Justice Sanjiv Khanna – the senior most Supreme Court judge after Chief Justice D Y Chandrachud – on Wednesday recused from considering a batch of 12 petitions seeking the review of the October 17, 2023 judgment that had refused legal recognition to marriage between same-sex couples or civil union.

The 2023 judgment held that the right to marry is not a fundamental right and it (the top court) cannot read into the Special Marriage Act (SMA), the words that would amount to judicial legislation.

The judge recused from considering the review petitions that were listed for consideration in the chamber before a five-judge constitution bench comprising the chief justice, Justice Sanjiv Khanna, Justice B V Nagarathna, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha today.

The recusal by Justice Khanna came when the five-judge bench had assembled to consider 12 petitions seeking the review of October 17, 2023, judgment by a majority of 3:2.

Now, the review petitions will be listed before a reconstituted bench that will see another top court judge coming in place of Justice Khanna.

The top court by a majority of 3:2 had declined the plea seeking legal recognition of same-sex marriage. Justice Ravindra Bhat (since retired) along with Justice Hima Kohli and Justice Pamidighantam Sri Narasimha delivered the majority view rejecting the plea, while Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul (since retired) by separate judgments favoured a “civil union” of same-sex couples.

Justice Khanna was included in the reconstituted five-judge bench in place of Justice Sanjay Kishan Kaul – who was then the senior most top court judge after CJI Chandrachud and Justice Nagarathna came in place of Justice Ravindra Bhat.

The Supreme Court on Tuesday – July 9 – had refused a plea for an open court hearing of the review petitions. The court had said that the review petitions are considered in chambers only. The 12 review petitions were listed for consideration in chambers at 1.30 pm today.

Twelve petitioners seeking the review of the October 17, 2023, judgment have said that for a Constitutional Court after specifically identify the discrimination, but fail to grant appropriate remedies, is an abdication of its responsibility under the Constitution of this country.

One of the review petitions says, “Nonetheless, the Majority Judgment fails to take the logical next step of prohibiting the discrimination. It instead invites the Respondents to consider such impacts, and make necessary recommendations.”

The petition seeking the review of the October 17, 2023, judgment further says “whether this will happen through proactive action of the State itself, or as a result of sustained public mobilization – is a reality that will play out on India’s democratic stage, and something only time can tell.”

Stating that the majority judgment is manifestly unjust because it countenances animus-motivated deprivation of the Petitioners’ fundamental rights – the review petition says that the “majority judgment is self-contradictory in its understanding of “marriage”.

In a disappointment to the LGBTQIA+ community, the Supreme Court on October 17, 2023, refused legal recognition to same-sex marriage (SSM) and civil union, stating that the right to marry is not a fundamental right and it cannot be read into the provision of the Special Marriage Act (SMA) the words that would amount to judicial legislation.

Though there were four judgments by Chief Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul, (since retired) Justice Ravindra Bhat (also retired), and Justice Pamidighantam Sri Narasimha, the common thread of all was that the provision of SMA cannot be interfered with or words therein be read differently to include non-heterosexual couples within its fold.

Refusing to interfere with the provisions of SMA, the constitution bench had however, said that the queer couples have a right to cohabit without any threat or coercion to their life under Article 21.

The majority of Justice Bhat, Justice Kohli and Justice Narasimha had overruled both Chief Justice Chandrachud and Justice Kaul and held that the non-heterosexual couples cannot be granted the right to jointly adopt a child.

Disagreeing with the CJI on the right of queer couples to adopt and voicing certain concerns, Justice Bhat had said, “Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and 25, is not rooted in any past decision, or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance – is incontestable.”