The Transformative Constitution
Page 26
A community of property law has been debated in India, both at the central level and in the state of Maharashtra.154 In the absence of specific legislation, however, the Supreme Court, so far, has elected to read relevant statutes such as the Domestic Violence Act narrowly, so as to exclude any claims that spouses might have to the matrimonial property.155 Recognizing that PUDR’s arguments about force and freedom apply with equal strength to the household might be an important first step in remedying this. Article 23 then becomes the principled basis for constitutionalizing a right to remuneration for household work, which can be realized by crafting an appropriate judicial remedy.
This is not as outlandish as it may sound. In an interesting judgement, the Court of Appeal in Kenya interpreted Article 45(3) of the Kenyan constitution (which guarantees ‘equal rights and responsibilities’ in marriage) to require a 50 per cent division of property at the time of divorce.156 The Court observed that the principle of equal rights and responsibilities in marriage amounted to a ‘constitutional statement of the principle that marital property is shared 50-50 in the event that a marriage ends.’157 Although the Kenyan courts subsequently resiled from this position,158 it is clear from this that courts need not wait for the their legislatures to establish community of property regimes through legislation. In India, a transformative reading of Article 23 allows the courts to do just that.
All it needs is a constitutional vision, some judicial creativity, a progressive reading of existing laws such as the Domestic Violence Act, and a sprinkling of empathy.
Part Three
Liberty
Article 19
All citizens shall have the right—(a) to freedom of speech and expression.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Article 20
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
Article 21
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
…
7
Privacy beyond the Public/Private Divide: Sareetha and Freedom within the Family
We are told that the practice of slavery has now been universally abolished, but does that mean that we, women, have gained freedom? No, we have not, but why? There are good reasons.
Rokeya Sakhawat Hossain, Streejatir Abanati (1904)
[S]elf-determination begins at home—and that is with every I, and the We whom the I chooses … Exploitation in all its forms must have disappeared … from … individual relationships.
Herbert Marcuse, An Essay on Liberation (1971)
IN DECEMBER 1975, SIXTEEN-YEAR-OLD Sareetha, then a high-school student, married Venkatasubbaiah. After living together for a little more than six months, they separated. Sareetha soon became a popular actress, across South Indian languages. More than five years later, her husband decided that he wanted to live with her again. He moved court under Section 9 of the Hindu Marriage Act, arguing that Sareetha had withdrawn herself from his society ‘without reasonable excuse’, and that, therefore, he was entitled to a decree for the ‘restitution of conjugal rights’1 against her, i.e., a court order requiring Sareetha to return and live with him once more.
After losing before the subordinate court, Sareetha came before the Andhra Pradesh High Court, and advanced a claim that was made for the first time in Indian constitutional history.2 She argued that Section 9 of the Hindu Marriage Act was unconstitutional, because it contravened her fundamental rights to equality, personal liberty, dignity, and privacy. The single-judge bench of the High Court agreed. Justice P.A. Choudary observed that the effect of a decree for the restitution of conjugal rights was to ‘transfer the choice to have or not to have marital intercourse to the State from the concerned individual and … to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.’3 This, he held, was an unacceptable intrusion into personal privacy, bodily integrity, and individual dignity, apart from having an unequal effect upon the lives of men and women. He struck down the Section.
Interestingly, the judgement of the Andhra Pradesh High Court came almost exactly one century after another case about the restitution of conjugal rights had been brought before the colonial courts, and whose judgements had sparked off a divisive debate about the public/private divide, the relationship between the colonial state and Indian society, and the rights that women had in and outside their marriage, their family, and their community. In Dadaji Bhikaji v. Rukhmabai, the High Court of Bombay was called upon to decide whether Dadaji, who had been married to Rukhmabai when he was nineteen, and she eleven, could enforce a decree for the restitution of conjugal rights eleven years after the marriage, even though they had never cohabited. Sitting as the Court of first instance, Justice Pinhey held that he could not. Correctly noting that the remedy of restitution of conjugal rights had ‘no foundation in Hindu law’, and had been ‘transplanted from England into India’, he decided to read existing precedent narrowly, and refused to ‘compel this young lady of twenty-two to go to the house of the plaintiff in order that he may consummate the marriage arranged for her during her helpless infancy’.4
Justice Pinhey’s brief, page-and-a-half-long opinion, delivered in 1885, generated a storm of controversy in British India and was swiftly reversed by a division bench of the Bombay High Court.5 While the case ultimately ended in a settlement,6 it was left to Justice Choudary, nearly a century, a freedom struggle, and a Constitution later, to tease out Justice Pinhey’s tantalizing, opening foray into ideas of compulsion and consent within marriage, and transform it into a full-blown constitutional argument that placed individual privacy and decisional autonomy within the ‘private’ space of the family upon the pedestal of fundamental rights.
