It is important to note the shift in emphasis: unlike ancient thought, which accepted that hierarchy was the natural order of things in the private sphere, modern thought held that issues of equality were simply irrelevant to the private sphere: ‘power relations in the “intimate sphere” have been treated as though they did not even exist’.29
As Ann Hughes puts it:
… the attack on a monarch whose rule was legitimated partly through patriarchalism had implications for gender hierarchies within the household, although most parliamentarians and republicans were very careful to limit these implications, most often through various versions of a separation between public or civil authority from the private world of the household.30
This political conceptualization of the private domain found its way into legal thought towards the end of the nineteenth century. In the path-breaking 1890 article, ‘The Right to Privacy’, the American scholars Warren and Brandeis defended a ‘right to seclusion’ or a ‘right to be left alone’, which they linked with the space of the home (‘a man’s home is his castle’).31 After a few abortive attempts,32 the US Supreme Court accepted something akin to a constitutional right to privacy against State surveillance, in the case of Katz v. United States.33
In Katz, FBI agents eavesdropped on an individual’s phone conversation by attaching a recording device to the outside of a phone booth. The question was whether this constituted an ‘unlawful search and seizure’, in contravention of the Fourth Amendment of the US Constitution.34 Reversing precedent that had limited the prohibition of State intrusion only to trespass upon pre-defined ‘constitutionally protected areas’,35 the Supreme Court held that it did, noting, ‘the Fourth Amendment protects people, not places’.36 However, the fact that the conceptualization of privacy was not untethered from space, and the performance of certain kinds of actions within that space, was made clear in the concurring opinion of Justice Harlan, who understood the majority opinion as merely stating that:
… an enclosed telephone booth is an area where, like a home … and unlike a field … a person has a constitutionally protected reasonable expectation of privacy … as the Court’s opinion states, ‘the Fourth Amendment protects people, not places.’The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place’.37
In other words, the right to privacy protected certain kinds of activities, whose character was based on the spaces within which they were conducted. In the years after, and, indeed, before Katz, this spatial-functional view has had to contend with other conceptualizations of privacy,38 but it still remains a predominant view. For instance, in Kyllo v. United States,39 while examining the question of whether the use of a thermal-imaging device, aimed from a public street into a private home to detect heat levels, violated the Fourth Amendment, the Supreme Court reiterated the proposition that the Fourth Amendment ‘draws a firm line at the entrance to the house’,40 and ‘in the home … all details are intimate details, because the entire area is held safe from prying government eyes’.41
The spatial-functional conception of privacy is not limited to the US, although it has perhaps received its most detailed treatment in that jurisdiction. Reference to the sanctity of the ‘home’ is found in multiple constitutional instruments.42 In Bernstein v. Bester,43 an early judgement of the South African Constitutional Court, Justice Ackermann summarized the argument:
… it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community … privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.44
The basis of privacy, then, is the protection of a ‘personal realm’, and this ‘realm’ (as in Gobind) carries multiple valences: relations and institutions (family life), decisions (sexual preferences), and space (home environment). In Justice Ackermann’s formulation, these multiple valences—one of which is space—co-exist and together constitute the ‘personal realm’ that a right to privacy exists to defend.
The centrality of space and function to privacy, however, has been subjected to serious criticism.45 As Martha Nussbaum argues, ‘appeals to the alleged privacy of the home have been used to defend the exemption of marital rape from sexual assault laws, and to discourage state interference with domestic violence or child abuse’.46 Nussbaum’s basic argument is that inequalities of power within the space of the home (what scholars have called ‘private government’),47 and the relations of dominance and oppression that these inequalities generate, are preserved and perpetuated by a conception of privacy that takes the space of the home as its basic unit. Similar arguments have been made by many different scholars, in different and nuanced ways.48As John Gardner sums up,‘Liberal law erects what we might call “privacy barriers” in its own path.’49 What it suggests to us here is that there might be situations where thinking about privacy as composed of complementary conceptions involving space-function, relations, and decisions might not always be possible. Instead, there might be situations of conflict between these conceptions.50
III. Historical Pathways—II: The Privacy of Community
Katz was not the first US case that enunciated a constitutional right to privacy. Two years before, in Griswold v. Connecticut,51 the US Supreme Court struck down a law penalizing the use of contraceptive devices, on the basis that it violated marital privacy. The Court located this right within the ‘penumbra’ of different constitutional provisions, such as the right against unreasonable searches, the right against self-incrimination, etc., which, it held, created ‘zones of privacy’.52 One of which was marital relationship.
Importantly, Griswold was not about the right of two consenting adults to use contraceptives while having sex, but about prohibiting the State from interfering with the marital relationship. In the previous section, we discussed cases where the units of privacy were spaces and functions; in Griswold, the unit of privacy was the ‘social institution of marriage’.53 In other words, since an institution cannot be a right-bearer, persons had the right to privacy to the extent that they participated in, and were part of, the social institution of marriage, and the scope of their right was limited by the bounds of that social institution.
