Equal Rights, Not Special Rights: Demystifying the Legal Debate on Same-Sex Marriage.

“History owes an apology to members of the LGBTQ+ community and their families…”
— Justice Indu Malhotra, Navtej Singh Johar v. Union of India, 2018

On 6th September 2018, rainbow flags were raised and tears of joy flowed as India’s Supreme Court decriminalized same-sex relationships, marking a monumental step toward equality. Yet, for lakhs of LGBTQ+ Indians, the celebration was incomplete. They could now love freely — but not marry legally. In a nation where marriage is the gateway to numerous civil rights, from inheritance and adoption to medical decision-making and tax benefits, this exclusion leaves same-sex couples visible, but not equal.

Contrary to popular belief, the call for marriage equality is not a demand for “special rights”. It is a plea for equal access to the basic civil liberties that heterosexual couples enjoy without resistance or debate. A same-sex couple doesn’t want more — just the same.

This blog dives into the ongoing legal and societal debate surrounding same-sex marriage in India. It seeks to debunk common myths, break down the legal arguments, and expose the constitutional inconsistencies in denying marriage rights to LGBTQ+ citizens. At its core, this is not just a legal question — it is a test of how far India is willing to walk its talk on justice, equality, and liberty for all.

Background and Legal Context

In 2018, rainbow flags painted the streets of India with pride. The Supreme Court, in its landmark judgment in Navtej Singh Johar v. Union of India, decriminalized consensual same-sex relationships by reading down Section 377, a colonial-era relic that had long cast a shadow over millions of lives. For the LGBTQ+ community, it was a moment of celebration — a long-awaited recognition of identity, love, and dignity.

But while the court struck down the law that criminalized their existence, it stopped short of recognizing their right to legally exist as couples. The ruling ended punishment, but it didn’t bring protection.

That’s where the gap lies — and it’s not a small one.

Today, same-sex couples in India can love each other without fear of jail, but they cannot marry, adopt, inherit, or even be listed as each other’s emergency contact. There’s no legal safety net. No spousal insurance. No family pension. No joint bank account. No hospital visitation rights. In the eyes of the law, they remain strangers.

While many nations — including Nepal, Taiwan, and even South Africa — have moved forward with marriage equality, India continues to define marriage through a heterosexual lens under laws like the Hindu Marriage Act, Special Marriage Act, and Muslim Personal Law. These statutes assume — and enforce — a union only between a man and a woman.

India’s LGBTQ+ movement, which began decades ago with organizations like ABVA and legal challenges from the Naz Foundation, has steadily fought to reclaim rights and dignity. But the fight has now reached its most personal battleground yet — the right to marry.

Because what good is the freedom to love, if the law still refuses to see your love as real?

The Core Legal Debate

The legal recognition of same-sex marriage in India hinges on a deeper constitutional question: do same-sex couples deserve equal rights, or must they continue to navigate legal systems designed around heterosexual norms? The answer lies within the Indian Constitution itself, which promises equality, dignity, and liberty — not just to the majority, but to every citizen.

Fundamental Rights at Stake

• Article 14 – Equality Before Law
  Any law that privileges one class of couples (heterosexual) while denying the same recognition to others (same-sex) fails the test of reasonable classification. As noted in Navtej Johar, rights are not a matter of majoritarian approval — they are fundamental guarantees.
• Article 15 – Prohibition of Discrimination
  The Supreme Court affirmed that “sex” under Article 15 includes sexual orientation, making discrimination against LGBTQ+ individuals unconstitutional.
• Articles 19 & 21 – Freedom, Privacy, and Dignity
  These rights secure the autonomy of individuals in choosing their partners, and affirm that the right to love is intrinsic to the right to life and liberty. As Justice Chandrachud stated, “The right that makes us human is the right to love.”

