Towards Equality - The Battle For LGBTQ+ Rights In India With Special Reference To Marriage

Author: LawSphereX

Category: Family & Personal Law

Published: 2026-08-23T21:34:50.143694+00:00

Updated: 2026-08-26T17:05:16.158+00:00

TOWARDS EQUALITY: THE BATTLE FOR LGBTQ+

RIGHTS IN INDIA WITH SPECIAL REFERENCE TO

MARRIAGE

Triveni Hazra, Maharashtra National Law University, Aurangabad

ABSTRACT

The LGBTQ+ community is characterized by its rich diversity and the ongoing struggle for equal rights and recognition. The movement for LGBTQ+ rights advocates for acceptance, legal protections, and social equality, challenging discrimination and striving to create a more inclusive society. Historically, Indian law was hostile to LGBTQ+ rights, with Section

377 of the Indian Penal Code1 criminalizing consensual same-sex relations

until its partial decriminalization in 2018 in Navtej Singh Johar v. Union of India,2 which decriminalized same-sex relations, recognizing the fundamental rights of privacy, dignity, and equality. Despite this victory, the court has since stopped short of granting same-sex couples the right to marry. Recent rulings have maintained that while individual rights have expanded, the recognition of same-sex marriage requires legislative action. The Supreme Court's recent stance, reflected in its decision not to accord legal recognition to same-sex marriages, underscores a reluctance to extend marriage rights to same-sex couples. The court has directed that such matters be addressed by Parliament and state legislatures, leaving the legal landscape fragmented.

The court’s observations suggest that legislative bodies may enact gender-neutral marriage laws or other forms of legal recognition, such as civil unions or domestic partnerships. The struggle for full equality continues as advocates push for legislative reforms and broader societal acceptance to ensure comprehensive legal recognition and protection for LGBTQ+ individuals in India. This essay examines the evolving landscape of LGBTQ+ rights in India, with a specific focus on the denial of the right to marriage for same-sex couples. Keywords: LGBTQ+, Section 377, Indian Penal Code, same-sex marriages, Supreme Court.

1 The Indian Penal Code, 1860, § 377, No. 45, Acts of Parliament, 1860 (India).

2 Navtej Singh Johar v. Union of India and Ors., (2018) 10 SCC 1.

INTRODUCTION

“Even if it makes others uncomfortable, I will love who I am. ” — Janelle Monáe The movement for LGBTQ+ rights in India has witnessed a dramatic evolution over the past few decades. Historically marginalized and criminalized, LGBTQ+ individuals in India have fought for recognition, dignity, and equality. The legal landscape has changed significantly since the landmark case Navtej Singh Johar v. Union of India (2018),3 which decriminalized consensual same-sex relations. However, the struggle for full equality persists, particularly with regard to the legal recognition to marriage between persons of the same sex. Social attitudes towards LGBTQ+ individuals in India also remain mixed. While urban areas and younger generations are increasingly accepting, there is still significant stigma and discrimination, particularly in rural areas and conservative communities.

This societal prejudice can lead to violence, harassment, and exclusion, making it difficult for LGBTQ+ individuals to live openly and safely. What is LGBTQ+? LGBTQ+ stands for Lesbian, Gay, Bisexual, Transgender, and Queer, with the "+" sign denotes the inclusion of a variety of additional gender identities, sexual orientations, and expressions that are not addressed by the initial letters. Each letter in the acronym represents a distinct group within the larger context of gender and sexual diversity: Lesbian: A woman who finds other women attractive. Gay: A person who is attracted to persons of the same gender, usually a male; Bisexual: Who is attracted to both men and women. Transgender: Whose gender identity does not match the sex they were assigned at birth.

3 Ibid.

Queer: to refer to a non-normative gender identification or sexual orientation; it is frequently used as a general for the LGBTQ+ group. The “+” signifies the inclusion of other identities such as Intersex, Asexual, and more, recognizing the diverse experiences within the community and the ongoing evolution of language to reflect this diversity. Historical Context and Legal Background The legal framework governing LGBTQ+ rights in India has been significantly shaped by colonial-era laws, most notably Section 377 of the Indian Penal Code (IPC). Introduced in 1861, Section 377 criminalized “carnal intercourse against the order of nature”, which included consensual same-sex relationships. This law served as a major impediment to the recognition and protection of LGBTQ+ rights, subjecting individuals to criminal prosecution, social stigma, and discrimination.

