We can pause here a moment and notice that marriage and procreation—two of the constituent elements in Gobind—were at the forefront of Justice Choudary’s formulation of privacy. However, in his view, the basis for protection was neither spatial nor institutional, but rather that both activities involved fundamental choices that ‘intimately concern[ed]’ the body. This was made clear when Justice Choudary went on to locate his conception of privacy within the contours of Gobind. After citing Gobind’s formulation of privacy, he also quoted another paragraph from that case, where Justice Mathew had noted, ‘there can be no doubt that privacy-dignity claims deserve to be examined with care’.87 Seizing upon Gobind’s offhand invocation of dignity, Justice Choudary held that ‘Gobind’s case thus firmly laid it down that Article 21 protects the right to privacy and promotes the individual dignity mentioned in the [P]reamble to our Constitution’.88 By framing privacy as a right that was inextricably connected with the concept of individual dignity, Justice Choudary was then able to decisively reformulate the right to privacy in its decisional sense:
… any plausible definition of right to privacy is bound to take [the] human body as its first and most basic reference for control over personal identity.89
This was a clear repudiation of the philosophies that located privacy within spaces, or within institutions or relationships. Instead, it upheld a vision of privacy focused on the body, and individual control over the body. The subordination of institutional privacy to decisional privacy was then completed in the next line, when Justice Choudary effectively reversed the reasoning of Griswold and McGee, holding that ‘[the] definition [of privacy] is bound to include [the] body’s inviolability and integrity and intimacy of personal identity, including marital privacy’.90 Instead of a vision of privacy where the right could only be exercised through the marital institution, Justice Choudary articulated a vision where marriage was a protected institution because it was the result of an exercise of individual choice. In fact, to avoid any doubt whatsoever, he took note of the American line of cases from Griswold to Roe, and concluded with the observation that the ‘right to privacy belongs to a person as an individual and is not lost by marital association’.91
It is important to understand that while the challenge in Sareetha was a challenge to a law (Section 9 of the Hindu Marriage Act), and was, therefore, a contest between the individual and the State, the right that was being claimed was a right to privacy against the marital spouse within the family. While the Court’s judgement was the invalidation of the law, its reasoning went beyond that. This was particularly evident in Justice Choudary’s invocation of the dissenting opinion of Justice Brandeis in the US Supreme Court judgement of Olmstead v. New York.92 Olmstead was a 1928 case concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to prohibiting illegal searches of ‘persons, houses, papers, and effects’. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:
When the Fourth and Fifth Amendments were adopted, ‘the form that evil had theretofore taken’ had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination … But ‘time works changes, brings into existence new conditions and purposes’. Subtler and more far-reaching means of invading privacy have become available to the Government.93
Justice Brandeis’s basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, to prevent the evolution of a totalitarian society in which State power has completely overwhelmed the individual.
In Sareetha, Justice Choudary took Justice Brandeis’s idea of a parity of power between individual and State, and extended it to apply horizontally, in the private realm. His link between cohabitation and compelled intercourse was based upon the difference in power within the marital relationship, and Sareetha’s striking down of Section 9 was a Brandeisian way to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about, in the smallest of ways possible, a democratization of the private sphere, by extending ideas of privacy and freedom to the marital relationship.94 It is in this manner that Sareetha was a truly transformative decision.
B. Sareetha: The Formulation of Equality
Justice Choudary’s last argument was with respect to Article 14, which guaranteed the equal protection of laws. Section 9 of the Hindu Marriage Act, of course, was facially neutral, because the remedy of restitution of conjugal rights was open to both husbands and wives. Theoretical neutrality, however, was not enough for Justice Choudary. He held:
Bare equality of treatment, regardless of the inequality of realities, is neither justice nor homage to the constitutional principle … the question is how this remedy works in life terms. In our social reality, this matrimonial remedy is found used almost exclusively by the husband and is rarely resorted to by the wife … the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights, the life pattern of the wife is likely to be altered irretrievably whereas the husband’s can remain almost as it was before … this is so because it is the wife who has to beget and bear a child … As a result, this remedy works in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.95
Consequently, in addition to norms of decisional privacy, Justice Choudary also held the norms of equality to be applicable to the private sphere. Section 9 was held unconstitutional because it worked a relative injustice upon the wife in the context of her position within the marriage, and because of the greater disruption that compelled cohabitation would cause to her life than it would cause the husband.96 The infusion of egalitarian norms into familial relationships was, once again, a repudiation of the relational and spatial conceptions of privacy that mandated that norms of public law were irrelevant to private relationships, or stopped at the threshold of the home. It was a further step towards democratizing the private sphere.97
C. Sareetha and the Transformative Constitution
What, however, was the constitutional basis of the judgement in Sareetha v. Venkatasubbaiah? In this section, I argue that even as the conception of privacy of community took root, there also flourished in India an oppositional intellectual and political tradition, which actively contested the public/private divide, and sought to introduce norms of liberty and equality into the precincts of the home. And a close reading of the Constitution reveals that it was this ‘hidden transcript’98 that ultimately became the basis of the Fundamental Rights chapter.
