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Speaker
Dr. Gautam Bhatia is a constitutional lawyer and legal scholarbased in New Delhi, India. He is the author of Offend, Shock, orDisturb: Freedom of Speech under the Indian Constitution (OUP2015) and The Transformative Constitution (HarperCollins, 2019).As a lawyer, he has recently been a part of cases such as theconstitutional challenge to the abrogation of Article 370 of theIndian Constitution and the equal marriage challenge before theIndian Supreme Court. His PhD thesis - which deals, inter alia, withthe intersection of domestic work and constitutional rights, waspublished in 2023 as Horizontal Rights: An Institutional Approach(Hart UK). He is also a science fiction writer and editor.
Abstract
The accompanying chapter is a part of the book, Horizontal Rights: An Institutional Approach (Hart 2023). Thebook develops a conceptual model for the application of constitutional rights “horizontally” (i.e., inter sebetween non-state parties), called the “institutional approach.” The institutional approach argues thatconstitutional rights ought to be applied to a private relationship in cases where (a) there exists an “institution”(social, economic, or cultural), (b) the parties’ relative institutional location creates a difference of power,enabling one party to violate the rights of the other, and (c) the private relationship is embedded within theinstitution.The accompanying chapter tests the application of the conceptual model by considering how it might beutilised in the context of domestic relationships and unpaid spousal labour. Drawing from social reproductiontheory, it argues that the institutional character of the family and of domestic relationships, combined with thegendered character of domestic work, make it a fit case for the application of constitutional rights horizontally.Drawing on examples from New Zealand, Colombia, Kenya, and India, the chapter argues that the institutionalapproach can have actual bite in concrete legal disputes, often taking the form of default rules for equaldivision of marital property upon separation. The chapter thus aims to blend both theory and doctrine, andpropose an analytical approach that is both theoretically persuasive, as well as practically applicable to realworldlegal and constitutional disputes.
The Laws of Social Reproduction project has received funding from the European Union’s Horizon 2020 research and innovation programme (under grant agreement No. 772946).
For more information about the project, please email Prabha.kotiswaran@kcl.ac.uk
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Professor of Law & Social Justice