Kerala High Court
S.K.Pavithran vs Laisy Santhosh on 3 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
WA NO. 389 OF 2020
AGAINST THE JUDGMENT DATED 14.04.2020 IN WP(C) 29704/2015
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 4,5 & 6:
1 S.K.PAVITHRAN
AGED 52 YEARS, PRAVEENA COTTAGE, KUDAVECHOOR
KARA, VAIKOM, KOTTAYAM-686141.
2 K.P.SHAJI,
KOLLERIL VEEDU, UDAYANAPURAM P.O., VAIKOM,
KOTTAYAM-686143.
3 K.G.RAJU,
KARUKELELIL VEEDU, PADINJAREKARA P.O., VAIKOM,
KOTTAYAM-686146.
BY ADVS.
T.A.SHAJI (SR.)
S.ABHILASH VISHNU
ATHUL SHAJI
NIKHIL SUNNY MOOKEN
ANWIN JOHN ANTONY
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & ADDITIONAL
RESPONDENT NO.7:
1 LAISY SANTHOSH
VRINDAVANAM, IRUMPOOZHIKKARA, UDAYANAPURAM P.O.,
VAIKOM, KOTTAYAM-686143.
2 THE EXCISE COMMISSIONER,
EXCISE COMMISSIONERATE, NANDAVANAM,
THIRUVANANTHAPURAM-695033.
W.A. Nos.389 & 391 of 2020 2
3 THE DEPUTY EXCISE COMMISSIONER,
EXCISE DIVISION OFFICE, KOTTAYAM-686001.
4 THE EXCISE CIRCLE INSPECTOR,
VAIKOM, KOTTAYAM-686141.
5 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY WELFARE (FW)
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN-695001.
ADDL.R6 KALLU SHAP LICENSEES ASSOCIATION
REG.NO.EKM/TC/354/2016
MUNJAPPILLY BUILDINGS, PROVIDENCE ROAD,
KOCHI - 682018, REPRESENTED BY ITS SECRETARY
AJITH BABU V.K, AGED 56 YEARS, S/O.KOOPAN,
SECRETARY RESIDING AT ACHOOS, MOWANCHERY P.O,
KANNUR DISTRICT
IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED
03.01.2022 IN I.A.NO.1 OF 2021 IN
W.A.NO.389/2020
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
NIREESH MATHEW
C.C.THOMAS (SR.)
SR.GP.T.K.VIPIN DAS
DR.THUSHARA JAMES (AMICUS CURIAE)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. Nos.389 & 391 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
WA NO. 391 OF 2020
AGAINST THE JUDGMENT DATED 14.04.2020 IN WP(C) 2213/2018
OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS IN THE WPC:
1 K.P.SHAJI,
AGED 52 YEARS, KOLLERI VEEDU, UDAYANAPURAM P.O.,
VAIKOM, KOTTAYAM-686143.
2 K.G. RAJU,
KARUKELELIL VEEDU, PADINJAREKARA P.O., VAIKOM,
KOTTAYAM-686146.
3 S.K. PAVITHRAN,
PRAVEENA COTTAGE, KUDAVECHOOR KARA, VAIKOM,
KOTTAYAM-686141.
BY ADVS.
T.A.SHAJI (SR.)
ATHUL SHAJI
S.ABHILASH VISHNU
NIKHIL SUNNY MOOKEN
ANWIN JOHN ANTONY
RESPONDENTS/RESPONDENTS 1-5 IN THE WPC:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
TAXES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
W.A. Nos.389 & 391 of 2020 4
2 THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE, NANDAVANAM, VIKAS
BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695033.
3 THE DEPUTY EXCISE COMMISSIONER,
EXCISE DIVISION OFFICE, CIVIL STATION, KOTTAYAM,
PIN-686001.
4 THE EXCISE CIRCLE INSPECTOR,
EXCISE CIRCLE OFFICE, VAIKOM, KOTTAYAM DISTRICT,
PIN-686141.
5 LAISY SANTHOSH,
VRINDAVANAM, IRUMPOOZHIKKARA, UDAYANAPURAM P.O.,
VAIKOM, KOTTAYAM, PIN-686143.
ADDL.R6 KALLU SHAP LICENSEES ASSOCIATION
REG.NO.EKM/TC/354/2016
MUNJAPPILLY BUILDINGS, PROVIDENCE ROAD,
KOCHI - 682018, REPRESENTED BY ITS SECRETARY
AJITH BABU V.K, AGED 56 YEARS, S/O.KOOPAN,
SECRETARY RESIDING AT ACHOOS, MOWANCHERY P.O,
KANNUR DISTRICT
IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED
03.01.2022 IN I.A.NO.1 OF 2021 IN
W.A.NO.391/2020
BY ADVS.
DR.K.P.SATHEESAN (SR.)
M.G.KARTHIKEYAN
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
NIREESH MATHEW
C.C.THOMAS (SR.)
SR.GP.T.K.VIPIN DAS
DR.THUSHARA JAMES (AMICUS CURIAE)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
03.01.2022, ALONG WITH WA.389/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A. Nos.389 & 391 of 2020 5
C.R.
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Writ Appeal Nos.389 & 391 of 2020
-----------------------------------------------
Dated this the 3rd day of January, 2022.
JUDGMENT
P.B.Suresh Kumar, J.
These appeals are directed against the common
judgment dated 14.02.2020 in W.P.(C) Nos.29704 of 2015 and
2213 of 2018. The appellants in the appeals are respondents 4
to 6 in W.P.(C) No.29704 of 2015 and petitioners in W.P.(C)
No.2213 of 2018. Parties and documents are referred to in this
judgment for convenience, as they appear in W.P.(C) No.29704
of 2015.
2. The petitioner is a person residing at Vaikom in
a residential property owned by her. A toddy shop under the
Vaikom Excise Range is located in the property adjacent to the
residential property of the petitioner. Respondents 4 to 6 are
the licencees of the said toddy shop. According to the
petitioner, since the functioning of the toddy shop has been
causing nuisance to her and family, she preferred a complaint
to the first respondent, the Excise Commissioner, seeking
orders to change its location. Though it was found that the
toddy shop has been functioning in the same location and
premises right from 1994-95 in accordance with the Rules
framed under the Abkari Act and that the petitioner is a person
who started residing in the adjacent property after the
establishment of the toddy shop, the first respondent, as per
Ext.P7 order, directed respondents 4 to 6 to relocate the toddy
shop, invoking Rule 7(3) of the Kerala Abkari Shops Disposal
Rules, 2002 (the Rules), holding that its functioning is causing
inconvenience to the petitioner. Respondents 4 to 6 challenged
Ext.P7 order in revision before the Government mainly on the
ground that a suitable alternative place is not available in the
locality within the permissible limits and in terms of Ext.P12
order, the Government modified Ext.P7 order permitting
respondents 4 to 6 to continue the toddy shop at the same
location and premises until they get a suitable alternative place
for relocation. W.P.(C) No.29704 of 2015 was one filed
challenging Ext.P12 order to the extent it permits respondents 4
to 6 to continue the toddy shop at its present location and
premises until they get a suitable alternative place for
relocating the same, and W.P.(C) No.2213 of 2018 was filed by
respondents 4 to 6 challenging Exts.P7 and P12 orders.
