Evolving Contours Of The Fundamental Right To Privacy In India: Judicial Constructs And Transformative Constitutionalism

Neha Agarwal, Research Scholar (UGC-SRF), Faculty of Law, Osmania University, Hyderabad

ABSTRACT

The role of the state is to safeguard the dignity and privacy of individuals within the institution of marriage. However, since time immemorial, the state has normatively prioritized institutional stability over the right to individual privacy. This debate was rekindled by the judicial recognition of an individual’s right to decisional autonomy and privacy as an important facet of the right to life.1 Yet, the diminishing scope of the right to privacy of women within the institution of marriage reveals a contradiction inherent in the Indian legal system in its assertion of these rights. To address this contradiction, the paper is grounded in an Indian epistemological approach for objective thinking, combined with a doctrinal research design and analytical and critical research techniques for case-law analysis. It aims to uncover the various ways in which the rights of individuals and the legal institutions designed to protect them may fundamentally clash, often working against those they intend to serve. The paper also seeks to highlight the relationship between the gendered body and the fundamental right to privacy in understanding the privacy jurisprudence in India. It makes a case for rethinking the constitutionality of the state-espoused conjugal right and expanding this reasoning to challenge the constitutionality of the exception of marital rape in the light of recognition of varied facets of privacy in Justice K.S. Puttuswamy v. Union of India2.

Keywords: individual autonomy, conjugal rights, decisional privacy, institutional privacy, state-espoused restitution, judicial construct, transformative constitutionalism