The Kerala High Court has observed that no toddy shop shall be located in a residential area infringing the right of privacy of the individual to have respect for his private and family life, his own and his correspondence.
Justice A. Muhamed Mustaque directed the state not to grant or renew licence to toddy shops in a residential area without assessing privacy rights impact.
The Court was considering a batch of writ petitions against setting up of toddy shops in residential areas. In a petition filed by a woman, Vilasini, who complained of nuisances in her residential area due to a toddy shop near her residence, the Court considered the issue of privacy rights. In her petition, she had submitted that the toddy shop is set up in a residential area, where women and children are always on the move and that the presence of drunkards around almost all the time of the day is creating a circumstance, whereby, the right to peaceful living of the people in the locality is adversely affected. She had further stated that drunken men use abusive words against women and children who pass by the toddy shop, which is near a bus stop.
The court, while appointing Advocates RT Pradeep and Ashok Kini as Amicus Curiae observed that many petitions are being filed by persons aggrieved by functioning of a toddy shop in their neighbourhood and there are petitions on the ground that toddy shops are set up without adhering to prescribed distance rules. The underlying concern in all these petitions was protection of their privacy, the court had said.
Thereafter, the Amicus Curiae filed the reports. Advocate RT Pradeep, in his report emphasized on the steps that should be taken by the state to over come the privacy right infringement. Advocate Kini, in his report, stated that allowing toddy shops near residential areas affect people's right to live in peace and thereby infringe their fundamental right to privacy. The matter was heard finally on December 10th, last year.
Privacy impact assessment must be made by the state before grant or renewal of licence
In its judgment delivered today, the court, referred to the reports of Amicus Curiae in extenso and observed that the State cannot ignore the aspects related to privacy rights of persons who are living in neighbourhood of a toddy shop and is bound to take positive steps to prevent infringement of rights of citizens on account of granting licence to toddy shops. The court said that, in a all circumstances, the privacy impact assessment must be made by the state before grant or renewal of licence. The failure to carryout this positive obligation on the part of the state would result in breach of constitutional duty, it said.
Referring to Kerala Abkari shops disposal Rules, the Court said that the Excise Commissioner shall have the power to entertain complaint alleging infringement of privacy rights. Threshold severity test assessment has to be followed for assessing the breach of privacy right.
The Court also laid down the following test of assessment on the impact of privacy rights.
No toddy shop shall be located in a residential area infringing the right of privacy of the individual to have respect for his private and family life, his home and his correspondence as referred in Article 8 of European Convention on Human Rights. Threshold severity test assessment has to be followed for assessing the breach of privacy right. Threshold severity test refers to the minimum level of severity of the action complained. This has to be referred to the proximity of the toddy shops with a residential building or buildings, and by adverting to such other factors which would deny the individual the right to live with dignity in the residential building. The assessment must also refer to the denial of amenities like, noise, emissions, odours and any other forms of interference for the quite enjoyment of one's home that he would be entitled to, on account of such location of toddy shops. The assessment test also implies a negative test to assess the surroundings. This test postulates an outcome in the absence of location of toddy shop in a residential area, what could have been the amenities one would be able to enjoy. If this negative test brings an affirmative result, then it has to be assumed that the action would affect the privacy right of the individual on locating toddy shop in the neighbourhood. An affirmative result must indicate that the individual is able to lead a normal life with the amenities that would be otherwise available to him. If the answer is negative, it has to be assumed that no privacy right is affected. The test need not be based on any empirical data of a particular area. Even if one individual is affected, that would be sufficient to hold a breach of privacy right. However, that test must be on indicators that would subserve group interest or collective interest of the social structure.
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