On October 17, 2024, the Supreme Court’s five-judge Constitution Bench ruled that same-sex couples do not have an unconditional right to marry, stating it is a matter for Parliament, and later declined to review this decision in January 2025. While the Supreme Court’s directive to create a committee on the rights and entitlements of queer unions is a positive step, concerns linger regarding possible delays and the effectiveness of the recommendations. The refusal to recognize same-sex marriage raises crucial questions about fairness under the Indian Constitution and the legal and social framework for LGBTIQA+ rights. Judicial conservatism mirrors societal beliefs and political trends, explaining the Court’s reluctance.

Factors Contributing to the Court’s Reluctance

The Court’s reluctance to recognize same-sex marriage stems from cultural and political factors, especially prevalent homophobic attitudes that view it as a threat to social morals and family. The BJP (Bhartiya Janata Party) has consistently opposed same-sex marriage, and efforts to amend laws supporting LGBTIQA+ rights have made no progress in Parliament.

Judicial decisions on same-sex marriage vary globally due to legal, cultural, and social factors, with judges referencing precedents or interpreting laws differently in their jurisdictions. In India, traditional cultural and religious values shape negative societal attitudes towards homosexuality. Politicians leverage these values in their opposition to same-sex marriage and contribute to public perceptions that see it as unnatural or a mental illness. This influences how marriage rights are interpreted in India.

Right to Marry

Although the Constitution does not explicitly mention the right to marry, the court in Mr. X v. Hospital ‘Z’ (1998) 8SCC 296, recognized the “right to marry” as part of the right to life under Article 21, but noted it does not extend to same-sex couples under current law.

Further, the Hindu Marriage Act recognizes marriage between two Hindus but has only acknowledged traditional heteronormative unions sidelining interpretations that include same-sex unions. In contrast, the Special Marriage Act is gender-neutral and does not discriminate based on gender or sexual orientation; yet the Court’s stance does reflect such bias, suggesting it was not intended for same-sex marriage. The split 3:2 decision shows a lack of consensus on fundamental rights interpretations. Conversely, the Court’s stance on transgender rights reflects a shift towards balancing societal norms with individual rights.

Comparison with Transgender Rights Ruling

The Supreme Court often practices judicial restraint in cases involving established social and cultural norms, which is evident in its treatment of same-sex marriage despite progressive rulings on transgender rights, such as the NALSAR judgment. Several factors may explain this cautious stance. The Court viewed societal consensus on same-sex marriage in India as still evolving. Given the social implications of marriage laws, it preferred legislative changes over judicial ruling for significant reforms. The Court recognizes rights incrementally, suggesting a need for further dialogue for social acceptance. The NALSAR Judgement promotes inclusivity within the context of LGBTIQA+ rights.  Legal recognition of same-sex marriage involves redefining traditional marriage, as acknowledged by the Court. This highlights the significance of legal recognition in driving societal change.

Importance of Legal Recognition

Internationally, documents such as the Universal Declaration of Human Rights  and the International Covenant on Civil and Political Rights  emphasize the rights to equality and non-discrimination. Same-sex couples often face discrimination in areas like employment and family law. Legal recognition can offer legal protections. It can also promote judicial activism, influencing other marginalized groups and challenging traditional marriage. Hence, it is essential to push for a fairer legal system.

Towards a More Equitable Legal Framework

Achieving equality involves navigating legal interpretations, societal values, and evolving human rights. Ongoing advocacy for inclusivity, civil union as an interim approach, awareness of LGBTIQA+ rights, and collaboration with political leaders can enhance legislative reform. The Court’s decision sharply contrasts with the growing global support for same-sex unions, with many countries legalizing same-sex marriage or partnerships.

In conclusion, the Supreme Court’s refusal to recognize same-sex marriage underscores the enduring clash between cultural norms and the push for LGBTIQA+ rights, revealing a pressing need for legislative change and societal acceptance. As the global tide continues to shift towards inclusivity, India must reconcile its laws with evolving human rights standards to ensure justice and equality for all citizens.