A law to settle disputes, if neglectful to power, can sustain the inequalities it seeks to remedy

Economic Times

a day ago

And don't you forget that you're being recorded On Monday, the Supreme Court in 'Vibhor Garg v. Neha' ruled that a husband's secretly-recorded phone calls with his wife are admissible evidence in a divorce litigation. Justice B V Nagarathna, writing for a 2-judge bench, invoked the exception under Section 122, Indian Evidence Act, which permits disclosure of communication between spouses in marital suits.
The court reasoned that such recordings advance the constitutional right to a fair trial, and can override marital privacy. With that single move, the court reiterated a boundary that has long kept domestic surveillance at least technically suspect. It is now law that a spouse may listen in first and justify later, so long as the marriage is on the rocks. The judgment demands close scrutiny, as it fails to consider the power imbalances underlying privacy breaches.
Snooping as coercive control: The court treats clandestine recordings as a mere effect of marital breakdown, not a cause. However, this reasoning ignores the phenomenon of coercive control. Call-recording apps installed without consent, insistence on shared passwords and unlocked phones, and forced access to WhatsApp chats and UPI SMS alerts are scenarios Indian counsellors routinely hear from survivors of domestic abuse, primarily women.
Most times, surveillance precedes, and often precipitates, marital discord. Women's rights activists and family lawyers reiterate that domestic surveillance is an intrusive and all-consuming method of gendered domination. By holding that secret clips, however obtained, are presumptively admissible, the judgment incentivises spying - especially for the spouse who enjoys economic leverage or technological literacy. Courts could have insisted on a proportionality filter: admit only material that could not be gathered by less-intrusive means, and weigh whether the act of snooping itself constituted a form of abuse. Instead, the ruling raises the stakes for many wives already monitored by their husbands or in-laws, and sharpens the pressure to 'behave' under watch.
Sanctity v. privacy: To justify this outcome, the bench reaches back to the Victorian rationale of Section 122. Shielding privileged communication between spouses protects the 'sanctity of marriage'. The court now says that once marital harmony is eroded, so must the privilege; privacy plays no independent role. This reasoning justifies a 200-year-old outdated rationale, instead of subjecting it to the latest constitutional tests of privacy. Since the authoritative 9-judge bench 2017 judgment in the 'Justice K S Puttaswamy' case, informational privacy has been declared a part of Article 21 of the Constitution. Every statutory limit on this must pass a proportionality test.
State infringement of privacy must be:
Be proportionate to the need for such interference.
Have procedural guarantees against abuse of power. The spirit of Puttaswamy ideally should be followed here, even when the breach is by a private party. A blanket licence for covert recordings, which ignores the means of recording and their centrality to the litigation at hand, would fail the proportionality test's requirement of necessity and minimal intrusion.The court's refusal to run Section 122 through the 'Puttaswamy filter' echoes the logic that once kept marital rape outside the penal code. Marriage was said to confer perpetual consent to sexual acts between spouses. For several decades, this rationale was unquestioningly accepted as legitimate. Constitutional adjudication should do the opposite in all these cases - interrogate inherited rationales, not inherit them blindly.Women's rights activists have long argued that privacy cannot shield domestic violence. The state should step into the home when there's abuse. Protection of Women from Domestic Violence Act 2005 is rooted in that insight. Yet, women's rights also insist that intrusions on privacy be evaluated through the lens of power and vulnerability.'Vibhor Garg' ignores this safeguard. It allows the spouse with the tech tools to trample upon privacy, even when the surveillance itself may be a form of abuse. A rights-sensitive approach should perhaps ask: was the recording coerced? Was it a tool of clandestine control? Admitting such evidence without that inquiry risks turning the courtroom into an extension of the abusive household, where such control is legitimised through law.The Supreme Court has shown that it can balance public interest with personal liberty. In 'Selvi v. State of Karnataka' (2010), it permitted narco-analysis only when the accused gives consent and strict procedural safeguards are observed. In 'Vibhor Garg', however, it reads the Evidence Act mechanically and only weighs privacy against marital harmony.The far richer constitutional values of autonomy, dignity and equality hardly make an appearance. The exception in Section 122 should be subjected to a proportionality inquiry. Until then, 'Vibhor Garg' stands as a cautionary tale: a law framed to settle disputes, if inattentive to power, can perpetuate the very inequalities it seeks to remedy. (Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com.) Elevate your knowledge and leadership skills at a cost cheaper than your daily tea. Rumblings at the top of Ola Electric
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