Supreme Court says no to same-sex marriage, leaves it to Parliament

The Supreme Court just told 21 queer couples: we can't give you marriage, but we can tell the government to figure out your benefits. On October 17, 2023, a five-judge Constitution Bench delivered four separate opinions in Supriyo @ Supriya Chakraborty & Anr. v. Union of India. The verdict landed like a thunderclap that left nobody entirely satisfied — the couples got no marriage, but they did not leave empty-handed either. The courtroom fell into a heavy silence as the Chief Justice began reading the operative order, the petitioners' faces a mixture of hope and dread, the judgment papers thick with the weight of a decade's litigation.

The question was deceptively simple: Could the Special Marriage Act, 1954 — a law designed to let people from different religions marry without converting — be read in a gender-neutral way to include same-sex couples? And if not, could the court itself create a legal framework for civil unions?

When the petitions arrived

Several same-sex and queer couples walked into the Supreme Court asking for legal recognition of their relationships. They argued that the Special Marriage Act discriminated against them by only allowing marriages between a "man" and a "woman." They faced violence, social ostracism, and denial of legal benefits that married heterosexual couples take for granted — inheritance rights, insurance benefits, hospital visitation, joint tax filing, adoption rights. The petitioners' affidavits, some barely a few pages, told stories of partners being denied hospital access during emergencies, of being treated as strangers by insurance companies, of the daily indignity of having a relationship that the law refused to see.

The Union of India opposed the petitions firmly. Marriage, the government argued, is a legislative domain. The court cannot rewrite statutes. If Parliament wanted same-sex marriage, Parliament would pass a law. Until then, the court had no business creating one. The solicitor general's voice echoed in the marble corridors: the separation of powers was not a suggestion, it was a constitutional command.

The bench that heard it

Chief Justice Dr. Dhananjaya Y. Chandrachud led the bench, joined by Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice Pamidighantam Sri Narasimha. They heard arguments for ten days — one of the most closely watched cases in Indian legal history. The courtroom was packed each morning, the public gallery filled with queer couples holding hands, lawyers clutching thick files, and journalists scribbling furiously.

The petitioners leaned heavily on the landmark judgments that had come before: Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality by reading down Section 377 IPC (the colonial-era law that criminalized "carnal intercourse against the order of nature"); Justice KS Puttaswamy v. Union of India (2017), which declared the right to privacy a fundamental right under Article 21 (the right to life and personal liberty); and NALSA v. Union of India (2014), which recognized the rights of transgender persons.

If the Constitution protects the right to choose a life partner, the petitioners argued, how can it deny that right to queer couples? The question hung in the air, unanswered, as the bench retired to deliberate.

What each side argued

The petitioners' case rested on four constitutional pillars. Article 14 (right to equality) — excluding same-sex couples from marriage was arbitrary discrimination. Article 15(1) (prohibition of discrimination on grounds of sex) — discrimination based on sexual orientation was a form of sex discrimination. Article 19 (freedom of speech and expression) — the freedom to express one's identity includes the freedom to marry whom one chooses. Article 21 (right to life and personal liberty) — the right to a life of dignity includes the right to form intimate relationships.

The Union of India countered with a structural argument. Marriage, it said, is a social institution regulated by statute under Articles 245 and 246 read with Entry 5 of the Concurrent List (the list of subjects on which both Parliament and state legislatures can make laws). The court cannot rewrite the Special Marriage Act to include same-sex couples — that would be judicial legislation, a violation of the separation of powers. If the court wants to change marriage, it must wait for Parliament.

The Chief Justice's opinion

Chief Justice Chandrachud wrote the lead opinion, a document that ran over 200 pages, its pages rustling as the registrar distributed copies to the parties. He held that while the Constitution does not expressly guarantee a fundamental right to marry, the freedom to enter a union is protected under Articles 14, 15, 19, and 21. In response to the petitioners' argument that the Special Marriage Act's binary language excluded them, the Chief Justice reasoned that the word "sex" in Article 15(1) must be read to include "sexual orientation" — because homophobia and sexism are causally connected, and because sex is a marker of identity inseparable from social and historical context. "The Constitution," he wrote, "does not discriminate on the basis of sexual orientation, and the state cannot deny the benefits of a union to queer couples without violating their dignity."

