The Constitution and the Public/Private Divide: T. Sareetha vs Venkatasubbaiah

31 Pages Posted: 1 Aug 2017

Date Written: July 30, 2017

Abstract

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

Suggested Citation

Bhatia, Gautam, The Constitution and the Public/Private Divide: T. Sareetha vs Venkatasubbaiah (July 30, 2017). Available at SSRN: https://ssrn.com/abstract=3010972 or http://dx.doi.org/10.2139/ssrn.3010972

Gautam Bhatia (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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