This Woman's Fight For Privacy Made Constitutional History

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File photo of the High Court at Hyderabad situated on the banks of the River Musi, circa 1965. Till January 1, 2019, it was for both the states of Telangana and Andhra Pradesh. Now the High Court for the latter has been set up at Amravati.

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 He moved court under Section 9 of the Hindu Marriage Act, arguing that Sareetha had withdrawn herself from his society ‘without reasonable excuse’, and that, therefore, he was entitled to a decree for the ’restitution of conjugal rights’ against her,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. 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.’ 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’.

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. While the case ultimately ended in a settlement, 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’).

In this chapter, I argue that Sareethas 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 privacy 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 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’.

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’.

In the book, practising lawyer Gautam Bhatia picks out nine cases--and analyses their judgements--to show how they advance the core principles of equality, fraternity and liberty enshrined in the Indian constitution.

Excerpted with permission from ‘The Transformative Constitution: A Radical Biography In Nine Acts’.

2019/499 pages/Hardback: Rs. 699/HarperCollins Publishers.

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