Two Years of the Marriage Equality Judgement and the Way Forward

October 17, 2025, will mark the second-year anniversary of the Supriyo judgement that denied marriage equality to certain sections of the queer community. The Supreme Court noted that while queer persons face rampant discrimination on account of their identities and non-recognition of their relationship, it was for the legislature to address this. To say that the judgement left many queer individuals and couples devastated is an understatement. 

While marriage is a contentious issue within the community, with many arguing that focusing on it privileges a patriarchal caste-coded institution, the fact remains that many entitlements are linked to marriage. These include access to joint insurance, loans, property, joint parenthood and healthcare decision making. 

Marriage is also survival for many queer persons. When queer couples flee their homes, triggering a witch hunt by their families and the police, the legal recognition of the relationship may serve as a shield against police harassment to an extent. 

But what next? That is the big question that lawyers from the community and allies are now faced with. 

While two landmark judgements – the NALSA judgement recognising fundamental rights for transgender persons and the decriminalisation of homosexuality in Navtej Johar v Union of India – were backed by a certain degree of unity within the community, what causes unite us, if at all, now that marriage is lost?

The flip flop of courts

Let us first focus on litigation as a site of action. It is a fact that around the world, including in India, courts have played a critical role in recognising queer rights. From decriminalisation, anti-discrimination to marriage equality, very rarely have these initiatives come from governments. 

One reading of this is that unlike elected governments, which often function as majoritarian institutions, courts are supposed to be anti-majoritarian. They are not supposed to bend to the whims and fancies of electorates and are instead tasked with upholding constitutionally guaranteed rights. 

Also read: ‘Queering the Law’: A Policy Brief Seeks Equality Beyond 'Supriyo'

In case of India, as articulated in the landmark judgement that decriminalised homosexuality, courts must also uphold constitutional morality. Simply put, a morality informed by the core values of the Constitution such as equality, dignity, liberty and justice, as opposed to society’s majoritarian morality. 

In India, as in many parts of the world, the last decade has demonstrated a trend of the Supreme Court extending deference to the executive. This has led to an assumption of institutional capture, with many arguing that courts are unduly influenced by the executive in rendering decisions. 

The instance of a retired Supreme Court judge joining the Rajya Sabha post-retirement has not helped assuage these concerns. Barring a few judgements, such as the striking down of electoral bonds and recent directions on state-driven demolitions, the Supreme Court has faced considerable critique in matters relating to judgements on the abrogation of Article 370, the Ayodhya verdict, and indefinitely delaying bail to those charged under the draconian Unlawful Activities Prevention Act. 

In this context, while many presumed that marriage equality would be low hanging fruit, that assumption was proven wrong when Supriyo judgement was delivered. The court, while empathetic, exercised deference once again. 

So where does this leave us now? Post Supriyo, litigation has been initiated across several high courts. This is because unlike the Supreme Court, high courts have been far more proactive in granting relief. 

Judgements prohibiting conversion therapy, banning surgeries on persons with intersex variations, granting reservations to transgender persons, recognising atypical families, granting protection to queer couples, and urging governments to change laws to recognise queer couples have all come from high courts. Thus, strategically, it makes sense to turn to high courts for relief. 

Three matters have emerged as prominent post Supriyo: a matter filed in the Delhi high court demanding that queer couples be able to take healthcare decisions for each other, and two matters challenging discrimination in tax laws against queer couples initiated in the high court of Bombay and Karnataka. 

However, each of these cases have been initiated by individual petitioners. Unlike the NALSA judgement on transgender rights and the NAZ matter, where the Delhi high court decriminalised homosexuality, which were the product of public interest litigations, most queer rights matters have been initiated by aggrieved persons directly. 

There may be several reasons for this shift in approach. One core reason being that the clampdown on foreign funding has made it near impossible for queer communities to mobilise effectively to arrive at collective court strategies. However, it is critical to deliberate which of the two approaches – PILs informed by a collective or individual petitions initiated by individuals – or a mix of both, makes more strategic sense. Haphazard litigation, uninformed by a cohesive theory of change, may lead to unfavourable orders that may make it difficult to approach courts for favourable judgements or reversing unfavourable decisions. 

