Cannot legalise same-sex marriage, says SC Bench

Cannot legalise same-sex marriage, says SC Bench

Cannot legalise same-sex marriage, says SC Bench


On Tuesday, a Constitution Bench of the Supreme Court ruled that same-sex marriage recognition and regulation may only come from the legislative branch. The Bench reasoned that the courts could not get involved since there was no unqualified or fundamental right to marry.

What are the observations made by the Supreme Court?

  •  Legislative Authority for Same-Sex Marriage: The Supreme Court noted that the legislative branch of government has the power to approve and oversee same-sex marriages. The court stressed that legislation should be passed by the legislature to solve this situation.
  • No Unqualified Right to Marriage: The court declared that the right to marriage is neither fundamental nor unqualified. The court decided that it shouldn’t become involved in issues pertaining to same-sex marriage based on this view.
  • Discrimination Against Same-Sex Couples: The Supreme Court noted unanimously that same-sex couples should no longer face discrimination. Every one of the five judges on the Constitution Bench acknowledged this.
  • Chief Justice D.Y. Chandrachud addressed several points in his dissenting judgment, highlighting the inherent right of LGBT people to form relationships and the state’s duty to acknowledge and legalize these unions. He emphasized how important it is to end discrimination based on sexual orientation.

What is the legality of Same-Sex Marriage in India?

  • In India, the right to marry is a statutory right rather than one that is specifically recognized by the Constitution.
  • Article 141 of the Constitution requires all Indian courts to follow the judicial decisions that have led to the recognition of marriage as a basic right.
  • The Supreme Court ruled in the Shafin Jahan v. Asokan K.M. case that Article 21 of the Constitution guarantees everyone the freedom to marry the person of their choosing.
  • The Indian Constitution forbids discrimination on many grounds, including sex, as stated in Article 16.
  • The Supreme Court has ruled that people who identify as LGBTQ have a right to equal protection under the law and the full spectrum of constitutional rights.

What is the Special Marriages Act of 1954?

  • Irrespective of their religious background, the SMA permits civil marriages between Indian citizens and those residing abroad.
  • Under this law, the SMA governs marriages rather than personal laws.
  • It contains regulations for the solemnization and registration of weddings amongst people of different religious backgrounds.
  • The LGBTQ community was hoping that necessary amendments would be made to the act allowing same-sex marriages in India.

What are the arguments in favour of the Same-Sex Marriage?

  • Equal Rights and Protection Law: Everyone has the right to marry and start a family, regardless of their sexual orientation.
  • Building Stronger Families and Communities: Couples and their families gain social and financial advantages from marriage.
  • Living together is a Fundamental Right: The Chief Justice recognized that living together is a fundamental right.
  • Gender is not ‘Absolute’ based on Biology: The Supreme Court stressed that gender is not just determined by a person’s genitalia.
  • Global Acceptance: Marrying a person of the same sex is lawful in many nations worldwide.

What are the arguments against same-sex Marriage?

  • Beliefs in Religion and Culture: Several religious and cultural organizations are against modifying the conventional concept of marriage.
  • Procreation: According to some, having children is the main reason for being married.
  • Legal Issues: Adapting rules and legislation to allow same-sex marriage raises concerns.
  • Problems with Adoption: Discrimination, stigma, and possible harm to children adopted by same-sex couples.

What is the way forward in this situation?

  • Raise Awareness: Through awareness campaigns, encourage acceptance and equality for people of all sexual orientations.
  • Legal Reforms: To give same-sex couples legal status and rights, amend the Special Marriage Act or create contracts-like agreements.
  • Conversation and Interaction: Interact with religious authorities and groups to close gaps between conventional wisdom and contemporary perspectives.
  • Legal Challenges: To establish precedent, and challenge the validity of existing legislation in court.
  • Collaboration: Involve all relevant parties in the effort to create a more inclusive society that respects people’s rights and choices regardless of their gender identity or sexual orientation. These parties include the LGBTQIA+ community, the government, civil society, and religious leaders.


The minority emphasizes the significance of fundamental rights and legal recognition for the LGBTQ+ community, while the majority highlights the role of the legislature in enacting laws on this matter. These observations represent the court’s position on the legal recognition of same-sex marriages and civil unions.