Supreme Court Judge Recuses from Same-sex Marriage
NEW DELHI: Senior-most Supreme Court judge Sanjiv Khanna on Wednesday recused himself from considering pleas seeking a review of the apex court's judgment last year declining legal recognition of same-sex marriage.
According to sources, Justice Khanna cited personal reasons for his recusal. The recusal of Justice Khanna will necessitate the reconstitution of a fresh five-judge constitution bench by Chief Justice of India D.Y. Chandrachud. The new bench will also comprise Justices Hima Kohli, B.V. Nagarathna, and P.S. Narasimha for considering the review pleas.
The top court on Tuesday had refused to allow an open court hearing of pleas seeking a review of its judgment from last year.
A five-judge constitution bench headed by CJI Chandrachud had, on October 17 last year, refused to accord legal sanction to same-sex marriage, saying there was "no unqualified right" to marriage except for those recognised by law.
The apex court, however, made a strong pitch for the rights of queer people so they do not face discrimination in accessing goods and services available to others. The court suggested safe houses known as 'Garima Greh' in all districts to provide shelter to members of the community facing harassment and violence and dedicated hotline numbers for use in case of trouble.
According to convention, the review pleas are considered in chambers by judges.
In its judgment, the bench held that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.
The top court stated that an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship can only be done through "enacted law."
The five-judge Constitution bench, headed by CJI Chandrachud, had delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.
All five judges were unanimous in refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and observed that it was within Parliament's ambit to change the law for validating such unions.
While the CJI wrote a separate 247-page verdict, Justice Sanjay Kishan Kaul (since retired) penned a 17-page judgment broadly agreeing with Justice Chandrachud's views.
Justice S. Ravindra Bhat (since retired), who authored an 89-page judgment for himself and Justice Kohli, disagreed with certain conclusions arrived at by the CJI, including the applicability of adoption rules for queer couples.
Justice Narasimha, in his 13-page verdict, stated that he was in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat.
The judges were unanimous in holding that queerness is a natural phenomenon and not an "urban or elite" occurrence.
In his judgment, the CJI recorded the assurance by solicitor general Tushar Mehta that the Centre will constitute a committee chaired by the Cabinet secretary to define and elucidate the scope of entitlements of queer couples who are in a union.
After winning a major legal battle in 2018 in the apex court, which decriminalised consensual gay sex, LGBTQIA++ rights activists moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening bank accounts, and availing succession and insurance benefits.