48. See, e.g., the essays in Feminism, the Public and the Private, supra; Nancy Fraser, ‘What’s Critical about Critical Theory: The Case of Habermas and Gender’ (1985) 35 New German Critique 97–131. See also Herbert Marcuse, An Essay On Liberation (Boston: Beacon Press 1971).
49. John Gardner, ‘Private Activities and Personal Autonomy: At the Margins of Anti-Discrimination Law’ in Discrimination and the Limits of Law 148–49 (Bob Hepple and Erika M. Szyszczak eds., London: Mansell 1992).
50. One good example of this is Jean Cohen’s analysis of the US Supreme Court judgement in Planned Parenthood v. Casey, 505 U.S. 833 (1992), where the Court criticized abortion rules that required a wife to notify her husband in cases of abortion, on the basis that this would increase the likelihood of domestic violence. Cohen says the Court ‘explicitly rejects the old common-law understanding of a woman’s role in the family along with the view that entity privacy trumps individual privacy within the marital unit’. Cohen, ‘Rethinking Privacy’, supra, 142.
51. Griswold v. Connecticut, 381 U.S. 479 (1965).
52. Ibid., 484.
53. Cohen, ‘Rethinking Privacy’, supra, 145.
54. McGee v. Attorney-General, [1974] IR 284.
55. Ibid. At least in part, this decision was influenced by textual provisions of the Irish Constitution recognizing the family as a basic unit of society. See Article 41, Constitution of Ireland.
56. See, e.g., Rajeswari Sunder Rajan, ‘Women between Community and State: Some Implications of the Uniform Civil Code Debates in India’ (2000) 18(4) Social Text, 55.
57. See, e.g., Bernard Cohn, Colonialism and Its Forms of Knowledge: The British in India 31 (Princeton: Princeton University Press 1996). The word ‘Gentoo’ is an archaic term, referencing ‘Hindu’.
58. For example, the similarly worded Bengal Regulation of 1793 was cited by the Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 MIA 551, as authority for the proposition that a suit for restitution for conjugal rights ‘must be determined according to the principles of the Mahomedan law … for … the rights and duties resulting from the contract of marriage vary in different communities’. Ibid., ¶41. Later, the Privy Council, which was then the highest court of appeal for India, noted that there would be, ‘nothing more likely to give just alarm to the Mahomedan community than to learn by a judicial decision, that their law, the application of which has been thus secured to them, is to be over-ridden upon a question which so materially concerns their domestic relations’. Ibid., ¶48. See also In re Kahandas Narrandas, 5 B. 154 (application of religious personal law to matters of succession). In 1927, the Privy Council drew an express link between ‘religion’ and ‘personal laws’, holding, ‘the law of succession in the case of a Hindu or a Mohammedan depends upon their own personal law: it depends upon the law of their religion’. Mitar Sen Singh v. Maqbul Hasan Khan, AIR 1930 PC 251, ¶4. In 1930, the Bombay High Court expressly equated family and religion, holding, ‘Europeans, Hindoos and Mahometans have their respective family or religious laws’. Peter Philip Saldanha v. Anne Grace Saldanha (1930) 32 BOMLR 17. See also, State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, ¶12: ‘it is an historic fact that both the Muslims and the Hindus in this country have their own personal laws which are based upon their respective religious texts ...’
59. Ibid. See also Madhu Kishwar, ‘Codified Hindu Law: Myth and Reality’ (1994) 29(33) Economic and Political Weekly 2145.
60. Rachel Sturman, The Governance of Social Life in Colonial India: Liberalism, Religious Law, and Women’s Rights 6 (Cambridge: Cambridge University Press 2012).
61. Ibid., p. 8.
62. Amrita Shodhan, A Question of Community: Religious Groups and Colonial Law 69 (New Delhi: Samya 2001).
63. For an excellent account of the colonial insistence on pigeonholing communities within rigid, pre-defined labels (‘Hindu’ and ‘Muslim’), even against their express, contrary self-identification, see Teena Purohit, The Aga Khan Case: Religion and Identity in Colonial India (Cambridge: Harvard University Press 2012). Sudipta Kaviraj uses the term ‘fuzzy communities’ to describe the pre-colonial situation. Sudipta Kaviraj, The Imaginary Institution of India (New York: Columbia University Press 2010).
