OYO’s new policy may be at the cost of rights

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

Payal Kapadia’s award-winning film All We Imagine As Light depicts the journey of a young couple, Anu and Shiaz, struggling to find a private space. They may be fictional, but their problem certainly is not. Across the country, young people in pre-marital relationships have long found it difficult to come by privacy. This issue is likely to be exacerbated by policies such as the one recently implemented by OYO.

Last week, OYO announced that unmarried couples would be disallowed from accessing its partner hotels. The hotels have been given the discretion to implement this policy in accordance with local sensibilities. Going forward, all couples will be required to present ‘valid proof of relationship’ while checking in. Explaining the reason for its move, OYO stated that civil society groups and citizens had requested it to institute this rule.

Initially, the policy will apply only to hotels in Meerut, Uttar Pradesh, but reports suggest that OYO may expand its application to other cities. 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. The burning question, however, is whether those adversely affected by this policy may find legal redress either in the Constitution or otherwise.

In various decisions, the Supreme Court has recognised individuals’ right to enter pre-marital relationships. In Shafin Jahan vs Asokan K.M. (2020), the court held that Article 21 of the Constitution includes the right of individuals to choose their partners ‘whether within or outside marriage’. Similarly, in Navtej Singh Johar vs Union of India (2018), the court recognised the right of all individuals to physical, emotional, mental, and sexual companionship. Other decisions of the apex court have affirmed that the rights to privacy, dignity, and autonomy — emanating from Article 21 — mean that people have the freedom to engage in consensual, intimate, or sexual relationships and to cohabit with their partners if they choose. At their core, these decisions acknowledge the freedom to conduct oneself in a manner of one’s choosing. For many unmarried couples, accessing hotel services is one way to exercise these rights. Individuals in pre-marital relationships apart, persons of different genders who are friends, colleagues, or cousins may also travel together and require OYO’s services.

Under the constitutional scheme, fundamental rights enshrined in Part III of the Constitution are ordinarily enforceable against the State and its instrumentalities, not against non-State actors. In other words, citizens may seek constitutional remedies from courts when the State infringes upon their fundamental rights but not when a private party hinders their exercise. This is because constitutional rights are generally thought to apply “vertically” (i.e., against the State) and not “horizontally” (i.e., between private individuals or entities).

However, the Constitution contains three express provisions which depart from the traditional “vertical” model of rights: Article 15(2) stipulates that no citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be prevented from accessing shops, public restaurants, hotels and places of public entertainment or using wells, tanks, bathing ghats, roads, and places of public resort funded by the State or dedicated to public use; Article 17 forbids the practice of untouchability; and Article 23 prohibits human trafficking and forced labour. In Kaushal Kishor vs State of Uttar Pradesh (2023), the Supreme Court travelled beyond this schema of horizontal rights by holding that the right under Article 21 could be enforced even against private parties.

While Article 15(2) would prevent OYO from denying its services to customers based on caste, religion, or the other grounds listed, it may not readily constitute a bar against discrimination on the ground of marital status. Separately, the effect of the decision in the Kaushal Kishor case remains to be seen — commentators have criticised it for being unclear, and in the absence of coherent and consistent jurisprudence on this subject, it is uncertain whether unmarried individuals can enforce their rights under Article 21 against OYO.

Apart from constitutional rights and remedies, statutes may provide a model for the exercise of fundamental rights in transactions between private parties. While some enactments confer certain rights on women irrespective of marital status, the time may have come for lawmakers to enact an anti-discrimination law which protects individuals (regardless of their gender) against discrimination based on marital status, in the private sphere.

The full and free exercise of our rights as citizens depends not only on State (in) action but on private actors — be it as a member of the public, a family unit, a business undertaking, or a corporation — creating the conditions for their exercise. This applies not only in the context of individuals in pre-marital relationships who may seek commercial services but also more broadly, say, to people who may wish to rent homes, who apply for employment in private establishments, or who make offers to purchase land – but are denied access on the basis of their marital status, caste, religion, sexual orientation, gender identity, or other attributes.

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.

Spoorthi Cotha is an advocate based in Bengaluru

Published - January 16, 2025 02:06 am IST