The Constitution and the Public/Private Divide: T. Sareetha vs Venkatasubbaiah
31 Pages Posted: 1 Aug 2017
Date Written: July 30, 2017
This paper examines the construction of the public/private divide under the Indian Constitution, within the broader debate on the nature, scope, and contours of the right to privacy. It takes as its basis a little-known, now forgotten judgment of the Andhra Pradesh High Court (T. Sareetha vs Venkatasubbaiah), which struck down Section 9 of the Hindu Marriage Act ("Restitution of conjugal rights") as unconstitutional, on the ground that it violated women's right to privacy (in terms of their decisional autonomy) within marriage, as well as having a disparate and unequal impact upon the lives of wives and husbands. Although T. Sareetha was swiftly overruled by the Supreme Court, this paper attempts to rehabilitate it as a crucial part of the Indian Constitutional canon, arguing that it advanced a transformative vision of the Constitution, one that defined privacy not in terms of spaces, or institutions, but in terms of a right to decisional autonomy within spaces and institutions (the "private sphere") that is commonly believed to be off-limits to State and constitutional intervention. In other words, the judgment in T. Sareetha was an attempt to democratise relationships within the private sphere, and this attempt - I shall argue - conformed both with judicial precedent, as well as with the Constitution's text, structure, and overarching vision of social transformation.
Keywords: Constitutional Law, Privacy, Public/Private Divide
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