Law and Custom

Law and Custom

Law and Custom


The Supreme Court of India recently refused to grant legal recognition to same-sex marriages, this has given a serious legal blow to the queer community in the country.


GS-02 (Judiciary, Welfare schemes, Gender)


LGBTQIA+, Section 377 of the Indian Penal Code, Right to Privacy, Transgender Persons (Protection of Rights) Act.

Mains Question:

Examine the implications of the Supreme Court of India’s recent judgment on same-sex marriages for the LGBTQIA+ community and their pursuit of equal rights. (150 words)

Dimensions of the Article:

  • The Court’s Stance
  • The Absence of a Fundamental Right to Marry
  • Challenges for the LGBTQIA+ Community

The Court’s Stance:

  • All five judges on the Constitution Bench opted to leave the matter to the legislature, eschewing the extra step required to legalize marriages or civil unions outside the realm of heterosexual unions.
  • Chief Justice of India D.Y. Chandrachud and Justice Sanjay Kishan Kaul, while acknowledging the right of queer couples, declined to reinterpret the provisions of the SMA to facilitate it. In contrast, Justices S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha held that recognition could only come through statutory provisions, thereby aligning with the government’s perspective.
  • This collective decision leaves the issue in the hands of the legislature, echoing the government’s position that legalizing same-sex marriages falls within the domain of lawmakers.

The Absence of a Fundamental Right to Marry:

  • Crucially, the court’s ruling negates the assumption that every individual possesses a fundamental right to marry.
  • While marriage is a social institution, accompanied by specific legal criteria for validity, the right to seek social and legal validation through marriage is considered an individual choice protected by the Constitution. Nevertheless, the court views this right as subject to statutory limitations.
  • The majority viewpoint does not favor the right of queer couples to adopt children, while concurring with the minority view that there is no prohibition on transpersons entering into heterosexual marriages.
  • However, there is unanimous consent among the judges regarding the right of same-sex couples to cohabit and live free from coercion and threats.

Challenges for the LGBTQIA+ Community:

  • The article sheds light on the challenges that lie ahead for the LGBTQIA+ community. In a society where opposition to the legalization of same-sex marriages is rooted in religious and cultural beliefs, the likelihood of Parliament initiating such legal changes seems bleak.
  • The article underlines that the path to equality may be lengthy and arduous for the community, despite the court’s directive for the government to establish a committee to determine the rights and entitlements of queer couples.


While the court’s decision is in harmony with the legislative approach, it underscores the continuing struggle for the LGBTQIA+ community to align the law with their pursuit of equality. This challenge calls for a persistent and collective effort from the community and its supporters to bring about the legal changes that would reflect their yearning for inclusivity and equal rights.