A five-judge bench headed by Chief Justice of India DY Chandrachud has pronounced the verdict on marriage equality.

In India, the Supreme Court says the question of same-sex marriage is up to the country’s parliament to decide. The move shocked millions of same-sex couples who were hoping for the court to codify marriage rights.

The Supreme Court’s refusal to accord legal recognition to marriages between persons of the same sex is being seen as a setback to the queer community in the country. Given the progress in law in recent years and the deepening of the meaning of individual rights, there was widespread expectation that the five-judge Constitution Bench would give the Special Marriage Act (SMA), a law that allows any two people to marry, a gender-neutral interpretation to include people belonging to the same sex.

Same-Sex marriage case

In November 2022, two same-sex couples moved to the Supreme Court, arguing that their inability to marry under Indian family law resulted in a violation of their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc. After a hearing that lasted 10 days, the court reserved its judgment in May 2023 and finally decided the same on Oct 17th, 2023.



The bench comprised Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha with Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha in the majority and Chief Justice of India D Y Chandrachud and Justice Sanjay Kishan Kaul in the minority.

The Supreme Court, in this landmark case, has entrusted the matter of same-sex marriage to Parliament, as it is unable to alter provisions of the Special Marriage Act.


Chief Justice Chandrachud and Justice Kaul advocated for civil unions for non-heterosexual couples, marking a step toward marriage equality. However, all five judges agreed that there’s no inherent right to marry under the Indian Constitution. 

A majority verdict by a 5- member Bench therefore ruled against same-sex marriage, emphasizing that Parliament should make this call

The queer community, while the bench stated that queerness as a concept is a natural phenomenon known for ages and is neither urban nor elite, it said the court couldn’t make a law but only interpret it. The Justices also said that it is for Parliament to change the Special Marriage Act.

The court ruled that marriage, as an institution governed by law, does not currently include same-sex couples, and the absence of such inclusion is not deemed unconstitutional. The Special Marriage Act of 1954, designed for inter-faith unions and central to the case, remains unaltered in its restriction to marriages between a ‘man’ and a ‘woman.’  Ultimately, the court held that there is no fundamental right to marry, although the minority observed that the right to marry interfaces with other fundamental rights, including the right to freedom of expression, freedom of movement, and a life of dignity and autonomy.

Issues related to the Judgement

Violation of Fundamental Rights

The verdict goes against the fundamental rights of LGBTQIA+ individuals as recognized by the Supreme Court in previous judgments. These rights include equality, dignity, and autonomy, which have been affirmed as fundamental in the past.

The Supreme Court in various judgments such as Lata Singh vs State of UP (2006), Safin Jahan vs Ashokan (2018), Shakti Vahini vs Union of India (2018) and Laxmibai Chandarangi vs State of Karnataka (2021) has held that choosing a life partner is a Fundamental Right under Article 21.


Ignoring Lived Realities:

The verdict fails to take into account the real-life experiences of LGBTQIA+ individuals who often face discrimination, violence, and stigma in society due to their sexual orientation and gender identity

Undermining Constitutional Morality

The critics argue that the verdict undermines the principle of constitutional morality. They say that the state should respect the diversity and plurality of its citizens, rather than imposing the views of the majority on minority groups.

Contradiction with International Human Rights Standards

The verdict contradicts international human rights standards and norms. It claims that international standards uphold the right to marry and establish a family for all individuals, irrespective of their sexual orientation and gender identity. The verdict, in this view, is not in alignment with these global norms.

Observations made by the Supreme Court

The minority opinion batted for the state to recognise queer unions, even if not in the form of marriage. The right to enter a union cannot be restricted on the basis of sexual orientation (which violates Article 15); moreover, marriage is significant because of a bouquet of rights, and for same-sex couples to enjoy these entitlements, it is necessary that the state accord recognition to such relationships.

The majority opinion of the Bench affirmed that transgender individuals have the right to marry within the existing legal framework. The judgment emphasized that gender identity is distinct from sexual orientation, highlighting that transgender individuals can be in heterosexual relationships similar to cisgender individuals. Therefore, such marriages can be legally registered under marriage laws. Additionally, the judgment recognized that intersex individuals who identify as either male or female also have this right.

The majority opinion refused to strike down the Central Adoption Resource Authority (CARA) regulations that restrict queer couples from joining in adopting a child. While it noted that these regulations are discriminatory and violative of Article 14, the majority opinion did not support adoption rights for same-sex couples, citing the need to explore all areas for the benefit of children in need of stable homes.

Many queer persons face violence from natal families and are reportedly kidnapped in an attempt to end relationships. The judgment identified that families of LGBTQ persons as well as the police are the primary actors in such violence, and has issued directions to the police department to not force queer persons to return to their families.

The verdict rejected the government’s argument that same-sex unions are unnatural or non-Indian. It acknowledged that queer love has existed in India for a long time and that the constitutional legitimacy of same-sex relations is not undermined by societal acceptability.

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