For decades, the LGBTQ+ community in India faced severe legal and social discrimination, with Section 377 being a significant legal tool for oppression. The law not only criminalized consensual same-sex relationships but also reinforced societal prejudices, leading to widespread marginalization of LGBTQ+ individuals. Early Advocacy and Legal Challenges The modern LGBTQ+ rights movement in India gained momentum in the late 20th century, with increased visibility and advocacy efforts. The turning point came with the filing of a public interest litigation by the Naz Foundation. In 2001, they challenged the constitutionality of Section 377. In 2009, the Delhi High Court in Naz Foundation v. Government of NCT of Delhi,4 decriminalizing consensual same-sex relations among adults.

The court ruled that Section 377, insofar as it criminalized consensual sexual acts between adults, was unconstitutional. This decision was celebrated as a historic victory for LGBTQ+ rights in India, signalling a shift towards greater legal recognition and protection.

4 Naz Foundation v. Government of NCT of Delhi and Ors., 2009 (6) SCC 712.

The Supreme Court's Reversal and Reaffirmation Ø However in 2013, the Supreme Court overturned the Delhi High Court's decision in Suresh Kumar Koushal v. Naz Foundation,5 reinstating Section 377. The Supreme Court judges in a significant case overturned the previous decision of the High Court, declaring the earlier ruling to be "legally unsustainable. " Ultimately it was held that Section 377, which criminalized "carnal intercourse against the order of nature," does not violate the Constitution. Ø In NALSA v. Union of India,6 the Supreme Court recognized the rights of transgender, affirming their right to self-identify and live with dignity. The Court directed the government to provide legal recognition of the third gender and ensure equal rights and opportunities for transgender individuals.

The NALSA judgment was a landmark decision that expanded the scope of LGBTQ+ rights by recognizing the legal status of transgender individuals and directing the government to implement policies for their welfare. It was a critical development in the broader struggle for LGBTQ+ equality. Ø The setback galvanized the LGBTQ+ community and its allies, leading to renewed advocacy and legal efforts. In 2018, the Supreme Court revisited the issue in Navtej Singh Johar v. Union of India. In a landmark ruling, the court decriminalized consensual samesex relations, declaring that Section 377, to the extent it criminalized consensual acts, was unconstitutional. The judgment emphasized the rights to privacy, dignity, and equality, affirming that LGBTQ+ individuals are entitled to the same rights as all other citizens.

Ø The Transgender Persons (Protection of Rights) Act, 2019 This Act, was enacted to provide legal recognition and protection for transgender individuals. The Act includes provisions for the right to self-identify, prohibition of discrimination, and access to healthcare and education. It represents a significant step in addressing the specific needs of transgender individuals. Ongoing Challenge: Despite the decriminalization of consensual same-sex relations, many challenges remain. One

5 Suresh Kumar Koushal v. Naz Foundation, AIR 2014 SUPREME COURT 563.

6 National Legal Ser.Auth vs Union Of India & Ors., AIR 2014 SC 1863.

of the most pressing issues is the lack of legal recognition for same-sex marriages. The Supreme Court, has left the question of marriage equality to the legislature.

THE RIGHT TO MARRIAGE FOR LGBTQ+ INDIVIDUALS: A LEGAL

PERSPECTIVE

The right to marriage is a fundamental aspect of personal liberty and equality. For LGBTQ+ individuals, the quest for marriage equality is not just about the legal recognition of relationships but also about affirming their identity and dignity. The legal discourse surrounding LGBTQ+ rights in India has evolved significantly, particularly since the landmark judgment in Navtej Singh Johar v. Union of India (2018), where the Supreme Court of India decriminalized consensual same-sex relationships. This ruling marked a watershed moment, acknowledging the rights to privacy, dignity, and equality for LGBTQ+ individuals under Articles 14 every person is equal before the eye of law,7 Article 15 prohibition on discrimination on the ground of sex, race, religion, caste etc,8 and Article 21 right to life and privacy of the Indian Constitution.

9 However, it did not explicitly address the right to marry, leaving this issue open to interpretation and legislative action. Social and Cultural Challenges The struggle for marriage equality in India is not just a legal battle; it is also deeply rooted in social and cultural contexts. Despite increasing acceptance in urban areas and among younger generations, significant opposition remains, often rooted in conservative social norms and traditional views on gender and sexuality. This cultural resistance poses a challenge to legislative change, as lawmakers are often influenced by prevailing societal attitudes. The lack of legal recognition for same-sex marriages also exacerbates the social stigma faced by LGBTQ+ individuals. The absence of legal recognition means that same-sex couples often cannot openly declare their relationships, leading to marginalization and exclusion.

