Privacy in divorce proceedings is just like public washing of dirty marriage linen.

– Malavika Rajkotia, Intimacy Undone (2017)


The executive director of planned parenthood League, Griswold and the physician Prof. (Dr.) Buxton were arrested in 1965 for giving medical instruction and accessories to prevent conceptions that were illegal under the laws of Connecticut. The court held this law to be unconstitutional because it was a breach of marital privacy.[1]

Griswold case was the first lookup of courts into marital privacy by invalidating laws of prohibiting contraceptive use, but seeds of right to privacy as a concept were sowed 75 years before the Griswold case, in a scholarly article by Samuel D. Warren and Louis Brandeis in the Harvard Law Review. It was the first time that the right to privacy was conceptualized by complaining about the intrusion of the press in private life.[2] 

The earliest legislations offered a redress for injuries to life and property only. It was a matter of legal discovery to understand what is meant by privacy and the extent of its application, i.e. whether to limit it to property or to extend it to life. Only the wrongs of battery, theft and assualt were recognized by the limited reach of the law initially. However, after delving in the moral-spiritual realm, law was broadened by offering redress for the wrongs of libel and protecting intellect and feelings. In the words of L. Brandeis, “privacy is the right to be let alone”.[3]

Brandeis later become judge, gave dissenting opinion and expanded the scope of the Fourth and Fifth amendments to the U.S. Constituition in Olmstead v. United States[4] by comprehensively summarising and including the constitutional guarantee of the right to privacy by holding that evidence obtained by the government through wire tapping is illegal which was also mentioned by Golder J. in the Griswold case.

A few years later, the Supreme Court of Ireland invalidated the laws prohibiting the use of contraceptives by invoking the principle of ‘Privacy of matrimonial bedroom’ holding that they breach the women’s right to privacy in a marital institution.[5] The decision was given within the ambit of Article 41 of the Constitution of Ireland which recognizes family as the basic unit of society.


Ancient Greek political thinkers distinguished between polis (city) and okis (home). The polis is a mirror of spatial privacy and freedom to move, where all persons are free from restriction, but okis, the home, shuts the door for equality and autonomy. Okis is a realm of inequality and hierarchy (master-slave, husband-wife and father-children relationships). In Kyllo v. United States, the Supreme Court reiterates that the fourth amendment draws a firm line ‘at the entrance of home’ and that ‘in the home, all details are intimate details safe from government Eyes’.[6] Consequently, women’s rights were excluded from protection against harassment as they were not protected from domestic violence under the garb of conflict with the right of privacy.


Indian struggle of privacy started with Indian struggle of freedom. In 1772, regulations announced by Governor-General Warren Hastings show the origin of the right to privacy in colonial India. This right could not be claimed by the individual but was instead available to the community and religious groups under the ambit of personal laws. The intervention of colonial rulers in maintaining the structure of the authority within the household[7] consequently affected the women as they had were bound by the laws relating to marital conjugality. Regulations stated that all matters regarding family institution activities (inheritance, marriage etc.) of Mohammadians to be governed by the Quran and Shastras would govern Hindus.

But in 1885 Justice Pinhey stepped in and gave a ray of happiness in Rukhumbai’s case.[8] Facts of the case are that Dadaji Bhikaji approached the court to decree the restitution of conjugal rights against Rukhumbai who he married 11 years ago when she was aged 11 and had never cohabited with. Justice Pinhey refused to refused to decree the suit against the then-22 year-old Rukhumbai as it would mean mere insitutionally foring her to cohabit with the plaintiff to consummate the marriage.

The Indian Constitution did not expressly include the right to privacy after various attempts by Somnath Lahiri, followed by proposals of Kazi Syed Kurimuddin and Pandit Thakur Das Bhargava due to the controversial voting procedure. The Supreme Court also failed to read privacy within the Constitution on earlier occasions. By partially restricting police surveillance in the Kharak Singh case, following the precedent of MP Sharma case, the Supreme Court refused to read the right to privacy with the right to life and personal liberty because it was not expressly codified in the Indian Constitution. However, in 1975, in Gobind v. State of MP,[9] the Supreme Court of India had to deal with a similar issue of police surveillance in which it refused to follow MP Sharma and Kharak Singh cases. It was held that right to privacy flowed from expressly granted fundamental rights of liberty and life. In the Govind case, we can expressly see similarities to Griswold and Mcgee.

