Senior-most Supreme Court judge Sanjiv Khanna on Wednesday recused himself from considering pleas seeking review of the apex court’s judgement last year declining legal recognition to same-sex marriage, sources said.
According to the sources, Justice Khanna has cited personal reasons for his recusal.
The recusal of Justice Khanna would necessitate reconstitution of a fresh five-judge constitution bench by Chief Justice D Y Chandrachud for considering the review pleas.
The top court on Tuesday had refused to allow open court hearing of pleas seeking review of its last year’s judgement.
In a setback to gay rights activists, a five-judge constitution bench headed by Chandrachud had on October 17 last year refused to accord legal backing to same-sex marriage, saying there was ”no unqualified right” to marriage with the exception of those that are recognised by law.
The apex court, however, had made a strong pitch for the rights of queer people so they don’t face discrimination in accessing goods and services that are available to others, 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 which they could use in case of trouble.
A five-judge bench comprising the CJI and justices Sanjiv Khanna, Hima Kohli, B V Nagarathna and P S Narasimha was scheduled to consider in chambers the pleas seeking review of the judgement.
According to practice, the review pleas are considered in chambers by judges.
In its judgement, the bench had held that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.
It had said an entitlement to legal recognition of the right to union, akin to marriage or civil union, or conferring legal status to the relationship can be only 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 it was within Parliament’s ambit to change the law for validating such union.
While the CJI had written a separate 247-page verdict, Justice Sanjay Kishan Kaul (since retired) had penned a 17-page judgement in which he broadly agreed with Justice Chandrachud’s views.
Justice S Ravindra Bhat (since retired), who authored an 89-page judgement for himself and Justice Kohli, had disagreed with certain conclusions arrived at by the CJI including on applicability of adoption rules for queer couples.
Justice Narasimha had said in his 13-page verdict 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 ”urban or elite” occurrence.
In his judgement, the CJI had recorded the assurance by Solicitor General Tushar Mehta that the Centre will constitute a committee chaired by the cabinet secretary for the purpose of defining and elucidating the scope of entitlements of queer couples who are in a union.
The LGBTQIA++ rights activists, who had won a major legal battle in 2018 in the Supreme Court which decriminalised consensual gay sex, had moved the apex court seeking validation of same-sex marriage and consequential reliefs such as rights to adoption, enrolment as parents in schools, opening of bank accounts and availing succession and insurance benefits.
Some of the petitioners had urged the apex court to use its plenary power, “prestige and moral authority” to push the society to acknowledge such a union which would ensure LGBTQIA++ lead a ”dignified” life like heterosexuals.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and allied persons.
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