 10 SCC 1]
[3]NALSA v. Union of India [(2014) 5 SCC 438]
[4]Shafin Jahan v. Asokan K.M. [(2018) 16 SCC 368]
[5]Supriyo v. Union of India, 2023 SCC OnLine SC 1275.
[6]S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 19145.
[7]Sunil Babu Pant v. Nepal Government, Writ No. 917 of 2007 (Supreme Court of Nepal)
Author Name- Kritika Dubey, a 3rd-year law student at Shri Ramswaroop Memorial University