In this chapter, I argue that Sareetha’s exposition of the right to privacy represents a uniquely transformative moment in Indian constitutional history for two reasons: first, because of the manner in which it dismantled the conceptual iron cage of the public/private binary; and second, because of its insistence that the Constitution requires a democratization of what were considered ‘private spaces’ (the home), ‘private relations’ (marriage), and ‘private functions’ (sex and ‘procreation’).
I begin by tracing the genealogy of the right to pr
ivacy under Indian constitutional law, culminating with the Supreme Court’s ambiguous formulation in Gobind v. State of MP (I); I argue that Gobind’s abstract statement was compatible with at least three historic traditions of privacy. The first, borrowed from Enlightenment liberalism, is a tradition that visualizes privacy as a spatial concept, applicable to ‘spaces’ or, relatedly, to certain functions performed within those spaces (II). The second, that evolved in colonial India, and saw its high watermark during the Rukhmabai case, is a tradition that defends a right to privacy in terms of relationships, communities, or social institutions (III). However, in contradistinction to both the spatial and the institutional-relational view of privacy, there is a third tradition, which defines privacy in terms of an individual’s right to exercise her autonomy in the taking of private decisions, including, especially, decisions about the use of her body.
In Sareetha, Justice Choudary held that it was this third vision of privacy that the Constitution was committed to, and, most importantly of all, that this vision would prevail in cases of a conflict with the spatial and functional-relational views of privacy (IV). After demonstrating the transformative character of the judgement, I provide a brief account of the legal aftermath of Sareetha, its failure to leave a lasting imprint upon Indian constitutional history and its possible revival, after the 2017 judgement of the Supreme Court in the famous right to privacy case (V).
I conclude by considering the implications of Sareetha for other areas of law, such as the constitutionality of the marital rape exception (VI). Even though it is no longer good law, Sareetha remains important because of how, in terms of transformative constitutionalism, it ‘open[ed] out several worlds in which radical possibilities flicker[ed], exist[ed], and … [were ultimately] extinguished’.7
I. Privacy under the Indian Constitution
There is no expressly guaranteed right to privacy under the Indian Constitution. During the Constituent Assembly Debates, Somnath Lahiri’s proposed constitutional provision safeguarding the privacy of correspondence was rejected.8 Subsequent attempts by Kazi Syed Karimuddin and Pandit Thakur Das Bhargava to reinsert it into the constitutional text were rebuffed, despite Ambedkar’s endorsement. This happened through a controversial voting procedure where the Vice-President of the Assembly twice said that ‘the ayes have it’, was twice contradicted by T.T. Krishnamachari, and the matter was hurriedly postponed after the Division Bell was rung for a vote.9 The clause was quietly dropped, leading to bitter condemnation during the third reading of the Constitution.10 But the Constitution came into being without an express fundamental right to privacy.
