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What the Indian constitutional tradition can teach about sex equality.
Introduction of Constitutional Law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Art. 21 nor Art. 14 have any place. In a sensitive sphere which is at once intimate and delicate the introduction of the cold principles of Constitutional Law will have the effect of weakening the marriage bond.—Delhi High Court, in Harvinder Kaur v. Harmander Singh, 1984
There is a puzzle about privacy. Consider two Supreme Court cases of great importance to feminists: Griswold v. Connecticut and Roe v. Wade. Both were decided on privacy grounds. In Griswold, the U.S. Supreme Court said that the privacy right protects married couples in their use of contraceptives. In Roe, the Court said that the privacy right protects a woman’s decision to terminate her pregnancy. Without Griswold and Roe, the lives of American women might be unimaginably different. And yet many feminists have objected to the privacy right, arguing that the concept is somehow in league with male dominance. What’s the problem?
I propose to address this question by turning to the history and role of the privacy right in the Indian constitutional tradition, which, during its fifty years of life, has both committed itself firmly to sex equality and, more recently, introduced a right of privacy modeled on Griswold and Roe. It’s always valuable to look at how issues that vex us arise in a different cultural context—not only because it expresses respect and a healthy curiosity but also because it helps us clear our heads. Exploring the tensions between privacy and sex equality in this tradition, we will see that privacy is a concept that gives bad guidance to law and public policy, especially in the area of women’s equality. To that extent, feminist criticisms of the privacy right are correct. On the other hand, the Indian cases do not support the feminist contention that we can simply replace the notion of privacy with the notion of equality. Instead, they suggest that we ought to recognize both an interest in equality and a plurality of distinct interests in liberty as all deserving constitutional protection.
Privacy and Culture
Before the argument can even begin, we need to establish that we are entitled to speak of the concept of privacy when addressing Indian culture, and that we can gain any insight into our own perplexities about privacy and sex equality by considering their role in Indian culture and law. A familiar canard about non-Western societies is that they don’t ascribe the same value we do to privacy. This canard gets a particularly tenacious grip on talk about India, since Western people who come to India often feel that they lack expected sorts of privacy there, and that, sadly, nobody cares. This sentiment was vividly, if chauvinistically, expressed by Paul Ehrlich, in The Population Bomb, when he describes a taxi ride in Delhi:
The streets seemed alive with people. People eating, people washing, people sleeping. People visiting, arguing, and screaming.... People, people, people, people. As we moved slowly through the mob, hand horn squawking, the dust, noise, heat, and cooking fires gave the scene a hellish aspect. Would we ever get to our hotel?1
Well, yes. That is one way of looking at many taxi rides in Delhi. And there’s probably no middle-class American who does not, visiting a major city in India, have some moments of the panic Ehrlich describes—although it surely helps if one has lived in New York! And there are yet other aspects of "privacy" deeply valued by middle-class American that are disconcertingly absent in India. Guests show up at your house, or at your hotel room, unannounced. Every room in which you might try to read a book is likely to have in it three other people chatting. Again, some parts of American culture prepare one for this more than others. But any American visitor to India is likely to feel, at some time, a longing for a "room of one’s own," and a feeling that this culture is strange in its lack of regard for personal solitude—one of the things that is called, not too misleadingly, by the name "privacy."
But of course these experiences show us nothing about whether there is a value of privacy in Indian culture (assuming that there is such a thing as "Indian culture"). They show that India draws certain concrete lines in different places than does America. But if we consider the general meanings of "privacy" typically acknowledged as most salient in American discussions, India also marks each of the notions as salient, and ascribes value to protecting the concerns that fall under them.
1. Information. One of the human interests most commonly associated with the term "privacy" is the interest in controlling the access to and dissemination of information about oneself. Not surprisingly, in India as in America—and probably every place in the world—people recognize that certain types of information about oneself are privileged, and that it is bad for outsiders to publicize them without consent. Case law in India prominently recognizes the confidentiality of medical records, and there are similar issues about other personal information, and about libel and slander. People’s preoccupations in these areas are not very different from those of Americans—although, of course, lines are drawn in different places.
But Americans should not need the law to tell them this: works of fiction coming out of India prominently recognize the importance of secrets, and the sometimes disastrous effects of dragging these into the light. Consider Arundhati Roy’s The God of Small Things, a widely read novel that might be said to be about the value of privacy in that sense. To choose another regional culture, many of Rabindranath Tagore’s stories and novels show the tragedy that ensues when the wrong person gets hold of a bit of confidential information and uses it to damage someone he or she either loves or hates. One could go on, but I won’t, because it seems to me that there would be no human beings and human life without secrets and therefore an interest in controlling access to personal information.
