Today's Editorial

Today's Editorial - 18 October 2023

Supreme Court: Same-sex marriage cannot be legalized


 “It is not our differences that divide us. It is our inability to recognize, accept, and celebrate those differences.”  - Audre Lorde

Relevance: GS I, II and IV

  • Prelims: Right to Privacy, Right to Equality, Section 377 of IPC, The Special Marriage Act of 1954, Article 15, Transgender Persons (Protection of Rights) Act, 2019, Navtej Johar vs. Union of India SC judgment.
  • Mains: LGBTQ community, Equality, Section 377 of IPC, The Special Marriage Act of 1954, Religious and Ethical dimensions in Same-sex marriage.


Why in news?

The five-judge Constitutional bench of SC by majority opinion ruled against giving constitutional validity to same-sex marriages.


  • Legal rights for LGBTQ individuals in India have grown over the last decade, with the majority of these developments brought about by the Supreme Court’s intervention.
  • In a landmark decision in 2018, the Supreme Court of India decriminalized homosexuality by striking down Section 377 of the Indian Penal Code.
  • The Supreme Court of India began hearing petitions seeking the legalization of same-sex marriage on April 18, 2023.

What does the Section 377 of the IPC says?

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The legal arguments for same-sex marriage:

  • Citizens with equal rights: Non-heterosexual couples are also equal citizens of the country and deserve the same rights as cisgender heterosexual people. Queer people are demanding equal rights, not just of marriage but of horizontal reservation and protection from natal families too.
    • Fundamental Right to marry: There exists a fundamental right to marry a person of one’s own choice under the Constitution, and the court must address the denial of that right.
  • Marriage laws on ‘social’ and ‘circumstantial’ infertility: The two terms of infertility were coined to describe a woman who did not have children despite no medical complications, and are used now in the context of queer people too. If both parties have knowledge that one or both of them are impotent, there cannot be a case of taking away their rights merely because they are queer.
  • Previous judgment of SC: During the Sabarimala case the apex court said that ‘religion must give way to Constitutional morality’, though a review of the judgment is pending. Secondly, if the court recognized the Right to marry as a fundamental right (like it did in the case of privacy in the 2017 Aadhar ruling), then it puts an obligation on the state to protect this right.
  • A legitimate legal need: Legal recognition of queerness and love should be supported by the state and judiciary. Seeing the demand, the notions of conventional family and traditions need to be broadened and the notion of acceptability and respectability be demolished.


The legal arguments against same-sex marriage:

  • Against natural law: Marriage is described as the union of a man and a woman, and changing that would go against natural law and threaten both the institution of marriage and the family’s role in keeping society together. Gay people can have civil unions, but marriage is a step too far.
  • Equal Rights have some limitations: According to the LGBTQ community, when arguing for equal rights in this situation makes no sense. If that were true, then polygamy and marriages between relatives (especially cousins) would also have to be allowed. Every right has some limits.
  • Will destroy ‘family concept’ in society: Our laws pertain to such marriages that necessitate positive procreation. It is observed that children raised by lesbians or homosexual men are more likely to develop gender and sexual abnormalities. Homosexuality could raise a class of children who live apart from their mother or father.
  • Legal structure with religious foundation: Marriages in India are governed under the Hindu Marriage Act of 1955, the Parsi Marriage and Divorce Act of 1936, the Christian Marriage and Divorce Act of 1957, and Muslim Personal Laws, all of which lack a rigorous statutory framework. Except for the Special Marriage Act (SMA) of 1954, all marriage laws recognize marriages between a man and a woman.
  • Boundaries established by the laws: The National Commission for Protection of Child Rights (NCPCR) stated that same-sex marriage would violate the terms of the Juvenile Justice Act. The Juvenile Justice Act of 2015 makes it illegal for a single male, let alone two men, to adopt a girl child.

Way ahead:

  • Legalizing same-sex marriage will significantly affect the interests of every citizen. However, the existing concept of marriage as a diverse institution is protected by law as well as religion.
  • The court would rule solely on petitions containing elitist views, whereas the legislature would consider the broader views and voices of the rural, semi-rural, and urban populations, religious denominations, personal laws and customs, and the impact of same-sex unions on other marriage laws.
    • There are several laws enacted in the recent past that reflect demand from society, for example, the tightening of rape laws post the Delhi 2012 rape. Similarly, in this case, rural India think and feel differently. The demand for recognizing same-sex marriage cannot be dismissed out of hand but neither can the view that is opposed to it.
  • Hence, every stakeholder involved in this must be entitled to represent their views, respecting our Constitutional philosophy. This can be done by endorsing our Parliament and legislatures to debate and decide on the issue!


The Transgender Persons (Protection of Rights) Act, 2019

  • The Act bans discrimination against transgender people in educational establishments and services, employment, healthcare services, and access to the “use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public”.
  • Moreover, it also gives them the right to movement, the right to “reside, purchase, rent or otherwise occupy any property”, the opportunity to stand for or hold public or private office, and in government or private establishments.
  • There have been reservations among some in the transgender community, both regarding the difficulty of obtaining a certificate and because of a lack of awareness and lack of sensitivity to the issue among local public officials.
  • The community also criticized the inequality inherent in the vast differences in punishment for the same crime, such as sexual abuse, committed against a transgender or cisgender individual.

Article 15 of the Constitution of India: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
    • Access to shops, public restaurants, hotels and places of public entertainment; or
    • The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Navtej Singh Johar v. Union of India 2018 Case:

  • In the case of Navtej Singh Johar v. Union of India, the Supreme Court ruled that ‘the Indian Constitution bans discrimination based on sexual orientation via the category of “sex”.
  • Similarly, in the case of the National Legal Services Authority v. Union of India, the Supreme Court (2014) held that discrimination on the basis of gender identity is constitutionally prohibited.




  • What are the challenges to our cultural practices in the name of Secularism? (2019)
  • Examine the scope of Fundamental Rights in the light of the latest judgment of the Supreme Court on Right to Privacy. (2017)
  • ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (2014)


Q1. ‘Right to Privacy’ is protected under which Article of the constitution of India? (2021)
(a) Article 15
(b) Article 19
(c) Article 21
(d) Article 29

Q2. In India, Legal Services Authorities provide free legal services to which of the following type of citizens? (2018)

  1. Person with an annual income of less than Rs 1,00,000
  2. Transgender with an annual income of less than Rs 2,00,000
  3. Member of Other Backward Classes (OBC) with an annual income of less than ₹ 3,00,000
  4. All Senior Citizens

Select the correct answer using the code given below:

(a) 1 and 2 only

(b) 3 and 4 only

(c) 2 and 3 only

(d) 1 and 4 only

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