ABSTRACT
This rolled together set of writ petitions sought constitutionalisation and judicial remedy to queer (LGBTQIA+) individuals – firstly to achieve the right to marry or otherwise formalise their intimate unions, to contest the exclusory nature of the Special Marriage Act, 1954 (SMA) and Foreign Marriage Act, 1969 (FMA), and to challenge administrative regulations (in particular, adoption/registration standards) that deny access to same-sex or gender-nonconforming couples.
The Court provided multi-opinion reasoning in some detail. Although the plurality asserted the constitutional worth of dignity, autonomy and equality under Articles 14, 15, 19 and 21 and reiterated Navtej Singh Johar and NALSA, it did not go as far as to assert a freestanding fundamental right to same-sex marriage under the current matrimonial laws or to interpret the SMA/FMA to authorise same-sex marriages in bulk.
The Court instead acknowledged the validity of queer unions and ordered administrative action and a high-level committee (chaired by the Cabinet Secretary) to establish and enforce discrete entitlements (ration cards, joint bank accounts, hospital/visitation/access to last rites, succession/maintenance/benefits, etc.) but left it primarily to the legislature to determine whether to establish a statutory scheme of marriage equality.
The decision thus strikes a judicious balance between strong constitutional rhetoric in support of queer equality and judicial restraint on judicial law-making; it takes a pragmatic turn of administrative relief and legislative petitioning.
Keywords: Same-sex marriage; Special Marriage Act; Article 21; equal protection; constitutional morality; unions; adoption; reading-in; administrative remedies.
CASE DETAILS
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Judgement Cause Title / Case Name: Supriyo @ Supriya Chakraborty & Anr. v. Union of India.
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Case Number: Writ Petition (Civil) No. 1011 of 2022 (and connected matters).
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Judgement Date: October 17, 2023
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Court: Supreme Court of India (Civil Original Jurisdiction).
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Quorum / Constitution of Bench: Single Judge Bench
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Author / Name of Judges: Chief Justice Dhananjaya Y. Chandrachud
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Citation: 2023 INSC 920 (Supreme Court of India).
INTRODUCTION AND BACKGROUND OF JUDGEMENT
This case re-examines the status of queer people in our constitutional order following decriminalisation in the case of Navtej Singh Johar v. Union of India and transgender rights being acknowledged at NALSA v. Union of India.
The petitioners sought court acknowledgment of a right of marriage or, alternatively, strong remedial acknowledgment of queer union by interpretative remedies — i.e., reading gender-neutral meanings into matrimonial laws (SMA/FMA), circumventing administrative circulars (e.g., on adoption) that do not recognize queer couples, and giving directions to state machinery to treat queer partners as family in civil and welfare.
The Union vigorously challenged the petitions on the grounds of separation-of-powers as well as workability. The Court posed a thorough constitutional investigation (marriage history, extent of Article 21, aspects of Article 19, the guarantees of equality) and decided the reliefs.
FACTS OF THE CASE
i) Procedural Background of the Case
Writ petitions were filed and consolidated (W.P.(C) Nos. 1011/2022 & connected matters). Extensive pleadings and multi-faceted arguments were placed before a multi-judge constitution.
ii) Factual Background of the Case
Petitioners (queer persons and allied organisations) whose relationships were not recognised sought:
a) Constitutional declaration that the SMA/FMA and related statutory/administrative schemes discriminated on the basis of sexual orientation and gender identity.
b) Reading down/reading in of gendered terminology to enable solemnisation/registration of same-sex or gender-nonconforming marriages.
c) Reliefs to permit joint adoption, succession, maintenance, pension, tax and other civil consequences.
d) Directions to police/administration to prevent familial coercion and to protect the autonomy of queer adults.
LEGAL ISSUES RAISED
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Whether the SMA/FMA (and other family-law or administratively framed rules) are constitutionally impermissible to the extent they exclude same-sex and gender-nonconforming couples (Articles 14, 15, 19, 21).
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Whether the courts can (and should) read words into the SMA/FMA to make those statutes gender neutral (reading-in) or alternatively strike them down as violative of fundamental rights.
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Whether adoption regulations and other administrative directions that deny joint adoption/benefits to queer couples are ultra vires statutory limits or suffer from discriminatory effect.
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The permissible scope of judicial remedial power: moulding of relief versus legislating from the bench.
PETITIONER/ APPELLANT’S ARGUMENTS
i. Articles 14, 15, 19 and 21 protect the right to marry and to found a family.
ii. Exclusion of queer persons from civil marriage is discriminatory (sexual orientation/gender identity falls under sex for Article 15).
iii. SMA’s gendered words can — and must — be interpreted to include same-sex unions (reading-in or expansive interpretation).
iv. Administrative rules (e.g., CARA/adoption circulars) were ultra vires and discriminatory.
v. Judicial recognition is necessary and workable.
vi. If required, the Court should read statutes to avoid constitutional invalidity rather than remit to Parliament.