2. Modesty and Surveillance of the Body. Another interest very commonly associated with the term "privacy" is the interest in controlling access to one’s body—by touching, sight, and other forms of surveillance. Here differences of class, sex, and region construct major internal differences within each nation, but again, we can say that in India, as in the United States, there is a deep concern for keeping certain parts of the body, and certain bodily acts, hidden from the sight of others—and also a more general concern that, whatever one is doing, one should not be watched without one’s consent. There is no stratum of Indian society in which people do not seek an unobserved place for excretion. Poor people sometimes walk an extremely long way from their dwellings in order to find such privacy.
Does this concern for bodily privacy reflect a borrowing of Western values? Not at all. Indeed, it is among the most ancient and deeply traditional concerns of both Hindu and Muslim cultures.2 Contemporary Indian customs prescribe a far keener concern for modesty, especially women’s modesty, than do American customs, for example in the areas of dress and public urination. Privacy with regard to the dwelling place is also recognized in Hindu law from ancient times. Cases dealing with new windows or doors that enable someone to overlook another person’s dwelling place allude to a customary "right of privacy" in this regard, and cite ancient sources for it.3
3. Autonomy or Liberty. But it is a third aspect of privacy (or alleged such aspect) that is most at stake in our cases concerning sex equality: this is the interest in decisional autonomy or liberty in certain areas especially definitive of the person. I shall shortly be arguing that this is the aspect of "privacy" most misleadingly brought under that concept, but I need to discuss it here, since it has frequently been suggested that the interest in self-governed choice is an outgrowth of "Western individualism," and is foreign to non-Western cultures.
We might stop with the Preamble to the Indian Constitution, which states in the most unequivocal terms that the liberty and dignity of the individual are central aims of the nation. We may add that Indian male traditions attach an extremely high value to decisional autonomy for males, and that more recent feminist traditions insist on asserting this same value in the case of women. Tagore again was among the leaders: his character Mrinal, in the 1914 short story "Letter From a Wife," writes to her husband, "I found myself beautiful as a free human mind"—and this conception of herself is what led her to leave a life in which she could have no decisional freedom. She invokes longstanding (if dissident) Hindu traditions of female liberty in her defense. Today, when I visit women’s organizations in India, I see the same effort: for more control over finances, working conditions and the daily conditions of one’s existence. Often the precedent of India’s own independence struggle is invoked: just as India could only become independent of her colonial oppressor by pursuing economic and political self-sufficiency, so too women will only be free from their oppression at the hands of men when they achieve a measure of economic and political autonomy.
To some extent I have simplified the complex and tangled concept of privacy by focusing on these three issues only. But I hope that this cursory treatment suffices to establish that we are not being mindlessly colonialist when we approach India with questions about privacy in view.
If concerns about privacy are ingredient in Indian culture, concerns about sex equality are familiar in Indian law. India, like the United States, has a written constitution with an enumerated list of fundamental rights; it also has a Supreme Court that is the final interpreter of the Constitution, and that has increasingly seen its function as similar to that of the US Supreme Court. Indian courts frequently cite American cases as precedents. The Indian Constitution contains analogues of both the Due Process clause of our Fifth and Fourteenth Amendments (Article 21) and of the Equal Protection clauses of our Fourteenth Amendment (Article 14).
The Indian Constitution contains a number of resources for the empowerment of women that the United States document lacks. First, it contains an explicit provision of non-discrimination on the basis of sex (Article 15), and an explicit interpretation that this is compatible with affirmative action programs aimed at improving women’s lot.
Second, the document’s explicit recognition to freedom of assembly, freedom of travel, equality of opportunity, and free choice of occupation (Article 19) sets up a favorable situation for women who may need to appeal for protection of just such rights in connection with their pursuit of social equality. These freedoms, of course, are among those that are most commonly infringed on grounds of sex.
Third, the understanding of equality in the Indian document is explicitly and from the start substantive, rather than abstract and formal. A primary complaint of the American feminist tradition has been that the legal understanding of equality is purely formal: so long as laws treat everyone the same, it doesn’t matter if this sameness of treatment reinforces hierarchy.4 Feminists have urged instead that equal treatment, and equal protection of the laws, be understood substantively, as requiring an end to systematic hierarchy and discrimination. This idea is already well entrenched in Indian constitutional jurisprudence. The bare formal idea of treating everyone similarly never had much attraction for the Indian framers, who understood that their task centrally involved breaking up existing hierarchies of caste and sex, and that success in that task would require a lot of differential treatment. Thus we are told in no uncertain terms that the goals of equal protection and non-discrimination may, and indeed should, be pursued by treating women differently.
Despite its commitment to sex equality, Indian constitutional law increasingly relies on the concept of privacy in matters of sex and family. This concept, traditionally conservative and associated with "family values," has long been criticized by feminists as a bad way of gaining rights for women.5 Feminists typically make four criticisms of the privacy right: the concept of privacy is unworkably murky; the privacy right protects male bad behavior; protecting important liberties under the rubric of privacy unfairly discriminates against those who perform the same acts in a space denominated "public"; and privacy is simply irrelevant to a number of important liberty interests that need explicit protection.
