Introduction
When a five-judge Constitution Bench of the Supreme Court of India delivered its judgment in Supriyo v. Union of India in October 2023, it declined to recognise a constitutional right to same-sex marriage while simultaneously affirming that non-heterosexual couples possess fundamental rights to dignity, autonomy, and non-discrimination. The result is a legal landscape of sharp internal tension: a constitutional order that acknowledges the personhood and equality of LGBTQ+ individuals but refuses to extend to them the legal architecture through which the state organises intimate relationships and the entitlements that flow from them. This article examines that tension, its structural origins in the Court’s reasoning, the competing democratic and constitutional arguments about the proper role of Parliament, and the concrete reforms that legislative action must address if the gap between constitutional aspiration and legal reality is to be meaningfully closed.
Legal Framework
The constitutional basis for a right to same-sex marriage in India was argued on multiple grounds before the bench in Supriyo. The petitioners contended that the exclusion of same-sex couples from the institution of marriage as defined under the Special Marriage Act 1954 and the Hindu Marriage Act 1955 violated the fundamental rights to equality under Article 14, to non-discrimination on grounds including sex under Article 15, to freedom of expression and association under Article 19, and to life and personal liberty, including dignity and privacy, under Article 21.
The majority, in concurring but separately reasoned opinions by Chief Justice Chandrachud and Justice Sanjiv Khanna, declined to locate a fundamental right to marry as such in the Constitution. Chief Justice Chandrachud’s opinion was the most expansive: he held that the right to a union founded on choice of partner was a fundamental right under Article 21, but that this right did not necessarily entail the state’s recognition of such a union through the specific institution of marriage as currently constituted by statute. He identified the right in question as the right to relationship recognition rather than the right to a particular form of recognition.
The Special Marriage Act 1954 is the statute most directly at issue because it was designed to provide a secular, religion-neutral marriage framework. The petitioners argued that the Act’s gender-specific language, which refers throughout to “a man” and “a woman,” should be read in a gender-neutral manner to give effect to constitutional values. The majority rejected this interpretive move on the ground that it would amount to judicial legislation; a court cannot add words to a statute by omission that Parliament chose to include. Justice Narasimha’s concurring opinion was particularly firm on this point, holding that the Special Marriage Act reflects a particular social understanding of marriage that lies within Parliament’s exclusive competence to alter.
The Navtej Singh Johar v. Union of India (2018) decision, which unanimously decriminalised consensual same-sex relations between adults by reading down Section 377 of the Indian Penal Code, forms the essential constitutional foundation for the Supriyo petitions. Johar unambiguously held that sexual orientation is a protected ground under Article 15, that non-heterosexual individuals possess the full complement of fundamental rights enjoyed by all citizens, and that the state may not discriminate against them on account of their identity. The discontinuity between Johar’s affirmation of equal personhood and Supriyo’s refusal of equal legal status is the constitutional gap that this article addresses.
Judicial Developments
The most consequential and internally divided aspect of the Supriyo ruling concerns adoption. The bench split three to two on whether non-heterosexual couples, specifically unmarried couples, are entitled to adopt under the Central Adoption Resource Authority regulations. Chief Justice Chandrachud, along with Justice Kaul, held that the CARA regulations, to the extent they restricted adoption to married or single persons, indirectly discriminated against same-sex couples who cannot marry and should be read down. Justices Bhat, Narasimha, and Hima Kohli disagreed, holding that adoption law involved policy considerations regarding child welfare that fell within Parliament’s domain and that the Court could not extend adoption rights without legislative sanction.
This three to two split has created significant doctrinal uncertainty. The majority on the central question of marriage rights comprises all five judges, since all five declined to mandate legislative recognition. But on the subsidiary question of adoption rights, the minority of two, including the Chief Justice, expressed a more expansive view of judicial competence that remains a powerful dissenting position likely to influence future litigation.
The Court’s direction to the Union government to constitute a committee to examine the rights and entitlements of non-heterosexual couples is constitutionally significant in a limited but real sense. The committee, headed by the Cabinet Secretary, was asked to examine issues including insurance, hospital visitation rights, succession, and provident fund benefits. This direction acknowledges that the current legal framework creates concrete harms for non-heterosexual couples and implicitly invites the executive to recommend legislative remediation. The committee mechanism, however, is advisory and non-binding, and as of early 2026 no legislative action has resulted from it.
The NALSA v. Union of India (2014) precedent, though concerned with transgender persons rather than same-sex couples as such, established the principle that gender identity and sexual orientation attract constitutional protection and that the state bears an affirmative obligation to take measures ensuring equal enjoyment of rights. The NALSA framework, combined with the Johar decriminalisation, makes it constitutionally untenable to treat same-sex couples as if their relationships were legally non-existent, even if the precise form of recognition is left to Parliament.
Contemporary Issues and Analysis
The Supriyo ruling’s central intellectual move is to treat the question of marriage recognition as one of social policy rather than constitutional compulsion, reserving it for democratic deliberation. This reasoning, however, confronts a serious internal difficulty. The Court has long recognised that fundamental rights cannot be held hostage to majoritarian preferences: the purpose of Part III is precisely to insulate certain individual entitlements from the ordinary political process. If the exclusion of same-sex couples from marriage causes demonstrable harm to their dignity, privacy, and equality, as the Court in Johar acknowledged it does with respect to criminalisation, the argument that the remedy must await parliamentary action requires a principled distinction between the harms addressed by Johar and those left unaddressed by Supriyo.
