Recently, OYO announced that unmarried couples would be disallowed from accessing its partner hotels.

Privacy Struggles of Young Couples

• Popular Media: Payal Kapadia’s award-winning film All We Imagine As Light portrays the journey of a young couple, Anu and Shiaz, who struggle to find private space. 
• Privacy Challenge in India: While the characters are fictional, their problem is a reality faced by many young people in pre-marital relationships across India, where privacy is a scarce commodity.
  • The struggle for privacy is expected to worsen due to policies like the one recently implemented by OYO, a popular hotel aggregator.
• Conflict between Norms and Laws: The issue of privacy for young couples in India highlights a deeper conflict between societal norms and legal rights.
• OYO’s New Policy: OYO declared that unmarried couples would no longer be allowed access to its partner hotels. Hotels have been given the freedom to enforce this rule based on local sensibilities.
  • All couples must present “valid proof of relationship” at the time of check-in.
• Immediate reason for the Move: OYO explained that the decision was prompted by requests from civil society groups and citizens, urging the company to adopt such a policy.
• Implementation of the Policy: Initially, the policy will apply only to hotels in Meerut, Uttar Pradesh, but reports suggest that OYO may expand its application to other cities. 
• Discrimination on the basis of Marital status: Beyond the practicalities of providing ‘valid proof of relationship,’ it is clear that OYO is encouraging partner hotels to discriminate against customers based on their marital status. 
• Question of Legal Redressal: The burning question, however, is whether those adversely affected by this policy may find legal redress either in the Constitution or otherwise.

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Legal Perspectives on Privacy and Relationships

• Recognition of Pre-Marital Relationships: In various decisions, the Supreme Court has recognised individuals’ right to enter pre-marital relationships.
• Freedom of Choice: In Shafin Jahan vs Asokan K.M. (2020), the court affirmed that Article 21 of the Constitution includes the right of individuals to choose their partners, ‘whether within or outside marriage.
• Right to Companionship: The Navtej Singh Johar vs Union of India (2018) case recognised the right of all individuals to physical, emotional, mental, and sexual companionship.
• Privacy, Dignity, and Autonomy: Other Supreme Court decisions have asserted that the rights to privacy, dignity, and autonomy emanating from Article 21 grant people the freedom to:
  • Engage in consensual, intimate, or sexual relationships.
  • Cohabit with their partners if they choose.
  • For many unmarried couples, accessing hotel services is one way to exercise these rights.
• Broad Application: Individuals in pre-marital relationships aside, persons of different genders who are friends, colleagues, or cousins may also travel together and require OYO’s services.

Constitutional Framework

• Enforceability of Fundamental Rights: Under the constitutional scheme, fundamental rights enshrined in Part III of the Constitution are primarily enforceable against the State and its instrumentalities, rather than against non-State actors.
• Constitutional Remedies : Citizens may seek constitutional remedies from courts when the State infringes upon their fundamental rights. However, these rights do not extend to cases where a private party hinders their exercise.
• Vertical and Horizontal Application of Rights: Constitutional rights are generally considered to apply in a “vertical” manner (i.e., against the State) and not in a “horizontal” manner (i.e., between private individuals or entities).

Constitutional  and Legal Gaps

• Departure from Vertical model of  Rights: The Constitution includes three express provisions that depart from the traditional “vertical” model of rights:
  • Article 15(2): Prevents discrimination based on religion, race, caste, sex, or place of birth in accessing public spaces and services.
  • Article 17: Prohibits untouchability.
  • Article 23: Forbids human trafficking and forced labour.
• Extension of Horizontal Rights: In Kaushal Kishor vs State of Uttar Pradesh (2023), the Supreme Court held that the right under Article 21 could also be enforced against private parties, extending the scope of horizontal rights.
• Limitations of Article 15(2): While Article 15(2) bars discrimination based on religion, caste, and other listed grounds, it does not explicitly cover marital status, leaving ambiguity in its applicability to cases like OYO’s policy.
• Uncertainty Around Article 21: The Kaushal Kishor judgment’s implications for enforcing Article 21 against private entities remain unclear. 
  • The lack of consistent jurisprudence makes it uncertain whether unmarried individuals can claim rights under Article 21 in such cases.

Way Forward

• Need for an Anti-Discrimination Law: Current statutes offer limited protection, such as rights conferred to women regardless of marital status. However, a comprehensive anti-discrimination law is needed to:
  • Protect individuals from discrimination based on marital status, gender, caste, sexual orientation, or other attributes.
  • Apply to private transactions, including housing, employment, and commercial services.
• Legislative and Social Change: The ability to exercise constitutional rights depends on the willingness of private actors to create enabling conditions.
  • Discrimination on attributes such as marital status, religion, or gender identity affects not only access to hotel services but also housing, employment, and property ownership.
  • Addressing this requires legislative and social change to ensure equality in private and public spheres.
  • Social norms are often set by the majority, and prioritizing them risks elevating the majority’s values while subjugating those of minority communities.
• Need of Tolerance: The need for tolerance is crucial, as social norms can be rigid. Society should embrace more tolerance, and legal ambiguities must be clarified.

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Conclusion

The tyranny of the majority is often nowhere as evident as in the private sphere. An act may not meet with social approval but the Constitution guarantees our right to do it anyway. The law — regardless of the form it takes — must protect this right.

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