Despite some indications to the contrary, the Constitution does not recognize the ‘community’ (or any other institution, such as the family) as being the primary unit, or even a unit, of constitutional concern, or as an entity that can claim rights independent of its constituent individuals. As we have discussed in previous chapters, it does not do so because the framers were aware that, in a country where non-State institutions habitually exercised power akin to sovereign power over individuals,99 an individual’s rights were as much at risk from the private sphere as they were from the State.
For a start, in Section III above, we saw how the colonial state and the nascent nationalist movement mirrored each other in treating laws governing domestic relations, broadly defined as personal laws—deemed to be expressive of the community ethos—as off-limits to State intervention. These personal laws, which covered the family, marriage, succession, and so on, directly concerned the position and the rights of women within the community. As evidenced by public reaction to Justice Pinhey’s first instance judgement in
Rukhmabai, the dominant discourse opposed the application of external, non-community norms into the domestic space. However, this was not the only discourse; as Anupama Roy points out, ‘at any given historical moment, the (anticolonial) national movement in this case, there may exist a plurality of discourses on women, which get constituted and reconstituted in an unequal yet dialogic relationship with each other’.100
Unsurprisingly, this oppositional discourse is found in the writings of women, in texts that, because of their unconventional form, have traditionally been excluded from the domain of political thought. Directly influenced by works such as Mary Wollstonecraft’s A Vindication of the Rights of Woman and John Stuart Mill’s The Subjection of Women,101 which put forward radical proposals for levelling gender relations within the private sphere,102, these writers critiqued family relations in the language of the public law norms of rights, liberty, equality, and anti-servitude,103 through letters, memoirs, and epistles. In the writings of Soonderbai Pawar, for instance, we find an express reference to ‘the liberty of the subject’104 in her discussion of women’s rights within the family, and a comparison of women’s position to ‘slavery’.105
Similar vocabulary was used by Masuda Rahman, writing in the context of Muslim women in colonial Bengal.106 Krupabai Satthianadhan specifically called for ‘giving [women] their own rights, not only in the family, but also in the society’.107 In his defence of Tarabai Shinde’s Stree Purush Tulna against a hostile reception from traditionalist thinkers, the prominent social reformer Jyotirao Phule framed his arguments in terms of an ‘equalitarian husband-wife relationship … [and] the breakdown of the old authority structures within the family’.108 And in a hugely influential, very controversial, and fiercely contested text called The High Caste Hindu Woman, Pandita Ramabai critiqued the marital union, which required the subsumption of the wife’s personality into the personality of the husband109 (a proto-critique of a legal regime that strongly resembled coverture).110 The most focused response to the sanctity of personal laws as expressions of filial privacy, however, came from Rukhmabai herself, soon after Justice Pinhey’s judgement, when the Rukhmabai v. Dadaji controversy was raging with particular intensity. In two anonymous letters to the Times of India, Rukhmabai advanced arguments that bore striking similarities to Justice Choudary’s excavation of inequalities within the family:
… marriage does not interpose any insuperable obstacle in the course of their [men’s] studies. They can marry not only a second wife, on the death of the first, but have the right of marrying any number of wives at one and the same time, or any time they please. If married early they are not called upon to go to the house and submit to the tender mercies of a mother-in-law; nor is any restraint put upon their action because of their marriage.111
The social reformer Behramji Malabari described Rukhmabai’s achievement as her rejection of the idea that a woman had a ‘duty to be everything to everybody—to father, brother and husband …’112 Here, I suggest that what was crucial about Rukhmabai’s opposition was not merely its content, but also its framing. Rukhmabai did not possess the specific vocabulary of rights that would find its culmination in the Indian Constitution, sixty-five years later. However, her articulation of the status of women under personal laws and within the family anticipated core ideas of liberty (restraint upon action) and equality (the different character of the obstacles faced by men and women in marriage), which would be at the heart of the nationalist movement for political independence from colonial rule. A few years before the nationalist movement articulated these demands in the public sphere, Rukhmabai had framed them in the private sphere. More importantly, this framing took place in the context of an ongoing litigation. This suggests that her attempt to infuse public norms into domestic life was not simply a call for internal reform, but an invitation to the State to intervene and protect women’s rights against their husbands and within the family.113