64. Ibid. See also Neeladri Bhattacharya, ‘Remaking Custom: The Discourse and Practice of Colonial Codification’ in Tradition, Dissent, and Ideology: Essays in Honour of Romila Thapar 20–51 (R. Champakalakshmi and S. Gopal eds., New Delhi: OUP 1996).
65. Rosalind O’Hanlon, A Comparison between Women and Men: Tarabai Shinde and the Critique of Gender Relations in Colonial India 10 (New Delhi: OUP 1994).
66. Shodhan, A Question of Community, supra, 36.
67. Madhavi Sunder, ‘Cultural Dissent’ (2001) 54(3) Stanford Law Review 495. See also Tanika Sarkar, ‘A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal’ (2000) 26(3) Feminist Studies 601.
68. Radhika Singha, A Despotism of Law 163 (New Delhi: Oxford University Press 1998).
69. For the specific link between the colonial move to reliance upon canonical texts to determine the content of ‘personal laws’, and the subordination of women as embodiments of an inner cultural tradition found within the space of the home, see Partha Chatterjee, ‘Colonialism, Nationalism, and Colonized Women: The Contest in India’ (1989) 16(4) American Ethnologist 622; Lata Mani, ‘Contentious Traditions: The Debate on Sati in Colonial India’ (1987) 7 Cultural Critique 118–56, citing, among others, the historian D.D. Kosambi. For an example of how this played out in judicial decisions, see Sidlingapa v. Sidava, (1878) ILR 2 Bom 624, where the Bombay High Court held that a wife’s right to maintenance arose not out of the contractual relationship of marriage, but as a ‘liability created by Hindu law in respect of the jural relations of the Hindu family’. Ibid., ¶8. See the discussion in Sturman, The Government of Social Life, supra, calling it a right arising out of marital status. For a similar argument in a more international context, see the essays in Nira Yuval-Davis and Floya Anthias eds., Woman-Nation-State (London: Palgrave MacMillan 1985).
70. O’Hanlon, A Comparison between Men and Women, supra, 12.
71. Anupama Roy, Gendered Citizenship: Historical and Conceptual Explanations 86 (New Delhi: Orient Longman 2005). Tanika Sarkar uses the words ‘inviolate’ and ‘autonomous’. Sarkar, Hindu Wife, Hindu Nation, supra, p. 36. See also Charu Gupta, Sexuality, Obscenity, Community: Women, Muslims, and the Hindu Public in Colonial India 123 (New Delhi: Permanent Black 2001), citing Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories 120–21 (Princeton: Princeton University Press 1993). For an analysis of how this discourse continues today, see Nivedita Menon, ‘State/Gender/Community: Citizenship in Contemporary India’ (1998) 33(5) Economic and Political Weekly, PE3, 7.
72. Sarkar, ‘A Prehistory of Rights’, supra.
73. Flavia Agnes, ‘Patriarchy, Sexuality, and Property’ in Family, Gender, and Law in a Globalizing Middle East and South Asia 19, 22 (Kenneth M. Cuno and Manisha Desai eds., Syracuse, NY: Syracuse University Press 2009).
74. Partha Chatterjee, ‘The Nationalist Resolution of the Woman Question’ in Recasting Women: Essays in Indian Colonial History 306–34 (New Delhi: Zubaan Books 1989); Roy, Gendered Citizenship, supra.
75. Roy, Gendered Citizenship, supra, 135. But see the 18th Session of the Indian National Congress (1904), dedicated to ‘women’s issues’ such as polygamy, child marriage, and education.
76. Chatterjee, ‘The Nationalist Resolution of the Woman Question’, supra. See also Uma Chakravarti, Rewriting History 94 (New Delhi: Zubaan 2013), for an account of a similar division between the ‘political’ and the ‘social’ within the reformist Poona Sarvajanik Sabha.
