October 18, 2023


The Supreme Court, in its recent verdict in Supriyo v. Union of India (2023), refused to recognize same-sex marriage or the union of homosexual couples by asserting that recognition or non-recognition of marriage is governed by statutory enactments, which is a sole prerogative of the legislature. The Court must not and can’t enter into that realm.

The judgment was given by a five-judge bench comprising Chief Justice D.Y. Chandrachoud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narsimha. The major argument in the petition was against the constitutional validity of the Special Marriage Act, 1954, an act enacted to recognize the marriages of interfaith couples. Though all the judges agreed unanimously on the validity of the Act, there were some other issues on which the bench differed.

This article aims to explain and simplify the arguments that were presented before the Court from both sides, the reasoning adopted by the Court in forming its own opinion, and an analysis of that.

Arguments from the petitioner’s side

The arguments of the petitioners can be summarized into the following points:

  1. The Special Marriage Act, 1954, and the Foreign Marriage Act, 1969, violate Articles 14 and 15 of the Constitution, as the Act excludes from its purview homosexual or non-heterosexual couples. The exclusion fails the tests of reasonable classification and intelligible differentia, hence violating Article 14, and since it’s discrimination on the basis of sex, it also violates Article 15 of the Constitution.
  2. The non-recognition of the marital status of queer people also violates Article 21, as the right to life includes the right to sexual autonomy, bodily integrity, and the right to choose a partner of one’s choice.
  3. The non-recognition violates Article 19 of the Constitution, as the right to form an association is expressly recognized under that.
  4. Not only does the non-recognition violate the principles of the Indian Constitution, but the non-recognition also violates the international principles enshrined under the Universal Declaration of Human Rights (UDHR), to which India is a signatory.
  5. Though the Court decriminalized homosexuality in Navtej Singh Johar v. Union of India, instances of cruel, discriminatory, and inhumane treatment continued to take place against those people. Those behaviors could only be protected through the recognition of marriage.
  6. Homosexual couples are equally entitled to all the statutory marriage benefits, as they are all citizens of India.

The argument’s on the respondent’s side.

The respondent’s arguments can be summarized into the following headings:

  1. The Court doesn’t have jurisdiction to entertain the issue involved in the present case, as it is best to be decided by the legislature. It is against the concept of separation of power.
  2. Marriage is the union of heterosexual couples, and homosexual marriage is unknown to Indian culture.
  3. Separation of power must be adhered to as a basic feature of the Constitution.
  4. Recognition of marriage is not a natural right. It is a statute. Therefore, it is up to the state to recognize it or not to recognize it.
  5. If such marriages are recognized, then it would give impetus to polygamy marriages too, which again would be detrimental to the social order.
  6. Also, the adoption rights of homosexual couples are not recognized to protect the interests of children.

Court’s rulings

The ruling of the Court on each of these issues can be summarized into the following points: All judges concurred on the following points:

  1. The Court has jurisdiction under Article 32 so as to protect the fundamental rights of the citizens. Separation of power is a basic feature; however, judicial review is also a basic feature. The court is not making law in the instant case but only protecting and upholding the rights of its citizens. Therefore, the court has the jurisdiction to decide on these issues.
  2. The queer people are not alien to Indian culture; from ancient times, these have been recognized in different religions; therefore, it cannot be said that the concept of homosexuality is foreign to India or is an urban and elite concept.
  3. The term marriage can’t be defined in subjective terms. Because there is no universal definition of marriage, For example, for Hindus, it is a sacred union, and for Muslims, it is a kind of agreement. The only core components of marriage are the voluntary union of mind, body, and soul. Procreation is not the only purpose. The essence is some emotional and associational bonding. Also, the institution of marriage is not static. It continuously undergoes changes. From the age of child marriage and sati, we have come to the age of inter-caste and inter-religion marriage. Through this journey, the only thing that has prevailed is justice and the rights of people. Therefore, it can’t be concluded that marriage is only the union of heterosexual couples.
  4. The state recognizes marriage because there is a public interest involved in it. By recognizing marriages, the state democratizes private spaces, ensuring that the actions of the couple are in consonance with constitutional values. For example, the enactment of the Domestic Violence Act
  5. The ‘Right to Marry’ has not been recognized neither in the Constitution nor in the judgments of the Supreme Court, namely Lata Singh v. State of UP (2006) or Navtej Singh Johar v. Union of India (2018). The Court has only recognized this in the context of these earlier occasions to protect the personal autonomy of the individual. Therefore, marriage itself is not a fundamental right.
  6. The Court can’t strike down Section 4 of the Special Marriage Act, as then there would be no statute to govern inter-faith marriage, which would amount to curbing down a progressive statute. Also, the Court can’t read into the same statute that it includes homosexual couples, because that would be entering into the domain of the legislature. Because when the intention of the legislature is clearly reflected in plain words, giving it some other meaning would misbalance the concept of separation of power. Therefore, the Court upheld the validity of the Special Marriage Act and the Foreigners Marriage Act.
  7. For the full enjoyment of any relationship, it is necessary that the state accord recognition to such a relationship. A committee should be set up, chaired by the cabinet secretary, to recognize the rights of homosexual couples.

Split decision on the following points:

Though the judgment was unanimous in essence, the judges differed on the following points:

  1. It was asserted that Article 19 bestows citizens with the right to form unions. Therefore, CJI DY Chandrachud and Judtice SK Paule emphasized the recognition of queer civil unions so as to ensure that these people could get the material benefits of marriage and accordingly directed the state to do so. However, it was dissented by Justice Bhat and Justice Kohli, and they held that the state is not constitutionally bound to provide and recognize the same.
  2. CJI Chandrachud, in his minority opinion, held that queer people should have the same adoption rights as heterosexual couples, as it is nowhere proven that the best interests of children are protected only by heterosexual couples. However, the same was dissented by Justice Bhat, who propounded that the best interest of a child is served best by a married couple.


It was seen that even after the decriminalization of homosexuality, the LGBTQ+ community continued to suffer cruelty and inhuman behavior at the hands of society. Because ultimately, recognition doesn’t come from a court’s ruling but from a society. How we, as individuals, accept homosexual couples can make a difference in their lives. Therefore, the people of India, by adhering to the principle of fraternity as their fundamental duty, must reflect their acceptance, recognition, and reception of homosexual couples. Also, the legislature must come up with suitable and needed provisions to guarantee a dignified life to these couples as promised by the Constitution.

Significance of the Topic

The topic is of immense significance for judiciary aspirants. It adds a new chapter to the rights of homosexual couples. Also, various judiciary coaching emphasize the essay part as it forms a portion of the syllabus. Therefore, the topic is very much recommended by every judiciary coaching

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