He recognized the right of queer persons to enter unions. He held that the state has an obligation to recognize such unions and grant them benefits under law. Failure to do so results in a "disparate impact" on queer couples — a form of indirect discrimination. The Chief Justice wove the doctrine of equality into the petitioners' lived reality: a couple denied hospital visitation, a partner excluded from a pension, a family refused inheritance — these were not mere inconveniences but constitutional injuries.

But on the core question — reading same-sex marriage into the Special Marriage Act — the Chief Justice said no. The court cannot strike down or read words into the Act. That would amount to judicial legislation beyond institutional competence. The Chief Justice's voice, measured and deliberate, left no room for ambiguity on this point.

The majority's narrower view

Justice S. Ravindra Bhat wrote the majority opinion, joined by Justice Hima Kohli and concurred by Justice Pamidighantam Sri Narasimha. The majority took a narrower path. They held there is no unqualified right to marriage except through statute or custom. The Special Marriage Act challenge fails. The court cannot direct the creation of a civil union framework. Justice Bhat reasoned that the Constitution does not expressly recognize a fundamental right to marry, and an institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. "Marriage," he wrote, "is a statutory right regulated under Articles 245-246 read with Entry 5 List III."

But the majority did not leave queer couples empty-handed. They directed the government to address discriminatory impacts on queer couples' access to earned and compensatory benefits — things like insurance, pensions, and medical coverage that flow from employment rather than from marriage itself. The majority's opinion, though narrower, acknowledged the harm: the state cannot ignore the disparate impact of its laws on queer citizens.

The adoption regulation that fell

One significant win emerged from the Chief Justice's opinion. Regulation 5(3) of the CARA Adoption Regulations 2022 (the rules governing adoptions by the Central Adoption Resource Authority) required couples to be "married" to jointly adopt a child. The Chief Justice held this regulation ultra vires the Juvenile Justice Act (the parent law) and Articles 14-15. He read down the word "marital" — meaning unmarried couples, including queer couples, can now jointly adopt. The judgment noted that the regulation's requirement of a "marital" relationship was arbitrary and discriminatory, excluding not just queer couples but also unmarried heterosexual couples from the joy of parenthood.

The majority per Justice Bhat, however, declined to strike down Regulation 5(3). This created a split on the bench on this specific point. For queer couples hoping to adopt, the Chief Justice's opinion offered a path forward, but the majority's reluctance left uncertainty about how lower courts would apply the ruling.

What the court actually ordered

The operative order disposed of the writ petitions with extensive directions. The court directed the government to constitute a committee to study the entitlements of queer couples — benefits related to insurance, pensions, medical care, and other compensatory schemes. It directed police forces across the country to issue guidelines protecting queer persons from harassment and violence. It directed sensitization programs for government officials. The court's order was a blueprint for incremental change: no single stroke of the pen, but a series of nudges to the executive.

Transgender persons in heterosexual relationships, the court clarified, already have the right to marry under existing law, including personal laws. This clarification, buried in the judgment's footnotes, was a quiet victory for a community often overlooked in the marriage equality debate.

Why this matters for practitioners

The judgment is a masterclass in judicial restraint. The court recognized the harm — the discrimination, the violence, the denial of benefits — but refused to cross the line from interpretation to legislation. For lawyers, the key takeaway is the "disparate impact" framework: even without striking down a law, the court can direct the state to address discriminatory effects. The Chief Justice's opinion, in particular, offers a roadmap for arguing that the state's failure to recognize queer unions violates Articles 14, 15, 19, and 21, even if the court cannot rewrite the statute itself.

THE PLAY: When challenging a statute that cannot be struck down, argue disparate impact under Articles 14-15 — the court may not rewrite the law, but it can order the state to fix the discriminatory consequences.

The court ended where it began: with 21 couples, a law written for another century, and a Parliament that now holds the pen. The petitioners walked out of the courtroom, the judgment papers clutched to their chests, the weight of the decision settling on their shoulders. They had not won marriage, but they had won something — a recognition that the Constitution sees them, even if the law does not yet embrace them.