77. ‘This notion of culture effectively erases the agency of those involved in such practices.’ Mani, Contentious Traditions, supra, 151–52.
78. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
79. Roe v. Wade, supra.
80. Sar
eetha, supra, ¶17.
81. Ibid.
82. Ibid.
83. Ibid.
84. Ibid.
85. Ibid., ¶18.
86. Ibid., ¶19.
87. Gobind, supra, ¶22.
88. Sareetha, supra, ¶23.
89. Ibid., ¶24.
90. Ibid.
91. Ibid., ¶27.
92. Olmstead v. New York, supra.
93. Ibid., 453 (Justice Brandeis, dissenting).
94. The word ‘democratization’ carries historical valence. For instance, Joan Scott cites an interesting example of Louis de Bonald, an early-nineteenth-century French legislator, who criticized the concept of divorce laws on the basis that it amounted to ‘veritable domestic democracy’, and allowed the ‘wife, the weak part, to rebel against marital authority...’ Joan Scott, ‘Gender: A Useful Category of Historical Analysis’ (1986) 91(5) American Historical Review 1053, 1071. See also Kumkum Sangari and Sudesh Vaid, ‘Introduction’ in Recasting Women: Essays in Colonial History 1–27 (New Brunswick: Rutgers University Press 1989).
95. Sareetha, supra, ¶38.
96. The issues with S. 9 were exacerbated by judicial interpretation of the term ‘reasonable cause’, which was often read to require the wife to live in the ‘matrimonial home’ (i.e., the husband’s home), notwithstanding the fact that her own professional career might have necessitated her living elsewhere. See, e.g., the discussion in Vimal Balasubrahmanyan, ‘Conjugal Rights: Shift in Emphasis Needed’ (1984) 19(35) 1510, 1510; Kusum, ‘Wife’s Right to Employment versus Husband’s Conjugal Rights’ (1977) 19(1) Journal of the Indian Law Institute 77; Kailashwati v. Ayodhia Prakash, (1977) Punjab Law Reports 216; but see, contra, Radhakrishna v. Dhanalakshmi, AIR 1975 Mad 331.
97. In fact, Justice Choudary’s combination of privacy and equality is an (unintentionally) direct response to Catherine MacKinnon’s critique of American abortion-privacy doctrine in Roe v. Wade, which, she argues, laid down a right of decisional privacy/autonomy in the abstract, without any consideration of whether such autonomy was real or effective within the familial or spousal relationship. MacKinnon, ‘Privacy v. Equality’, supra.
98. James Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press 1990).
99. See, e.g., Sudipta Kaviraj, Trajectories of the Indian State (Ranikhet: Permanent Black 2010).
100. Roy, Gendered Citizenship, supra, 45.
101. Padma Anagol, The Emergence of Feminism in India, 1850–1920 60 (London: Routledge 2006).
102. See, e.g., John Stuart Mill, The Subjection of Women, Ch. 2: ‘The Laws Governing Marriage’ (1869), available at http://www.earlymoderntexts.com/assets/pdfs/mill1869.pdf, visited on 21 July 2017. Mill did, however, advocate that married women should devote themselves to housework.
103. Ibid.
104. Soonderbai Powar, The Bitter Fruits of Hinduism, cf. Anagol, The Emergence of Feminism, supra, 30.
105. Ibid., 31; see also Krupabai Satthianadhan, Miscellaneous Writings (Madras: Srinivasa Varadachariar & Co. 1896). The word ‘slavery’ was used by more than one contemporary writer. See Padma Anagol, ‘Rebellious Wives and Dysfunctional Marriages’, supra, 437. See, as well, the writings of Vidyasagar, and the analysis in Sumit Sarkar, ‘Vidyasagar and Brahmanical Society’ in Women and Social Reform in India 118–46, supra.