3. The writ petitions were heard along with a few
other similar writ petitions challenging the location of toddy
shops referred to therein. The learned Single Judge took the
view that the underlying concern in all the writ petitions is the
infringement of right to privacy of the petitioners and held that
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. The learned Single Judge thereafter
laid down the criteria for deciding the question as to whether
location of a particular shop would infringe the privacy rights of
individual/individuals who were raising objections/complaints
against its location and then decided the writ petitions applying
the said criteria, having regard to the facts involved.
4. As far as the writ petitions from which these
appeals arise, having found that the toddy shop is located in
the property adjacent to the residential property of the
petitioner and having taken note of the fact that the first
respondent himself has found in Ext.P7 order that the
functioning of the toddy shop is causing inconvenience to the
petitioner, the learned Single Judge held that the location of the
toddy shop is infringing the privacy rights of the petitioner. One
of the contentions raised by respondents 4 to 6 in the writ
petition was that the residential property of the petitioner was
one acquired by her while the toddy shop was being run in the
adjacent property and she is therefore estopped from raising
any objection against the location of the toddy shop. As regards
the said contention, the learned Single Judge held, placing
reliance on the decision of the Apex Court in Olga Tellis and
others v. Bombay Municipal Corporation and others, AIR
1986 SC 180, that the right to privacy of the petitioner being a
fundamental right, the same can be subjected only to
constitutional limitations and a claim for enforcement cannot be
defended based on a plea of estoppel. In the light of the said
findings, the learned Single Judge allowed W.P.(C) No.29704 of
2015 restraining respondents 4 to 6 from operating the toddy
shop and dismissed W.P.(C) No.2213 of 2018. Respondents 4
to 6 are aggrieved by the said decisions in the writ petitions
and hence, these appeals.
5. Heard Sri.Anwin John Antony, the learned
counsel for respondents 4 to 6, Dr.(Adv.)K.P.Satheesan, the
learned Senior Counsel for the petitioner and Dr.(Adv.)Thushara
James, the learned amicus curiae appointed in the matter.
6. The learned counsel for respondents 4 to 6
contended that the trade carried on by respondents 4 to 6, that
too with the licence of the competent authority under the Rules
framed under the Abkari Act being a lawful activity, it cannot be
said that the same would infringe the right to privacy of any
one, especially when they have a constitutional right to carry on
the said activity in the light of the licence obtained by them. It
was also submitted by the learned counsel that the nuisance
which the petitioner is complaining of, is the nuisance allegedly
caused by the general public and there must not therefore, be
any action against the licensees on account of the alleged
nuisance. It was also argued by the learned counsel that
insofar as respondents 4 to 6 have been running the toddy shop
in the same location and premises throughout the time when
the petitioner has purchased the adjacent land, constructed her
residential building therein and started residing therein, she is
estopped from raising any objection against the lawful conduct
of the toddy shop.
7. Per contra, the learned Senior Counsel for the
petitioner supported the impugned judgment pointing out that
during 1994-95 when the toddy shop was established in the
present location and premises, there was hardly anyone
residing in its vicinity, but in course of time, the location has
become a thickly populated residential area and it is in the
aforesaid background that complaints happened to be lodged
against the location of the toddy shop. It was also pointed out
by the learned counsel that the petitioner was constrained to
approach this Court since the competent authorities after
having found that the toddy shop is liable to be relocated, did
not prescribe a time limit for the same. It was submitted by the
learned counsel that the functioning of a toddy shop in a thickly
populated residential area would certainly infringe the right to
privacy of the persons residing in its vicinity which is a
fundamental right falling within the facet of Article 21 of the
Constitution. To bring home the point that the functioning of
the toddy shop would infringe the right to privacy of the
petitioner and others, the learned counsel relied on the decision
of the Larger Bench of the Apex Court in K.S.Puttaswamy and
another v. Union of India and others, (2017) 10 SCC 1. The
learned counsel has read over to the Court paragraphs 126,
264, 272, 297 to 299, 316, 344, 350, 499, 536, 604, 605 and
650 in the said judgment to reinforce the said contention. For
the said purpose, the learned counsel also relied on the order
dated 27.10.2021 passed by the Apex Court in W.P.(Crl.) No.314
of 2021. Placing reliance on the decisions of the Apex Court in
Khoday Distilleries Ltd. and others v. State of Karnataka
and others, (1995) 1 SCC 574 and Nashirwar and others v.
State of Madhya Pradesh and others, (1975) 1 SCC 29, the
learned counsel for the petitioner submitted that the
fundamental right guaranteed under Article 19(1)(g) of the
Constitution does not extend to trade in liquor which is res
extra commercium, and restrictions which are not permissible
with other trades can certainly be imposed on trade in liquor. It
was also submitted by the learned counsel placing reliance on
the decision of the Apex Court in Krishnan Kakkanth v.
Government of Kerala and others, (1997) 9 SCC 495 that
reasonableness of a restriction is to be determined in an
objective manner, and from the standpoint of the interests of
the general public and not from the standpoint of the interests
of the persons upon whom restrictions are imposed. It was
asserted by the learned counsel for the petitioner that the trade
in liquor being res extra commercium, respondents 4 to 6 do
not have any fundamental right to carry on their activity and
the statutory right of respondents 4 to 6 to carry on trade in
liquor has to give way to the fundamental right to privacy
available to the petitioner. It was also submitted by the learned
counsel, placing reliance on the decision of the Apex Court in
Sharda v. Dharmpal, (2003) 4 SCC 493 that even assuming
that respondents 4 to 6 have a fundamental right under Article
19(1)(g) of the Constitution on the strength of the licence
obtained by them, the right to privacy of the petitioner being
part of the right to life guaranteed to the petitioner under
Article 21, the same would prevail over the rights of
respondents 4 to 6, for the fundamental right of the petitioner
advances public morality and public interest. It was also
argued by the learned counsel that even assuming that the
right to privacy of the petitioner and others is not infringed on
account of the functioning of the toddy shop, insofar as it is
found by the competent authority in Ext.P7 order that the shop
is one liable to be relocated under Rule 7(3) of the Rules and
insofar as the said decision of the competent authority has not
been interfered with in revision by the Government, the
decision of the Government in permitting respondents 4 to 6 to
run the toddy shop until they find an alternative location and
premises is arbitrary. In reply to the argument advanced by the
learned counsel for respondents 4 to 6 that the petitioner is
estopped from raising objections against the conduct of the
toddy shop, the learned counsel submitted that there cannot be
any estoppel or waiver of fundamental rights guaranteed to the
citizens. The learned counsel placed reliance on the decision of
the Apex Court in Olga Tellis in support of the said proposition.