Too Diffuse and Unclear
Privacy, it is claimed, is simply too diffuse and unclear a concept to serve any useful legal role. The claim is that the concept is not just a cluster concept, or one in need of further specification, as are many core concepts of constitutional law. Rather, it is so extremely amorphous that judgments of what falls under it are likely to be arbitrary and willful. This is a feminist issue, because arbitrary judgments are especially likely to express the current arrangement of power.
Indian legal thinkers have made precisely this point. In 1982, the Press Commission of India opined that "Privacy is a very nebulous concept and criteria which may constitute its violation cannot be drawn up."6 Rajeev Dhavan, an eminent authority on the seclusion and information aspects of privacy, summarizes the situation this way:
Even in its constitutional context, it is not clear as to what "privacy" means and how far the right to privacy extends. So far, the concept of "privacy" has been used as a persuasive linguistic device. "Privacy" is a nice-sounding emotive phrase which persuades people that the Court is doing nice things.7
This is a reasonable contention. One might map out a reasonably coherent cluster-concept of privacy that would cover the informational and seclusion-and-modesty related interests that I identified above. If we leave off the area of personal liberty and autonomy, which is the most serious source of confusion, we would be left with a concept that is no more vague than many legal concepts, and that might usefully be demarcated further through an evolving legal tradition. But the special problem that arises when we consider so proceeding is that privacy, even so delimited, covers a large number of distinct areas of law: the law of the press, the law of torts, laws related to housing, and, in the area of modesty, the criminal law. It seems far better to demarcate precisely what citizens have a right to, and a right to be free from, in each of these areas, rather than simply to assert that they have "a right to privacy." Or rather, the statement that they have "a right to privacy" does absolutely no work in indicating how to shape these diverse areas of law, until we enumerate the distinct privacy interests at a much more concrete level.
Male Bad Behavior
The central argument in Catharine MacKinnon’s critique of privacy is that appeals to privacy have usually functioned to insulate bad behavior, with direct effects on the interests of other people, from state scrutiny. "In this light," MacKinnon writes, "a right to privacy looks like an injury got up as a gift."8Thus, appeals to the alleged privacy of the home have been used to defend the exemption of marital rape from sexual assault laws, and to discourage state interference with domestic violence or child abuse. It is not that, in principle, people don’t at times believe that coercion voids the presumption of non-interference. But, as MacKinnon says, "the problem is getting anything private to be perceived as coercive." In the marital home, there is a presumption of consent. As MacKinnon puts it: it is not the woman’s privacy that is being protected here, it is the man’s privacy. Recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.
More generally, MacKinnon, Carol Pateman, and other feminist critics look at the history of the distinction between public and private, and see in it a stratagem through which men have claimed for themselves an unlimited exercise of power, among whose primary uses has been to subordinate women. The Greek distinction between the polis and the oikos, one of the most foundational sources for our modern ideas of public and private, functioned exactly this way. As Aristotle articulates it, it is the distinction between a sphere in which a man is an equal among equals, constrained by demanding norms of reciprocity and justice, and a sphere in which he rules as a king. Aristotle subtly distinguishes the rule of a man over a wife from his rule over slaves: the kingly husband is supposed to take his wife’s views into account in some way. And yet both forms of royal rule are even more strongly distinguished from the rule practiced among citizens, which is not kingly rule at all, but rather a "ruling and being ruled by turns." The private domain is thus defined as a domain in which the powerful have a sway unlimited by considerations of equality and reciprocity. This history tells us that even when appeals to privacy appear to protect the interests of women (or children), we should be skeptical, and be sure to ask whose interests really are advanced.
Another related way in which the appeal to privacy does harm is that it shores up traditional hierarchies surrounding marital heterosexuality. What gets protected is the privacy of the marital couple in the conjugal home. Same-sex couples and even unmarried heterosexual couples are less likely to achieve the same protection. Thus Griswold v. Connecticut defended the right to contraception as a right of married couples, and it was only later, in Eisenstadt v. Baird,9 and on grounds of equal protection, not privacy, that the same protection was extended to unmarried individuals.
For all of these reasons, feminists have thought it unwise of American jurists to seek protection for certain key liberty rights of women by sliding them into the all-too-capacious envelope of privacy. What is at stake in contraception and abortion is decisional autonomy or liberty. The issue is whether a certain life-defining choice will, or will not, be open to a woman (or, in the case of contraception, also to a man). When we say, "These decisions are respected because they are private," we allude to the old idea of the protected sphere, and we raise all the problems associated with it.
• • •
Do Indian traditions contain the basis for a comparable worry? Most emphatically, they do. Traditional Hindu law gives the household considerable autonomy. At the same time, one of the central prerogatives, and indeed duties, of the householder is strict control over the women of the house: Chapter Nine of the Laws of Manu states that women are by nature untruthful, lustful, and in need of constant supervision. In this way, the idea of the household as a protected sphere of male authority is established.
