Inertia, intervention – The Supreme Court’s decision to refer to a Constitution Bench the issue of granting legal recognition to same-sex marriages | 15th March 2023 | UPSC Daily Editorial Analysis

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What's the article about?

  • It talks about the recent Supreme Court’s decision to refer to a Constitution Bench the issue of granting legal recognition to same-sex marriages.


  • GS1: Salient features of Indian Society; Structure, Organization and Functioning of the Executive and the Judiciary;
  • Essay
  • Prelims


  • Recently, the Supreme Court (SC) referred the pleas seeking legal validation of same-sex marriages to a five-judge constitution bench for adjudication.
  • Earlier, the Centre had filed a detailed affidavit, vehemently opposing the plea.
  • In this article, the writer analyzes two main issues: issue of same-sex marriages and issue of judicial intervention.


  • In Navtej Singh Johar & Ors. v. Union of India  case of 2018, the SC decriminalised homosexuality.
  • Now, petitioners before the Court view the idea of giving legal status for marriages between people belonging to the same sex as a natural consequence of this judgment.
  • The Supreme Court’s decision can be seen as an important step towards ensuring gender equality, despite apprehension that it is encroaching on the legislative domain.
  • The government, however, contends that there is no need to depart from the heteronormative understanding of marriage. And even if there ought to be such a change, it must come from the legislature.

Special Marriage Act 1954:

  • The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
  • It governs a civil marriage where the state sanctions the marriage rather than the religion.
  • The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK’s Marriage Act of 1949.

Challenges faced by LGBTQIA+ community in India:

  • Social discrimination at workplace, housing, and healthcare.
  • Lack of representation in media, politics and governance and they are also not included in mainstream society.
  • They are placed in the “Bracket of Mental Health Issues” by the society.
  • The question before the Court is whether it should interpret provisions of marriage laws in India, especially the Special Marriage Act, 1954, as permitting marital unions between same-sex couples.
  • The Act allows the solemnisation of a marriage between any two persons and is used by those who are unable to register their marriages under their respective personal laws.
  • The Union government has argued that the decriminalisation of consensual relations between adults of the same sex has removed the stigma attached to homosexuality, but has not conferred the right of marriage.
  • And that the state is entitled to limit its recognition to marriages involving heterosexual couples.
  • There is no discrimination, it claims, in keeping same-sex couples out of the definition of marriage.

Way Forward:

  • A responsive government that wants to treat this as a matter of policy and not cede space to the courts would act on its own to consider the right of any two people, regardless of gender, to marry or found a family.
  • Legislative inaction on burning social issues will legitimise and invite judicial intervention.

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