Legal Narrative
Abstract
The constitutional debate surrounding same-sex marriage in India reached a significant turning point in Supriyo @ Supriya Chakraborty v. Union of India, where a Constitution Bench of the Supreme Court considered whether existing marriage laws could be interpreted to recognise marriages between queer persons. The Court unanimously held that the Constitution does not confer an unqualified fundamental right to marry and, by a 3:2 majority, declined to read same-sex marriage into the Special Marriage Act, 1954. At the same time, the judgment recognised the constitutional protection attached to queer persons’ autonomy, dignity, privacy and choice to form relationships. This has created a distinctive legal position: queer relationships receive constitutional protection, but the legal institution of marriage remains inaccessible to same-sex couples. The judgment therefore exposes a legislative vacuum between constitutional recognition of queer relationships and statutory recognition of their legal consequences.
This article examines that gap through the principle of constitutional morality, the separation of powers, and comparative constitutional reasoning, particularly the approach adopted by the United States Court of Appeals for the Fourth Circuit in Bostic v. Schaefer. It argues that Supriyo does not end the constitutional conversation; rather, it transfers the central question from judicial interpretation to legislative responsibility.
Keywords: Same-sex marriage; Supriyo v. Union of India; Constitutional Morality; Legislative Vacuum; Special Marriage Act; Article 21; Equality; LGBTQ+ Rights; Separation of Powers.
INTRODUCTION
Marriage is not merely a private relationship between two individuals. In the modern constitutional State, it is also a legal institution through which rights, responsibilities and social recognition are distributed. Access to marriage can affect succession, maintenance, inheritance, taxation, healthcare decisions, adoption, employment benefits and family status. Consequently, exclusion from marriage may produce legal consequences beyond the inability to obtain a marriage certificate.
The constitutional debate over same-sex marriage in India must therefore be understood against the development of LGBTQ+ rights jurisprudence. In Navtej Singh Johar v. Union of India, the Supreme Court recognised the constitutional importance of dignity, privacy, autonomy and sexual orientation while decriminalising consensual same-sex relations. The subsequent question was whether constitutional protection of queer persons also required the State to recognise their intimate relationships through marriage.
That question came before the Supreme Court in Supriyo @ Supriya Chakraborty v. Union of India. The petitioners sought recognition of same-sex marriage principally through an interpretation of the Special Marriage Act, 1954 (“SMA”) and related statutory provisions. The Court's decision did not constitutionalise same-sex marriage. Instead, it produced a legally complex position: queer persons have constitutional protection for their relationships and personal choices, but the creation of a legally recognised marital status for same-sex couples was held to require legislative action.
The central question after Supriyo, therefore, is not simply whether same-sex marriage was recognised by the Court. It is what happens when constitutional values recognise the dignity and autonomy of queer couples while statutory law does not provide them with the corresponding legal status.
THE SUPRIYO JUDGMENT AND THE LIMITS OF JUDICIAL RECOGNITION
The five-judge Constitution Bench in Supriyo unanimously rejected the proposition that the Constitution itself creates an unqualified fundamental right to marry. The Court distinguished between the constitutional protection of individual autonomy and the statutory institution of marriage. Marriage, in its legal form, is created and regulated by legislation; therefore, recognition of a new category of legal marriage cannot automatically be derived from Article 21.
The Court also considered whether the SMA could be interpreted in a gender-neutral manner so as to include same-sex couples. The majority declined to do so. According to the majority, replacing concepts such as “husband” and “wife” or otherwise restructuring the statutory scheme would not amount to ordinary interpretation; it would require substantial changes to the legislative framework. Such a step, the majority reasoned, would cross the institutional boundary between adjudication and legislation.
This reasoning reflects the principle of separation of powers. Courts interpret and enforce constitutional rights, while legislatures create detailed legal frameworks involving competing policy choices. The majority consequently held that the Court could not itself establish a new legal regime of marriage or civil unions.
The judgment, however, did not deny constitutional protection to queer relationships. The Court recognised that queer persons possess the freedom to choose their partners and enter into intimate relationships protected by constitutional values of privacy, autonomy and dignity. It also acknowledged that the absence of marital recognition can have discriminatory effects because several statutory and governmental benefits are connected to marital status.