Arguments in Favor of Legalization

1. Constitutional Morality over Social Morality
   Courts must be guided not by popular morality but by constitutional morality, which upholds inclusivity, autonomy, and non-discrimination. As Navtej Johar underscored, the Constitution must protect “discrete and insular minorities” from majoritarian prejudice.
2. International Commitments
   India is a signatory to human rights treaties advocating non-discrimination and equal treatment, reinforcing the legal case for same-sex marriage.
3. Dignity and Family Life
   Denying marriage deprives same-sex couples of legal safeguards and social legitimacy, violating their right to dignity and secure family life.

 Arguments Against Legalization

1. Tradition and Culture
   Critics invoke India’s cultural and religious traditions. But, as Navtej Johar affirmed, constitutional rights cannot be held hostage to Victorian morality or majoritarian will.
2. Marriage for Procreation
   The claim that marriage exists solely for reproduction is flawed — marriage laws never bar infertile heterosexual couples.
3. Judicial Overreach?
   In the 2023 verdict, the Supreme Court declined to legalize same-sex marriage, stating it is the domain of Parliament. Still, the judgment called for eliminating discrimination and protecting civil unions — a signal for the legislature to act.

Supreme Court’s 2023 Verdict & Analysis

In October 2023, a five-judge Constitution Bench of the Supreme Court of India delivered its much-anticipated verdict on the legality of same-sex marriage. While the judgment was hailed for its progressive tone, it ultimately stopped short of granting marital rights to same-sex couples — sparking a nationwide debate on whether this was a legal stalemate or a moral step forward.

The Majority View: Defer to the Legislature

The majority opinion (Justices Bhat, Kohli, Narasimha, and Kaul) held that legalizing same-sex marriage falls within the domain of Parliament, not the judiciary. They emphasized that crafting a legal framework for such unions would involve modifying various family laws — including inheritance, succession, and adoption — which require legislative will and political consensus, not judicial intervention.

While acknowledging the discrimination faced by LGBTQ+ persons, the majority refrained from judicially expanding the definition of marriage under current statutory regimes like the Special Marriage Act or Hindu Marriage Act.

The Dissenting Voice: CJI D.Y. Chandrachud

Chief Justice D.Y. Chandrachud, in a landmark dissent, took a sharply contrasting stance. He recognized the right to form unions, equating it with the constitutional guarantee of autonomy, dignity, and privacy. His opinion made a strong case that denying civil unions — and by extension, adoption rights — violates Articles 14, 15, and 21 of the Constitution.

CJI Chandrachud argued that the Constitution must not reflect the biases of a heteronormative majority, but must champion the rights of minorities — including sexual minorities. His dissent echoed his earlier writings in Navtej Johar, where he famously wrote, “The right that makes us human is the right to love.”

A Legal Setback, a Moral Awakening?

While the verdict did not grant same-sex couples the right to marry, it affirmed their right to live with dignity. The court called on the government to create a committee to explore civil union rights, signaling incremental progress rather than outright rejection.

In essence, the 2023 judgment may be seen as a pause rather than a full stop — a moment where the court recognized injustice but handed the baton to Parliament. The battle for equality, it seems, is not over — it has just shifted arenas.

Misconceptions Around “Special Rights”

A common misconception fueling opposition to same-sex marriage is the belief that LGBTQ+ individuals are demanding “special rights.” This is not only inaccurate but deeply misleading. The fight for marriage equality is not about creating a new category of rights — it’s about equal access to the civil liberties already enjoyed by heterosexual couples.

Same-sex couples are not asking for privileges. They are asking for the right to marry, adopt, inherit, access health insurance, file taxes jointly, and be recognized as legal family — rights that flow naturally from marriage, and which the law already bestows on others. To call this “special” is like calling women’s suffrage a demand for extra votes. The suffragette movement wasn’t about privilege — it was about inclusion in existing democratic rights.

Opponents often raise concerns about disrupting the “traditional family structure” or pose marriage equality as a “moral threat.” But these arguments ignore the constitutional principles that protect individual autonomy over social conformity. Many heterosexual marriages today are child-free, interfaith, inter-caste, or follow non-traditional roles — yet the law doesn’t judge their validity.

