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A tussle between right to privacy and right of livelihood: Kerala High Court

An appeal involving conflict between two fundamental rights, namely, right to privacy and right of livelihood was heard and decided by the division bench of Kerala High Court  consisting of Justice PB Suresh and Justice CS Sudha in the matters between SK Pavithran & Ors. v Laisy Santhosh & Ors. W.A. Nos.- 389 & 391 of 2020 decided on  3.1.2022.

The facts of the case are that the petitioners alleged in that the functioning of the toddy shop in a densely populated residential area was violation to right to privacy of the residence as anything affecting peaceful living of a person would infringe his right to privacy.The trial court gave a ruling in favour of them and hence, the appellants appeal before this court.

The counsel on behalf of the Petitioners contended that 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.

The counsel on behalf of the Appellants contended the trade they are engaged in is a legal activity with the permission of the competent authority under the Rules regulated under the Abkari Law. The inconvenience complained by the plaintiff, who requested the relocation of the shops from his location, is allegedly caused by the public, and therefore no action should be taken against the license holders due to the alleged inconvenience.Since trade by appellants is a legal activity undertaken on the basis of a license granted under a regulatory statute, it is not possible to argue that the activity is infringing any fundamental rights unless the provision of law for which the license is granted is contested. The petitioners bought their land where the toddy shop was already in existence, the Court said that there was no question of the infringement of the right to privacy of the respondents, as they always had a right to choose not to buy the land adjacent to the shop. Thus, a case of violation of privacy in Article 21 is not made out.

The Amicus curaie also informed that toddy shops made the lives of residents miserable. Drunkards would pass lewd comments on passing girls and would engage in brawls which would disturb the peace in the vicinity. Cultural values, morals, public perceptions, laws, customs, attitudes, technological advances, family values, and nearly every aspect of life and law can influence what privacy holds at any given time. However, the Constitution does not authorize Courts for impact assessment under Article 226 and the same assessment  was inappropriately done the learned single judge in the trial court which is not at all appreciable.

The Kerala High Court held that if the fundamental rights guaranteed in the Constitution were extended to this extent, it would violate other people’s basic right to livelihood, as anything a person does to earn a living would somehow result in some money. to annoy other people.All the nuisance alleged of would amount to inconvenience or a breach of public peace, but it would be excessive to call it a privacy breach. The court also said that disturbance of the public peace and other concerns would be remedied by the rules governing the licenses, and violating them would empower the authorities to revoke the license or move the shop to another location.Referring to the Puttaswamy judgement, the right of privacy will not extend beyond reasonable expectation and that it has to be exercised subject to the right of others to lead an orderly and peaceful life.The appeal was allowed and the judgement by the single judge in the trial court was set aside.

Judgement reviewed by Bhaswati Goldar

S.K. Pavithran vs Laisy Santhosh

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