Published On: August 23, 2026
Authored By: Devesh Kumar
Amity Law School, Amity Univeristy
Case Details
Full Case Name: Supriyo @ Supriya Chakraborty & Anr. v. Union of India & Ors.[1]
Citation: (2023) SCC Online SC 1348 (also reported as 2023 INSC 920)
Court: Supreme Court of India, Constitution Bench
Bench: Dr. D.Y. Chandrachud, C.J.I., S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ.
Date of Judgment: 17 October 2023
Facts and Issues
Between 2020 and 2022, a number of same-sex and queer couples filed writ petitions before the Delhi and Kerala High Courts, and directly before the Supreme Court, asking that the Special Marriage Act, 1954 (“SMA”) be read to permit marriage between any two persons regardless of gender.[2] The Supreme Court transferred nine such petitions to itself and clubbed them with writ petitions filed directly under Article 32, eventually hearing twenty connected matters brought by fifty-two petitioners.[3] The lead petitioners, Supriyo Chakraborty and Abhay Dang, along with Parth Phiroze Mehrotra and Uday Raj Anand, challenged Section 4(c) of the SMA, which limits marriage to a “male” and a “female,” as well as connected provisions of the Foreign Marriage Act, 1969, the Hindu Marriage Act, 1955, and adoption regulations framed by the Central Adoption Resource Authority (“CARA”).
Three questions occupied the Bench. First, whether the Constitution guarantees a fundamental right to marry, and if so, whether that right extends to same-sex and queer couples. Second, whether the SMA and connected statutes could be read down or reinterpreted in a gender-neutral manner without offending the separation of powers. Third, whether, even short of marriage, the state was constitutionally bound to recognise some form of civil union for queer couples and to extend them the practical entitlements that flow from a recognised relationship, including joint adoption.
Arguments
Counsel for the petitioners, including Dr. Menaka Guruswamy, Ms. Arundhati Katju, Mr. Saurabh Kirpal and Mr. Mukul Rohatgi, built their case on the trilogy of NALSA v. Union of India (2014), Navtej Singh Johar v. Union of India (2018), and K.S. Puttaswamy v. Union of India (2017).[4] They argued that dignity, privacy, and personal autonomy under Article 21, read with the guarantee of non-discrimination under Articles 14 and 15, already encompass the freedom to choose a life partner and to have that relationship legally acknowledged. On this reading, excluding same-sex couples from the SMA was not a neutral legislative choice but an act of exclusion that denied queer persons access to insurance, inheritance, medical decision-making, and other entitlements tied to marital status. In the alternative, they asked the Court to direct the state to create a civil union framework carrying equivalent legal consequences.
The Union of India, represented by Solicitor General Tushar Mehta and Attorney General R. Venkataramani, resisted the petitions on institutional grounds rather than purely substantive ones. Marriage, the Union argued, is a creature of statute and social custom, not a constitutional entitlement, and altering its definition would ripple across more than a hundred and fifty central and state laws that use gendered terms such as “husband” and “wife.” This, it said, was a task for Parliament, informed by public deliberation, and not one the Court could undertake through interpretation. During the hearings, the Union also informed the Court that it would constitute a committee headed by the Cabinet Secretary to examine administrative measures for addressing the practical difficulties faced by queer couples, short of legal recognition of marriage or civil unions.
Judgment and Ratio Decidendi
The Bench was unanimous on one point: the Constitution does not expressly recognise an unqualified fundamental right to marry, and the right to marry as it presently exists in Indian law is statutory or customary in character.[5] All five judges also agreed that queer persons have a constitutionally protected right under Article 21 to choose a partner, cohabit, and build a life together, and that this dignity-based protection exists independently of any right to marry.
The Bench divided 3:2 on what followed from this. Justice Bhat, writing for himself and Justice Kohli, with Justice Narasimha concurring separately, held that the Court could not read the SMA in a gender-neutral manner without rewriting its structure, since doing so would require reworking connected provisions on age, divorce, and succession that only Parliament could undertake. The majority further held that directing the state to create a civil union framework would itself be an act of judicial legislation, since it would involve designing an entirely new bouquet of entitlements and would encroach on the separation of powers. Consequently, CARA Regulation 5(3), which restricts joint adoption to married couples, was left undisturbed by the majority.
Chief Justice Chandrachud and Justice Kaul dissented on this narrower question. Both held that while the SMA itself need not be struck down, the absence of any legal avenue for queer couples to formalise their relationship amounted to indirect discrimination, and that the Court could direct interim recognition of civil unions and strike down the adoption bar as unconstitutional, pending a comprehensive legislative response.
Because the majority opinion carries the operative force of the judgment, the binding ratio decidendi is this: the right to marry, including any entitlement to a civil union with attendant statutory benefits, is not a fundamental right enforceable against the state; the design of such a legal status is a matter of legislative policy that the judiciary cannot supply through interpretation, even where the underlying denial of status affects the dignity of the persons concerned. The Court did, however, direct the Union and State Governments to ensure that queer persons are not subjected to discrimination or harassment on account of their sexual orientation or gender identity, and to sensitise police and other authorities accordingly.
Critical Analysis
What makes Supriyo analytically interesting is not the outcome on marriage, which was widely anticipated given the institutional stakes involved, but the gap between the Bench’s unanimous language on dignity and its split verdict on remedy. All five judges accepted that queer relationships deserve constitutional protection; the disagreement was entirely about who is competent to convert that protection into an enforceable legal status. This is a narrower and more technical disagreement than the case’s public framing as a “marriage equality” verdict suggests, and a careful reading shows the Court was closer to consensus than the 3:2 split implies.
The majority’s separation-of-powers reasoning sits uneasily alongside the Court’s own record in NALSA, where the Court read Articles 14, 15, 19, and 21 expansively to grant transgender persons the right to self-identify their gender and to affirmative action, without waiting for legislation.[6] Justice Bhat’s opinion distinguishes NALSA on the basis that self-identification did not require building an entirely new regulatory framework, whereas civil unions would. That distinction is defensible, but it also shows how much turns on how a Bench chooses to characterise the scale of the remedy sought, which leaves room for a differently constituted Bench to reach a different conclusion on comparable facts in the future.
The judgment also fits a broader pattern in recent Indian constitutional adjudication, where the Court has been willing to articulate expansive rights-language while declining to translate that language into binding directions on socially contested questions, leaving the political branches to act. The practical consequence is that the Cabinet Secretary-led committee promised during the hearings, rather than the judgment itself, has become the operative avenue for reform, and its recommendations are not binding on Parliament.
Since October 2023, the dignity and autonomy findings in Supriyo have been cited by High Courts in disputes over insurance nominations, medical decision-making, and succession involving same-sex partners, which suggests that the judgment’s lasting doctrinal value may lie less in the marriage question it declined to answer than in the Article 21 language it left behind for future litigation to build on.[7]
References
[1] W.P.(C) No. 1011 of 2022, Diary No. 36593/2022 (Supreme Court of India).
[2] Supreme Court Observer, ‘Plea for Marriage Equality: Case Background’ (scobserver.in).
[3] ibid.
[4] NALSA v Union of India (2014) 5 SCC 438; Navtej Singh Johar v Union of India (2018) 10 SCC 1; K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
[5] Supriyo @ Supriya Chakraborty & Anr. v Union of India (2023) SCC OnLine SC 1348, per Bhat J (for the majority).
[6] NALSA v Union of India (2014) 5 SCC 438.
[7] See generally, subsequent High Court decisions applying the Article 21 dignity findings in Supriyo to ancillary entitlements of same-sex partners.