8. Though the learned Senior Government Pleader
supported Ext.P7 order of the Excise Commissioner and Ext.P12
order of the Government modifying Ext.P7 order, it was argued
that the Government has strong reservations against the
finding rendered by the learned Single Judge that location of a
toddy shop in a residential area would be in derogation of the
right of individuals to respect their private and family life. The
learned Government Pleader also argued that the trade of
respondents 4 to 6 being a lawful activity undertaken on the
strength of the licence issued under a regulatory statute, in the
absence of a challenge to the statutory provision in terms of
which the licence is issued, one cannot be heard to contend
that the activity infringes any of the fundamental rights
guaranteed to the petitioner. It was also argued by the learned
Government Pleader, that insofar as the learned Judge has also
rejected the contention of the licensees that the petitioner who
took a conscious decision to reside in the vicinity of the toddy
shop is not entitled to raise objections against the functioning of
the toddy shop, if the proposition that the functioning of a
toddy shop in the vicinity of a residential house would be in
derogation of the right to privacy of the inhabitant therein is
upheld, the position would be that no toddy shop could function
in the State for there is hardly any area in the State where there
is no residential house and even if any such area exists, there is
no assurance that no one would reside in its vicinity.
9. On a query from the court as to why the
Government has not preferred an appeal against the impugned
judgment if the Government was aggrieved by the same, the
learned Government Pleader submitted that steps are being
taken by the Government to challenge the impugned judgment
in appeal.
10. The learned amicus curiae, after a scholarly
research, made elaborate submissions on the various concepts
namely, "res extra commercium", "right to privacy",
"reasonable expectation of privacy", "waiver", "horizontal
application of fundamental rights" etc. referred to and relied on,
in the impugned judgment by the learned Single Judge to arrive
at the conclusion that the location of a toddy shop in a
residential area would be in derogation of the privacy rights of
inhabitants of the locality. She has also elaborately referred to
the various foreign judgments relied on by the learned single
Judge in the impugned judgment.
11. As regards the concept of right to privacy, the
learned amicus curiae has referred to the various stages of the
development of the right to privacy, right from the period of
Aristotle. She has referred to the 1890 essay by Samuel
Warren and Louis Brandeis titled "Right to Privacy" and
the 1960 essay of William Prosser titled "Privacy". She has
also made submissions as to the development of the right to
privacy through US Courts by referring, among others to
Griswold v. State of Connecticut, 381 U.S. 479 (1965) and
Roe v. Wade, 410 U.S. 113 (1973). She has also made
submissions as to the development of the right to privacy
through the European Courts by referring, among others, to
Bernstein of Leigh v. Skyviews & General Ltd., [1978] QB
479 and Halford v. United Kingdom, (1997) 24 EHRR 523).
She has also referred to the various international covenants
dealing with "individual privacy" such as the Universal
Declaration of Human Rights, 1948, the International Covenant
on Civil and Political Rights, 1966 and the Convention for the
Protection of Human Rights and Fundamental Freedoms, 1953
(ECHR) which highlight the importance of privacy and explains
it as a "protection from interference". She has also referred to
the various judgments of the Apex Court, wherein the concept
of right to privacy was dealt with, including the judgment in
M.P.Sharma v. Satish Chandra (AIR 1954 SC 300), the
dissenting opinion in Kharak Singh v. State of Uttar
Pradesh (AIR 1963 SC 1295) and the judgment in
R.Rajagopal and another v. State of T.N. and others,
(1994) 6 SCC 632. The learned amicus curiae has also dealt
with elaborately the decision of the Apex Court in
K.S.Puttaswamy overruling M.P.Sharma and Kharak Singh
holding that the right to privacy is a fundamental right under
Article 21 of the Constitution. Specific reference was made by
the learned amicus curiae to paragraphs 292, 399 to 405, 423,
424, 426 and 560 of the judgment of the Apex Court in the said
case. The essence of the submissions made by the learned
amicus curiae as regards the concept of right to privacy was
that though right to privacy is a facet of Article 21, despite not
being an enumerated or enlisted right, it permeates every other
right and it is a mutable concept, being a relational right.
According to the learned amicus curiae, the cultural ethos,
morality, public perceptions, laws, customs, attitudes,
technological developments, family values and almost any and
every aspect of life and law can affect what privacy holds at a
relevant point in time. It was submitted by the learned amicus
curiae that the test to be applied to determine as to whether
one holds an enforceable right of privacy is to ascertain
whether the right bearer's privacy is interfered with. It was
argued by the learned amicus curiae that while applying the
test aforesaid, regard must also be given to the bundle of
rights, if any, already crystallised in others. It was pointed out
that if crystallised rights exist in favour of others, by way of a
procedure established by the State, such rights cannot be
displaced, in the name of privacy. In such a context, the person
who claims privacy, is subjected to the reasonable restrictions
through which State has already crystallised rights of others,
submitted the amicus curiae. In short, the submission made by
the amicus curiae was that a right bearer cannot unsettle
established rights, much less hold a reasonable expectation of
asserting his right over and above the rights of others. The
learned amicus curiae concluded her argument pointing out
that privacy is the state of being with oneself and one's
possessions to the exclusion of others, the constitutional status
accorded to it by raising it to the level of fundamental rights is
not for its casual invocation, but for its responsible
enforcement. It was also pointed by the learned amicus curiae
that in a world where Google compulsorily reminds us of what
we crave to forget, privacy may be hard to achieve. But legal
systems across the world, align to protect this right, for it is the
core, the compass and the cradle for any human development.
According to her, the vigour and vitality of this constitutional
right, that permeates every other right, should not be misused,
else it will destroy the very fulcrum of the Constitution.
12. As regards the concept of reasonable
expectation of privacy, it was pointed out by the learned
amicus curiae that the concept was first conceived in the US in
Katz v. United states, 389 U.S.347 (1967) and a two-prong
test was laid down in the said case to ascertain whether the
right bearer has a "reasonable expectation of privacy", namely,
the person must show a "subjective" expectation that his
activities would be private and that the person must also show
that his subjective expectation of privacy is one which society
considers "reasonable". It was pointed out by the learned
amicus curiae that the question whether a reasonable
expectation of privacy exists is a matter determined on a case
by case basis, and is fact-specific.