In keeping with this general picture, marriage is thought to imply consent to sexual intercourse, so there is no traditional concept of rape in marriage. Even violence of a quite remarkable type has at times been countenanced under the doctrine of implied consent. The issue is compounded by the traditionally low age of marriage. Can an eleven-year-old girl by any stretch of the imagination be presumed to consent to sexual intercourse? And yet, as we shall see, an affirmative answer has energetic defenders.
An especially pernicious development of the idea of male rule over the household took over during the time of British domination, with British connivance, resulting in a keen interest in justifying even extremely cruel conduct as simply within the husband’s husbandly prerogative. Historian Tanika Sarkar has investigated the rhetoric surrounding the tragic death of Phulmonee, a girl of ten or eleven, who was raped by her husband, Hari Mati, a man of 35, and died of the resulting injuries. Sarkar convincingly shows that in reaction to British domination of external political life, nationalists turned inward, boosting the idea of male autonomy in the home as the one cherished zone of self-rule, "the last pure space left to a conquered people." This autonomy was understood to be built around the submission, and indeed the much-praised and allegedly voluntary suffering, of women. Nationalists of this stripe resisted internal demands for reform of child marriage, painting them as subversions of their cherished (but really newly constructed) traditions.10 The British were complicit in this development; they understood that leaving the subject a sphere of self-rule was to their advantage, and thus they actively assisted in the codification of personal law and the privatization of marriage and family. Appeals to the privacy of the home were then invoked to resist efforts to raise the age of consent to marriage, and to oppose any attempt to prosecute men like Hari Mati—who was not guilty of rape under law, given that his wife was above the statutory limit of ten.11
In short, anyone who takes up the weapon of privacy in the cause of women’s equality must be aware that it is a double-edged weapon, long used to defend the killers of women.
Let us now turn to recent cases on the question of "restitution of conjugal rights"—where we shall see, I believe, that the appeal to privacy muddies the waters, setting women up for a most unfortunate reversal.
The idea of forcible restitution—a remedy that is British in origin but has for some time been a part of the Hindu Law of Marriage—has an infamous history, going back to the time of Phulmonee’s death.12 A young woman named Rakhmabai, from a rich family, was given a good education by her reformist stepfather, a prominent Bombay doctor. At age eleven she was married to one Dadaji Bhikaji Thakur, but she continued to live with her parents because her stepfather opposed early consummation of marriage. As the years passed, Dadaji proved idle and ignorant; he also contracted tuberculosis. He kept trying to persuade Rakhmabai to come live with him, but he was unsuccessful. Eventually, he filed a lawsuit (in 1884, when she was twenty) for restitution of conjugal rights. Rakhmabai went public, writing an anonymous letter to the Times of India:
We [Hindu women] are treated worse than beasts. We are regarded as playthings—objects of enjoyment to be unceremoniously thrown away when the temporary use is over…. Reduced to this state of degradation by the dictum of the Shastras, looked down upon for ages by men, we have naturally come to look down upon ourselves. Our condition, therefore, cannot … be improved, unless the practice of early marriage is abolished and higher female Education is largely disseminated.13
The case became a rallying-point for reformers on the one side, traditional guardians of male authority on the other. Rakhmabai disobeyed the order of restitution, and was about to be sentenced to six months in jail when a committee of reformers intervened on her behalf. Because the court was unwilling to enforce the decree, Dadaji eventually accepted a property settlement. The marriage was never legally dissolved, and Rakhmabai never remarried, although Dadaji did. Rakhmabai got a medical degree in England and worked as a doctor in Bombay until her retirement, after which she remained active in social reform causes until her death in 1955 at the age of 91.
The recent uproar over restitution begins with another famous case. A well-known movie actress from Madras, Sareetha, was sued for restitution of conjugal rights by her husband, Venkata Subbaiah.14 She had married him while still a high school girl, and the two had separated before her career began, largely as a result of quarrels over her desire to be an actress. Seeing her fame and wealth, her husband apparently wanted either to get her back or to get a substantial financial settlement. In a much-heralded and dramatic opinion, Justice Choudary of the Andhra Pradesh High Court declared the relevant section of the Hindu Marriage Act unconstitutional, on grounds that it violated Article 21’s guarantee of "life and liberty." Drawing on the United States tradition of privacy-right jurisprudence and explicitly citing Griswold and Roe as precedents, he declared that Article 21 implies a right to privacy, which must be understood to be implicit in the meaning of "life and liberty," given that it had already been established that "life" means not mere (animal) life, but a properly dignified human life. The remedy of restitution is "a savage and barbarous remedy, violating the right to privacy and human dignity guaranteed by Art. 21 of the Constitution."
