The framework of privacy established by the landmark ruling is based on physical integrity, decisional autonomy, individual dignity, and freedom; declaring the marital rape exemption to be “unconstitutional” would be the fitting realisation of this framework. On August 24, 2012, five years ago, the Supreme Court of India issued its historic nine-judge bench judgement in the case of K.S. Puttaswamy against Union of India, finding that the right to privacy is a fundamental right derived from article III of the Indian Constitution.
Legal academics at the time stated that Puttaswamy might alter the legal landscape of women’s rights in India, but that this would rely on the future case-by-case application of Puttaswamy by the courts. Both the legalisation of same-sex partnerships (in Naveen Johar v. Union of India) and the elimination of the adultery rule in India’s penal code may be traced back to Puttaswamy, a landmark case in the fight for gender equality at the highest level of Indian law (Joseph Shine vs Union of India).
To allay fears that domestic abuse inside the ‘institution’ of family, home, and marriage may become the new norm under the guise of privacy, the Puttaswamy plurality ruling included a distinct part headed “feminist criticism,” which was expanded upon in the adultery judgement. According to experts, the ‘person’ was important to privacy for all the judges in the Puttaswamy case.
However, the exception for rape committed within a marriage is still firmly established in the Indian Penal Code. In May, the Delhi high court issued a divided decision on the validity of the marital rape exception. Justice Hari Shankar used “unwarranted encroachment on the private of the married bedroom” to preserve the exception, whereas Justice Shakdher relied on Puttaswamy’s progressive concept of privacy to knock down marital rape exception.
The decision by Justice Shankar has sent the ball back a long way. Puttaswamy has the potential to advance women’s rights in India, but only if the marital rape exception is eliminated.