Same-Sex Marriage Rights: Legislative vs Judicial Domain

Same-Sex Marriage Rights: Legislative vs Judicial Domain

The question of same-sex marriage rights in India lies at the intersection of constitutional morality, individual rights, and legislative competence. While the Supreme Court has progressively recognized LGBTQ+ rights, the judicial and legislative domains must be balanced to ensure legal clarity, democratic legitimacy, and social acceptance.

The Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India (2018) decriminalized consensual same-sex relations under Section 377 IPC, affirming the right to equality (Article 14), right to freedom (Article 19), and right to life with dignity (Article 21). This decision recognized sexual orientation as an intrinsic aspect of identity, but it did not extend the right to marry, which remains governed by personal laws and the Marriage Acts.

Judicial arguments in favor of same-sex marriage emphasize:

1. Fundamental Rights – Courts can interpret Articles 14, 15, and 21 to include freedom to marry a person of choice, regardless of gender, invoking constitutional morality over social norms.
2. Equality and Non-Discrimination – Denying marriage rights solely based on sexual orientation constitutes discrimination, which the judiciary can strike down in the absence of legislative action.
3. Precedents from Other Jurisdictions – Courts often rely on international human rights norms and foreign judgments recognizing same-sex marriage as a matter of fundamental equality.

However, the legislative domain plays a critical role:

1. Comprehensive Legal Framework – Marriage involves property rights, inheritance, adoption, taxation, and spousal benefits, which require statutory recognition. Judicial declarations alone may be insufficient without amending personal laws or enacting a uniform law.
2. Democratic Legitimacy – Legislatures represent social consensus and pluralistic values, and laws regulating marriage are deeply intertwined with cultural and religious practices, necessitating parliamentary intervention for enforceability.
3. Policy Implications – Legislatures can design inclusive marriage laws, civil unions, and rights for same-sex couples, ensuring legal clarity, social acceptance, and procedural implementation.

The tension between judicial and legislative action lies in timing and scope. While courts can strike down discriminatory provisions and protect fundamental rights, legislatures are better positioned to codify marriage rights, create uniform statutes, and regulate ancillary legal consequences. Courts have acknowledged this in cases where they read down laws to remove discrimination but left detailed legislative reforms to Parliament.

In conclusion, same-sex marriage rights in India require a synergy between judicial protection and legislative enactment. The judiciary ensures constitutional safeguards, equality, and non-discrimination, while the legislature provides legal infrastructure, policy legitimacy, and societal acceptance. Both domains must operate collaboratively to ensure that LGBTQ+ individuals enjoy full marriage rights, with enforceable legal, social, and economic protections.