13. The learned amicus curiae has also submitted
that the various foreign judgments relied on by the learned
Judge in the impugned judgment cannot have any relevance in
the context of the right to privacy found in favour of the
petitioner. It was pointed out by the learned amicus curiae that
those are judgments dealing with Article 8 of the ECHR which
recognises reasonable restrictions. According to the learned
amicus curiae, it was highly inappropriate to make a
comparison between Article 8 of ECHR and Article 21 of the
Indian Constitution, for Article 21 as interpreted by Courts
carries within it, a wider right to privacy when compared to the
right to privacy guaranteed by Article 8 of ECHR for private and
family life, home and correspondence. It was also argued by the
learned amicus curiae that the concepts like public morality and
social morality have nothing to do with the concept of privacy
and the learned Judge ought not have introduced those
concepts into the concept of privacy. The learned amicus curiae
has also submitted that the Constitution does not grant the
power of impact assessment to Courts under Article 226 and
the impact assessment of the privacy rights made by the
learned Single Judge was highly inappropriate. The learned
amicus curiae has also submitted that privacy is to be
distinguished from expressions like public order, peace and
tranquillity. It was pointed out that due to disruption of public
order, peace and tranquillity, if a person grieves over violation
of his privacy, then the State assumes a different role, and must
step in to protect the right to privacy as the guarantor of
fundamental rights. But, according to the learned amicus
curiae, cases of this nature must be viewed as cases involving
public order, peace and tranquility, calling for State's powers
and duty to establish law and order, and not as cases involving
right to privacy.
14. It is seen that although the learned Single
Judge referred to the concept of res extra commercium to find
that the licensees of the toddy shop are enjoying only a
privilege to vend toddy and the State is accountable and
responsible to the people as to the conduct of toddy shops, the
learned Judge did not rest the judgment on the said principle.
Instead, the judgment is rested on the finding that the location
of a toddy shop in a residential area would be in derogation of
the right of the inhabitants in that area to have respect for their
private and family life, namely, their right to privacy. In order to
arrive at the said finding, the learned Judge referred to the
observations made by this Court and Bombay High Court in a
few earlier judgments that the rules in place need to be
amended to ensure that toddy shops are not allowed in busy
residential areas; that liquor shops shall not cause any
inconvenience or threat to public peace to the residents in the
locality; that the Government ought to respect the wishes and
fundamental rights of the people while granting liquor licence
etc. The learned Judge has also referred to for the said purpose
a few passages from the recent judgment of the Apex court in
K.S.Puttaswamy. The learned Judge thereafter referred to a
few judgments of the European Court of Human Rights dealing
with the interpretation of Article 8 of the ECHR providing that
everyone has the right to respect for their private and family
life. The learned Judge then proceeded to hold that Article 8 of
the ECHR shall be read into Article 21 of our Constitution to
amplify the right to life in a sense to protect the privacy. It is on
a cumulative reference to the aforesaid materials that the
learned Judge came to the conclusion that establishment of
toddy shops in a residential area would be in derogation of the
rights of the inhabitants therein to have respect for their private
and family life. It is relevant to note that the petitioner in the
writ petition had no case that her right to privacy is affected in
any manner on account of functioning of the toddy shop.
Instead, the case set out by the petitioner was only that the
toddy shop is one to be relocated within a time frame in terms
of Rules 7(3) of the Rules. The first and foremost question to be
adjudicated therefore is as to 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.
15. In order to adjudicate the question aforesaid, it
is necessary to understand the scope of the right to privacy of
an individual. The materials relied on by the Apex Court in
K.S.Puttaswamy reveal that the concept of privacy originated
from the distinction made by the Greek philosopher Aristotle
between the public sphere of political affairs and the personal
sphere of human life. A "right to be let alone" was however
developed as part of the right to life much later by Samuel D.
Warren and Louis D. Brandeis in their article "the Right to
Privacy" published in the year 1890. According to the said
authors, solitude and privacy are necessary and essential for an
individual to lead his life in communities. It is about seventy
years thereafter, that William L. Prosser in his essay
published in the year 1960 titled "Privacy" attempted to define
the right to privacy, among others, as a protection from
intrusion upon a person's seclusion or solitude or private affairs.
Right to privacy of an individual is considered as a natural and
inseparable right, which inheres in every human being to
protect the innate dignity and autonomy of man. In
K.S.Puttaswamy, privacy was held to be not only as an
intrinsic element of right to life and personal liberty under
Article 21 of the Constitution but also as a constitutional value
which is embodied in the fundamental freedoms embedded in
Part III of the Constitution.
16. The question as to what privacy postulates has
been attempted to be answered by the Apex Court in
K.S.Puttaswamy. Paragraphs 297 to 299, 322, 323, 325 and
326 of the judgment in the said case rendered by Dr.D.Y.
Chandrachud, J. dealing with the essential nature of the right to
privacy read thus:
"Essential nature of privacy
297. What, then, does privacy postulate?. Privacy postulates
the reservation of a private space for the individual, described
as the right to be let alone. The concept is founded on the
autonomy of the individual. The ability of an individual to make
choices lies at the core of the human personality. The notion of
privacy enables the individual to assert and control the human
element which is inseparable from the personality of the
individual. The inviolable nature of the human personality is
manifested in the ability to make decisions on matters intimate
to human life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns over
which there is a legitimate expectation of privacy. The body and
the mind are inseparable elements of the human personality.
The integrity of the body and the sanctity of the mind can exist
on the foundation that each individual possesses an inalienable
ability and right to preserve a private space in which the human
personality can develop. Without the ability to make choices,
the inviolability of the personality would be in doubt.
Recognising a zone of privacy is but an acknowledgment that
each individual must be entitled to chart and pursue the course
of development of personality. Hence privacy is a postulate of
human dignity itself. Thoughts and behavioural patterns which
are intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of privacy,
an individual is not judged by others. Privacy enables each
individual to take crucial decisions which find expression in the
human personality. It enables individuals to preserve their
beliefs, thoughts, expressions, ideas, ideologies, preferences
and choices against societal demands of homogeneity. Privacy is
an intrinsic recognition of heterogeneity, of the right of the
individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects the
individual from the searching glare of publicity in matters which
are personal to his or her life. Privacy attaches to the person
and not to the place where it is associated. Privacy constitutes
the foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised. Individual
dignity and privacy are inextricably linked in a pattern woven
out of a thread of diversity into the fabric of a plural culture.
298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an
intrinsic value, human dignity is an entitlement or a
constitutionally protected interest in itself. In its instrumental
facet, dignity and freedom are inseparably intertwined, each
being a facilitative tool to achieve the other. The ability of the
individual to protect a zone of privacy enables the realisation of
the full value of life and liberty. Liberty has a broader meaning
of which privacy is a subset. All liberties may not be exercised in
privacy. Yet others can be fulfilled only within a private space.