The privacy arm of the argument was not entirely unprecedented: such a right had been recognized in the area of search and seizure. But the application to women’s liberty interests, following the American line, was entirely new—and, I shall argue, somewhat unfortunate. It is not that the opinion does not make a compelling feminist argument. Indeed, its eloquence is most impressive:
[T]he purpose of a decree for restitution of conjugal rights … is to coerce through judicial process the unwilling party to have sex against that person’s consent and free will…. It cannot be denied that among the few points that distinguish human existence from that of animals, the sexual autonomy an individual enjoys to choose his or her partner to a sexual act is of primary importance. Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation…. [I]t cannot but be admitted that a decree for restitution of conjugal rights constitutes the grossest form of violation of an individual’s right to privacy. Applying Professor Tribe’s definition of right to privacy, it must be said that the decree for restitution of conjugal rights denies the woman her free choice whether, when and how her body is to become the vehicle for the procreation of another human being. Applying Parker’s definition, it must be said, that a decree for restitution of conjugal rights deprives a woman of control over her choice as to when and by whom the various parts of her body should be allowed to be sensed. Applying the tests of Gaiety and Bostwick, it must be said, that the woman loses her control over her most intimate decisions. Clearly, therefore, the right to privacy guaranteed by Art. 21 of our Constitution is flagrantly violated by a decree of restitution of conjugal rights.
As one can see, Justice Choudary had clearly devoted much thought to the concept of privacy. Indeed, he is quite frank about its slippery multiplicity: "[I]t must be admitted that the concept of right to privacy does not lend itself to easy logical definition … partly because … the concept was thrown up in great haste from a miscellany of legal rock and stone and partly because of the inherent difficulties in defining such an elusive concept." On the other hand, he is satisfied that "any plausible definition of right to privacy" is bound to focus on bodily integrity, and hence on "marital privacy." And it was enough for him if he could show that on all the major understandings of the right to privacy that focus on bodily integrity, that right was violated by the law under review.
But why bring bodily integrity and liberty under privacy in the first place? Surely they do not naturally belong there. The Justice’s reference to "marital privacy" betrays the difficulty: the traditional concept of "marital privacy" runs precisely against women’s liberty and bodily integrity. If what was wanted was a right of control over one’s body, that right would much more naturally have been read out the constitution’s explicit guarantees of freedom of movement, travel, and residence, or out of various aspects of the criminal code forbidding assault and rape. If it was felt that a separate right had to be recognized to give this area sufficient protection, why not say directly that Article 21’s guarantee of life and liberty involves protection of the very basic right of sexual autonomy—the right to refuse sex one does not want—without which, as the Judge eloquently states, human life is more bestial than human. Why bring privacy into it?
Well, some will say, why not? It is a vague but generally positive notion, and it generally suggests that one is doing something good. But we have said enough to indicate why it is a dangerous way of doing good: "a nice-sounding emotive phrase," in Dhavan’s words. Mention the traditional idea of marital privacy, and people will start thinking of the patriarchal household. In that household, women have no sexual autonomy. So the argument has a tendency to undercut itself.
And indeed, it was with reference to the traditional ideal of the household that the judgment was eventually overruled. At approximately the same time, a restitution case was heard in the Delhi High Court. Arguing directly against the Choudary opinion, which had created a stir, the court held that the remedy of restitution was not unconstitutional. The essence of the argument, which I quoted in the epigraph to this article, is that the intimate nature of marriage, and the traditional notion of marital privacy, make the application of constitutional principles inappropriate.
In 1984, in a different case, the Indian Supreme Court sided with the Delhi judge and against Justice Choudary.15 Conjugal rights, held the Justices, are "inherent in the very institution of marriage itself." The decree of restitution thus "serves a social purpose as an aid to the prevention of break-up of marriage." As for the claim that the law violates women’s bodily integrity, the Justices opined that it contained "sufficient safeguards … to prevent it from being a tyranny." In particular, a woman who does not want to obey can always pay a fine, "provided he or she has properties to be attached."
What happened, on the face of things, was that the whole strategy of appeal to Article 21’s guarantees of "life and liberty" was denied. But it was easy to deny it because of the way in which the alleged right was framed, as a right of privacy. For it was then so easy to say: Look at our concept of marital privacy. Surely that concept is threatened not by a kindly law that helps people live together and work out their differences, but by the cold hand of constitutional law, which enters in to break up the sanctity of the marital home.16
• • •
These cases dramatically illustrate the dangers for women of jumping on the privacy bandwagon. What, then, should be the alternative feminist approach?
We cannot make much progress for women without rejecting utterly the idea of a protected private sphere within which the law does not meddle. I believe we should begin by adopting Mill’s distinction between self-regarding and other-regarding acts—that is, between acts that impact the interests of non-consenting third parties, and those that do not. If an act is other-regarding, it should get no special protection by being placed in a home rather than elsewhere. If harm is done to a person, that harm is the business of law, no matter where the harm occurs.
On the other hand, MacKinnon’s suggestion that we can do all we need to do by appealing to the value of equality and the importance of ending hierarchy and domination seems to me insufficient. Such an appeal succeeded in overturning United States anti-miscegenation laws because they really did shore up an existing "white supremacy." It shows some signs of making progress in the contested terrain of abortion, where it was at least recognized in Planned Parenthood v. Casey17 that the denial of abortion rights to women does have a serious equality aspect: women, and not men, are being forced against their will to support fetal life. And in the Indian cases it seems sufficient to show the unconstitutionality of the remedy of restitution.