A few years later, the Supreme Court of Ireland, while adjudicating a very similar claim for access to contraceptives, brought by a married couple, formulated the proposition in even starker terms (McGee v. Attorney-General). One judge invoked the ‘privacy of the matrimonial bedroom’,54 and the other held that the offending statute ‘violated [the woman’s] right to privacy in regard to her matrimonial relations’.55 The second statement is particularly instructive, because it specifically frames the individual right (to privacy) within the context of the social institution of marriage. In other words, an otherwise abstract and amorphous right to privacy becomes concrete and enforceable when it is exercised through a social institution.
I shall now argue that this institutional-relational view of privacy constituted the dominant tradition of privacy in colonial India, in the years leading up to Independence (although the issue was never framed in the vocabulary of privacy). The fundamental unit that claimed a right to privacy and to non-interference against the State was not the family, or the marital union, but the religious community, in its limited interior domain of ‘personal laws’ (laws governing the family, gender relations, marriage, divorce, inheritance, and so on).56
The genesis of this lay in the 1772 Regulations announced by Warren Hastings, India’s first colonial Governor-General, which provided that ‘ in all suits regarding inheritance, marriage, caste, and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to’.57 This injunction was faithfully implemen
ted by the colonial courts for the next century and a half, and more.58
The colonial government’s motivations for adopting this policy of apparent partial ‘non-interference’ have been studied extensively.59 What is important to note here is that personal laws were to be interpreted and enforced in colonial courts, by colonial judges. Therefore, it was the State, through its courts, that ‘took on the role of defining and adjudicating that religious law’.60 In the view of the colonial state, ‘India [w]as an agglomeration of communities, with religion and caste forming the primary building blocks of Indian society … [which] rendered religious community rather than the individual the unit of legal and political recognition.’61
In the initial years, during the administration of the East India Company, this kind of adjudication respected the pluralism of diverse communities, as well as their capacity for self-government and evolution. For instance, caste disputes in Bombay were often resolved by taking the majority view of the members of that particular caste.62 However, after the 1857 Revolution, the colony’s legal and judicial system was entirely overhauled. The period now saw a shift to a more rigid model of community,63 defined and characterized by canonical texts for both Hindus and Muslims.64 Influenced by nineteenth-century social theory, which divided the world into a public sphere and a domestic, private sphere, the colonial state came to view caste, custom, and family as ‘private and changeless matters that were outside the normal purview of the state’.65 As Amrita Shodhan puts the point, ‘The colonial judiciary’s denial of the polities’ ability to govern and their simultaneous exclusive governance by the colonial state led to the establishment of an individual as a member of a pre-legal original community, defined by birth and status.’66 Importantly, this view of communities left no room for the possibility of cultural dissent.67 The ‘laws’ of the community, drawn from the courts’ interpretation of ancient texts and ‘custom’, were applicable to every individual deemed to be a ‘member’ of that community. For obvious reasons, the colonial government’s conscious effort to maintain the ‘structures of authority within the household’68 had a specific impact on women who, in particular, were visualized as the embodiment of home and of community.69
The rhetoric of colonial administrators was soon imitated by their Indian counterparts. As Rosalind O’Hanlon points out in her introduction to Tarabai Shinde’s Stree Purush Tulna (A Comparison Between Men and Women)—a text we shall return to later in this chapter—‘ideas of a realm of custom and family beyond the reach of the state quickly entered the rhetoric of Indian politicians and reformers themselves … [such] changes subordinated women more firmly to caste and family authority, and consigned them to a domain of “private life” supposedly outside politics’.70 The community, through the institution of the family, came to be viewed as ‘an exclusive sovereign domain where the nation was acting on its own, resisting colonial penetration’.71
This was seen in debates over a proposed Age of Consent Law in the late-nineteenth century,72 but it was also seen most vividly in the fallout over the Rukhmabai case, where Justice Pinhey’s first-instance judgement in favour of Rukhmabai was severely criticized as ‘an interference in the sacrosanct arena of Hindu conjugality’.73 By 1885, therefore, the community, expressed through its personal laws, had become a fundamental unity of Indian society, that could claim for itself an autonomous existence, free from legal intervention by the (secular) State. In modern terms, we would understand this as the right to privacy expressed through the community and the family, much like Griswold and McGee accorded a right to privacy to individuals through their participation in the marital union.
