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The Kerala High Court Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha recently reversed a Single Bench judgment which held that establishing a toddy shop in a residential locality is violative of right to privacy.

The petitioner is a person residing at Vaikom in a residential property owned by her. A toddy shop is located in the property adjacent to the residential property of the petitioner. According to the petitioner, the functioning of the toddy shop has been causing nuisance to her and family, hence she wants a change of its location.

The Single Judge Bench hearing the matter observed that 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 present case is an appeal against this decision.

The appellants contended that they are carrying out a lawful activity with the licence of the competent authority under the Rules framed under the Abkari Act. The nuisance complained of is by the general public and not the businesses, hence they should not be punished for the same. Additionally, the State government submitted that 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.

Per contra, the petitioner contended that the functioning of a toddy shop in a thickly-populated residential area would 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. 

Advocate Dr. Tushara James, Amicus curiae in the matter submitted that 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 Observation

The Court set aside the findings of the Single Bench and observed the following:

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.

• It has to be considered 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.

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".

Further, on the point that the petitioner bought the land with the express knowledge that a toddy was adjacent to the property, the Court observed

"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 W.A. Nos.389 & 391 of 2020 56 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."

The single-judge found that the violation of the right to privacy is liable to be read into Rule 7(3) of the Rules under the Akbari Act as a ground to order relocation of a shop. The Court observed that this said finding cannot be understood as a finding that the statutory provision is unconstitutional because

"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."

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"

Therefore, the decision of the single-Judge was set aside.

SK Pavithran & Ors. v Laisy Santhosh & Ors.