106. See Mahua Sarkar, ‘Rokeya Sakhawat Hossain and the Gender Debate among Muslim Intellectuals in Late Colonial Bengal’ in A Feminist Foremother: Critical Essays on Rokeya Sakhawat Hossain 25, 31 (Mohammad A. Quayum and Md. Mahmudul Hasan eds., New Delhi: Orient BlackSwan 2017), as well as the accompanying essays in the volume.
107. Satthianadhan, ‘Home Training of Children’ in Miscellaneous Writings, supra, 9.
108. Gail Omvedt, Cultural Revolt in a Colonial Society: The Non-Brahmin Movement in Western India 113 (New Delhi: Manohar Publishers 2011).
109. Pandita Ramabai, The High Caste Hindu Woman (Bombay: Maharashtra State Board for Literature and Culture 1981).
110. The most radical movement for democratizing the private sphere, and, in particular, the marital relationship, was birthed in South India, under the leadership of Periyar. See, e.g., S. Anandhi, ‘Women’s Question in the Dravidian Movement c. 1925–1948’ (1991) 19(5/6) Social Scientist 24–41; V. Geetha, ‘Periyar, Women, and an Ethic of Citizenship’ (1998) 33(17) Economic and Political Weekly 9–15. See also, the institution of ‘satyashodhak weddings’ created by Jyotirao Phule, where wedding vows expressly required the groom to state that the bride would have ‘full rights’ within marriage. Uma Chakravarti, Rewriting History: The Life and Times of Pandita Ramabai 88 (New Delhi: Zubaan 2013).
111. ‘Letters from a Hindu Lady’, The Times of India (1885), cf. Anagol, ‘Rebellious Wives and Dysfunctional Marriages’ in Women and Social Reform in Modern India, supra.
112. Sudhir Chandra, Enslaved Daughters 112 (New Delhi: Oxford University Press 2008).
113. A point made by T.N. Madan. See T.N. Madan, ‘Of the Social Categories of “Private” and “Public”: Considerations of Cultural Context’ in The Public and the Private, supra, 95: ‘... [Rukhmabai] invited the intrusion of public institutions into the Hindu home’.
114. See, e.g., O’Hanlon, A Comparison between Women and Men, supra, 17.
115. See, e.g., Mahavir Prasad Dwivedi, Rachnavali, Vol. 7, cf. Gupta, Sexuality, Obscenity, Community, supra, 126.
116. Article 41(1), Constitution of Ireland.
117. Kharak Singh, supra, ¶28.
118. Ibid.
119. Neil Richards, ‘Intellectual Privacy’ (2008) 87 Texas Law Review 387; Margot Kaminski and Shane Witnov, ‘The Conforming Effect: First Amendment Implications of Surveillance, beyond Chilling Speech’ (2014) 49 University of Richmond Law Review 465.
120. Ibid.
121. Kharak Singh, supra, ¶29 (Justice Subba Rao, dissenting).
122. Ibid.
123. Kharak Singh, supra, ¶30 (Justice Subba Rao, dissenting).
124. Gobind, supra, ¶28.
125. Justice K.S. Puttasawamy v. Union of India, supra, ‘Order of the Court’.
126. Fourth Amendment, Constitution of the United States.
127. Article 41, Constitution of Ireland.
128. See, e.g., Parliament of India, Constituent Assembly Debates, , Vol. III, 30 April 1947 (speech of Somanth Lahiri), supra.
129. Akhil Amar, ‘Fourth Amendment First Principles’ (1994) 107 Harvard Law Review 757.
130. See, especially, Justice K.S. Puttaswamy v. Union of India, supra (concurring opinion of Justice Nariman; plurality opinion of Justice Chandrachud).
131. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del 66.
132. Ibid., ¶9; later, he noted that ‘a disproportionate emphasis on sex, almost bordering on obsession, has coloured the view of the learned judge [i.e., Justice Choudary]’. Ibid., ¶47.
133. Ibid., ¶12.
134. Ibid.
135. Ibid., ¶34, This observation, however, is particularly difficult to parse. Whatever the temperature of the principles of constitutional law, the remedy of restitution of conjugal rights was itself the creation of a law—Section 9 of the Hindu Marriage Act (HMA), a statute. Was it Justice Rohatgi’s contention that cold constitutional law had no place in the intimate and delicate sphere of the home, but that cold statute law could be let in? Or was it his case that Section 9 of the HMA was warmer than Articles 14 and 21 of the Constitution? We do not know.
