Having toddy shop near residential area as per law will not amount to breach of privacy: Kerala High Court

Existence of a toddy shop in a residential area in compliance with all laws cannot be said to be an infringement of right to privacy of the inhabitants of the locality, the Kerala High Court recently held [SK Pavithran & Ors. v Laisy Santhosh & Ors.].Pertinently, a Division Bench of Justices PB Suresh Kumar and CS Sudha said that disruption of public order or peace cannot be understood as synonymous to breach of privacy.The Court noted from the submissions at the Bar that at the most, the conduct of a toddy shop may cause nuisance or breach of public peace or raise moral concerns but the same cannot amount to breach of privacy."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," the Court said.The Court, therefore, overturned a judgement by a single-Judge who had held that the existence of a toddy shop in a residential area would infringe the right to privacy of the residents in the vicinity..It observed that there is no finding in the judgement of the single-judge as to how the privacy of the inhabitants around a toddy shop is infringed on account of functioning of the toddy shop. The Division Bench also cautioned that the expansive view of privacy rights taken by the single-judge could lead to a domino effect with increasing conflicts regarding what activities are permissible or not near residential areas."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 judgment said.The Court opined that the concerns raised in the case are all taken care of in the Rules framed under the Abkari Act which empowers the authorities concerned to relocate a toddy shop in the interest of public peace or morality or on grounds of expediency..Disruption of public order, peace and tranquillity cannot be understood as synonymous to breach of privacy rights.Kerala High Court.The Division Bench was considering a batch of appeals filed by toddy-shop licensees challenging the decision of a single-judge which held 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..Contentions at the BarAppellants - The trade carried on by them is a lawful activity with the licence of the competent authority under the Rules framed under the Abkari Act. The nuisance which the petitioner, who sought for relocation of the shops from her locality, 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.Original petitioner - 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, a fundamental right falling within the facet of Article 21 of the Constitution. Reliance was placed on the landmark decision of the Supreme Court in KS Puttaswamy & Anr. v Union of India & Ors.State government - Since the trade of appellants 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. 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 inhabitants, 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.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. However, 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..Court's findings1. While the right to privacy is not lost merely because the individual is in a public space, one must a reasonable expectation of 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.2. 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. 3. As discernible from KS Puttaswamy, before coming to the conclusion as to whether a privacy claim is actionable, it is obligatory for the Court to consider the following:whether the individual, by his conduct, has “exhibited an actual expectation of privacy”; whether the individual has shown that “he seeks to preserve something as private”;whether the individual's subjective expectation of privacy is “one that society is prepared to recognize as “reasonable”; and whether the individual's expectation, viewed objectively, is “justifiable” under the circumstances. 4. Since it is undisputed that toddy shops are run in the State in accordance with the provisions contained in the Rules framed under the Abkari Act, "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"5. Although the single-judge found that the 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, the said finding cannot be understood as a finding that the statutory provision is unconstitutional. 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 constitutional provisions..Therefore, the decision of the single-Judge was set aside.Advocate Dr. Thushara James was the amicus curiae in the matter. Senior Advocate TA Shaji, advocates Anwin John Antony, S Abhilash Vishnu, Athul Shaji, Nikhil Sunny Mooken, appeared for the appellants while Senior Government Pleader TK Vipin Das, Senior Advocates KP Satheesan and CC Thomas and advocates P Mohandas, S Vibheeshanan, K Sudhinkumar, Nireesh Mathew represented the respondents..[Read Judgment]