Privacy enables the individual to retain the autonomy of the
body and mind. The autonomy of the individual is the ability to
make decisions on vital matters of concern to life. Privacy has
not been couched as an independent fundamental right. But
that does not detract from the constitutional protection afforded
to it, once the true nature of privacy and its relationship with
those fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee against
arbitrary State action. It prevents the State from discriminating
between individuals. The destruction by the State of a sanctified
personal space whether of the body or of the mind is violative
of the guarantee against arbitrary State action. Privacy of the
body entitles an individual to the integrity of the physical
aspects of personhood. The intersection between one's mental
integrity and privacy entitles the individual to freedom of
thought, the freedom to believe in what is right, and the
freedom of self-determination. When these guarantees intersect
with gender, they create a private space which protects all
those elements which are crucial to gender identity. The family,
marriage, procreation and sexual orientation are all integral to
the dignity of the individual. Above all, the privacy of the
individual recognises an inviolable right to determine how
freedom shall be exercised. An individual may perceive that the
best form of expression is to remain silent. Silence postulates a
realm of privacy. An artist finds reflection of the soul in a
creative endeavour. A writer expresses the outcome of a
process of thought. A musician contemplates upon notes which
musically lead to silence. The silence, which lies within, reflects
on the ability to choose how to convey thoughts and ideas or
interact with others. These are crucial aspects of personhood.
The freedoms under Article 19 can be fulfilled where the
individual is entitled to decide upon his or her preferences. Read
in conjunction with Article 21, liberty enables the individual to
have a choice of preferences on various facets of life including
what and how one will eat, the way one will dress, the faith one
will espouse and a myriad other matters on which autonomy
and self-determination require a choice to be made within the
privacy of the mind. The constitutional right to the freedom of
religion under Article 25 has implicit within it the ability to
choose a faith and the freedom to express or not express those
choices to the world. These are some illustrations of the manner
in which privacy facilitates freedom and is intrinsic to the
exercise of liberty. The Constitution does not contain a separate
article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III
with an alpha-suffixed right to privacy : this is not an act of
judicial redrafting. Dignity cannot exist without privacy. Both
reside within the inalienable values of life, liberty and freedom
which the Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a constitutional
value which straddles across the spectrum of fundamental
rights and protects for the individual a zone of choice and self-
determination.
299. Privacy represents the core of the human personality and
recognises the ability of each individual to make choices and to
take decisions governing matters intimate and personal. Yet, it
is necessary to acknowledge that individuals live in
communities and work in communities. Their personalities
affect and, in turn are shaped by their social environment. The
individual is not a hermit. The lives of individuals are as much a
social phenomenon. In their interactions with others, individuals
are constantly engaged in behavioural patterns and in
relationships impacting on the rest of society. Equally, the life of
the individual is being consistently shaped by cultural and social
values imbibed from living in the community. This state of flux
which represents a constant evolution of individual personhood
in the relationship with the rest of society provides the rationale
for reserving to the individual a zone of repose. The lives which
individuals lead as members of society engender a reasonable
expectation of privacy. The notion of a reasonable expectation
of privacy has elements both of a subjective and objective
nature. Privacy at a subjective level is a reflection of those areas
where an individual desires to be left alone. On an objective
plane, privacy is defined by those constitutional values which
shape the content of the protected zone where the individual
ought to be left alone. The notion that there must exist a
reasonable expectation of privacy ensures that while on the one
hand, the individual has a protected zone of privacy, yet on the
other, the exercise of individual choices is subject to the rights
of others to lead orderly lives. For instance, an individual who
possesses a plot of land may decide to build upon it subject to
zoning regulations. If the building bye-laws define the area upon
which construction can be raised or the height of the boundary
wall around the property, the right to privacy of the individual is
conditioned by regulations designed to protect the interests of
the community in planned spaces. Hence while the individual is
entitled to a zone of privacy, its extent is based not only on the
subjective expectation of the individual but on an objective
principle which defines a reasonable expectation."
xxxxx
322. Privacy is the constitutional core of human dignity. Privacy
has both a normative and descriptive function. At a normative
level privacy subserves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a
descriptive level, privacy postulates a bundle of entitlements
and interests which lie at the foundation of ordered liberty.
323. Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and
recognises the ability of the individual to control vital aspects of
his or her life. Personal choices governing a way of life are
intrinsic to privacy. Privacy protects heterogeneity and
recognises the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of
the dignity of the human being.
xxxx
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute
right. 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. The law must also
be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or personal
liberty must meet the threefold requirement of (i) legality,
which postulates the existence of law; (ii) need, defined in
terms of a legitimate State aim; and (iii) proportionality which
ensures a rational nexus between the objects and the means
adopted to achieve them.
326. Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take all
necessary measures to protect the privacy of the individual.
Paragraphs 399, 402, 403 and 405 of the judgment in
K.S.Puttaswamy rendered by S.A.Bobde, J., dealing with the
content of the right to privacy read thus:
The content of the right to privacy
399. It might be broadly necessary to determine the nature
and content of privacy in order to consider the extent of its
constitutional protection. As in the case of "life" under Article
21, a precise definition of the term "privacy" may not be
possible. This difficulty need not detain us. Definitional and
boundary-setting challenges are not unique to the rights
guaranteed in Article 21. This feature is integral to many core
rights, such as the right to equality. Evidently, the expansive
character of any right central to constitutional democracies like
ours has nowhere stood in the way of recognising a right and
treating it as fundamental where there are strong constitutional
grounds on which to do so.
xxxx
402."Privacy" is "[t]he condition or state of being free from
public attention to intrusion into or interference with one's acts
or decisions". The right to be in this condition has been
described as "the right to be let alone" . What seems to be
essential to privacy is the power to seclude oneself and keep
others from intruding it in any way. These intrusions may be
physical or visual, and may take any of several forms including
peeping over one's shoulder to eavesdropping directly or
through instruments, devices or technological aids.
403. Every individual is entitled to perform his actions in
private. In other words, she is entitled to be in a state of repose
and to work without being disturbed, or otherwise observed or
spied upon. The entitlement to such a condition is not confined
only to intimate spaces such as the bedroom or the washroom
but goes with a person wherever he is, even in a public place.
Privacy has a deep affinity with seclusion (of our physical
persons and things) as well as such ideas as repose, solitude,
confidentiality and secrecy (in our communications), and
intimacy. But this is not to suggest that solitude is always
essential to privacy. It is in this sense of an individual's liberty
to do things privately that a group of individuals, however
large, is entitled to seclude itself from others and be private. In
fact, a conglomeration of individuals in a space to which the
rights of admission are reserved--as in a hotel or a cinema hall
--must be regarded as private. Nor is the right to privacy lost
when a person moves about in public. The law requires a
specific authorisation for search of a person even where there
is suspicion. Privacy must also mean the effective guarantee of
a zone of internal freedom in which to think. The disconcerting
effect of having another peer over one's shoulder while reading
or writing explains why individuals would choose to retain their
privacy even in public. It is important to be able to keep one's
work without publishing it in a condition which may be
described as private. The vigour and vitality of the various
expressive freedoms guaranteed by the Constitution depends
on the existence of a corresponding guarantee of cognitive
freedom.
xxxx
405. Privacy, that is to say, the condition arrived at after
excluding other persons, is a basic prerequisite for exercising
the liberty and the freedom to perform that activity. The
inability to create a condition of selective seclusion virtually
denies an individual the freedom to exercise that particular
liberty or freedom necessary to do that activity.
