The Transformative Constitution

by Gautam Bhatia

  Writing in 1962, Justice Subba Rao had anticipated an argument that would be developed and invoked decades later, in other jurisdictions:119 that the guarantee of personal liberty included a guarantee against forced conformism of thought and action, a conformism that could be psychologically compelled by constant, relentless State surveillance of an individual’s private life. This was the connection between Article 21’s right to personal liberty, and a right to privacy.

  Justice Subba Rao then went on to argue that ‘the right of personal liberty … [is] a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions … are directly imposed or indirectly brought about by calculated measures’.120 The very concept of ‘indirect restrictions’ imagines a right that has broken free of spatial boundaries. This was clarified further in his examination of Article 19(1)(d), where he noted, ‘If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automaton.’121 And even if, for the purposes of argument, Article 19(1)(d) only protected physical movement, that article read with Article 19(1)(a) (freedom of speech and expression) encompassed a broader liberty of conduct in a ‘free country’, where a man ‘can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom.’122 Life under the shadow of surveillance was like a prisoner speaking to his wife, son, or friend in the presence of a jailor, in an atmosphere in which ‘it is impossible for him to express his real and intimate thoughts to the visitor as fully as he would like’.123

  It was this understanding of privacy—an implicit right flowing from the rights to freedom of expression, freedom of movement, and personal liberty—that was conditionally accepted by the Supreme Court in Gobind, with the Court noting that the right would have to be developed on a case-to-case basis.124 And it was this understanding that was unconditionally accepted by a nine-judge bench of the Supreme Court in 2017. While declaring that the Indian Constitution guaranteed a fundamental right to privacy, the Supreme Court in K.S. Puttaswamy v. Union of India not only resurrected Justice Subba Rao’s dissenting opinion in Kharak Singh, but also affirmed the argument advanced above, in its operative order:

  The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.125

  A combination of Justice Subba Rao’s dissent in Kharak Singh, the majority opinion in Gobind, and the judgement of the Court in Puttaswamy demonstrates that the foundation of the right to privacy under the Indian Constitution—whatever its ultimate framing and substantive content—lies in a combined reading of Articles 19(1)(a), (d), and Article 21. And here is the crucial point: each of these rights protects aspects of decisional autonomy, viz., to speak with freedom, to move with freedom, and to be free of direct and indirect constraints upon personal conduct. Justice Subba Rao’s insight in Kharak Singh was that none of these three rights could be effectively enforced unless there was an accompanying underlying right to privacy. The guarantee of privacy, thus, was a necessary constitutional implication, flowing from the guarantees of speech, movement, and personal liberty.

  This derivation of the right to privacy under the Constitution demonstrates why Sareetha’s reading of Gobind’s ambiguous formulation was the correct reading. In other constitutions, the right to privacy was derived from provisions that explicitly indicated, or suggested, a spatial or institutional vision. This included the US Constitution’s Fourth Amendment, which protected ‘the right of the people to be secure in their persons, houses, papers, and effects’,126 or the Irish Constitution, which acknowledged the ‘family’ as a basic unit of society.127 As we have seen, formulations of this kind were consistent with different understandings of privacy, viz., the home as space, the home as an institution, or the home as a place where private decisions are typically made. For this reason, the jurisprudence of these jurisdictions has veered between these different understandings of privacy, moulded according to the nature of the case before the Court.

  Under the Indian Constitution, however, there is no such ambiguity. As we have seen, a provision akin to the US Fourth Amendment was rejected during the Constituent Assembly Debates.128 However, contrary to what the Supreme Court suggested in M.P. Sharma, this did not mean that the very concept of privacy was rejected in the Constitution. What was rejected was a specific formulation, which the US Constitution drew from common law, targeted against the State tyranny of carrying out general warrants and searches against political opponents, and was, therefore, focused on the physical space of the home, and what it contained, viz., ‘effects’ and ‘papers’.129 The judgements in Puttaswamy recognized this, with more than one opinion acknowledging that the record of the Constituent Assembly only demonstrated that the framers did not wish to import that specific logic of the US Fourth Amendment into the Constitution. But the concept of privacy was not simply reducible to the prohibition of arbitrary searches and seizures, which was what the Fourth Amendment was limited to.130

  Meanwhile, however, the presence of Articles 19(1)(a), (d) and 21 suggested an alternative view of privacy, freed from the constraints of spaces and institutions. Located within the contours of decisional autonomy, it was this view that Sareetha articulated via Gobind, and Puttaswamy affirmed three decades later.

  Now, it may be objected that Articles 19(1)(a), (d), and 21 are directed against the State. And both Kharak Singh and Gobind were cases of State surveillance, not oppressive power relations within the family. In that sense, these cases remained solidly within the conventional public sphere, instead of dealing with private relations.

