New Delhi, July 10
The Supreme Court had to defer the hearing on petitions seeking review of its October 2023 verdict refusing to recognise same-sex marriages in India as Sanjiv Khanna – one of the judges on the five-judge Bench — on Wednesday recused himself from the case.
Justice Khanna – the senior-most judge of the Supreme Court was learnt to have cited personal reasons for his recusal, sources said.
Now, Chief Justice of India DY Chandrachud will have to reconstitute the Bench before the review petitions could be taken up for hearing.
Review petitions are generally heard “in chamber” — and not in an open court — by a procedure called “hearing by circulation” where advocates representing the parties are not allowed to argue. But in exceptional cases, the top court allows open court hearing, if convinced about its need.
On Tuesday, the petitioners had urged CJI Chandrachud to allow an open court hearing on the contentious issue.
A five-judge Bench of CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli had on October 17, 2023 unanimously turned down petitions seeking to allow same-sex marriages under the Special Marriage Act, saying it’s for Parliament to effect changes in the law for validating such unions.
Holding that there’s no fundamental right to marry, the Supreme Court had refused to allow same-sex marriages in India even as it directed the Centre to set up a high-powered committee headed by the Cabinet Secretary to decide the rights and entitlements of persons in queer unions.
Since two of the judges – Justice Kaul and Justice Bhat had retired, the Bench had been reconstituted with the inclusion of Justice Khanna and Justice BV Nagarathna. Following Justice Khanna’s recusal, it will have to be reconstituted again.
The Constitution Bench had directed the Government to set up a high-powered committee headed by the Cabinet Secretary to decide the rights and entitlements of persons in queer unions.
By a majority of 3:2, the Constitution Bench had upheld one of the adoption regulations that prohibited unmarried and queer couples from adopting children.
Contending that Articles 19 and 21 of the Constitution guaranteed all persons the right to marry a person of their choice, including LGBTQIA+ persons, the petitioners had contended that the Special Marriage Act (SMA) violated the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violated right to life and liberty guaranteed under Article 21 of the Constitution.
However, it had rejected their contention, saying, “This Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations.”