The most honest version of that distinction is this: Johar removed a legal disability, namely criminalisation, whereas Supriyo concerns the extension of a positive entitlement, namely marriage. Courts have historically been more comfortable removing disabilities than creating entitlements, even where the entitlement in question is the removal of a discriminatory exclusion from an existing institution. This distinction is intellectually coherent but practically limiting. The denial of marriage recognition creates concrete, material disabilities: non-heterosexual partners cannot be recognised as next of kin in medical emergencies, cannot jointly adopt children, cannot inherit as spouses under personal law, cannot access spousal benefits under insurance and provident fund legislation, and cannot make medical decisions for incapacitated partners. These are not abstract dignitary harms; they are legal incapacities.
The 3:2 split on adoption is the fault line along which future litigation is likely to develop. If the minority position, that CARA regulations can be read down to allow unmarried couples to adopt, gains adherents or is revisited by a larger bench, it would substantially alter the practical landscape even in the absence of marriage recognition. Conversely, the majority’s deference to Parliament on adoption signals a judicial reluctance to expand family law rights incrementally through constitutional interpretation.
Comparative and International Perspective
The comparative constitutional landscape illuminates both the possibilities and the political obstacles in the Indian context. In Obergefell v. Hodges (2015), the United States Supreme Court held, by a five to four majority, that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Justice Kennedy’s opinion grounded this right in the interlocking concepts of individual autonomy, dignity, intimate association, and the special importance of marriage as a civic institution. The reasoning in Obergefell is, in structure, not categorically different from the analysis in Johar: both locate the harm in the denial of equal legal recognition for a fundamental aspect of personhood. The difference lies in the willingness of the Obergefell majority to take the constitutional logic to its conclusion.
South Africa’s path was legislative rather than judicial, though preceded by constitutional compulsion. The Constitutional Court in Minister of Home Affairs v. Fourie (2005) held that the common-law definition of marriage as a union between a man and a woman was unconstitutional and gave Parliament one year to remedy the defect. Parliament responded with the Civil Union Act 2006, which extended marriage rights to same-sex couples. This sequential model, constitutional declaration followed by legislative action within a specified period, represents a possible pathway for India that preserves legislative primacy while ensuring constitutional accountability.
The Supreme Court of India explicitly declined to adopt this sequencing model in Supriyo, reasoning that it would amount to directing Parliament to legislate, which exceeds judicial competence. This reasoning is contestable in light of the Court’s own precedent in directions to Parliament in electoral law and environmental cases, but it reflects a judicial self-restraint that, whatever its merits, leaves the question of marriage equality without a constitutional deadline.
Practical and Policy Implications
The practical gap between Supriyo’s affirmation of equal dignity and the existing legal framework produces daily harms that accumulate invisibly. A same-sex partner who has spent years caring for an ailing companion has no legal right to continue living in their shared residence if the companion dies intestate without a will. A non-biological parent in a same-sex couple has no parental rights over children raised jointly, since single-parent adoption does not confer legal parenthood on both partners. These harms are not uniformly distributed: non-heterosexual couples with access to legal counsel can partially mitigate them through contractual arrangements, wills, and powers of attorney, but these instruments are costly and incomplete substitutes for the legal status that marriage provides.
The parliamentary pathway faces formidable political obstacles. Both major national parties have been reluctant to publicly endorse marriage equality. The ruling Bharatiya Janata Party’s submissions before the Supreme Court in Supriyo explicitly argued that marriage is a heterosexual institution whose definition falls within parliamentary sovereignty and that the Court should not interfere. The opposition Indian National Congress, while more rhetorically sympathetic to LGBTQ+ rights, has not introduced or committed to introducing legislation to address the gap.
Suggestions and Reforms
A realistic legislative agenda need not begin with full marriage equality, though that remains the constitutionally appropriate destination. An intermediate framework, such as a Registered Partnership Act, could extend the most critical legal entitlements, specifically inheritance, hospital visitation, medical decision-making, joint adoption, insurance beneficiary status, and spousal pension benefits, to same-sex couples through a civil registration mechanism that does not use the word marriage. This would address the material harms identified above without requiring Parliament to amend personal law statutes, which implicate religious sensitivities of a different order.
The Union government’s Cabinet Secretary committee should be given a clear statutory mandate and a reporting deadline. Advisory committees without accountability mechanisms tend to indefinitely defer politically inconvenient recommendations. Parliament could legislate to require the committee to present its recommendations within six months and to require the government to introduce a bill within one year of the report’s submission, even if the bill’s content is left to ministerial discretion.
Amendments to the Central Adoption Resource Authority regulations to permit unmarried couples, including same-sex couples, to adopt jointly would not require statutory change and could be effected through executive action. The two-judge minority in Supriyo effectively invited this approach. Adoption by unmarried couples already occurs in many cases where a single person adopts and subsequently enters into a relationship; the reform would merely formalise what life has already made common.
Finally, courts adjudicating property, succession, and custody disputes involving same-sex couples should be encouraged, through judicial circulars and appropriate Supreme Court guidance, to apply anti-discrimination principles drawn from Johar and the NALSA framework pending legislative action, rather than defaulting to personal law categories that assume heterosexual relationships as the norm.
Conclusion
Supriyo v. Union of India is simultaneously a milestone and a missed opportunity. It is a milestone because a Constitution Bench has unambiguously confirmed that non-heterosexual persons are full constitutional persons entitled to dignity, equality, and privacy. It is a missed opportunity because the Court declined to translate that constitutional affirmation into the one legal form, marriage or equivalent recognition, that would eliminate the systematic disadvantage created by the current framework. The judgment’s most durable legacy may lie in the tension it has created and left unresolved: a constitutional order that affirms equality but tolerates inequality. Resolving that tension is now Parliament’s obligation, not as a matter of political choice but as a matter of constitutional fidelity. The longer Parliament defers action, the longer non-heterosexual couples bear legal incapacities that the Constitution’s own values condemn.
