LIJDLR

SAME-SEX MARRIAGE AND THE LIMITS OF JUDICIAL POWER IN INDIA

Vanshika Agrawal, 7th semester pursuing B.A.L.LB court at Lucknow University (India)

The Constitution Bench decision in Supriyo @ Supriya Chakraborty v Union of India (2023) marks the point at which the Supreme Court’s LGBTQ+ jurisprudence met the limits of judicial power. Five years after decriminalising consensual same-sex relations in Navtej Singh Johar v Union of India (2018), the Court declined to extend the Special Marriage Act, 1954 to same-sex couples. This paper asks whether a constitutional court can extend a statutory institution such as marriage to same-sex couples without breaching the separation of powers. It argues that the Court drew a defensible line between interpretation and legislation, but that judicial restraint carries a matching duty on the legislature and the executive to act. The paper follows a doctrinal method. It examines the four opinions in Supriyo, the earlier decisions in NALSA, Puttaswamy, Koushal and Navtej, and the statutes that attach legal consequences to marriage, including the Juvenile Justice (Care and Protection of Children) Act, 2015, the Adoption Regulations, 2022 and personal-law statutes on succession and maintenance. It also traces developments after the judgment, among them the constitution of the Cabinet Secretary committee in April 2024, the dismissal of the review petitions in January 2025 and the Transgender Persons (Protection of Rights) Amendment Act, 2026. A short comparison with the United States, Taiwan and Thailand shows that lasting recognition has more often come through legislation prompted by courts than through adjudication alone. The paper finds that all five judges rejected a fundamental right to marry and that the Bench divided 3:2 only on civil unions and joint adoption. It concludes that Parliament remains the appropriate forum, and recommends a civil union statute, targeted amendments to the Special Marriage Act and binding administrative measures in the interim.

📄 Type 🔍 Information
Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 3, Page 2742–2763.
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