  It is here that we must introduce another idea: categories of public and private do not come to us as a timeless, changeless, pre-existing binary. Rather, the binary is actively constructed by the State, through its laws, regulations, practices, and omissions. Section 9 of the Hindu Marriage Act is an excellent example of this: it is a State-made law that constructs the marital union as an entity within which constitutional norms of equality and decisional privacy do not apply. The challenge in Sareetha, therefore, was not a challenge against the private conduct of Sareetha’s husband. Rather, it was a challenge against a law that denied Sareetha the possibility of exercising her constitutional rights by constructing a private domain within which these rights were not applicable. And in striking down the law, Justice Choudary denied the State permission to do exactly that: to divide up the world into public and private domains in this facile manner, and to restrict the application of rights within the latter domain. What I have tried to argue is that there is no constitutional sanction for such action. Rather, the very logic of decisional privacy, as opposed to its spatial and institutional versions, militates against the construction of the public/private divide.

  This, then, was the connecting thread between the dissident intellectual tradition of the late-nineteenth century, the constitutional text, and the judgement in Sareetha. Together, they advanced a transformative vision of constitutional justice that was based on democratizing what was traditionally thought of as the private sphere by introducing norms of equality and decisional privacy within the home, the family, and the community, and by holding the State to account for failing to respect this.

  V. Sareetha: The Aftermath

  A few months after Justice Choudary’s decision in Sareetha, the High Court of Delhi decided the case of Harvinder Kaur v. Harmander Singh Choudhry,131 which also involved a challenge to the constitutionality of Section 9. Disagreeing with Justice Choudary, Justice A.B. Rohatgi of the Delhi High Court observed that the purpose of the decree for restitution of conjugal rights was not to compel sex, but to bring about cohabitation, which meant ‘living together as husband and wife’.132 A Court did not, he held, have ‘the means … [or] the ca
pacity to enforce its decree in the marriage bed’.133 Section 9 was constitutional, because ‘a spouse is entitled to the other’s society and if the law enforces this conjugal duty there is nothing wrong’.134

  At the heart of the disagreement between Justices Choudary and Rohatgi, therefore, was the question of what exactly a decree of cohabitation implied. While Justice Choudary factored into his judgement the imbalanced and gendered power relationships that existed within the family, Justice Rohatgi refused to do so. And the reason for this becomes clear in the shape of a ‘general observation’ which he made after upholding the Section:

  Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond.135

  Here, we have the spatial and institutional visions of privacy, expressed to the full. And more than that, we have a direct repudiation of Justice Choudary’s project of democratizing the conventional private sphere. Referring to both the home and to the marriage institution, Justice Rohatgi made it clear that constitutional norms could not be applied to the relationships that existed within these ‘sensitive spheres’. Effectively, he treated the private sphere as sovereign unto itself, noting that ‘constitutional principles find no place in the domestic code’.136 That he considered the basic unit of privacy to be the marital union, and not the individuals within it, was then made clear by his observation that ‘the spouses can claim a kind of sacred protection behind the door of the family home’.137 What the spouses did to each other behind that door was not, apparently, the law’s concern.

  The year after this, the Supreme Court was called upon to resolve the disagreement between the Delhi and the Andhra Pradesh High Courts. It sided with the Delhi High Court, and held that Section 9 was constitutional. The Supreme Court held that ‘conjugal rights, i.e., the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself’.138 And Section 9, by enforcing this right, served ‘a social purpose as an aid to the prevention of break-up of marriage’.139

  While the Supreme Court’s reasoning was not as categorical as the Delhi High Court’s, its reference to a right ‘inherent … in the very institution of marriage itself’ was a continuation of the same reasoning: that the rights-bearer was not the individual, but the institution. And the extent to which individuals had rights (in this case, the ‘right’ of the husband or the wife to each other’s company) was exercised because of, and through, their membership of the institution.

  Sareetha, thus, was overruled. And, along with that, its transformative critique of the public/private divide, its focus on power structures and imbalances within the family, and, most of all, its incipient attempt to democratize the conventional private sphere and subject it to public law and constitutional norms also passed into history. There it awaits a long-overdue resurrection.

  But it is a resurrection that, after three decades, suddenly appears possible. Not only does the reasoning of the nine-judge bench of the Supreme Court in Puttaswamy stand as a vindication of Sareetha’s transformative approach, but there are observations in that judgement that pointedly suggest that the time may have come for a rethink. In his concurring opinion, Justice Chelameswar observed that the relationship between privacy, State intrusion, and personal association ‘is still a doubtful area’.140 He followed this up with a footnote noting that ‘the High Court of AP held that Article 19(1)(c) would take within its sweep the matrimonial association in T. Sareetha Vs. T. Venkata Subbaiah, AIR 1983 AP 356’. However, this case was later overruled by this Court …’141

  Overruled but, as Justice Chelameswar himself took pains to point out, now it is a doubtful area. And how would that doubt be resolved after Puttaswamy? The plurality opinion, authored by Justice Chandrachud, offered a resounding answer. After acknowledging, for the first time in judicial history, the feminist critique of privacy that has been at the heart of this chapter, Justice Chandrachud stated that ‘the challenge … is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while … protecting the privacy entitlements of women grounded in the identity of gender and liberty’.142

  It would be difficult to imagine a clearer or more emphatic endorsement of Justice Choudary’s transformative vision of the Constitution.

