On July 10, the Supreme Court postponed the hearing of petitions seeking a review of its previous verdict that denied recognition of same-sex marriages. This delay occurred after Justice Sanjiv Khanna, a member of the newly formed bench, recused himself from the case.
The review petitions were initially scheduled for a chamber hearing. The new bench was formed after the retirement of Justices Sanjay Kishan Kaul and S. Ravindra Bhat, who were part of the original five-judge bench that issued the October 2023 ruling. Justices Sanjiv Khanna and B.V. Nagarathna replaced the retired judges, joining Chief Justice of India DY Chandrachud, Justice Hima Kohli, and Justice P.S. Narasimha. Due to Justice Khanna's recusal, a new bench must be constituted to continue the hearing.
The order on the review petitions stated:
"Circulate the review petitions before a bench of which one of us (Justice Sanjiv Khanna) is not a member. The Registry is directed to circulate the Review Petitions before an appropriate bench, after taking directions on the administrative side."
Yesterday, the review petitioners requested an open court hearing. However, the CJI pointed out that traditionally, review petitions are addressed in chambers.
For context, on October 17, 2023, the Supreme Court declined to grant legal recognition to same-sex marriages, stating that such decisions fall within the legislature's jurisdiction. Nevertheless, all judges agreed that the Union of India should form a committee to explore the rights and entitlements of individuals in same-sex unions without formally recognizing their relationships as marriages. The Court also unanimously upheld the right of same-sex couples to cohabit without facing violence, coercion, or interference, yet stopped short of formally recognizing these relationships as marriages.
CJI DY Chandrachud and Justice SK Kaul supported recognizing the right of same-sex couples to form civil unions, while the other three judges disagreed. This disagreement led to several review petitions being filed, criticizing the judgment for not providing legal protection to same-sex couples despite acknowledging the discrimination they face. The petitioners argued that this failure amounts to an abdication of the Court's duty to uphold and protect fundamental rights.
Furthermore, it was argued that the judgment contained "errors apparent on the face of the record" and was "self-contradictory and manifestly unjust." The Court recognized that the petitioners' fundamental rights were being violated by state discrimination but did not take the necessary step of prohibiting such discrimination.
