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same-sex marriage: Supreme Court Justice Sanjiv Khanna recuses himself from hearing same-sex marriage review petitions

same-sex marriage: Supreme Court Justice Sanjiv Khanna recuses himself from hearing same-sex marriage review petitions

Senior Supreme Court Justice Sanjiv Khanna on Wednesday recused himself from hearing the review petitions of last year’s Supreme Court verdict that denied legal recognition to same-sex marriages, sources said. Justice Khanna cited personal reasons for his recuse, the sources said.

The recusing of Justice Khanna would require the reconstitution of a five-judge bench by Chief Justice DY Chandrachud to hear the review petitions.


The highest court on Tuesday refused to allow a public hearing on applications to review last year’s ruling.

In response to a challenge from gay rights activists, a five-judge bench led by Chandrachud on October 17 last year refused to grant legal support to same-sex marriage, saying there is no “unrestricted right” to marry except for marriages recognised by law.

However, the Supreme Court has strongly advocated for the rights of queer people to not be discriminated against in accessing goods and services available to others, the establishment of safe houses known as ‘Garima Greh’ in all districts to provide shelter to community members facing harassment and violence, and the setting up of special helpline numbers to help in case of trouble.

A five-judge bench comprising the CJI and Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha was to hear the review petitions at its premises.

In accordance with practice, applications for reconsideration are considered in closed session by judges.

In their ruling, the judges stated that transsexual people in heterosexual relationships have the freedom and right to marry under applicable statutory provisions.

It stated that the right to have a relationship legally recognised, similar to marriage or a civil partnership, or to have a relationship given legal status, can only be granted by “established law”.

A five-judge bench headed by CJI Chandrachud delivered four separate judgments on 21 petitions seeking legal recognition of same-sex marriages.

All five judges unanimously refused to give legal recognition to same-sex marriages under the Special Marriages Act and said Parliament had the power to change the law to recognise such a union.

While the CJI delivered a separate verdict of 247 pages, Justice Sanjay Kishan Kaul (now retired) produced a 17-page judgment in which he broadly agreed with the views of Justice Chandrachud.

Justice S. Ravindra Bhat (retired), who authored the 89-page judgment on his behalf and on behalf of Justice Kohli, disagreed with some of the conclusions reached by the CJI, including those on the applicability of the adoption provisions to same-sex couples.

Justice Narasimha said in his 13-page judgment that he was in full agreement with the reasoning and conclusions presented by Justice Bhat.

The judges unanimously ruled that queerness is a natural phenomenon, not an “urban or elite” phenomenon.

In his ruling, the CJI noted the assurance given by Attorney General Tushar Mehta that the Centre would constitute a committee under the chairmanship of the Cabinet Secretary to define and clarify the scope of rights of same-sex couples in a relationship.

LGBTQIA++ rights activists, who won a major legal battle in the Supreme Court in 2018 that decriminalized consensual gay sex, have asked the high court to recognize same-sex marriage and the benefits that come with it, such as the right to adopt, enroll children in school, open bank accounts and access inheritance and insurance benefits.

Some of the petition’s signatories called on the Supreme Court to use its full power, “prestige and moral authority” to persuade society to recognize such a union that would provide LGBTQIA++ people with a “dignified” life equal to heterosexual people.

LGBTQIA++ is an acronym for lesbian, gay, bisexual, transgender, queer, orientation seeking, intersex, pansexual, bisexual, asexual and related.

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