As evident from the extracted excerpts, 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 for
manifestation of his dignity. It safeguards individual autonomy
and recognises the ability of the individual to control vital
aspects of his life. The very basis of the right to privacy is the
freedom to exercise the personal choices. It is on account of this
reason that it is stated that the right to privacy permeates
every other right guaranteed under Part III of the Constitution.
While the legitimate expectation of privacy may vary from
intimate zone to private zone and from private zone to public
zone, privacy is not lost or surrendered merely because the
individual is in a public space. 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. Privacy has both positive and negative
contents. The negative content restrains the State from
committing an intrusion upon the life and personal liberty of a
citizen. Its positive content imposes an obligation on the State
to take all necessary measures to protect the privacy of
individuals. As noted, insofar as individuals live and work in
communities, the right to privacy, like other rights falling under
the umbrella of Article 21, is not an absolute right and it is
subject to the rights of others to lead orderly lives. Likewise,
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. Similarly, the
law must also be valid with reference to the encroachment on
life and personal liberty under Article 21. Again, an invasion of
life or personal liberty must meet the threefold requirement of
(i) legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate State aim; and (iii)
proportionality, which ensures a rational nexus between the
objects and the means adopted to achieve them.
17. Although divergent views were expressed in
K.S.Puttaswamy as to the application of the test of
reasonable expectation of privacy for ascertaining whether a
privacy claim is constitutionally enforceable, in
K.S.Puttaswamy and another (Aadhaar) v. Union of India
and another, (2019) 1 SCC 1, the Apex Court clarified that
the test of reasonable expectation of privacy has been
approved in K.S.Puttaswamy. In addition, it was also held in
K.S.Puttaswamy (Aadhaar) that the test of reasonable
expectation of privacy would not only ensure that the individual
has a protected zone of privacy, but also that the exercise of
individual choices is subject to the right of others to lead
orderly lives. It was also held in the said case that all matters
pertaining to individuals do not qualify as being an inherent
part of right to privacy and that only those matters over which
there would be a reasonable expectation of privacy are
protected under Article 21, indicating clearly that breach of
privacy rights can be claimed only when claimant on the facts
of a particular case and circumstances has "reasonable
expectation of privacy". The relevant portions of paragraphs
341.2, 511.1 and 638 to 640 of the judgment of the Apex Court
in K.S. Puttaswamy (Aadhaar) read thus:
341.2. The Puttaswamy judgment refers to the expert group
report and identifies nine privacy principles pertaining to
notice, choice and consent, collection limitation, purpose
limitation, access and correction, non-disclosure of
information, security of data, openness or proportionality as to
the scale, scope and sensitivity to the data collected and
accountability. At the same time, privacy is a subset of liberty.
All liberties may not be exercised in privacy. It lies across the
spectrum of protected freedoms. Further, the notion of
reasonable expectation of privacy has both subjective and
objective elements. At a subjective level it means "an
individual desires to be left alone". On an objective plain
privacy is defined by those constitutional values which shape
the content of the protected zone where the individual "ought
to be left alone". Further, the notion of reasonable expectation
of privacy ensures that while on the one hand, the individual
has a protected zone of privacy, yet on the other "the exercise
of individual choices is subject to the right of others to lead
orderly lives". The extent of the zone of privacy would,
therefore, depend upon both the subjective expectation and
the objective principle which defines a reasonable expectation.
xxxx
511.1. After detailed discussion, it is held that all matters
pertaining to an individual do not qualify as being an inherent
part of right to privacy. Only those matters over which there
would be a reasonable expectation of privacy are protected by
Article 21. This can be discerned from the reading of paras
341 to 346 of the judgment.
xxxx
638. It is well settled that breach of privacy right can be
claimed only when claimant on the facts of the particular case
and circumstances have "reasonable expectation of privacy".
In the Court of Appeal in R. (Wood) v. Commr. of Police of the
Metropolis, the following was held :
" xxxxxx
24. As for the second -- a "reasonable expectation of
privacy" -- I have already cited para 51 of Von Hannover
[Von Hannover v. Germany, (2004) 40 EHRR 1] , with its
reference to that very phrase, and also to a "legitimate
expectation" of protection. One may compare a passage
in Lord Nicholls' opinion in Campbell [Campbell v. MGN
Ltd., (2004) 2 AC 457 : (2004) 2 WLR 1232 : 2004 UKHL
22 (HL)] at para 21 : (AC p. 466 E)
'21. Accordingly, in deciding what was the ambit of
an individual's "private life" in particular circumstances
courts need to be on guard against using as a
touchstone a test which brings into account
considerations which should more properly be
considered at the later stage of proportionality.
Essentially the touchstone of private life is whether in
respect of the disclosed facts the person in question had
a reasonable expectation of privacy.'
In the same case Lord Hope said at para 99 : (AC p. 484
H)
'99. ... The question is what a reasonable person of
ordinary sensibilities would feel if she was placed in the
same position as the claimant and faced with the same
publicity.'
In Murray v. Express Newspapers Plc [Murray v. Express
Newspapers Plc., 2009 Ch 481 : (2008) 3 WLR 1360
(CA)] . Sir Anthony Clarke MR referred to both of these
passages, and stated : (Ch pp. 502 F-G, H & 503 A,
paras 35-36)
'35. ... [S]o far as the relevant principles to be
derived from Campbell [Campbell v. MGN Ltd., (2004) 2
AC 457 : (2004) 2 WLR 1232 : 2004 UKHL 22 (HL)] are
concerned, they can we think be summarised in this
way. The first question is whether there is a reasonable
expectation of privacy. This is of course an objective
question. ...
36. As we see it, the question whether there is a
reasonable expectation of privacy is a broad one, which
takes account of all the circumstances of the case. They
include the attributes of the claimant, the nature of the
activity in which the claimant was engaged, the place at
which it was happening, the nature and purpose of the
intrusion, the absence of consent and whether it was
known or could be inferred, the effect on the claimant
and the circumstances in which and the purposes for
which the information came into the hands of the
publisher.'"
639. The reasonable expectation of privacy test was also
noticed and approved in the privacy judgment, Dr D.Y.
Chandrachud, J. has referred to the judgment of the US
Supreme Court in Katz v. United States [Katz v. United States,
1967 SCC OnLine US SC 248 : 19 L Ed 2d 576 : 389 US 347
(1967)] . The following has been observed by this Court in K.S.
Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC
1] in para 185 : (SCC p. 441)
"185. ... The majority adopted the "reasonable
expectation of privacy" test as formulated by Harlan, J.
in Katz [Katz v. United States, 1967 SCC OnLine US SC
248 : 19 L Ed 2d 576 : 389 US 347 (1967)] and held as
follows : (Maryland case [Smith v. Maryland, 1979 SCC
OnLine US SC 128 : 61 L Ed 2d 220 : 442 US 735
(1979)] , SCC OnLine US SC paras 7-8)
'7. ... [The] inquiry, as Harlan, J. aptly noted in his
Katz [Katz v. United States, 1967 SCC OnLine US SC 248
: 19 L Ed 2d 576 : 389 US 347 (1967)] concurrence,
normally embraces two discrete questions. The first is
whether the individual, by his conduct, has "exhibited
an actual (subjective) expectation of privacy" ...
whether ... the individual has shown that "he seeks to
preserve [something] as private". ... The second
question is whether the individual's subjective
expectation of privacy is "one that society is prepared
to recognize as "reasonable" " ... whether ... the
individual's expectation, viewed objectively, is
"justifiable" under the circumstances. ...
8. ... Since the pen register was installed on
telephone company property at the telephone
company's central offices, petitioner obviously cannot
claim that his "property" was invaded or that police
intruded into a "constitutionally protected area".'
Thus the Court held that the petitioner in all probability
entertained no actual expectation of privacy in the
phone numbers he dialed, and that, even if he did, his
expectation was not "legitimate". However, the
judgment also noted the limitations of the Katz [Katz v.
United States, 1967 SCC OnLine US SC 248 : 19 L Ed 2d
576 : 389 US 347 (1967)] test : (Maryland case [Smith v.
Maryland, 1979 SCC OnLine US SC 128 : 61 L Ed 2d
220 : 442 US 735 (1979)] , SCC OnLine US SC para 7
footnote 5)
'Situations can be imagined, of course, in which Katz
[Katz v. United States, 1967 SCC OnLine US SC 248 : 19
L Ed 2d 576 : 389 US 347 (1967)] two-pronged inquiry
would provide an inadequate index of Fourth
Amendment protection. ... In such circumstances, where
an individual's subjective expectations had been
"conditioned" by influences alien to well-recognised
Fourth Amendment freedoms, those subjective
expectations obviously could play no meaningful role in
ascertaining what the scope of Fourth Amendment
protection was.'"
(emphasis in original)
640. After noticing several judgments of the US Supreme
Court, D.Y. Chandrachud, J. in K.S. Puttaswamy [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1] has noted that
the reasonable expectation of privacy test has been relied on
by various other jurisdictions while developing the right to
privacy. In para 195, the following has been held : (SCC p. 449)
"195. The development of the jurisprudence on the
right to privacy in the United States of America shows
that even though there is no explicit mention of the
word "privacy" in the Constitution, the courts of the
country have not only recognised the right to privacy
under various amendments to the Constitution but also
progressively extended the ambit of protection under
the right to privacy. In its early years, the focus was on
property and protection of physical spaces that would
be considered private such as an individual's home. This
"trespass doctrine" became irrelevant when it was held
that what is protected under the right to privacy is
"people, not places". The "reasonable expectation of
privacy" test has been relied on subsequently by
various other jurisdictions while developing the right to
privacy."
As discernible from the extracted excerpts, 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. Having thus understood the scope of
right to privacy protected in terms of Article 21 of the
Constitution, let us consider the question 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.
18. In order to consider the question as to whether
the facts of the case disclose a case of privacy enforceable
under Article 21 of the Constitution, it is necessary to examine
the correctness of the proposition laid down by the learned
Single Judge that existence of a toddy shop near a residential
premise would be in derogation of the right to privacy of the
inhabitants therein. The fact that toddy shops are run in the
State in accordance with the provisions contained in the Rules
framed under the Abkari Act is not in dispute. The petitioners in
the writ petitions have no case that the existence of toddy
shops in a residential area would be in derogation of their right
to privacy. Also, there was no challenge in any of the writ
petitions against the statutory provision which permits
establishment of toddy shops in residential areas. As such, even
assuming that the conduct of toddy shops is adversely affecting
the privacy rights of the inhabitants in the locality, insofar as
the right to privacy is not an absolute one, but only a right
available to individual subject to the rights of others to lead
orderly lives, in the absence of a finding in the impugned
judgment that the statutory provision which permits
establishment of toddy shops in residential areas is
unconstitutional in any manner inasmuch as it does not satisfy
the requirement of "procedure established by law" as contained
in Article 21 of the Constitution, the learned Single Judge has
erred in holding that the existence of a toddy shop in a
residential area would be derogation of the right to privacy of
the people in the locality, for without such a finding, conduct of
a toddy shop in a residential area is a permissible activity in
terms of statutory provision. Although the learned Single Judge
has found that violation of the right to privacy is liable to be
read into Rule 7(3) of the Rules as a ground to order relocation
of a shop, for the said provision confers power on the
Commissioner of Excise to order transfer of shops or to close
the shops in the interest of public peace, morality or grounds of
expediency, such a finding was not rendered in the context of
Rule 7(2) of the Rules permitting establishment of toddy shops
in residential areas as well. Be that as it may, according to us,
the said finding cannot be understood as a finding that the
statutory provision is unconstitutional. The reason being that
the role of the High Court exercising power under Article 226 of
the Constitution is only to examine whether the statute or the
statutory provision, as the case may be, conforms to the
constitutional provisions, and not to undertake an exercise to
make a statute or statutory provision conforming to the
constitutional provisions, if it is not otherwise. The proposition
aforesaid has been reiterated by the Apex Court in Union of
India and others v. Ind-Swift Laboratories Ltd., (2011) 4
SCC 635, in the following words:
"This Court has repeatedly laid down that in the grab of
reading down a provision it is not open to read words and
expressions not found in the provision/statute and thus
venture into a kind of judicial legislation."
The finding of the learned Single Judge that the existence of
toddy shop in a residential area would be in derogation of the
right to privacy of inhabitants in the area is therefore liable to
be set aside on that sole ground.
19. Now, we will examine whether there is any
factual basis for the learned Single Judge in holding that the
existence of a toddy shop in a residential area would be in
derogation of the right to privacy of the inhabitants of the
locality. Among the cases dealt with by the learned Judge, in
W.P.(C) No.29704 of 2015 from which W.A.No.389 of 2020
arises, the grievance voiced was only that persons who are
coming to the toddy shop are causing nuisance to the
petitioner. In W.P.(C) No.41459 of 2018, the grievance voiced
however was that food is being served in the toddy shop
without obtaining licence from the local authority. In W.P.(C)
No.20809 of 2019, the grievance voiced, however, was
concerning the possible nuisance on account of discharge of
waste from a proposed toddy shop and the grievance voiced in
W.P.(C) No.25901 of 2018 concerns the decision of the
competent authority to relocate an existing toddy shop near to
a residential colony. In the report filed by one among the Amici
Curiae appointed in the matter by the Single Judge, a few ill
effects of toddy shops in residential area were indicated. The
relevant portion of the report reads thus:
• "It is mainly pointed out that women and children
who walk through the public roads near toddy
shops are the main sufferers. Owing to their
intoxication, it is said that, the toddy drinkers, pass
lewd comments on them and also use abusive
language. Girls in those area often face harassment
and intimidation.
