No Violation of Right to Privacy Just Because Peaceful Residence is Affected: Kerala HC on Toddy Shops in Residential Areas

Team SoOLEGAL 10 Jan 2022 2:30pm

No Violation of Right to Privacy Just Because Peaceful Residence is Affected: Kerala HC on Toddy Shops in Residential Areas

The Kerala High Court recently overturned a Single Bench decision that stated that opening a toddy shop in a residential area would be a violation of the Right to Privacy.

A division bench comprised of Justices P.B. Suresh kumar and Justices C.S. Sudha stated that the single Judge’s position is that “everything and everything that disrupts a person’s tranquil abode will harm its private rights.” Disagreeing with this point of view, the division bench stated in its decision:
“We are unable to agree. If privacy rights enforceable under the Constitution are expanded to this level, we are afraid that there would be utter chaos as regards the rights of others including the right to livelihood, for in the social set up of our country, there are umpteen avocations and activities which people may pursue for their livelihood near the place of residence of others and a very wide definition of privacy rights protected under the Constitution as made by the learned Single Judge would give rise to conflicts as to the permissible and non – permissible activities near a residential house.”

The division bench was reviewing a batch of appeals filed by toddy shop licensees who were dissatisfied with the Single Bench’s directive that such licenses in residential areas be renewed or granted only after analyzing the impact on residents’ right to privacy. The Single bench issued the directive after considering the amicus curiae’s report, which noted that toddy stores made residential life in the area unpleasant. The amicus stated that inebriated individuals used to make vulgar comments to ladies and girls; brawls frequently occurred at toddy shops, vitiating the quiet ambiance in the neighbourhood; and the toddy shops had a negative effect on the youngsters growing up in the neighborhood.

The division bench noted that these conditions might constitute public annoyance or a violation of public peace; yet, it would be an overstatement to say that such cases could infringe the right to private. According to the division bench, statutory licenses are provided subject to specified requirements, and if any infractions amount to public nuisance, the authorities have the authority to cancel the license or move the store.

According to the division bench:
“Nuisance, breach of preach, moral concerns etc. have nothing to do with privacy, though disruption of public order, peace and tranquility may at times lead to infringement of privacy rights. But, disruption of public order, peace and tranquility cannot be understood as synonymous to breach of privacy rights. According to us, the general concerns expressed by the amicus curiae in the writ petitions are all taken care of in the Rules inasmuch as the Rules empowers the authorities concerned to relocate a toddy shop in the interest of public peace or morality or on grounds of expediency. When the Rules take care of the concerns aforesaid, it was unnecessary for the learned single judge to address the issue of violation of privacy rights that may arise in the event of the breach of the Rules, for the basic issue concerns only nuisance or breach of public peace or morality.”

The Court further observed that writ petitioners had not challenged the legislative requirements that allow the awarding of liquor licenses in residential areas (based on a distance rule), and that the single bench issued the instructions without reaching a decision on the validity of such regulations.

Right to privacy will not extend beyond reasonable expectation
The division bench alluded to the contours of the right to privacy as articulated by the Supreme Court in the seminal KS Puttuswamy decision.

According to the precedent, the bench stated that “before determining whether a privacy claim is actionable, the court must assess.”

1.     If the individual has “exhibited a real expectation of privacy” by his actions.

2.     Whether the individual has demonstrated that “he tries to keep anything as private as possible.”

3.     If the individual’s subjective expectation of privacy is “one that society is willing to regard as ‘reasonable’ and ‘justifiable’.”

4.     Whether the individual’s expectation is ‘justifiable’ under the circumstances, as judged objectively.

The bench went on to hold:
“The right to privacy will not extend beyond that reasonable expectation and even that right is to be exercised subject to the rights of others to lead orderly lives. In other words, the right to privacy of an individual is not dependent on the avocation and activities of others around him and it is only when an individual is not able to make choices or take decision concerning matters intimate and personal to him as a human being for manifestation of his dignity, it could be said that the right to privacy of that person is infringed.”

In light of this, the court noted that when the petitioners acquired the site the toddy store was already in operation. In light of this, the petitioners do not have a legitimate expectation of privacy.

“…according to us, the conduct of the petitioner is purchasing a land lying adjacent to a toddy shop for construction of a residential building, the conduct of the petitioner in taking an informed decision after a considerable time to construct a building therein for her residence, the conduct of the petitioner in residing in that building a few years thereafter while the toddy shop was being run uninterruptedly in the adjacent land do not lead to an inference that the petitioner, by her conduct, has exhibited an actual expectation of the alleged privacy and sought to preserve the same. Even if it is assumed that the petitioner has exhibited an actual expectation of the alleged privacy, we do not think that on the facts of this case, the society would recognize the expectation of privacy in a case of this nature as reasonable and justifiable under the circumstances. In other words, a case of privacy protected under Article 21 of the constitution is not made out in the writ petitions.”

A toddy business was just next to writ petitioner’s house. The petitioner made a complaint to the Excise Commissioner to relocate the site of the toddy business, alleging that its operation was creating a nuisance to her and her family. The commissioner ordered that the toddy store be relocated because its operation was causing the petitioner discomfort. However, after the responders requested a modification, the order was changed and they were allowed to remain in the same area until they found a suitable alternative site for relocation.

The petitioner was enraged by this and filed a petition with the court. The single bench ruled that locating a toddy store in a residential area would violate an individual’s right to privacy and respect for their family life. As a result, the petition was granted, and the respondents were barred from running the toddy business. Respondents chose an appeal in order to challenge the decision of the Single Judge.

The fundamental issue before the court was whether the presence of a toddy business near a residential building infringed on the right to privacy of the individual dwelling within.

The bench found that there was no argument that the statutory provision allowing the construction of toddy shops in residential area was unconstitutional because it did not meet the criteria of “process established by law” as stated in Article 21. This meant that operating a toddy store in a residential area is a legal business under a law provision.

As a result, it was determined that the single judge erred in concluding that the presence of a toddy store in a residential area would constitute a violation of the residents’ right to privacy. To argue their argument, the petitioner relied on European Court of Human Rights (ECtHR) rulings. The division bench answered as follows:
“Right to privacy to be preserved and protected in one country may not be the right to privacy to be preserved and protected in another country. In the said view of the matter, according to us, the judgments of the ECtHR cannot have any relevance in the context of deciding the scope of privacy of an individual in the context of the Indian Society.”

While justifying its position, the court pondered the scope of the right to privacy as a fundamental right:
“Privacy is the constitutional core of human dignity. It postulates a private space for an individual to make choices and to take decisions concerning matters intimate and personal to hum life…The right to privacy has multiple facets and it varies from person to person, dependent on their approach to society and concern for privacy. Once should however have a reasonable expectation of the privacy and its extent is based, not on the subjective expectation of the individual, but on an objective principle which defines a reasonable expectation having regard to the rights of others to lead orderly lives.”

The division bench also said that privacy contains both beneficial and harmful aspects. While the negative element prevents the State from invading a citizen’s life and personal liberty, the positive content obligates the State to take all necessary efforts to preserve people’s privacy. Insofar as people live and work in communities, the right to privacy, like other Article 21 rights, is not absolute and is subject to the rights of others to live orderly lives.

Similarly, it was discovered that privacy intrusions must be genuine and present, rather than fictitious or anticipated:
“A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable.”

As such, the decision of the Single Judge was set aside and the appeal was allowed.

Tagged: Kerala HC   Right to Privacy   Single Bench decision   Justice P.B. Suresh kumar   Justice C.S. Sudha  
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