Libertatem Magazine

Privacy as Fundamental Right

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The K.S. Puttaswamy v. Union of India judgment has upheld privacy as Fundamental Right. This is the most consequential judgment of this decade. It works in favor of the liberal and feminist movement demanding decriminalization of homosexuality (along with recognizing same-sex marriage) and criminalization of Marital Rape. Both the demands, prima facie, may seem antagonistic to each other as the former demands no State interference whereas the latter demands State interference in the 4-walls of the private sphere. However, this apprehension is based on a misguided understanding of Privacy and its facets. There are various facets of privacy like decisional privacy, bodily privacy, informational privacy, data privacy, medical privacy, among others.


Homosexuality and Right to Privacy

In India, same-sex marriage is not only deprived of any legal recognition but sexual intercourse between the persons of the same sex is criminalized under the Section 377 of Indian Penal Code. Section 377 has been brought into force to cover within its ambit the following aspects.

  • To criminalize homosexuality.
  • To criminalize certain acts between heterosexuals: This means that all acts are against the order of nature unless they do contribute to the process of reproduction. e.g. anal sex and oral sex.
  • To criminalize sexual activities between humans and animals. i.e bestiality.

An analysis of this section brings forth the fact that there is unfettered State interference in the personal matters of a person. Something as private as choosing the partner for marriage has been regulated by the State without any discernible State interest. Thus, this section is used as a tool to impose majoritarian understanding of sexuality, gender, and marriage.

Such unwarranted interference is in violation of Right to Privacy. Two important facets of the Fundamental Right to Privacy are ‘Marital privacy’ and ‘Decisional privacy’. Marital Privacy limits the extent of Government intrusion into private life, such as those involving sexual relations between married persons, family planning, etc. Thus, it gives freedom to couples to decide and act according to their will. This fact of privacy was the driving force behind the landmark US Supreme Court judgment of Griswold v. Connecticut (1965). In this case, Court set aside the legislation which criminalized the use of contraceptives by couples. This was considered to be a private marital decision of the couples, and not an issue for State to impose its perspective. Whereas, Decisional Privacy entails freedom to make life-defining choices and act autonomously. Section 377 violates the Marital Privacy as couples are not free to make intimate family decisions relating to the choice of a partner for marriage. Also, the lack of freedom of a person to decide his/her sexual partner violates the Decisional Privacy. In the NAZ Foundation Judgement, a major concern for striking down the entire Section 377 was that bestiality would also be decriminalized.

PrivacyIn a civil society, an act of bestiality cannot be permitted. Except for the part which criminalizes bestiality, the rest of the section should be read down as it violates the Fundamental Right guaranteed by the Constitution. Using Section 377 of IPC, the State restricts two consenting adults from making their autonomous decisions. The social norms are legally enforced in the private spheres of life. This is the violation of the Right to privacy as a person’s private life is regulated and scrutinized by the public at large and not a modicum of privacy left.

Criminalizing Marital Rape

Rape in India is considered as one of the most heinous crimes against women. What possibly could be less logically consistent than a statue that legalizes non-consensual sexual relations between the survivor and assailant if they are married? This is precisely the effect of the exception





2 of the Section 375 of IPC. This exception not only fails to classify marital rape as an offence but also grants a statutory immunity to the husband from prosecution. The exception 2 in the Section 375 of IPC undermines privacy i.e bodily integrity and sexual autonomy of married women.

Why is Marital Rape not considered a rape?

The absence of consent on the part of women is the crux of the offence of rape. Marital Rape is not considered a rape under Section 375 because this essential ingredient of the offence is not fulfilled. There is a postulation of an absolute and binding consent on the part of the married women. The formation of this theory finds its roots contract law and the conception of irrevocable ‘matrimonial consent’. The ‘implied consent theory’ states that the women have given her irrevocable consent to the husband for sexual intercourse at the time of marriage. The infamous statement made by Sir Matthew Hale, in brief, explains the theory, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’ The strict irrevocable principle provides a window to withdraw her implied consent only when the marriage is suspended either temporarily or permanently. Consent becomes a concomitant phenomenon in a continuing legal marriage. This theory is widely accepted in the contemporary Indian context as the amendment of 2013 of IPC revokes the exception 2 under Section 375 of IPC and allows for prosecution of a husband once they are granted Judicial separation as the marriage stands temporarily suspended. Thus, the temporary suspension of marriage overturns the consent of the wife to have sexual relations with her husband which is otherwise implied.

Violation of Bodily Integrity

The issue with implied consent theory is that it undermines the privacy. The privacy of women includes her bodily integrity. Bodily integrity is the ability of an individual to have one’s body to be treated as sovereign, i.e. to be secure from different kinds of assault. The exercise of bodily integrity must entail the ability of self-determination, self-governance and to act authentically. At its heart, the principle of bodily integrity claims that every individual should be able to decide for herself. The ability to give or withdraw her consent to have sexual intercourse becomes an essential part of the bodily integrity of a woman. With the presumption of irrevocable consent, the women no longer have control over her own body.

Denying Sexual Autonomy to Married Women

Autonomy provides for leaving a person alone to fulfil his/her desires. And in sexual autonomy this desire might be to indulge or abstain from having sexual relations with others. It does not require one to fulfil other people’s desires. This amounts to the imposition of a burden. The Indian State took upon itself the responsibility to impose the autonomy of the husband to have sexual relations with the wife on a very different understanding. Justice Wilson in the Phulomoni case of Queen- Empress v. Hurree Mohun Mythee said: “…that the law regards a wife over ten years of age as a thing made over to be the absolute property of her husband, or as a person outside the protection of the criminal law.” The status of the wife is reduced to the status of a chattel or property which he is free to appropriate.  This forms the basis for ‘Property Theory’ of marital rape. Under this theory, the wife is deemed to be the property of husband once they are married. With this understanding, no amount of independent identity, sexual autonomy and privacy exists for married women. This denies the natural right of privacy to them, which is guaranteed by the Constitution. Thus, the exception 2 of Section 375 violates the Constitution.


Right to Privacy is not an end in itself, it is a means of enjoying the cherished principles of liberty, freedom and equality enshrined in the Constitution. Upholding the autonomy of person in cases of choosing a partner and deciding whether or not have sexual relations in the institution of marriage is of paramount importance to privacy. By imposing unjustified restriction, the exception 2 of Section 375 and Section 377, IPC hinders one’s enjoyment of the liberty and freedom endowed by the Constitution under Article 21.

In the words of Justice Chandrachud, “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets”. Any instance of rape jeopardises the self-respect of the women. It becomes imperative for the law to punish the rapist and dispense justice to the women. It must be realised that in case of Marital rape, there is merely an addition of the prefix to the nomenclature. The experience of women in Marital Rape is no different. The law in marital rape cases undermines the seriousness of rape by not considering it a crime at all. It fails to account that the perpetrator women have to continue a domestic relationship with her rapist. The gross miscarriage of justice of the widespread violation of basic human rights that is not curbed owing to social norms and customs can be overturned using this judgement.


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