136. Ibid., ¶35.
137. Ibid., ¶36.
138. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, ¶14.
139. Ibid., ¶16.
140. Justice K.S. Puttaswamy v. Union of India, supra, ¶40 (concurring opinion of Justice Chelameswar).
141. Ibid., fn. 61.
142. Justice K.S. Puttaswamy v. Union of India, supra, ¶140 (plurality opinion of Justice Chandrachud).
143. Ruth Vanita, ‘The Special Marriage Act: Not Special Enough�
�� (1990) 58 Manushi 14–15.
144. Section 13A, Hindu Marriage Act.
145. Flavia Agnes, ‘Reforms As If Women Mattered’, available at http://www.indiatogether.org/manushi/issue119/reforms.htm, visited on 14 July 2017.
146. Explanation, S. 375, Indian Penal Code; Sir Mathew Hale, History of the Pleas of the Crown (1736), available at https://archive.org/details/historiaplacitor01hale, visited on 14 July 2017.
147. Melisa J. Anderson, ‘Lawful Wife, Unlawful Sex—Examining the Effect of the Criminalisation of Marital Rape in England and the Republic of Ireland’ (1998) Georgia Journal of International and Comparative Law 139.
148. Jahnavi Sen, ‘Maneka Gandhi’s Altered Stance on Marital Rape Angers Activists’, The Wire, 12 March 2016, available at https://thewire.in/24649/activists-angered-by-maneka-gandhis-altered-stance-on-marital-rape/, visited on 14 July 2017.
149. In the immediate aftermath of Sareetha, one scholar wrote that the judgement ‘tacitly’ admitted that ‘there is such a thing as rape within marriage’. V. Balasubahmanyan, ‘Conjugal Rights v. Personal Liberty: Andhra High Court Judgment’ (1983) 16(29) Economic and Political Weekly.
150. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
151. See A.M. Bhattacharjee, Matrimonial Laws and the Constitution (New Delhi: Eastern Law House 2017).
152. See also, Tanika Sarkar, ‘Something Like Rights? Faith, Law and Widow Immolation Debates in Colonial Bengal’ (2012) 49 Indian Economic & Social History Review 295, 303.
153. See, e.g., Cohn, Colonialism and Its Forms of Knowledge, supra.
154. This point is not new. See, e.g., Frances E. Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96(7) Harvard Law Review 1497, 1505–06. Catherine MacKinnon also makes this argument while criticizing the US Supreme Court’s abortion jurisprudence, which located the right to abortion within the right to privacy, while also holding that the State was under no obligation to ‘facilitate’ abortion, and could withhold funds accordingly. MacKinnon, ‘Privacy versus Equality’, supra, pp. 99–100.
155. See Flavia Agnes, ‘Personal Laws’ in The Oxford Handbook of the Indian Constitution 903 (Sujit Chaudhry et al. eds., New Delhi: Oxford University Press 2016). There is widespread scholarly consensus on this issue. See Sturman, The Governance of Social Life, supra; Shodhan, A Question of Community, supra, 8: ‘Personal law was thus construed at once as an integral part of the colonial legal system, adjudicated in colonial courts by colonial legal personnel, and as an arena of non-intervention by the colonial state.’ Marc Galanter, ‘The Displacement of Traditional Law in Modern India’ (1968) XXIV(4) Journal of Social Issues 65; Kishwar, ‘Codified Hindu Law’, supra, 2145. In the words of the early nineteenth-century colonial administrator, Mountstuart Elphinstone, ‘We ought not to be guided by Hindu law, which is a new introduction of our own.’ Mountstuart Elphinstone, ‘Report on the Territories’ in Selections from the Official Writings of Mountstuart Elphinstone, Governor of Bombay 252, 330 (Cambridge: Cambridge University Press 2011).
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