Thus, Supriyo contains an important distinction: constitutional protection of a relationship is not identical to statutory recognition of that relationship as marriage.
THE LEGISLATIVE VACUUM AFTER SUPRIYO
This distinction produces what may be described as a legislative vacuum.
On one side, constitutional jurisprudence recognises queer persons as holders of equal dignity and autonomy. On the other, the statutory framework does not provide same-sex couples with a comprehensive legal status equivalent to marriage. The result is a gap between the constitutional recognition of the individual and the legal recognition of the relationship.
The Court attempted to address some consequences of this gap. It directed the Union Government to constitute a high-powered committee chaired by the Cabinet Secretary to examine measures concerning the social and legal entitlements of queer couples. These included issues arising from employment benefits, family-related entitlements, healthcare and other areas in which marital status may produce legal consequences.
However, a committee cannot substitute for legislation. A committee may examine problems and recommend solutions, but it does not itself create enforceable marital status. As a result, the post-Supriyo position remains structurally incomplete: the Constitution protects the freedom of queer persons to form relationships, while Parliament retains the authority to determine whether and how those relationships should receive comprehensive statutory recognition.
The persistence of this gap is significant. As of 2026, Indian law still does not provide statutory recognition for same-sex marriage or civil partnerships. The Supreme Court's dismissal of the review petitions in January 2025 also left the Supriyo framework intact. Consequently, the principal unresolved issue has moved from judicial interpretation to legislative action.
CONSTITUTIONAL MORALITY: FROM SOCIAL ACCEPTANCE TO CONSTITUTIONAL VALUES
The concept of constitutional morality becomes particularly important in this context. Constitutional morality requires State institutions to remain faithful to constitutional commitments such as equality, liberty, dignity and non-discrimination rather than simply reproducing prevailing social attitudes.
The distinction between social morality and constitutional morality is especially relevant to LGBTQ+ rights. In Indian Young Lawyers Ass'n v. State of Kerala, the Supreme Court emphasised that constitutional morality cannot simply be equated with prevailing social morality. Popular morality may change over time and may itself conflict with individual dignity and fundamental rights.
This principle creates a difficult question after Supriyo: if constitutional morality protects queer persons from discrimination and recognises their autonomy, what responsibility does the legislature have to address the legal inequalities produced by the absence of marital recognition?
The answer cannot simply be that social acceptance must precede legal reform. Constitutional rights are not dependent upon popularity. At the same time, constitutional morality does not eliminate the institutional role of Parliament. The challenge is therefore to reconcile substantive equality with constitutional structure.
The minority opinions in Supriyo demonstrate this alternative constitutional approach. Chief Justice D.Y. Chandrachud and Justice S.K. Kaul placed greater emphasis on the constitutional consequences of denying legal recognition to queer couples and argued for a framework recognising civil unions. Their approach illustrates that constitutional morality can require the State to respond positively to structural exclusion, rather than merely refrain from direct discrimination.
A COMPARATIVE PERSPECTIVE: BOSTIC v. SCHAEFER
The American experience demonstrates another possible constitutional approach. In Bostic v. Schaefer, the United States Court of Appeals for the Fourth Circuit examined Virginia's exclusion of same-sex couples from marriage. The court treated marriage as a central personal choice protected by the Fourteenth Amendment and rejected inertia and apprehension as sufficient grounds for denying same-sex couples equal legal treatment.
Justice Henry Floyd, writing for the majority, observed:
“Civil marriage is one of the cornerstones of our way of life.”
The court connected marriage with personal choice, companionship, dignity and participation in society. The reasoning ultimately contributed to the broader constitutional development that culminated in Obergefell v. Hodges, where the United States Supreme Court held that the Fourteenth Amendment requires States to license and recognise marriages between two people of the same sex.
The comparison, however, must be approached cautiously. The constitutional texts, institutional structures and precedents of India and the United States are different. Bostic cannot simply be transplanted into Indian constitutional law. Its significance lies instead in demonstrating how a constitutional court may understand marriage not merely as a statutory institution but also as a site of liberty, equality and dignity.
India's Supriyo judgment takes a different institutional route. Rather than directly constitutionalising same-sex marriage, it preserves the constitutional protection of queer relationships while leaving the creation of marital status to the legislature.