But on deeper digging of the  Supreme Court’s ruling in the Gobind case, it appears that such a ruling raises several ambiguities related to ‘privacy’. The verdict of the Court emphasizing that right to privacy shall protect the personal intimacies of home-family, motherhood and child-rearing ultimately led to the division of ‘privacy’ into three spheres: : a) spatial (home), b) institutional (marriage) and c) decisional (autonomy of their body). This ultimately raised ambiguity as to which interpretation of privacy the Indian Constitution guarantees to protect because the judgment fails to make a distinction as to its ambit.

The right to privacy is the right of any individual to be protected from the arbitrary government intrusion into decision-making of the autonomy of their body, that is decisional privacy, which was affirmed in the landmark transformative case in the Andhra Pradesh High Court in T. Sareetha v. T. Venkatasubbaiah. In this case, a single judge bench presided by Justice P. A. Chaudhary held section 9 (Restitution of Conjugal Rights) of Hindu Marriage Act unconstitutional. He emphasized upon transfering the choice to have or not to have marital intercourse to the concerned individual.  He further ruled that  surrendering of  the individual’s choice to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the state[10] is unconstitutional and a breach of decisional privacy to which the Indian Constitution is committed.

Ambiguity arose in the Gobind case, leading to the origin of three dimensions of privacy. This was ultimately clarified in the Sareetha case by Justice Choudhary. In this judgment, Justice Chaudhary took the Brandeisian idea of parity of power between the individual and the State and extended it to apply horizontally in the private sphere.[11] Justice Chaudhary insisted that the Constitution requires democratization of privacy in all spheres.[12] He also referenced Tarabai case[13] of the Madhya Pradesh High Court, where Tarabai was compelled to perform her conjugal duty. If State intrustion into privacy is left unchecked, Justice Chaudhary observed, “what could happen to Tarabai thereafter may well be left to the Reader’s imagination.”[14] Right to privacy belongs to a person as an individual and it is not lost by mere marital association. However, the reasoning of Tarabai has not been followed without fail. Justice A. B. Rohatagi refused to follow the reasoning of the Sareetha case in the matter before the Delhi High Court in a challenge against section 9, HMA. Justice A. B. Rohatagi held that the purpose of the section is not to compel sexual intercourse, but to bring consenting individuals to cohabitation.[15]


From Justice Brandeis’ idea of privacy to Justice Chaudhary’s decisional privacy judgment, it is clear that without autonomy of body, privacy is a mockery. The decision of procreation and cohabitation requires autonomy, as held in the Sareetha case. However, as reasoned above, the Indian Legal System is yet to truly crystallize the individual’s right to privacy vis-a-vis autonomy.


[1] Griswold v. Connecticut (1965) 381 U.S. 479.

[2] E. L. Godkin, ‘The Rights of the Citizen: To his Reputation’ (I890) Scribner’s Magazine 65, 66.

[3] Samuel D. Warren and Louis D. Brandeis, ‘The Right To Privacy’ (1890) 4(5) The Harvard Law Review.

[4] Olmstead v. United States (1928) 277 U.S. 438.

[5] McGee v. Attorney-General (1974) IR 284.

[6] Kyllo v. United States (2001) 533 U.S. 27.

[7] Radhika Singha, A Despotism of Law (OUP 1998) 163.

[8] Dadaji v. Rukhmabai (1885) ILR 9 Bom 529.

[9] Gobind v. State of MP (1975) 2 SCC 148.

[10] T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356.

[11] Gautam Bhatia, Transformative Constitution (2019) 235.

[12] ibid, 218.

[13] Anna Saheb v. Tarabai AIR 1970 MP 36.

[14] T. Sareetha v. T. Venkatasubbaiah AIR 1983 AP 356.

[15] Harvinder Kaur v. Harmander Singh Choudhry AIR 1984 Del 66.


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