The colonial government’s views were mirrored in another way by the nascent nationalist movement, which relegated questions of women’s rights to the social background, to be resolved by the community in due course, and subordinated to the struggle for political independence from colonial rule.74 For example, the Indian Social Conference—founded specifically to deal with issues of social reform, and which had always held joint annual sittings with the Indian National Congress since its inception—was eased out by the INC in 1895.75 The effect of this was a depoliticization of issues relating to the family, which were no longer deemed to be of normative concern within the political movement for independence, but as issues that could only be subjected to internal reform by communities themselves.76
The colonial doctrine of ‘non-interference’ with ‘personal laws’ and the nationalist movement’s separation of the political and the social complemented each other. The former established communities as autonomous units of self-governance, whose laws were determined by ancient texts, filtered through the colonial interpretive mirror (and texts which, of course, had never been composed through a democratic or egalitarian process). The latter denied the possibility of applying political argument and political norms of equality, autonomy, and self-determination to the ‘personal’ domain (which, in turn, was defined as the regime of community personal laws). Welded together, they formed an iron cage where members of communities found themselves subjected to ‘personal laws’ to which they had never consented, which violated those exact principles that the nationalist movement was demanding from the colonial state in the ‘public domain’, and against whose injustices there was no tribunal they could appeal to.77
IV. Sareetha and the Transformative Constitution
When Sareetha came to be decided, therefore, Justice Choudary had before him Gobind’s oracular pronouncement about ‘the home, the family, marriage, motherhood, procreation and child rearing’. This pronouncement was consistent with either or both of two long-standing intellectual traditions of privacy.
There was, however, a third tradition as well, of comparatively recent vintage. In Eisenstadt v. Baird, decided in 1972, the US Supreme Court had extended its Griswold ruling on the right to contraception to unmarried couples as well. By definition, this extension could not be justified on the grounds of the sanctity of the ‘marital union’. However, in his majority opinion, Justice Brennan noted,‘The marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’78
This conception of privacy, which we called decisional privacy at the beginning of this chapter, is focused on the individual’s freedom to make fundamental choices for herself. It was affirmed by the US Supreme Court the next year in its famous Roe v. Wade decision, where a woman’s (qualified) right to abort her foetus was justified on the basis that her decision whether or not to terminate her pregnancy fell within the right to privacy.79 In Gobind, the Supreme Court drew upon American case law, citing both Griswold and Roe, although not Eisenstadt, to fashion the contours of an Indian right to privacy, thus suggesting inspiration from both the decisional and the relational conceptions.
There need be nothing wrong with this. The decisional and relational views of privacy could, in most cases, complement each other. Sareetha was a case, however, where they clashed directly. Because if privacy was to be understood relationally, and if the marital union was one of the units through which privacy was to be exercised, then the argument that Sareetha had a right to (decisional) privacy within the marriage and against her husband was simply incoherent. Sareetha’s right to decisional privacy also clashed with the spatial conception of privacy, although in a different, and more indirect, way. As we have seen, the basis of a spatial right to privacy—closely connected to the distinction between public and private spheres—was the understanding that the writ of the State stopped at the threshold of the home. The extension of this argument was that within the space of the home (subject to certain exceptions), constitutional norms such as equality, privacy, and so on simply didn’t apply. Consequently, on the
spatial view of privacy, Sareetha’s argument was a category mistake, i.e., she was relying upon rights in a space where they simply weren’t available to her.
Sareetha, therefore, was not an easy case. Justice Choudary could not simply interpret Gobind in the manner that he wished, and apply it. He had to choose between contesting visions of privacy, all of which could persuasively be argued to flow from Gobind, and decide which of those visions was truest to the Constitution’s transformative purpose.
A. Sareetha: The Formulation of Privacy
In considering the constitutional question, Justice Choudary noted that the concept of ‘conjugal rights’ was two-pronged: ‘the right which husband and wife have to each other’s society … [and the right to] marital intercourse’.80 This meant that the ‘consequences of the enforcement of such a decree [of restitution of conjugal rights]’81—normally achieved through financial sanctions under the Code of Civil Procedure—‘are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, 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’.82 This ‘transfer of choice’, Justice Choudary held, ‘offends the inviolability of the body and the mind’.83
It is important to note, however, that the law itself did not compel sexual intercourse. It only authorized a decree for cohabitation, which, in turn, could only be enforced through financial sanctions and not through physical force. That is why Justice Choudary wrote specifically of the consequences of enforcing the decree, and it is here that we see the first important break with the traditional conceptions of privacy. Justice Choudary was not content to simply end his enquiry at the point of cohabitation. Instead he went further, to find also that given the deeply unequal structure of the family, and given the myriad pressures, viz., physical, mental, emotional, and social, that could be brought to bear upon women within the family, compelled cohabitation would, in all likelihood, lead to compelled intercourse (exacerbated by the fact that under the Indian Penal Code, marital rape does not qualify as ‘rape’). Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed, ‘what could have happened to Tarabai thereafter may well be left to the reader’s imagination’.84 This, for him, was completely unacceptable, because, ‘it is impossible to conceive of sexuality on any basis except on the basis of consensual participation’.85 And if a decree for restitution of conjugal rights effectively denied the possibility of mutual consent to sex, it went even further and denied choice in the matter of conception: ‘[in what] so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her’.86
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