RESPONDENT’S ARGUMENTS
i. Matrimonial laws are complex and touch on religion, social policy and public consensus — better left to Parliament.
ii. There are workability concerns in reading-in broad gender neutral language into a detailed statutory and regulatory matrix.
iii. Remedies creating new socio-legal statuses (marriage) are legislative in nature.
iv. Administrative agencies and Parliament are better placed to design a uniform framework.
v. Where administrative rules exist, the Union would rather consider reform but resisted court-crafted blanket statutory reconstructions.
RELATED LEGAL PROVISIONS
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Constitution: Articles 14, 15, 19, 21, 25, 32.
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Statutes / Rules:
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Special Marriage Act, 1954
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Foreign Marriage Act, 1969
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Transgender Persons (Protection of Rights) Act, 2019
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Juvenile Justice (Care & Protection) Act (adoption regulations)
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Relevant central civil and administrative schemes (succession, pension, tax, welfare).
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JUDGEMENT
i. Recognition of Union / Fundamental Values
The Court repeatedly affirmed that queer persons are entitled to equal dignity, autonomy and fundamental rights; discrimination on the basis of sexual orientation/gender identity is constitutionally impermissible in principle.
ii. No Judicial Creation of Same-Sex Marriage via the SMA/FMA (Institutional Restraint)
The Court declined to read the SMA/FMA so as to declare or compel recognition of same-sex marriage across the board by judicial fiat. It emphasised separation of powers, the complexity and polycentric nature of marriage law and the practical consequences of an across-the-board judicial re-fashioning of statutes.
iii. Moulding Relief & Administrative Directions
Instead of reading-in across the statute book, the Court fashioned pragmatic remedial measures and directed the Union to constitute a Committee chaired by the Cabinet Secretary to:
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Define and elucidate entitlements for partners in queer unions (ration card family inclusion, joint bank accounts, nomination, hospital decision/visitation rights, succession/maintenance/insurance/family pension/gratuity, etc.).
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Conduct wide stakeholder consultation.
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Submit a report with concrete recommendations for administrative implementation.
iv. Adoption Regulations & Ancillary Reliefs
The Court recognised the discriminatory impact of specified rules and directed remedial consideration, though it stopped short of striking down entire statutory schemes without legislative action.
v. Outcome
Petitions were disposed in the terms of the judgment; pending applications were disposed. The Court urged Parliament to consider a gender-neutral statutory framework and left the legislative door open.
a. Ratio Decidendi
The constitutional rights of dignity, autonomy and equality imply the rights of queer persons to intimate association and to social recognition, but the remedial responses which essentially reorganize the statutory framework of marriage are essentially legislative roles.
b. Guidelines
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Formation of a Cabinet-Secretary led Committee to establish entitlements to queer unions and to conduct stakeholder consultations.
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Administrative proposals to incorporate family-recognition of ration cards, joint bank accounts and nominations, hospital visitation and medical decision access, jail visitation, succession/maintenance/financial benefits (gratuity, family pension), insurance and other scheme benefits.
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Guidelines toward non-discrimination in administration and sensitisation of agencies (police, hospitals, welfare machinery).
c. Obiter Dicta
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Extended historical and socio-legal discussion on the evolving concept of marriage, colonial moralities, and the non-uniformity of marriage across cultures.
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Observations emphasizing that constitutional morality cannot be replaced by social morality and that equality demands active administrative and legislative measures to remove structural exclusion.
CONCLUSION & COMMENTS
The judgment is a principled affirmation of dignity, autonomy, and non-discrimination for queer persons, reinforcing the constitutional trajectory set by NALSA and Navtej. Yet, the majority’s refusal to recognise same-sex marriage through judicial reinterpretation reflects an institutional caution rooted in separation of powers, leaving a democratic gap in areas such as adoption, succession, pension, and taxation—matters only partly remediable through administrative fixes.
Strategically, this outcome suggests a dual path: targeted litigation against specific statutory exclusions alongside sustained legislative advocacy for a gender-neutral matrimonial framework. A pragmatic reform agenda could include amending the SMA/FMA with gender-neutral terms, defining “union” for administrative purposes, and harmonising ancillary laws. Until then, piecemeal litigation on discrete statutes remains a viable route for incremental progress.
REFERENCES
a. Important Cases Referred
i. Supriyo @ Supriya Chakraborty & Anr v Union of India, Writ Petition (Civil) No 1011 of 2022, Supreme Court of India, 17 October 2023
ii. Navtej Singh Johar v Union of India (2018) 10 SCC 1
iii. National Legal Services Authority v Union of India (2014) 5 SCC 438
iv. Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
b. Important Statutes Referred
i. Constitution of India, arts 14, 15, 19, 21, 25, 32
ii. Special Marriage Act 1954
iii. Foreign Marriage Act 1969
iv. Transgender Persons (Protection of Rights) Act 2019
v. Juvenile Justice (Care and Protection of Children) Act 2015, and Adoption Regulations
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