But, of course, a time may come when the races are equal, and even when the sexes are equal—and yet we would still want to overturn laws that forbade a person to marry the person of her choice, and laws that gave one person the right to bring back an unwilling partner to the conjugal home. MacKinnon may argue that there would be no such laws in a regime of sex equality, but I think that we cannot be so certain, and we don’t want to stake our liberty on that guess.18Surely if we think of the parallel area of race, we can imagine the interest in enforced separation becoming detached from an interest in shoring up domination. If blacks were equal, some might well still wish to preserve the purity of the black race. Suppose such African-Americans succeeded in passing an anti-miscegenation law designed to ensure racial purity and continuity. That law, I would argue, would be invidious and unacceptable—in a different way from the old anti-miscegenation laws, but unacceptable all the same. Similarly, in a regime of sex equality, a law denying women access to abortion would still be objectionable on grounds of liberty, even if the equality issue no longer existed. Which is just to say that there are certain cherished areas of human freedom that need protection. Among these are the freedom to leave a marriage when one wishes, and the free choice of a marital partner. Those liberty interests need express protection. Equality alone does not suffice.
As for acts that do no harm to others, and that are, in Mill’s sense, self-regarding, it seems unclear, again, that the concept of privacy does useful work in helping us see when and how these acts should be protected. Does something harmless become less worthy of protection because it occurs in what is defined as "public space"? Of course, when an act moves out of the home into the "public space" new questions need to be raised, such as the effects of the act on nonconsenting onlookers. But frequently there are no such issues—and yet acts are given less protection simply because they are not in someone’s home. At first, contraception was protected only in the marital home, and the actions of activist Bill Baird, who gave out contraceptives publicly to unmarried undergraduates, were not protected—until a 1971 equal-protection-based decision, Eisenstadt v. Baird, intervened. This was wrong: contraception is a pure self-regarding act, and the state has no business meddling with it, no matter where the relevant transactions take place. Again, the recent tendency to protect homosexual sodomy on grounds of the privacy of the home suggests a pernicious distinction: if men have sex in their own dwelling place, it is legally protected. But if they frequent a bathhouse—even if all the people there are consenting and non-offended—the act no longer enjoys the same protection. One might add that here again we see how privacy works to shore up traditional hierarchies: "the home" and "the family" are paradigmatic heterosexual institutions, and gay male culture, especially, has been skeptical about them. (Many gay men prefer to cultivate other forms of association, which theorist Michael Warner calls "sex publics.") We can make similar points about prostitution, nude dancing, and the personal use of pornography.19
These examples require us to note that the public/private distinction, as it is standardly used in such cases, is not the same as a distinction between places where non-consenting parties are present and places where there are no such parties. If it were, then it would at least be very close to Mill’s distinction between self-regarding and non-self-regarding acts. But as we have seen, non-consenting parties are often present in the "private" space of the home. And outside the home there are many spaces and places where there are only consenting parties—sex clubs, bathhouses, dance clubs, sex stores (assuming that they bar entry to minors below some reasonable age of consent). It is only in a portion of the space denominated "public" that Milleans need to be worried about effects on the nonconsenting. And it is very clear that defenders of "public morality" are not focused on the issue of consent. Justice Scalia put it vividly when he said that the purpose of an Indiana law against public nudity "would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd."20 He is right about the Indiana law. But that shows us that the public/private distinction does not track the Millean distinction.
In short, a self-regarding act does not deserve less protection—if it really remains self-regarding—by being in some space denominated "public."
Indian cases once again show the wisdom of wariness about this use of the "private." The first cases to recognize a right to privacy involved police surveillance. In Govind v. State of Madhya Pradesh,21 the court recognized such a right, and cited American privacy cases from a variety of distinct areas, including search and seizure, but also including the Fourteenth Amendment privacy right cases Griswold and Roe.22
At issue was a state police regulation, framed in accordance with directives provided by a national police act, according to which people who had a criminal record or were in other ways suspected of "a determination to lead a life of crime" could be subject to unannounced domiciliary visits, often in the middle of the night, and could also be followed and spied on when outside the house. The Justices opined that "liberty" in Article 21 should be given an expansive interpretation, involving a notion of domestic privacy. They hold that "in the last resort a person’s house, where he lives with his family, is his ‘castle,’ [and] nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy." Once again, we see the sacred privacy of the householder in his dwelling place.
Significantly enough, the justices do understand that the actions of the police threaten important human liberties even when the person spied on is not at home. But at this point they turn to the enumerated liberties of Article 19, holding that the freedom of movement must also be given an expansive construction: "movement under the scrutinizing gaze of the policeman cannot be free movement."