This situation underscores the need for comprehensive legal reforms to ensure the same rights and protections.

7 INDIA CONST. art. 14.

8 INDIA CONST. art. 15.

9 INDIA CONST. art. 21.

JUDICIAL DISCOURSE:

Ø In the 2006 case of Lata Singh v Union of India,10 the Supreme Court ruled that the petitioner was free to select her spouse and that intercaste marriages are not illegal. Ø In Justice KS Puttaswamy (retd) v. Union of India,11 the fundamental right to privacy under Article 21 was upheld, but it was also noted that an individual's right to privacy and dignity extends to important marital decisions. Ø Shafin Jahan v. Asokan K. M. (2018),12 involved the case of a woman who converted to Islam and married a man, leading to her family’s objections and legal battles. While not exclusively an LGBTQ+ case, the ruling addressed issues of personal autonomy and freedom of choice, indirectly impacting LGBTQ+ rights by reinforcing the principle of individual freedom in matters of personal relationships.

This decision underscored the importance of personal choice and autonomy, which are fundamental to LGBTQ+ rights. It reinforced the principle that individuals have the right to make personal decisions about their relationships and identities. Ø In Anwar v. Union of India,13 the Supreme Court addressed issues related to the recognition of same-sex relationships. The case involved challenges to the non-recognition of same-sex marriages and sought judicial intervention to grant legal recognition to such relationships. Although the Court did not deliver a conclusive ruling on same-sex marriage, the case highlighted the ongoing legal challenges faced by same-sex couples. Ø The Anwar case brought attention to the need for legal reforms to recognize same-sex marriages and ensure equal rights for LGBTQ+ individuals.

It emphasized the ongoing struggle for comprehensive legal recognition and protection for same-sex couples. Ø Arun Kumar v. Inspector General of Registration (2019):14 It was recognized the marriage between a cisgender man and a transgender woman under the Hindu Marriage Act,

10 Lata Singh v Union of India, 2006 (5) SCC 475.

11 Justice KS Puttaswamy (retd) v. Union of India, 2019 (1) SCC 1.

12 Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.

13 Shri Anwar Abdulla Etc. vs The Union Of India And Others, 1992 CRILJ 3616.

14 Arunkumar vs The Inspector General Of Registration, AIR 2019 MADRAS 265.

interpreting the term "bride" to include a trans woman. Ø Shakti Vahini v. Union of India (2018):15 This case addressed the issue of honor killings and the protection of couples choosing inter-caste or inter-faith marriages. The Supreme Court emphasized that the right to marry a person of one's choice is integral to the right to life and personal liberty under Article 21. Ø In Laxmibai Chandaragi B. v. State of Karnataka,16 it was held that the right to marry a person of one’s choice is covered under Article 21. India’s commitment to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, underscores the global recognition of marriage as a fundamental right. Article 16(1) of the UDHR asserts that "men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

" This principle emphasizes that the right to marry is universal and should be accessible to everyone, regardless of background. Similarly, Article 23(2) of the ICCPR reinforces this right, highlighting the significance of marriage and family as key aspects of human rights. These international agreements urge member states, including India, to ensure that all individuals can exercise their right to marry and form families without discrimination. These frameworks play a crucial role in guiding discussions on marriage equality and advocate for the protection of LGBTQ+ rights worldwide. They serve as standards for countries to align their national laws with universally recognized human rights principles, promoting equality and non-discrimination, including in the context of marriage. Supriyo @ Supriya Chakraborty & Anr.

v Union of India,17 Although previous cases and international covenants suggest that the right to marry could be seen as a fundamental right, this specific issue had not been directly addressed by Indian courts. When the Supreme Court finally considered it, the Court concluded that the right to marry is not explicitly protected as a constitutional right in India. The Court made a distinction between

15 Shakti Vahini v. Union of India, 2018 (3) SCC (CRI) 1.

16 Laxmibai Chandaragi B. v. State of Karnataka, AIR 2021 SC 85.

17 Supriyo @ Supriya Chakraborty & Anr. v Union of India, W.P.(C) No. 1011/2022.

the right to marry and the right to choose a partner, asserting that earlier rulings, such as those affirming the freedom to choose one's partner, did not necessarily extend to a constitutional guarantee of the right to marry. Furthermore, the Court declined to use international instruments as a basis for deciding the matter. This approach reflects a cautious stance in interpreting the Constitution, focusing on domestic legal principles rather than international norms when addressing the rights related to marriage. On November 14th, 2022, Supriyo Chakraborty and his partner Abhay Dang, along with other couples, filed petitions challenging the constitutionality of India’s marriage laws that do not recognize same-sex unions. The primary argument was that despite the Supreme Court's 2018 decision in Navtej Singh Johar v.

