Justice Sanjiv Khanna recuses from hearing marriage equality review petitions
Justice Sanjiv Khanna, on Wednesday, July 10, recused himself from hearing the review petitions challenging the Constitution Bench judgement in the marriage equality case. Following this, the case has been deferred and will be placed before the Chief Justice of India (CJI) DY Chandrachud who will now constitute a new bench. Justice Khanna recused when the case came up for hearing inside the judges’ chambers, as is the practice with review petitions. The 5-bench judge headed by the CJI comprised of Justices BV Nagarathna, Hima Kohli and PS Narasimha, besides Justice Khanna.
On October 17, a five-judge bench headed by the Chief Justice of India (CJI) DY Chandrachud refused to grant marriage equality to LGBTQIA+ persons stating that it was up to Parliament to create a law.
The bench also comprised Justices Hima Kohli, Sanjay Kishan Kaul, S Ravindra Bhat, and PS Narasimha. The judgement was split 3:2, with the CJI and Justice Kaul recognising that queer couples can form civil unions and have the right to adopt, and the other three judges dissenting.
The review petitions were filed in November 2023 by some of the petitioners in the case. The petitioners argued that the majority judgement suffers from several errors on the face of the record and “undermines the fundamental rights” guaranteed by the Indian Constitution.
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A review petition is filed by any person who is aggrieved by a judgement. It has to be done within 30 days of the judgement, as per the Civil Procedure Code and the Supreme Court Rules. The Supreme Court only reviews a judgement if it fulfils these conditions: mistake or error apparent on the face of record; discovery of new evidence; or any reason equivalent to these two. The petitions are usually considered without oral arguments and by circulation among the judges in chambers and only by the same combination of judges who delivered the original judgement. However, in this case, as Justices Sanjay Kishan Kaul and S Ravindra Bhat, who were part of the original bench retired from service, Justices Khanna and Nagarathna were appointed.