A few years later, an eight-judge bench of the Supreme Court, in M.P. Sharma v. Satish Chandra,11 used this piece of constitutional history, and refused to ‘read in’ a right to privacy under the Constitution. This refusal continued in Kharak Singh v. State of UP,12 where a six-judge bench of the Supreme Court (partially) upheld police surveillance of a ‘history-sheeter’. However, Kharak Singh was delivered over a strong dissent by Justice Subba Rao, who insisted that ‘it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty’.13 And even the majority opinion was nowhere near as unequivocal as the eight judges in M.P. Sharma. The majority, in fact, held that nightly ‘domiciliary visits’ by the police were illegal, on the basis that the phrase ‘personal liberty’, under Article 21, was not limited simply to ‘freedom from physical restraint or freedom from confinement within the bounds of a prison’,14 but included protection from ‘unauthorised intrusion into a person’s home and the disturbance caused to him thereby … [which is] an ultimate essential of ordered liberty’.15
Consequently, it is hardly surprising that in 1975, the Supreme Court finally took the step that it could not bring itself to take in Kharak Singh. In Gobind v. State of MP,16 a very similar case involving police surveillance, a three-judge bench of the Supreme Court drew upon both the majority and dissenting opinions in Kharak Singh, and ‘read in’ a fundamental right to privacy into Part III of the Constitution, which, it held, flowed from other, expressly guaranteed fundamental rights such as the right to personal liberty, the right to freedom of speech and expression, and the right to free movement. The Court’s actual statement of what the right to privacy concretely meant, however, was almost Delphic:
Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing.17
As a statement of the constitutional right to privacy, this sentence is ambiguous.18 It carries at least three meanings. First, the word ‘home’, right at the beginning, suggests a spatial concept of privacy. This is supported by the words that follow, all of which refer to activities that are normally carried out within the physical space that is the ‘home’. Slightly distinctly, the terms in question might also be read referring to functions (especially ‘motherhood’, ‘procreation’, and ‘child-rearing’), which are typically performed within the space of the home. Privacy, in its functional sense, provides a sanctuary to these (domestic-oriented activities). Note that the use of the term ‘motherhood’ (and not ‘parenthood’, or the additional ‘fatherhood’) suggests that, at the very stage of conceptualization, this is a gendered division.
Second, the word ‘home’ might be read to mean not a physical space, but the ‘household’. Read this way, what unites ‘home’, ‘family’, ‘marriage’, ‘motherhood’, ‘procreation’ and ‘child-rearing’ is that they are all social institutions centred around the idea of the private, or domestic, sphere. Privacy, then, is to be understood in an ‘institutional’ or ‘relational’ sense, insulating certain social institutions or relations from State interference.
Third, ‘marriage’, ‘motherhood’, ‘procreation’ and ‘child-rearing’ are not merely institutions and relations, but they are also the result of decisions—decisions about how an individual uses her body, decisions that lie at the core of individual autonomy. Privacy, in this sense, protects the individual’s bodily integrity and decisional autonomy.
For the sake of convenience, let us label these three conceptions of privacy as ‘spatial-functional’, ‘relational-institutional’ and ‘decisional’. The failure of the Supreme Court in Gobind was a failure to clarify which understanding (or understandings) of privacy the Constitution was committed to. As we shall see, while there are overlaps between these different conceptions of privacy, there are also instances where they come into direct conflict. One such instance was Sareetha, which, I argue, was an instance of transformative constitutionalism because the Andhra Pradesh High Court consciously adopted a transformative understanding of privacy as the constitutional basis of the right, and equally consciously rejected the others. Any assessment of Sareetha, therefore, must read its conceptualization of privacy in light of the ambiguity that the Supreme Court created in Gobind.
However, in order to understand precisely what was so transformative about the idea of privacy advanced in Sareetha, we must first briefly consider the development of privacy in all the senses in which the word occurs in Gobind, viz., spatial, relational-functional, and decisional.
II. Historical Pathways—I: The Privacy of Space
The division of space into ‘public’ and ‘private’ has a long and contested lineage in Western political thought. Its importance is matched only by its complex protean and non-unitary character.19 Broadly, the birth of political thought in ancient Greece was accompanied by a distinction between the polis (the city) and the oikos (the house).20 The polis was the realm of ‘freedom’—‘free association between free citizens’21 (who were necessarily male). By contrast, the oikos was the domain of ‘necessity’—the performance of all the functions (such as production, reproduction, etc.) that made political life in the polis possible.22 In other words, while the structuring principle of the polis was (political) equality, where no person ruled another,23 the structuring
principle of the oikos was inequality, or hierarchy (between master and slave, husband and wife, father and children).24 The threshold of the house was where the norms of freedom and equality, that governed public life, gave way to the norms of hierarchy and inequality, which were deemed to track the natural differences between the inhabitants of the household.25
While the distinction between ‘public’ and ‘private’ largely disappeared during feudal times, with the manorial household coming to encompass both spheres,26 the two concepts were resurrected with the onset of the Enlightenment and the revolutionary era. As scholars point out, the defining characteristic of the eighteenth-century revolutions that overthrew absolute monarchies was that they pitted an ascendant bourgeoisie class against the remnants of concentrated monarchical power.27 To safeguard its interests from State meddling, the bourgeoisie carved out zones of inviolability, free from State interference. This included economic interests (defined in terms of the free market) as well as personal interests (the household).
As Seyla Benhabib notes, drawing from the work of Lawrence Stone:
… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by non-consensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.28