Union of India decriminalizing same-sex relations, the lack of legal recognition for same-sex marriages leaves such couples without the legal benefits and protections afforded to heterosexual marriages. The petitioners argued that provisions like Section 4(c) of the Special Marriage Act, 1954, which restricts marriage to heterosexual couples, violate the rights to equality and dignity under the Constitution of India. They highlighted that the non-recognition of same-sex marriages prevents LGBTQ+ individuals from accessing a range of rights, such as adoption, inheritance, maintenance, and tax benefits, which are available to heterosexual couples. The case has brought attention to the broader issues of LGBTQ+ rights in India, including the right to form a family and the societal and legal recognition of queer relationships.

The Supreme Court has referred the matter to a Constitution Bench, which began hearing the case in April 2023. The Supreme Court of India unanimously ruled that the Constitution does not guarantee an unqualified fundamental right to marry. The Court upheld the constitutional validity of Section

4 of the Special Marriage Act and Section 4 of the Foreign Marriage Act, which only recognize

marriages between heterosexual couples. In a 3:2 split decision, the majority of the bench acknowledged the 'right to relationship' for queer couples but stated that the judiciary could not grant a right to marry in the absence of specific legislation. The dissenting opinion, however, took a more progressive stance by recognizing 'civil unions'

between LGBTQIA+ individuals. This part of the ruling highlights the ongoing legal and societal debates about the recognition and rights of same-sex couples in India, underscoring the need for legislative intervention to address these issues comprehensively. The Supreme Court of India’s majority bench reaffirmed the rights of individuals to choose their partners, cohabit, and enjoy physical intimacy. However, it did not mandate the State to recognize LGBTQIA+ unions or to democratize private spaces. The majority emphasized that while personal freedoms are protected, these do not extend to an obligation on the State to legally acknowledge same-sex marriages without specific legislative action.

In contrast, the dissenting opinion posited that the State has a positive duty to democratize the private sphere and can, in certain situations, supersede the right to privacy to prevent discrimination against queer individuals. The dissent argued that the right to form civil unions is implicit in Articles 19 and 21 of the Constitution, which guarantee the right to life and the freedom of expression. This opinion asserted that the equality principles enshrined in Articles

14 and 15 require extending these rights to all individuals, regardless of sexual orientation and

gender. This split decision highlights the ongoing debate and the divergent perspectives within the judiciary regarding the recognition and protection of LGBTQIA+ rights in India. It underscores the need for legislative intervention to address these complex issues comprehensively and to ensure equality and non-discrimination for all citizens.

CONCLUSION

The struggle for LGBTQ+ rights, particularly concerning the right to marry, reflects a broader movement toward equality and justice for all individuals. The decriminalization of consensual same-sex relationships in 2018 marked a significant milestone, affirming the rights to privacy, dignity, and equality for LGBTQ+ individuals. However, the path to full equality, including the recognition of same-sex marriages, remains fraught with challenges. The Supreme Court’s recent decisions underscore a cautious approach, distinguishing between the rights to choose a partner and to marry. While affirming the right to personal relationships and rejecting discrimination, the Court has left the matter of legalizing same-sex marriages to the legislature. The majority's stance reflects concerns about judicial overreach and respect for

legislative authority, while the dissenting opinions advocate for a more proactive role in securing civil rights for LGBTQ+ individuals. The ongoing struggle for marriage equality in India demonstrates a growing awareness and acceptance of LGBTQ+ rights, yet significant legal and social barriers persist. The call for legislative action, along with the establishment of committees to explore the rights of queer couples, indicates a step forward but also highlights the need for continued advocacy and reform. As India navigates this complex issue, the journey toward true equality for LGBTQ+ individuals continue, marked by both progress and ongoing struggles. The ultimate goal remains recognition of right to marry, ensuring that every individual can live with dignity and equality under the law.