The notion that same-sex unions threaten cultural values reflects social prejudice, not legal reasoning. Indian tradition, in its rich diversity, has historically included fluid gender identities and same-sex expressions — from ancient texts to temple carvings. What we call “tradition” is often a selective reading shaped by colonial-era morality.

Recognizing same-sex marriage is not a distortion of values — it is a restoration of rights. It signals that equality is not selective, and liberty is not limited by whom we choose to love.

Comparative Jurisprudence: Lessons from Around the World

Across the globe, several constitutional democracies — both common law and civil law jurisdictions — have recognized same-sex marriage as a matter of equality, dignity, and human rights. India, which shares similar constitutional values, can draw meaningful lessons from these developments.

Global Examples of Marriage Equality

• South Africa
  • Case: Minister of Home Affairs v. Fourie (2005)
  • Outcome: The Constitutional Court held that banning same-sex marriage violated the right to equality and dignity under the post-apartheid Constitution.
  • Impact: Led to the Civil Union Act, 2006, making South Africa the first African country to legalize same-sex marriage.
• United States
  • Case: Obergefell v. Hodges (2015)
  • Outcome: The U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
  • Impact: Nationwide legalization of same-sex marriage and recognition of marital rights across all states.
• Taiwan
  • Case: Judicial Yuan Interpretation No. 748 (2017)
  • Outcome: Taiwan’s Constitutional Court found that denying same-sex couples the right to marry was unconstitutional.
  • Impact: In 2019, Taiwan became the first country in Asia to legalize same-sex marriage through legislation.
• Canada
  • Framework: A mix of provincial court rulings and federal legislation
  • Impact: Passage of the Civil Marriage Act, 2005, granting marriage equality across the country.

Constitutional Themes and Takeaways

• All these judgments emphasized constitutional principles over popular morality, asserting that minority rights must not depend on majority approval.
• Courts and legislatures in these countries balanced tradition with constitutional mandates, showing that cultural identity need not be compromised to uphold fundamental rights.
• These examples prove that legal recognition of same-sex marriage does not erode tradition, but enhances democracy by widening the scope of inclusion.

For India, these global precedents offer not just legal references but a constitutional blueprint — one where equality and tradition are not adversaries, but co-authors of justice.

The Way Forward

While the judiciary has laid the constitutional groundwork for LGBTQ+ rights, it is now the Parliament’s responsibility to enact meaningful reforms that extend marriage equality to same-sex couples. The Supreme Court’s 2023 verdict, though progressive in tone, deferred the power to legislate to the democratic process. This makes legislative action both urgent and necessary.

But legal reform cannot succeed without public discourse and societal sensitization. Courts may interpret rights, but society must be ready to uphold them — through empathy, awareness, and inclusion.

Key Legal Reforms Needed:

• Amendments to the Hindu Marriage Act & Special Marriage Act
  To make definitions of “bride” and “groom” gender-neutral and inclusive.
• Revisions to Adoption Law
  The Juvenile Justice Act and CARA guidelines must allow adoption by same-sex couples and recognize them as legal parents.
• Reform of Succession Laws
  To ensure equal inheritance rights for LGBTQ+ spouses, under both personal and secular legal frameworks.

Law, after all, is not just a set of statutes — it is a reflection of the society we aspire to become. A truly inclusive legal system must recognize that love is not a privilege, but a right.

Conclusion: Love Must Be Legal

The demand for same-sex marriage is not a cry for special treatment — it is a call for equal recognition, protection, and dignity. Denying LGBTQ+ individuals the right to marry is not just a legal oversight; it is a human rights failure.

India stands at a constitutional crossroads. By amending outdated laws and embracing inclusion in lawmaking, we can fulfill the promise of justice not just for some, but for all.
Equal rights are not optional — they are overdue.