I do not suggest, of course, that these arguments achieved mainstream consensus, or even popularity. More often than not, the authors of these texts were ignored, marginalized, ridiculed, or fiercely opposed,114 although, notably, opposition was also framed in the language of rights, suggesting at least a common terrain of contestation.115 The nationalist movement very consciously relegated the entire issue to the background, as a question that communities would have to deal with for themselves. This was also clear from the passage of the 1937 Muslim Personal Law (Shariat) Application Act, which sought to codify the application of sharia law to all Indian Muslims. What I do want to suggest, however, is that there existed a vocabulary of rights that transcended the public/private divide, and articulated a powerful vision of substantive equality, decisional freedom, and choice within ostensibly timeless and sacrosanct institutions such as marriage and the family. And I want to further suggest that the text and structure of the Indian Constitution makes sense only within the framework of this second, often marginalized vision of privacy within the private sphere.
Despite the existence of provisions such as Articles 26 (rights of religious denominations), 29 (right of any ‘section’ of citizens to preserve language, script, and culture) and 30 (rights of ‘minorities’ to education), which make specific mention of groups, the Fundamental Rights chapter, as a whole, clearly departs from according special sanctity to group autonomy. Previously in this book, we have discussed this in the context of religious groups as a whole, and I have argued that the Constitution is committed to the ‘anti-exclusion principle’: groups are accorded autonomy to the extent, and only to the extent, that their collective actions do not block individuals’ access to those essential goods that are required to live a life of dignity. I want to suggest that the same logic applies, by extension, to the family, because the family is another non-State body that exercises coercive power over individuals (especially women), in a manner that is very similar to the power exercised by religious communities over their adherents. Parallels include an absence of choice when it comes to membership, no feasible exit option, and an overarching level of control.
That the family (or the marital institution) bears no normative priority under the constitutional scheme is buttressed by the fact that other constitutions that have wished to protect the family have done so in express terms. One such is the 1937 Constitution of Ireland, from which the framers of the Indian Constitution borrowed heavily. Article 41(1) of the Irish Constitution states:
The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.116
The Indian Constitution contains nothing of the sort, suggesting the framers’ reluctance to borrow the concept of the family—which, we may recall, is the terrain on which personal laws exist—as a rights-bearing entity. This is, of course, a negative argument, showing only that the Constitution does not indicate the superiority of the familial institution or the marital union on the question of rights. The positive argument defending Sareetha—that, actually, the right to individual decisional privacy should prevail over privacy arguments that take the family or the house as their bases—remains to be made. It can be made, I suggest, by examining the constitutional provisions from which the dissenting opinion of Justice Subba Rao in Kharak Singh and the judgement of the Supreme Court in Gobind drew out an implied right to privacy.
At issue in Kharak Singh was the constitutional validity of a police regulation that authorized extensive surveillance of history-sheeters (persons with a prior criminal record). These included secret picketing of the suspect’s house, domiciliary visits at night, enquiries and reporting about his habits and movements, and the compilation of a comprehensive dossier relating to all of the above. The petitioner argued that this menu of police action violated his fundamental rights under Article 19(1)(a) (the freedom of speech and expression), Article 19(1)(d) (the freedom of movement), and Article 21 (right to life and personal liberty).<
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Justice Subba Rao (dissenting) agreed. Beginning with Article 21, he argued that the expression ‘personal liberty’ ‘extended to the full range of conduct which the individual was free to pursue’.117 He then made a very Brandeisian argument: that, in the modern age, ‘conduct’ was not limited to physical conduct, and personal liberty was not restricted to liberty of the physical body:
… as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man’s mind are in a real sense physical restraints, for they engender physical fear channelling one’s actions through anticipated and expected groves.118
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