Between Dignity and Deference: Constitutional Recognition of Non-Heteronormative Families in Transformative Democracies

Abstract

The constitutional status of non-heteronormative relationships presents a critical site for examining the interplay between human rights adjudication and constitutional theory. This paper interrogates whether the exclusion of LGBTQIA+ persons from formal legal recognition of marriage and attendant civil rights can withstand scrutiny under principles of equality, dignity, and personal liberty. Drawing on comparative moot-based arguments as an analytical lens, the study situates these claims within the broader framework of transformative constitutionalism and rights-expansive interpretation. Doctrinally, the paper argues that the rights to intimacy, family formation, and relational autonomy emerge as integral facets of the right to life and personal liberty, thereby necessitating a non-discriminatory extension of civil entitlements. It critiques binary statutory constructions of marriage as constitutionally suspect, insofar as they entrench structural exclusion and fail the tests of arbitrariness and proportionality. At the same time, the paper engages with the countervailing constitutional argument that courts must exercise institutional restraint, deferring to legislative competence in matters involving complex socio-cultural policy choices and the redefinition of foundational social institutions. Methodologically, the paper adopts a doctrinal and comparative approach, synthesizing constitutional jurisprudence with theoretical insights from constitutional morality, separation of powers, and the counter-majoritarian difficulty. It argues that the tension between judicial review and democratic legitimacy is particularly acute in cases involving minority rights that lack majoritarian support.

Introduction

The text analyzes the constitutional recognition of non-heteronormative (LGBTQIA+) relationships in India, focusing on tensions between evolving judicial rights jurisprudence and restrictive statutory family laws.

It explains that Indian constitutional law has significantly advanced LGBTQIA+ rights, especially after Navtej Singh Johar v. Union of India, which decriminalized same-sex relationships and affirmed that sexual orientation is protected under Articles 14, 15, and 21. Subsequent rulings on privacy, dignity, and autonomy (including Puttaswamy and related cases) strengthened the idea that individuals have the right to choose partners and form relationships freely.

However, despite these gains, family law in India still excludes non-heteronormative relationships, particularly in areas like marriage, adoption, and inheritance. This creates a gap between constitutional rights and legal recognition. The text highlights a core tension: while courts have expanded negative rights (freedom from criminalization), they have hesitated to fully establish positive rights (legal recognition of same-sex families), partly due to concerns about separation of powers and legislative authority.

The study uses the framework of transformative constitutionalism, which views the Constitution as a tool for social change aimed at achieving substantive equality. Within this approach, constitutional morality is emphasized over societal norms, supporting inclusion of LGBTQIA+ rights even without majority approval.

Key constitutional principles discussed include:

• Article 14 (Equality): Exclusion of same-sex couples may be arbitrary and discriminatory.
• Article 15 (Non-discrimination): Sexual orientation is linked to prohibited grounds of discrimination.
• Article 21 (Life and Liberty): Includes dignity, privacy, autonomy, and the right to choose a partner and form relationships.

The text also discusses the counter-majoritarian difficulty, where courts must protect minority rights without overstepping into legislative territory. The Supreme Court’s decision in Supriyo v. Union of India reflects this tension, as it acknowledged LGBTQIA+ dignity but refused to legalize same-sex marriage, citing institutional limits.

Copyright

Copyright © 2026 Abhinav Viswanath, Krutha Janani. This is an open access article distributed under the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.