So why all the fuss about privacy, if the key issue in the case is understood to be one of personal liberty and autonomy? ("Individual autonomy," say the justices, is "perhaps the central concern of any system of limited government.") Domiciliary visits seem to be bad in just the way surveillance outside the home is bad: they deprive a person of liberty to move around, talk to people, and so on. And again, the justices know that privacy is a slippery notion: "The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right." But nonetheless they indulge in a vague and diffuse rhetoric about the sanctity of the home, and even refer to aspects of marital relations that have no evident connection to the case: "Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing."
Privacy is Irrelevant
If privacy has the deficiencies described thus far—and even its proponents recognize some of the problems—then why is it brought into play at all? Privacy has functioned—in both United States and Indian law—as a rubric under which to introduce into the constitution interests that are not explicitly recognized therein. It is a gap-filler, and as such, easier than the process of amending the constitution.
And yet, most who survey the history of the cases concede that a number of the interests that come in that way do not fit easily under the rubric of privacy. Privacy is an odd way of protecting the right to obtain contraception, given that contraceptive products are publicly sold, as much as are toothbrushes, and their use is, if anything, less private than the use of toothbrushes: women take their pills anywhere they happen to be, whereas they won’t brush their teeth just anywhere. Only a confusion of contraception with sex acts could make us think of contraception as a private act in the sense of it being secluded and shielded from view. Abortion, similarly, is not a private act. It usually takes place in a clinic or doctor’s office, with a number of parties present. It has nothing to do with privacy as seclusion and modesty (or at least no more so than other medical procedures), and nothing to do with confidentiality of information (or at least not more so than other medical procedures). If we are going to recognize unenumerated rights under a constitutional due process clause, why should privacy be our only way of doing so?
Consider Sunil Batra v. Delhi Administration, which discusses the extent of personal liberty possessed by prisoners on death row.23 (India and the United States are alike in retaining capital punishment, although India rarely uses it.) Mandatory solitary confinement for death-row prisoners is held unconstitutional on grounds of "liberty," as guaranteed in Article 21. Among the liberty rights guaranteed by that Article is now held to be a "right to society." In the words of the opinion (ornate even by Indian standards!):
A few books, yes; newspapers? No. Talk to others? No; save echoes of one’s own soliloquies; no sight of others except the stone…. This segregation … is a violation of the primordial gregariousness which, from the beginning of the species, has been man’s social milieu and so constitutes a psychic trauma, when prolonged … even in our ancient land of silent mystics and lonely cavemen.24 For the great few, solitude sometimes is best society but for the commonality the wages of awesome seclusion, if spread over long spells, is insanity…. Just think, not of the contemplative saint but of the run-of-the-mill mortal. Cage his lonely person and monitor his mind and mood with a sensitive understanding. Then you know that moments bear slow malice; hours hang heavy with ennui; days drop dead, and lonely weeks wear a vicious stillness; for sure, weary months of singleness, with monotonous nights, made more hurtful by the swarms of mosquitoes singing and stinging, and in many cells, by the blood-thirsty armies of bugs, invisibly emerging from nocturnal nowhere, to hide and bite, make for lunacy.
The Justices plainly see the need here to recognize a dimension of human liberty previously unenumerated. It is a dimension that could not, even by stretching, be brought in under a right to privacy. So they don’t try. They simply go directly to the concept of liberty, arguing that "liberty" in Article 21 implies the right in question.
This seems to me the right strategy. Why use "privacy" to fill in constitutional gaps, given its other difficulties, when we see that one may perfectly straightforwardly, through an incremental process of judicial interpretation, get the rights from the place they really reside, in the notion of liberty?
Each constitutional tradition must draw on its own resources of text and history. I therefore make no concrete suggestions for either legal tradition; I confine myself to a general philosophical recommendation. To find our way out of this mess about privacy and sex equality, I would favor a three-pronged approach:
1. A reliance on equality and equal protection where the relevant issue involves systematic hierarchy and subordination. Often, in cases involving sex, this will be the most relevant line, and may prove sufficient to protect the interests that need protecting.
2. A general Millean presumption against the prohibition of self-regarding acts, whether in public or in private. The state will have to make a strong showing if it is to defend the prohibition of such acts.
3. The enumeration of specific human liberty interests that are of especially central importance for protection from interference. India has done this with the right to travel, the free choice of occupation, and the right of prisoners to human society. The United States has done this with the right to be free from unwarranted search and seizure and cruel and unusual punishments. Control over information about oneself—the aspect of a constitutional right to privacy most reasonably denominated "privacy"—can be recognized through a plurality of distinct stratagems in the various areas of law (torts, press, constitutional law) in which informational issues arise. Meanwhile, various liberty interests now covered under privacy, such as the right to marital choice, to contraception, and to abortion, need to be extricated from the privacy morass and introduced through a more straightforward route—although it is beyond my practical political expertise to state how, in the case of each constitutional tradition, this can best be done.
The human liberties at stake in this debate are too important to leave them in trust to privacy, that most untrustworthy and compromised of concepts. Certainly in matters of sex equality, to turn to privacy is indeed, as Catharine MacKinnon says, to dress up an injury and call it a gift.
