Same-Sex Marriage in India: Legal Vacuum vs. Social Reality

ABSTRACT

The same sex marriage debate in India is an indication of a fundamental clash between the constitution and the society. As the Navtej Singh Johar v. Union of India (2018) homosexuality case decriminalized homosexuality was a historic change to the legal area, yet it failed to turn into the appreciation of same-sex couple right to marry. Supriyo v. Union of India (2023) by the Supreme Court again stated that right to marry was not a fundamental right and left the issue of marriage equality to the legislature creating a legal vacuum. This vacuum deprives the LGBTQ+ people the right to some basic rights as such as marriage, inheritance, adoption, maintenance, medical consent, and social legitimacy, even though they are treated as equal citizens. Meanwhile, Indian social reality is changing. There is an increasing acceptance, greater public visibility, and more support of the urban spaces by younger generations. However, such coexistence with unrelenting stigma, family opposition and cultural conservatism demonstrate that there is transition in the country. The tailing point of the argument is the contrast between constitutional morality which requires equality and dignity and social morality which is opposed to change.