K.S. Puttaswamy v. Union of India — Privacy and Sexual Orientation

In the landmark 9-judge bench privacy judgment of K.S. Puttaswamy v. Union of India (2017) — which established the right to privacy as a fundamental right — Justice D.Y. Chandrachud wrote a concurring opinion that specifically addressed the question of sexual orientation and its relationship to the privacy right. In doing so, he expressly overruled Suresh Kumar Koushal v. Naz Foundation (2013) — the 2-judge bench decision that had reinstated Section 377 IPC and criminalised consensual same-sex activity — by holding that Koushal's reasoning was incorrect as a matter of constitutional law, since sexual orientation is an integral and protected dimension of the right to privacy.

Justice Chandrachud, in his concurring opinion in the 9-judge bench Privacy Judgment, held that: (1) sexual orientation is a protected dimension of the right to privacy under Article 21; (2) an individual's choice of whom to love and their intimate sexual identity is part of their autonomous personhood protected by the Constitution; and (3) Suresh Kumar Koushal v. Naz Foundation (2013) was incorrectly decided and ought not to be followed. While this was technically a concurring opinion and not the ratio of the main Privacy Judgment (which did not deal with Section 377 directly), it laid the constitutional groundwork that the 5-judge bench in Navtej Singh Johar v. Union of India (2018) relied upon to decriminalise consensual same-sex activity.

The sexual orientation passage in Puttaswamy (2017) was the pivotal constitutional bridge between the wrongly decided Koushal (2013) and the correct Navtej Johar (2018). By holding that sexual orientation is protected under privacy — at the level of a 9-judge Constitution Bench — Chandrachud J. made it constitutionally impossible for a smaller bench to maintain Koushal. The case is taught in conjunction with Navtej Johar as the foundation of India's sexual orientation jurisprudence.