Decoding the Supreme Court’s judgement against same sex marriage legalisation | In Focus podcast

Arvind Narrain unravels the four separate judgements of the verdict, explains the top court’s stance on marriage and adoptions for queer persons and speculates on what the next step might be.

The Supreme Court, in a judgement this week refused to give legal recognition to same sex marriages. The court had heard a series of petitions asking for same-sex marriage to be allowed under the Special Marriage Act of 1954 which provides a civil form of marriage for couples who cannot marry under their personal, religious laws.

The question before the Court was this: is there a right to marry under the Indian Constitution and is preventing same sex/queer couples from marrying, discriminatory?

A five-judge Bench of the Court held that that the SMA was not unconstitutional and could not be read down. The petitioners had also questioned the Central Adoption Regulatory Authority, or CARA’s regulations that prevented persons in live-in relationships from adopting a child. Here again, the majority three judges, refused to strike down these regulations.

The Central government, had stiffly opposed any judicial recognition of same sex marriages and had said that this was an issue that needed to be resolved by the legislature and not the judiciary. The Court has now shifted the burden to the government, and has directed that a committee be set up to examine the concerns of same sex/queer couples and to see whether the existing legal framework can be amended. In effect, the Court has accepted that the issue needs to be dealt with by the government.

What are the key takeaways from the judgement? How did the Court rule on marriages of transgender persons? Given this setback, what are the next steps that can be taken?

Note

We did a podcast earlier this year when the Court took the petition up for hearing: this is the link to it: https://www.thehindu.com/podcast/what-legalisation-of-same-sex-marriage-for-lgbtq-people-will-mean-in-india-in-focus-podcast/article66626576.ece