Consensual same-sex intimacy protected by constitutional rights; criminalisation of private adult conduct was struck down in part.

Section 377 of the Indian Penal Code was held unconstitutional to the extent it criminalised consensual same-sex sexual conduct between adults in private, because sexual orientation is an intrinsic part of identity and the State had no legitimate basis to penalise non-harmful private intimacy. The provision was also found to violate Articles 14, 15, 19 and 21 as applied to such conduct, since it lacked a rational basis, operated in a discriminatory and arbitrary manner, and infringed privacy, dignity, autonomy, expression and equal citizenship. The earlier contrary decision was overruled.

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Issues: (i) Whether Section 377 of the Indian Penal Code, 1860 was unconstitutional insofar as it criminalised consensual sexual conduct between adults of the same sex in private; (ii) whether the impugned provision violated Articles 14, 15, 19 and 21 of the Constitution of India; and (iii) whether the earlier decision upholding the provision required reconsideration and overruling.

Issue (i): Whether Section 377 of the Indian Penal Code, 1860 was unconstitutional insofar as it criminalised consensual sexual conduct between adults of the same sex in private.

Analysis: The provision, though facially framed in terms of acts, in operation burdened sexual minorities and criminalised consensual intimacy between adults. The Court held that consensual same-sex intimacy forms part of sexual orientation and personal identity, and that the State has no legitimate basis to intrude into such private, non-harmful conduct between adults.

Conclusion: Section 377 was held unconstitutional to the extent it criminalised consensual sexual conduct between adults of the same sex in private.

Issue (ii): Whether the impugned provision violated Articles 14, 15, 19 and 21 of the Constitution of India.

Analysis: The Court held that the provision was constitutionally infirm because it lacked a rational and intelligible basis as applied to consensual adult intimacy, operated in a manifestly arbitrary manner, and entrenched stereotypes and discriminatory treatment based on sexual orientation. It also held that sexual orientation is intrinsic to privacy, autonomy, dignity, freedom of expression, and equal citizenship, and that criminalisation of consensual same-sex conduct infringed these guarantees.

Conclusion: The provision was held violative of Articles 14, 15, 19 and 21 of the Constitution of India in its application to consensual same-sex conduct between adults.

Issue (iii): Whether the earlier decision upholding the provision required reconsideration and overruling.

Analysis: The Court held that the earlier reasoning failed to account for the constitutional protection of sexual orientation, the effect of the provision on dignity and privacy, and the expanded understanding of equality and non-discrimination. It therefore could not stand in light of later constitutional developments.

Conclusion: The earlier decision was overruled.

Final Conclusion: Consensual same-sex intimacy between adults was protected as a matter of constitutional liberty, privacy, dignity and equality, and the criminal law could not be used to stigmatise or penalise such private conduct.

Ratio Decidendi: Criminalisation of consensual sexual conduct between adults of the same sex is unconstitutional because sexual orientation is an integral facet of identity protected by equality, privacy, dignity and autonomy, and the State cannot justify penal intrusion into such private conduct on the basis of majoritarian morality.

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