• The toddy shop has a bad influence on children
growing up in the localities, making them gullible to
addiction.
• The brawls in and outside the toddy shop often
affect the peaceful atmosphere in the nearby
homes."
It is seen that it is placing reliance on the said observations and
a few judgments of the European Court of Human Rights
(ECtHR) that the learned Single Judge has rendered a finding
that the existence of a toddy shop in the vicinity of a residential
house would be in derogation of the right to privacy of the
inhabitants therein. As noted, privacy postulates, in essence, a
private space for an individual to make choices and to take
decisions concerning matters intimate and personal to his life
for manifestation of his dignity and to safeguard his individual
autonomy. The right to privacy varies from person to person,
dependent on his approach to the society and concern for
privacy. The life an individual leads as a member of a society
gives rise to a reasonable expectation of privacy. 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. There is no finding by the learned Single Judge in
the impugned judgment as to how the privacy of the
inhabitants around a toddy shop is infringed on account of the
functioning of the toddy shop. The observations made by the
amicus curiae appointed in the writ petitions as referred to
above would only indicate, at the most, that the conduct of a
toddy shop may cause nuisance or breach of public peace or
raise moral concerns. 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. A
perusal of the impugned judgment reveals that the view taken
by the learned Single Judge is that anything and everything that
affects the peaceful residence of a person would affect its
privacy rights. 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. As observed by the Apex Court in paragraph 423 of the
judgment in K.S.Puttaswamy, right to privacy is a relational
right insofar as it is always connected on the actions which are
sought to be secured from interference to the acts of
associating with others. Further, as noted, right to privacy
varies from person to person and country to country, dependent
on the socio-economic background, the approach to society and
concern for privacy. In other words, 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. That apart, it is seen that the very scope of the
jurisdiction of the ECtHR is to determine whether the laws in the
countries over which it has jurisdiction provides an adequate
remedy in a specific case in which it considered whether there
has been an invasion of privacy contrary to Article 8 of the
ECHR which provides that everyone has right to respect for his
private and family life, home and correspondence and whether
the restriction, if any, imposed is justifiable. In the
circumstances, the reliance placed by the learned Single Judge
on the judgments of the ECtHR is misplaced. We are therefore
inclined to hold that there was no factual basis for the learned
Single Judge to hold that the existence of a toddy shop in a
residential area would be in derogation of the right to privacy of
the inhabitants of the locality.
20. Let us now examine the question as to whether
the facts of the writ petitions from which these writ appeals
arise disclose a case of privacy enforceable in terms of Article
21 of the Constitution. As noted, the toddy shop is functioning
in the property adjacent to the residential property of the
petitioner and the grievance of the petitioner in the writ petition
was that the conduct of the toddy shop causes nuisance to her
and her family. It is not disputed by the petitioner that the
toddy shop is functioning in the same locality and premises
right from the year 1994. The petitioner has purchased the land
adjacent to the toddy shop only much later, in the year 2005. It
is still after about five years, that the petitioner constructed the
residential building therein. It is still after a few years thereafter
that the petitioner chose to reside in the building. Even
assuming that nuisance is caused to the petitioner on account
of the functioning of the toddy shop and that the said nuisance
amounts to breach of privacy rights of the petitioner, the
question to be examined is whether such rights are protected
under Article 21 of the Constitution. As noted, before holding
that a privacy claim is actionable, it is obligatory for the Court
to consider whether the individual, by his conduct, has
exhibited an actual expectation of privacy and sought to
preserve the same. Likewise, before holding a privacy claim
actionable, it is also necessary for the Court to consider
whether the individual's subjective expectation of privacy is one
that the society is prepared to recognize as reasonable and
justifiable under the circumstances. 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.
21. The surviving question is as to the
sustainability of Ext.P7 order of the first respondent and Ext.P12
order of the Government. As noted, the first respondent
directed respondents 4 to 6 to relocate the toddy shop, invoking
Rule 7(3) of the Rules, holding that its functioning is causing
inconvenience to the petitioner. In terms of Ext.P7 order, the
first respondent has also directed the concerned Excise official
to enforce the same in a time bound manner. In the light of the
provisions contained in Rule 7(3) of the Rules and the finding
rendered in Ext.P7 order that the functioning of the toddy shop
is affecting the peaceful residence of the petitioner and
members of her family, the first respondent cannot be found
fault with for having taken the view that the toddy shop is one
which is liable to be relocated. It is seen that it is having regard
to the fact that respondents 4 to 6 were running the shop in the
same premises and location from the year 1994 and the fact
that the petitioner is a person who has constructed a residential
house in the property adjacent to the toddy shop while the
toddy shop was being run in that premises without interruption
and also the fact that it is not easy to find out an
unobjectionable site to relocate the toddy shop, the
Government modified Ext.P7 order permitting respondents 4 to
6 to run the toddy shop in the same premises and location until
they find a suitable place for relocation. We do not find any
infirmity in the decision of the Government as well.
22. It is relevant to note that though Rule 7(3) of
the Rules confers power on the first respondent not only to
relocate a toddy shop, but also to close it down on the grounds
mentioned therein, the first respondent has chosen not to
exercise the power to close down the shop on the complaint of
the petitioner. In other words, even according to the first
respondent, the shop is not one to be closed down. As noted,
the specific case put forward by respondents 4 to 6 in the
revision petition preferred by them challenging Ext.P7 order
before the Government is that there is no unobjectionable
premises available within the boundaries of the shop for the
purpose of relocation. The petitioner also does not have a case
that there are other places within the boundaries of the shop
where it could be relocated. In a case of this nature, if it is not
easy to find an unobjectionable premises within the limits of the
boundary of the toddy shop, and if this Court directs time
bound implementation of Exts.P7 and P12 orders, respondents
4 to 6 would be constrained to close down the shop which is not
intended by the competent authority in terms of Ext.P7 order.
The petitioner is therefore not entitled to a time bound
implementation of Exts.P7 and P12 orders.
23. Coming to the challenge to Ext.P7 order made
by respondents 4 to 6, the trade for which licence is granted to
them being subject to Rule 7(3) of the Rules, insofar as it is
found by the competent authority that a ground for relocation
of the toddy shop exists, this Court may not be justified in
interfering with the factual conclusion arrived at by the
competent authority in this regard, especially when they derive
the right to run the shop in terms of the Rules.
24. In the result, the impugned judgment is set
aside and the writ petitions, viz, W.P.(C) Nos.29704 of 2015 and
2213 of 2018 are dismissed. It is, however, made clear that this
judgment will not stand in the way of the petitioner moving the
first respondent for follow up action for enforcement of Ext.P7
order.
Before parting, we also place on record our
boundless appreciation for the able assistance given by the
learned amicus curiae Dr.(Adv.)Thushara James, for rendering
this judgment.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
ds/Mn/YKB
