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 reversed a Single Bench judgment that held that establishing a toddy shop in a residential locality would be in derogation of right to privacy.

A Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed that the view taken by the Single Judge is that "anything and everything that affects the peaceful residence of a person would affect its privacy rights". Disagreeing with this view, the Division Bench recorded in its judgment:

"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 considering a batch of appeals filed by toddy shop licensees who were aggrieved with the Single Bench direction that renewal or grant of such licenses in residential areas should be done only after assessing the impact on the right to privacy of the residents.

The Single Bench passed the direction after taking note of the report of the amicus curiae, which stated that toddy shops made the residential life in the vicinity miserable. The amicus reported that drunken people used to make lewd comments at women and girls; brawls used to happen at toddy shops often vitiating the peaceful atmosphere in the locality; also, the toddy shops had a bad influence on the children growing up in the locality.

The Division Bench observed that these factors could amount to public nuisance or breach of public peace; however, it would be an overstretch to state that such instances could violate right to privacy. The Division Bench said that statutory licenses are granted subject to certain conditions and if there are any violations amounting to public nuisance, the authorities have powers to revoke the license or to relocate the shop.

The Division Bench said :

"Nuisance, breach of peace, moral concerns etc. have nothing to do with privacy, though disruption of public order, peace and tranquillity may at times lead to infringement of privacy rights. But, disruption of public order, peace and tranquillity 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 also noted that the writ petitioners had not challenged the statutory provisions which permit the grant of liquor license in residential localities(based on a distance rule) and that the Single Bench passed the directions without coming to any conclusion regarding the unconstitutionality of such rules.

Right to privacy will not extend beyond reasonable expectation

The Division Bench referred to the contours of the right to privacy discussed by the Supreme Court in the landmark KS Puttaswamy judgment.

Based on the precedent, the Bench said that before coming to the conclusion as to whether a privacy claim is actionable, it is obligatory for the Court to consider"

(1) whether the individual, by his conduct, has "exhibited an actual expectation of privacy",

(2) whether the individual has shown that "he seeks to preserve something as private",

(3) whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as "reasonable" and

(4) whether the individual's expectation, viewed objectively, is "justifiable" under the circumstances.

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 decisions 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 this background, the Court noted that when the petitioners had purchased the plot, the toddy shop had already been in existence. In this backdrop, the petitioners cannot be held to have a reasonable expectation of privacy.

"...according to us, the conduct of the petitioner in 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".

Background

A toddy shop was located adjacent to the writ petitioner's residential property. Alleging that the functioning of the toddy shop was causing a nuisance to her and her family, the petitioner preferred a complaint to the Excise Commissioner to change its location. The Commissioner ordered for the relocation of the toddy shop holding that its functioning was causing inconvenience to the petitioner. However, after the respondents sought a revision, the order was altered and they were permitted to continue at the same location until they get a suitable alternative place for relocation.

Aggrieved by this, the petitioner moved the Court. The Single Bench held that the location of a toddy shop in a residential area would be in derogation of the right of the individuals to have respect for their private and family life. Thus, the petition was allowed and this restrained the respondents from operating the toddy shop. 

Challenging the Single Judge decision, the respondents preferred an appeal.

The primary question before the Court was whether the existence of a toddy shop in the proximity of a residential building would be in derogation of the right to privacy of the person residing therein.

The Bench noted that there was no case that the statutory provision which permits the establishment of toddy shops in residential areas is unconstitutional for not satisfying the requirement of "procedure established by law" as contained in Article 21. This implied that the conduct of a toddy shop in a residential area is a permissible activity in terms of a statutory provision.

Therefore, it was found that the Single Judge had erred in holding that the existence of a toddy shop in a residential area would be a derogation of the right to privacy of the people in the locality.

The petitioner had relied on judgments of the European Court of Human Rights (ECtHR)to argue their case. To this, the Division Bench responded: 

"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. "

The Court while justifying its stand also pondered over 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 human 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. One 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 noted that privacy has both positive and negative contents. While the negative content restrains the State from intruding upon a citizen's life and personal liberty, its positive content makes the State obligated to take all necessary measures to protect the privacy of individuals. Insofar as individuals live and work in communities, the right to privacy, like other rights falling under Article 21, is not an absolute right and it is subject to the rights of others to lead orderly lives.

Likewise, it was observed that privacy violations must be real and existing, not imaginary 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. 

Dr. Thushara James was the amicus curiae in the matter.

Senior Advocate T.A. Shaji, Advocates Anwin John Antony, S. Abhilash Vishnu, Athul Shaji, Nikhil Sunny Mooken, appeared for the appellants while Senior Government Pleader T.K. Vipin Das, Senior Advocates K.P. Satheesan and C.C. Thomas, Advocates P. Mohandas, S. Vibheeshanan, K. Sudhinkumar, Nireesh Mathew represented the respondents herein. 

Case Title: S.K. Pavithran & Ors. v. Laisy Santhosh & Ors.

Citation: 2022 LiveLaw (Ker) 12

Click Here To Read/Download The Judgment