Justice Khanna Recuses from Review of Same-Sex Marriage Verdict

On Wednesday, Supreme Court Justice Sanjiv Khanna recused himself from hearing review petitions against the October 2023 Supreme Court verdict that denied the recognition of same-sex marriages and civil unions.

A five-judge bench led by Chief Justice of India (CJI) DY Chandrachud had assembled at 1:30 PM to hear the review petitions in the chamber. This decision followed a mention by Senior Advocate Neeraj Kishan Kaul on Tuesday, who requested an open court hearing. However, the Court reiterated that review by a Constitution Bench must occur in chambers, scheduling the matter for today's session.

The review petitions pertain to the Supreme Court's October 17, 2023 ruling, where a Constitution Bench led by CJI Chandrachud, along with Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, ruled against recognizing same-sex marriages. The Court held that the current law does not acknowledge the right to marry or the right of same-sex couples to form civil unions, leaving the matter for the parliament to legislate.

Additionally, the October ruling specified that same-sex couples do not have the legal right to adopt children. The majority opinion was delivered by Justices Bhat, Kohli, and Narasimha, with Justice Narasimha providing a separate concurring opinion. Conversely, CJI Chandrachud and Justice Kaul delivered dissenting judgments.

In the October decision, the Court unanimously agreed that there is no unqualified right to marriage and same-sex couples cannot claim this as a fundamental right. The challenge to the provisions of the Special Marriage Act was also unanimously rejected. Justices Bhat, Kohli, and Narasimha's majority opinion stated that civil unions between same-sex couples are not legally recognized and such couples cannot claim the right to adopt children.

However, in their separate minority opinions, CJI Chandrachud and Justice Kaul ruled that same-sex couples are entitled to recognize their relationships as civil unions and claim consequential benefits. They asserted that such couples should have the right to adopt children, striking down adoption regulations that prevented this.

Former Attorney General Mukul Rohatgi had also urgently mentioned in November last year for an open-court hearing of the review petitions in the marriage equality case. Despite these efforts, the review petitions came up for an in-chamber hearing today when Justice Khanna recused himself from the proceedings.

The recusal of Justice Khanna adds a new dimension to the ongoing legal discourse on same-sex marriage in India, highlighting the complex and evolving nature of this pivotal issue.

Author: Anushka Taraniya

News writer