THE WAY FORWARD: CONSTITUTIONAL RIGHTS AND LEGISLATIVE RESPONSIBILITY
The post-Supriyo debate should therefore move beyond the binary question of whether courts or Parliament are “for” or “against” same-sex marriage. The more precise constitutional question is what minimum legal protection equality and dignity require while Parliament determines the appropriate statutory framework.
Any future legislative framework would have to address more than the ceremony of marriage. It would need to determine the consequences of recognition across succession, maintenance, inheritance, taxation, healthcare decision-making, adoption, pension and employment benefits. The legislative task is consequently complex, but complexity does not eliminate constitutional responsibility.
The Supreme Court has already recognised that the State must address discriminatory consequences experienced by queer couples. Constitutional morality therefore has a continuing role: it provides the normative standard against which legislative choices affecting queer persons must be assessed.
The institutional lesson of Supriyo is consequently twofold. First, courts cannot treat separation of powers as irrelevant when a remedy requires the creation of an elaborate statutory framework. Second, legislative power cannot be understood as freedom from constitutional scrutiny. Parliament remains bound by Articles 14, 15, 19 and 21 and by the constitutional commitment to dignity and equality.
CONCLUSION
Supriyo v. Union of India did not resolve the constitutional debate over same-sex marriage; it restructured it. The judgment establishes that queer persons possess constitutional protection for autonomy, dignity, privacy and intimate association, while legal recognition of marriage or an equivalent civil status requires legislative action.
The resulting legislative vacuum exposes the limits of constitutional recognition without corresponding statutory rights. Constitutional morality provides an important bridge between these two spheres. It does not authorise courts to assume legislative functions, but neither does it permit constitutional values of equality and dignity to become merely symbolic.
The future of same-sex marriage in India therefore lies at the intersection of constitutional morality and legislative responsibility. Supriyo leaves Parliament with the institutional responsibility to determine the legal framework, while the Constitution continues to supply the principles within which that framework must operate. The unresolved question is no longer whether queer relationships deserve constitutional protection; that proposition is firmly embedded in Indian constitutional jurisprudence. The unresolved question is how far the legal system will translate that constitutional recognition into concrete and comprehensive legal equality.
FOOTNOTES:
[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, 102-03 (India).
[1] Supriyo @ Supriya Chakraborty v. Union of India, (2023) 14 SCC 1, 1209 (India). The judgment concerned challenges to the exclusion of queer couples from existing marriage frameworks, principally the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969.
[1] Id.; see also Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348.
[1] Supriyo, (2023) 14 SCC 1; see also Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348. The five-judge Bench agreed that the Constitution does not recognise an unqualified fundamental right to marry.
[1] Supriyo, (2023) 14 SCC 1; see also id. The majority held that reading the SMA in a manner that creates same-sex marriage would effectively require judicial legislation.
[1] Supriyo, (2023) 14 SCC 1. The judgment recognised queer persons' right to enter into unions or relationships protected by privacy, choice and autonomy.
[1] Id. The Court recognised discriminatory effects arising from the absence of marital recognition in areas where marital status determines benefits and entitlements.
[1] Id.; see also Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348. The Court directed the creation of a high-powered committee chaired by the Union Cabinet Secretary.
[1] See Home Office, U.K. Government, Country Policy and Information Note: Sexual Orientation and Gender Identity and Expression, India (Dec. 2025) (stating that Indian law contains no provision for civil partnerships or recognition of same-sex marriages).
[1] Supriyo @ Supriya Chakraborty v. Union of India, Review Petition (C) Nos. 1866/2023 & connected matters (S.C. Jan. 9, 2025) (dismissing review petitions).
[1] Indian Young Lawyers Ass'n v. State of Kerala, (2019) 11 SCC 1, 87–88 (India); see also Supriyo, (2023) 14 SCC 1 (discussing constitutional morality and the distinction between constitutional and popular morality).
[1] Supriyo, (2023) 14 SCC 1. The minority opinions advocated recognition of civil unions and differed from the majority on the appropriate constitutional remedy.
[1] Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir. 2014).
[1] Id. at 384. The quotation appears in the Fourth Circuit's concluding discussion of marriage, personal choice and equal participation in society.
[1] Obergefell v. Hodges, 576 U.S. 644, 675–76 (2015).
[1] Supriyo, (2023) 14 SCC 1; see also 2023 SCC OnLine SC 1348.