  VI. Conclusion: The Implications of Sareetha’s Transformative Vision

  Sareetha was a controversial decision. Critics pointed out that, over the years, Section 9 had been watered down so much that it was virtually toothless.143 It could not be enforced by jailing the defendant, and even attachment of property was rare. At best, non-compliance with a decree for restitution of conjugal rights for a period of one year could itself become grounds for divorce under the Hindu Marriage Act, but nothing more.144 So, far from compelling sexual intercourse, it didn’t even effectively compel cohabitation. Other critics have taken issue with Justice Choudary’s assumption that the remedy was biased against women, pointing out that it is often deserted wives who use Section 9 for legal redress145 (both these points were discussed, to varying degrees, in the Delhi High Court’s judgement).

  There is merit in these criticisms, and it is certainly open to question whether, even if it had stood, Sareetha would have had any significant impact upon the rights of women in the family. However, what was ultimately crucial about Sareetha was not so much its outcome, but its reasoning and the implications that the reasoning, if applied consistently, would have for other areas of law. For example, through a specific exception under the Indian Penal Code, non-consensual sexual intercourse between a man and his wife is not ‘rape’. The ‘marital rape exception’, as is well known, bases itself in the old common-law belief that marriage entails a one-time, permanent, and irrevocable consent to sex,146 as well as the common-law legal regime of coverture, where the legal personality of the wife was subsumed within that of her husband, and who, therefore, conceptually, could not rape her.147

  Those defences cannot now be invoked. What can, and has been, invoked, however, is the concept of marital privacy,148 and the need to keep the family together while keeping the State out of the bedroom. These are defences grounded in the institutional and spatial conceptions of privacy. Under Sareetha’s two-pronged reasoning—where, first, decisional privacy was given normative priority over spatial and institutional privacy, and, second, the reality of unequal power structures within the family was taken into account when determining the constitutionality of a law—it is clear that the marital rape exception can no longer stand.149

  Along with the marital rape exception, an entire branch of law would also not be able to stand. In 1952, the High Court of Bombay held that uncodified personal laws were not subject to the Constitution. In State of Bombay v. Narasu Appa Mali, the Court held that ‘personal laws’ did not constitute ‘law’ under Article 13 of the Constitution and for the purposes of the Fundamental Rights chapter.150 This was because, among other things, they were derived from scripture, and not the result of any conscious act of legislation.

  However, as Justice A.M. Bhattacharjee points out in his critique of the judgement,151 what the Court failed to note is that whatever the source of personal laws, the State was deeply implicated in their existence by actively enforcing them152 (indeed, the authority that personal laws enjoyed in colonial India stemmed from conscious State action, such as the Regulations of 1772 and 1793).153 This, of course, was precisely the point made in Sareetha: the private sphere does not exist autonomously, but is defined and constructed by the State through its laws and practices.154

  Furthermore, as a piece of h
istory, the Court’s analysis was entirely inaccurate. What had come to be known as personal law by 1952 was a motley blend of scripture and custom, sieved through a century and a half of colonial legal interpretation and even, at times, invention.155 More importantly, however, the decision in Narasu Appa Mali replicated the colonial logic of treating the community, as expressed through its personal law, as the autonomous site, or unit, of privacy (with the exception that the State could now, under the Constitution, legislate on personal law with a view to social reform), regardless of the rights that it extended or denied to its members.

  In denying the community or, for that matter, any institution normative priority over individuals when it came to the fundamental individual right to privacy, Sareetha fatally undermined the logic that underlay Narasu Appa Mali. The result, inevitably, would be that personal laws governing the private sphere would be subject to fundamental rights in the same manner that statutes and ordinary legislation are.

  Lastly, Sareetha’s logic would also impact one of the most crucial, and legally under-examined, issues of the private sphere: that of unpaid housework overwhelmingly performed by women in households,156 as discussed in the last chapter. As Don Slater points out, the public/private divide arose, at least in part, as a gendered division in the kinds of productive processes: ‘… the public world of work, production, and enterprise on the one hand, and the private world of domestic life and reproduction on the other’.157 While the labour movement has been somewhat successful in introducing public law norms into the relationship of employment, the household and the productive processes within the household remain off-limits, under a continuing spatial/institutional vision of privacy. Therefore, ‘the rules governing the sexual division of labour in the family have been placed beyond the scope of justice’.158

  It was this vision that, as we saw, Sareetha undermined, by introducing the ‘cold principles’ of constitutional law into the home. In the previous chapter, we examined how the constitutionalization of remuneration for housework flows from PUDR’s transformative reading of the Constitution. Sareetha shows us how, at an even deeper level, the Constitution is committed to this manner of transformation.159