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Justice Sanjiv Khanna Recuses from Hearing Review Petitions on Same-Sex Marriage Verdict

Justice Sanjiv Khanna of the Supreme Court recused himself on Wednesday from hearing review petitions challenging the Court’s October 2023 verdict that denied recognition of the right of same-sex couples to marry or form civil unions

A five-judge bench, headed by Chief Justice of India (CJI) DY Chandrachud, convened to hear the review petition in chambers at 1:30 pm. The matter was mentioned on Tuesday by Senior Advocate Neeraj Kishan Kaul before a Bench led by CJI Chandrachud, who requested an open court hearing.

However, the Court emphasized that the review by a Constitution Bench must be conducted in chambers and scheduled the hearing for today. In November of the previous year, Senior Counsel and former Attorney General Mukul Rohatgi had also urgently requested an open-court hearing for the review petitions in the marriage equality case.

On October 17, 2023, a Constitution Bench led by CJI Chandrachud and including Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha ruled against recognizing same-sex marriages. The Court stated that current law does not acknowledge the right to marry or the right of same-sex couples to enter civil unions, leaving it to the parliament to enact such laws. Additionally, the Court ruled that same-sex couples do not have the legal right to adopt children.

The majority opinion, delivered by Justices Bhat, Kohli, and Narasimha, with Justice Narasimha providing a separate concurring opinion, asserted that there is no unqualified right to marriage, and same-sex couples cannot claim this as a fundamental right. The Court also unanimously dismissed the challenge to provisions of the Special Marriage Act.

While Justices Bhat, Kohli, and Narasimha held that civil unions between same-sex couples are not legally recognized and do not confer adoption rights, CJI Chandrachud and Justice Kaul, in their dissenting opinions, argued that same-sex couples should be entitled to recognize their relationships as civil unions and claim corresponding benefits, including the right to adopt children. They struck down adoption regulations that prevented same-sex couples from adopting.

Review petitions were filed against this verdict, and when they were heard today in chambers, Justice Khanna recused himself from the proceedings.

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