Same-sex marriage case: Supreme Court Justice Sanjiv Khanna refuses to consider reconsideration grounds

Supreme Court Justice Sanjiv Khanna on July 10 refrained from considering review petitions on the Supreme Court’s judgment last year that declined legal recognition of same-sex marriages, sources said.

According to the sources, Justice Khanna has given personal reasons for his refusal.

The rejection by Justice Khanna would require reconstitution of a new five-judge constitution bench by Chief Justice DY Chandrachud to consider the review grounds.

The Supreme Court on July 9 had refused to allow open court proceedings on grounds seeking review of last year’s verdict.

In a setback for gay rights activists, a five-judge constitution bench headed by Justice Chandrachud last October 17 refused to give legal support to same-sex marriage, saying there was “no unqualified right” to marriage except for those recognized in law.

However, the Supreme Court had made a strong statement for the rights of queer people so that they are not discriminated against in accessing goods and services available to others, safe homes known as “Garima Greh” in all districts to provide shelter to members of the community facing harassment and violence and special hotline numbers they can use in case of problems.

A five-judge bench comprising the CJI and Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha was scheduled to consider in the chamber the grounds for review of the judgment.

According to practice, the grounds of appeal are tried in chambers by judges.

In its ruling, the court held that trans people in heterosexual relationships have the freedom and right to marry under the existing legal provisions.

Look at | Supreme Court ruling on same-sex marriage | Everything you need to know

It had said that a right to legal recognition of the right of association, akin to marriage or civil union, or to give legal status to the relationship can only be done by “enacted law”.

The five-judge Constitution Bench headed by CJI Chandrachud had delivered four separate judgments on a batch of 21 petitions seeking legal sanction for same-sex marriage.

All five judges agreed in refusing to grant legal recognition to same-sex marriages under the Special Marriage Act, observing that it was within Parliament’s discretion to amend the law to validate such a marriage.

While the CJI had written a separate judgment of 247 pages, Justice Sanjay Kishan Kaul (since retired) had written a 17-page judgment largely concurring with Justice Chandrachud’s views.

Justice S. Ravindra Bhat (since retired), writing an 89-page judgment for himself and Justice Kohli, had disagreed with some conclusions reached by the CJI, including on the applicability of adoption rules to queer couples.

Justice Narasimha had said in his 13-page judgment that he fully agreed with the reasoning and conclusions arrived at by Justice Bhat.

The judges agreed that queerness is a natural phenomenon and not an “urban or elite” phenomenon.

In his judgment, the CJI had noted the assurance of Solicitor General Tushar Mehta that the Center will constitute a committee headed by the Cabinet Secretary to define and clarify the scope of rights 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 decriminalizing consensual homosexuality, had moved the Supreme Court to seek validation of same-sex marriage and accompanying reliefs such as rights to adopt, enroll as parents in schools, open bank accounts and utilization of inheritance and insurance benefits.

Some of the petitioners had urged the Supreme Court to use its plenary power, “prestige and moral authority” to push society to recognize such an association that would ensure that LGBTQIA++ live a “dignified” life as heterosexuals.

LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and allied people.

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