1 Paul R. Ehrlich, The Population Bomb (New York: Ballantine, 1968), p. 15.
2 See Qur’an 24.30 and 24.31. For a good discussion see Huma Ahmed-Ghosh, "Preserving Identity: A Case Study of Palitpur," in Zoya Hasan, ed., Forging Identities (Boulder, Co.: Westview Press, 1994), pp. 169-87. On Hindu rules, see P. V. Kane,History of Dharmasastra (Ancient and Mediaeval Religious and Civil Law) vol. II (Poona: Bhandarkar Oriental Research Institute, 1941), pp. 648-51.
3 See P. V. Kane, Hindu Customs and Modern Law (1944), pp. 99-100.
4 For the most influential critique of this understanding of equality, see Catharine MacKinnon, Feminism Unmodified (Cambridge, Mass.: Harvard University Press, 1987), and Toward a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989). See also discussion in my "The Feminist Critique of Liberalism," ch. 2 of Sex and Social Justice (New York, Oxford, and Delhi: Oxford University Press, 1999).
5 Thomas Grey, "Eros, Civilization, and the Burger Court," Law and Contemporary Problems 43 (1980): 83-100.
6 Report of the Second Press Commission (1982), 77 p. 43, cited in Rajeev Dhavan, Only the Good News: On the Law of the Press in India (Delhi: Manohar, 1987), p. 341.
7 Dhavan, ibid.
8 Catharine MacKinnon, "Privacy v. Equality," Feminism Unmodified, p. 100.
9 405 U. S. 438 (1972).
10 Tanika Sarkar, "Rhetoric Against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife," Economic and Political Weekly (September 4, 1993): 1869-78. Sarkar shows in detail that consent-based alternatives, even in ancient India, were summarily dismissed as aberrations. She notes that authority for child marriage comes only from Raghunandan, a late and local authority; and yet it is converted into a sine qua non of the Hindu family and Hindu religion.
11 The British Judge who heard the case, when Mati was prosecuted for homicide, simply fell back on the law: "Neither judges nor Juries have any right to do for themselves what the law has not done." He then went on to say that probably the husband didn’t realize that sleeping with a ten-year-old by force would cause damage. All the British authorities involved went out of their way to make no criticism of the allegedly traditional Hindu custom; indeed they opined that marital age was a question "with which no Government could meddle and no Government ought to meddle."
12 This famous case has been discussed in many places, including Sarkar’s article. I base my discussion here on Meera Kosambi, "Gender Reform and Competing State Controls over Women: The Rakhmabai Case (1884-1888)," in Patricia Uberoi, ed., Social Reform, Sexuality and the State (Delhi: Sage Publications, 1996), pp. 265-90.
13 Cited in Kosambi, "Gender Reform," p. 271.
14 T. Sareetha v. T. Venkata Subbaiah, AIR 1983 Andhra Pradesh 356. See my discussion of the case in Sex and Social Justice (New York: Oxford University Press, 1999). For extensive discussion of changes in family law, see Upendra Baxi, Towards a Sociology of Indian Law (Delhi: Satvahan, 1986), ch. 3; Archana Parashar, Women and Family Law Reform in India (Delhi: Sage, 1992); Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (Delhi: Sage, 1996); Patricia Uberoi, "Introduction: Problematising Social Reform, Engaging Sexuality, Interrogating the State," in Uberoi, ed., Social Reform, Sexuality, and the State (Delhi: Sage, 1996), and also her article, "When is a Marriage not a Marriage?: Sex, Sacrament and Contract in Hindu Marriage," in the same volume, pp. 319-46.
15 Saroj Rani v. Sudarshan Kumar, AIR 71 (1984) 1562 S. C.
16 The Choudary opinion also contained a significant equal-protection argument, which was simply ignored by the Supreme Court. Despite the fact that the law was neutral on its face, applying to both husbands and wives alike, in the light of social reality of sex inequality, Choudary wrote, the remedy "works œ only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife." One could not state the MacKinnon critique of formal equality more succinctly.
17 505 U. S. 833 (1992).
18 Similarly, we probably do not want the equality argument to be the only argument protecting a woman’s right to choice in abortion—for, on the MacKinnon analysis, if the sexes should be equal, a law outlawing the procedure would pass constitutional muster. We need to recognize, in addition to the equality interest, an interest in decisional autonomy.
19 nude dancing, see Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991). On the use of pornography in the home, see Stanley v. Georgia, 394 U. S. 557 (1969).
20 Romer v. Evans, 517 U. S. 574-5.
21 AIR 1975 S.C. 1378
22 The Indian Constitution has no analogue of our Fourth Amendment prohibiting unreasonable and unwarranted searches and seizures.
23 AIR 1978 (S.C. 1675).
24 Notice that the justice assumes that India is a land of solitary individualism more than other lands. Those enamored of stereotypes of "Western individualism" and "Non-Western" organic ideas of community should take note.
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