The hesitant legislature

The second site of action for law reform is the legislature. The primary developments here are two. First, the enactment of the Transgender Persons (Protection of Rights) Act, 2019 (‘2019’) and second, the establishment of the High-Powered Committee to look into measures to alleviate discrimination against queer persons. 

The 2019 Act has time and again been critiqued by transgender persons for falling short of the directions in the NALSA judgement. The Act is a paper tiger which largely leaves it to the discretion of the state government to take affirmative measures and is silent on the primary demand of the community: reservations. 

Also read: Why the Law Should Recognise Chosen Families

Consequently, a challenge to several provisions of the 2019 Act is now pending before the Supreme Court. Very little momentum has been witnessed on the issue. 

The High-Powered Committee which was formed at the end of 2023 is yet to come out with its recommendations. While a closed-door consultation took place in New Delhi, there was limited representation in the room. Subsequently, a notification was issued by the Ministry of Social Justice and Empowerment inviting public comments on measures that may be considered by the HPC to tackle discrimination. 

The notification also pointed out a host of measures undertaken to extend rights in the absence of marriage. One, that there was no prohibition on queer couples from jointly opening bank accounts, and second that queer couples were to be treated as a family for the purpose of accessing ration under the Public Distribution System. 

It is critical to note that there was never a prohibition against opening joint back accounts in absence of a marital relationship. Further, there is no clarity on how queer persons are supposed to declare themselves as a family unit to access rations. To assume ground-level PDS officers are sufficiently sensitised to respond to self-declarations without the backing of law is a long shot. 

One state that demonstrated hope was Tamil Nadu. An order of the Madras high court revealed that the state government had constituted a group of queer activists and individuals to draft the state's gender and sexual minorities policy. 

The policy, framed by the community, provided for recognition of queer couples through contractual deeds, and provided a host of progressive measures across healthcare, violence, discrimination-free access to goods and services, employment and housing. 

When the Tamil Nadu government finally notified the policy in August 2025, the form it took was radically different from the community draft. First, the policy was restricted to only transgender persons and persons with intersex variations. Second, it largely reiterated measures already in the Transgender Rights Act. 

Inevitably, there was community  backlash. This goes to show that even progressive state governments hesitate to extend rights to sexual minorities and when it comes to transgender persons, lip service is where the buck stops. 

What next?

There are no simple answers to this question and views differ from community to community. However, it is important to create enabling conditions for the mobilisation that happened in the pre-NAZ days, where varied interest groups came together in a room and spoke with each other, ironing out differences, deliberating and arriving at shared goals. 

The queer community right now is fractured along several lines: differences are more pervasive than shared visions. But this is the nature of democracy: plurality of views, often at odds with each other. What is critical is that other democratic values of consultation, deliberation and coalition building are also practiced.

This requires resources, and in the absence of foreign funders, domestic funders need to fill the gap. An attempt has been made via the Pride Fund – an initiative undertaken by the Keshav Suri Foundation, Radhika Piramal and Godrej – to provide domestic funding to civil society. But funding must be driven not  only by the need to demonstrate quantitative achievements but qualitative measures. Coalition and consensus building are resource intensive processes and must be deemed as ends in themselves.

Second, a theory of change must inform litigation going forward. While individual petitions are critical to securing rights for immediate relief, they must be informed by broader community-centric goals. Litigating lawyers must attempt to speak with the grassroots, academics and policy spaces,  and vice versa. Arriving at a set of principles informing litigation, albeit imperfect and flexible, can play a role in ensuring we approach courts with prudence. 

Finally, despite all hesitation, advocacy with governments, both the Union and states, must continue. Every avenue for engagement must be grasped. It is clear that legislatures are not going to give us either marriage or civil unions anytime soon. Until then, strategically identifying points of entry for small wins must be prioritised. This could be as simple as nudging for executive directions directing non-discrimination at all public establishments. 

Movement work has never been easy, and rarely do political movements and lawyers have a happy marriage. But movement work is critical. And until queer persons, persons with disabilities, women, and persons from historically marginalised castes enjoy more dignified lives, the fight will continue. 

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