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 expectationThe 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...

No Violation Of Right To Privacy Just Because Peaceful Residence Is Affected : Kerala HC On Toddy Shops In Residential Areas

Hannah M Varghese

"...disruption of public order, peace and tranquillity cannot be understood as synonymous to breach of privacy rights"

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