For over 150 years, a single colonial-era law defined the legal boundaries of same-sex relationships in India. Section 377 of the Indian Penal Code, introduced in 1861 under British rule, treated consensual same-sex intimacy as a criminal offence – punishable by up to ten years in prison. The journey from that dark legacy to the landmark Navtej Singh Johar verdict in 2018, and then onwards toward the still-unfinished fight for marriage equality, is one of the most significant legal battles in modern Indian history. It is a story about fundamental rights, constitutional morality, and the gap that continues to exist between decriminalization and full legal equality.
Table of Contents
Section 377 and the journey of decriminalization
Section 377 of the Indian Penal Code categorised consensual same-sex intercourse as an “unnatural offence” against the order of nature, prescribing a punishment of up to ten years’ imprisonment. Though the provision did not explicitly name homosexuality, it was routinely weaponised against LGBTQ+ individuals – used by police for extortion, harassment, and blackmail. The law was rooted in Victorian-era morality, introduced into Indian statute books during British colonial rule, and it survived well into the twenty-first century.
The first serious legal challenge came in 2001, when the Naz Foundation (India) Trust filed a petition before the Delhi High Court questioning Section 377’s constitutionality. In 2009, the Delhi High Court ruled that punishing sexual activity between two consenting adults under Section 377 violated the right to equality, privacy, and personal liberty. It was a watershed moment. But the victory was short-lived.
In 2013, the Supreme Court reversed this decision in Suresh Kumar Koushal v. Naz Foundation, restoring Section 377 to full force. The Supreme Court held that the decision to decriminalise homosexuality could only be made by Parliament, not the Court, and also referred to LGBTQ+ people as a “minuscule minority” whose small numbers justified denying rights. This deeply controversial reasoning reinvigorated LGBTQ+ activism across the country.
The Navtej Singh Johar case (2018)
In 2016, five individuals from the LGBTQ+ community – dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and businesswoman Ayesha Kapur – filed a fresh writ petition directly challenging Section 377. Crucially, this was the first instance where petitioners argued they had all been directly aggrieved by Section 377, alleging it to be a direct violation of their fundamental rights.
On September 6, 2018, a five-judge constitutional bench of the Supreme Court delivered a unanimous verdict. The Court held that Section 377 was unconstitutional as it criminalised consensual sexual acts between adults, violating the rights to equality, privacy, and freedom under Articles 14, 15, 19, and 21 of the Constitution.
The Court found that Section 377 was manifestly arbitrary because it did not distinguish between consensual and non-consensual sexual acts between adults. It targeted people exercising certain choices and treated them as “less than humans,” encouraging prejudices and stereotypes with debilitating social effects. The bench also drew on the 2017 K.S. Puttaswamy judgment, which had affirmed the right to privacy as a fundamental right, and referred to international instruments like the Yogyakarta Principles.
Importantly, Section 377 was not entirely struck down. The section still remains valid to the extent it criminalises non-consensual sexual intercourse, as well as sexual acts involving minors and animals. The ruling decriminalised same-sex relations – but it did not confer any new legal rights or recognitions on same-sex couples. That next battle was still to come.
Challenges to legal recognition
Decriminalisation was a critical step, but the LGBTQ+ community in India quickly recognised that freedom from criminal prosecution is very different from equality before the law. Without legal recognition of same-sex relationships, couples remained shut out of a vast web of rights and protections that heterosexual married couples take for granted – including inheritance, joint property ownership, insurance benefits, hospital visitation rights, adoption, and the right to divorce.
In November 2022, same-sex couples began filing petitions in the Supreme Court seeking recognition of their marriages under the Special Marriage Act, 1954 (SMA). The petitioners argued that Section 4(c) of the SMA, which recognises marriage only between a “male” and a “female,” discriminates against same-sex couples by denying them matrimonial benefits such as adoption, surrogacy, employment, and retirement benefits.
The Union Government, under the BJP, filed a counter-affidavit in March 2023 opposing any extension of marriage rights. The government cast arguments in favour of marriage equality as “urban, elitist views,” stating that same-sex marriage is “not comparable to the Indian family unit concept” comprising a husband, wife, and children. This framing was directly contested by queer activists who pointed to centuries of same-sex representation in Indian scripture, temple carvings, and mythology, arguing that homosexuality was never alien to Indian culture but was criminalised by colonial law.
The Supriyo v. Union of India verdict (2023)
In April and May 2023, a five-judge Constitution Bench heard arguments from 52 petitioners across 20 connected cases. On October 17, 2023, the Bench unanimously held that there is no fundamental right to marry for queer persons under the Indian Constitution, and that the Court could not recognise LGBTQIA+ persons’ right to marry under the Special Marriage Act.
The court was divided on some points, but united on the core holding. All five judges agreed that there was no fundamental right to marry, and that the Supreme Court could not enter judicial legislation to read words into the SMA to make it a gender-neutral legislation – leaving that task to Parliament. Chief Justice D.Y. Chandrachud, writing for himself, acknowledged that the right to choose a partner was a deeply important life decision, but held that the court could not redraft existing legislation without crossing into the legislative domain.
The Court rejected the legal recognition of same-sex marriage, denying petitions from 21 same-sex couples and activists, thereby blocking the path to marriage equality for LGBTQ+ individuals across India. As researchers in The Lancet Regional Health noted, the Court’s simultaneous declaration against discrimination based on sexual orientation, paired with its refusal to legally recognise same-sex marriage, sent contradictory signals – affirming dignity in principle while denying it in practice.
In late 2024, the Supreme Court also dismissed review petitions challenging this verdict. The review bench found no error apparent in the majority judgments and held that no interference was warranted. The door to judicial intervention, at least for now, appears firmly closed.
Comparative international context
India’s legal position becomes sharper when viewed against the global landscape. As of January 2025, 38 countries recognise same-sex marriage. The Netherlands was the first, legalising it in 2001. Since then, marriage equality has expanded across Western Europe, the Americas, and parts of Asia and Oceania. South Africa is the only country in Africa, and Taiwan is the only country in Asia, to have legalised same-sex marriage. Thailand became the most recent addition, with its law taking effect in January 2025.
India’s closest regional comparison may be Nepal, which made significant strides in recent years. In November 2023, Nepal officially recognised a marriage between a transgender woman and a cisgender man, following an interim Supreme Court order directing the government to register same-sex unions temporarily. Sri Lanka and Bangladesh, meanwhile, continue to criminalise same-sex conduct entirely – placing India’s 2018 decriminalisation in a more progressive regional light, even as it falls short of full equality.
Globally, countries have two main paths toward achieving marriage equality: legislation passed by elected representatives, or court rulings based on constitutional equality guarantees. The US Supreme Court, for instance, declared same-sex marriage legal across all fifty states in the landmark 2015 decision Obergefell v. Hodges, pointing to the Equal Protection Clause of the Fourteenth Amendment. India’s Supreme Court, by contrast, explicitly declined to take that second path, insisting the matter belonged with Parliament.
Research shows that national legislatures with openly identifying LGBTQ+ lawmakers are significantly more likely to have marriage equality or civil partnerships than those without. India’s Parliament currently has virtually no openly LGBTQ+ representation, which shapes the political calculus considerably. The BJP-led government’s vocal opposition further narrows the prospects for near-term legislative change through conventional politics.
The road ahead for legal equality
Where does India go from here? The Supreme Court’s October 2023 verdict did not leave the situation entirely unchanged. Chief Justice Chandrachud’s concurring opinion directly stated that “queerness is neither urban nor elite,” rejecting the government’s framing. The bench also directed the government to form a committee to examine the rights and entitlements of same-sex couples – covering areas like joint bank accounts, insurance nominations, and hospital access. However, activists noted that the government is not legally duty-bound to follow these directions, and the ruling does not have the force of enforceable law on those points.
The absence of marriage rights has concrete, daily consequences. Denied marriage rights, same-sex couples have no legal status in family matters – including succession, inheritance, and even hospital visitation rights. A partner who has spent decades building a life with someone holds no legal recognition in a medical emergency. These are not abstract injustices – they are practical barriers that the Navtej Singh Johar judgment, for all its significance, did not address.
The path forward in India almost certainly runs through Parliament. Legislative change, however, requires political will that is currently absent at the national level. LGBTQ+ advocacy groups, lawyers, and civil society organisations are focusing their efforts on building public awareness, documenting discrimination, and pushing for intermediate protections – such as civil union legislation, anti-discrimination laws covering sexual orientation, and joint adoption rights – that could incrementally secure legal recognition without requiring the full political battle of marriage equality.
State-level initiatives also offer some hope. Kerala has historically been more receptive to LGBTQ+ rights, and some courts have already extended Article 21 protections to same-sex couples in live-in relationships. The Punjab and Haryana High Court ruled in 2020 that same-sex couples are entitled to protection of their lives and liberty under Article 21, and reaffirmed in 2023 that constitutional protection does not cease to apply when people of the same gender decide to live together.
The legal battles that brought India from a colonial-era criminal law to a constitutional declaration of dignity took decades of courage, litigation, and activism. The distance that remains – from decriminalisation to full legal equality – is shorter in terms of time but no less demanding in terms of political effort. What Section 377’s repeal proved is that constitutional morality can, over time, outlast social conservatism. Whether Parliament will eventually follow that direction, or whether the courts will find new grounds to act, remains the defining question of the next chapter of LGBTQ+ rights in India.
What do you think? Now that the Supreme Court has placed the responsibility for marriage equality squarely with Parliament, what does it mean for democracy when fundamental rights questions are left to a legislature that may not represent the full spectrum of its citizens? And given that decriminalisation in 2018 did not automatically translate into social safety or legal protection for same-sex couples, how should we measure “progress” in the fight for LGBTQ+ rights?
References
- https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/
- https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/
- https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India
- https://testbook.com/landmark-judgements/navtej-singh-johar-vs-union-of-india
- https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality/
- https://www.scobserver.in/cases/plea-for-marriage-equality/
- https://www.aljazeera.com/features/2023/10/17/unpacking-indian-supreme-courts-verdict-on-same-sex-marriage
- https://www.scobserver.in/reports/plea-for-marriage-equality-judgement-summary/
- https://www.scconline.com/blog/post/2023/10/18/supreme-court-verdict-on-same-sex-marriage-breakdown-of-the-agreements-and-disagreements-legal-news-lgbtqia/
- https://www.thelancet.com/journals/lansea/article/PIIS2772-3682(24)00144-6/fulltext
- https://www.livelaw.in/top-stories/supreme-court-dismisses-review-petitions-against-its-decision-refusing-to-recognize-queer-marriages-280498
- https://en.wikipedia.org/wiki/LGBTQ_rights_by_country_or_territory
- https://www.usnews.com/news/best-countries/articles/countries-where-same-sex-marriage-is-legal
- https://www.cfr.org/backgrounders/marriage-equality-global-comparisons
- https://education.cfr.org/learn/reading/marriage-equality-around-world
- https://www.npr.org/2023/10/22/1207863803/indias-supreme-court-rules-against-marriage-equality
- https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_India
Leave a Reply