Right To Privacy Includes Right To Relax And The Same Can’t Be Curbed Fearing Breach Of Morality: Payel Biswas Vs The Commissioner Of Police

DATE OF JUDGEMENT:
4th January 2022

JUDGES:
Justice G.R. Swaminathan

PARTIES:
Petitioner (s): Payel Biswas
Respondent (s):

1. The Commissioner of Police, Trichy City.
2. The Inspector of Police (L & O), Thillai Nagar police station, Trichy City –600 017.

SUBJECT

In the present case, a writ petition was filed in the High Court of Judicature at Madras under Article 226 of the Constitution of India. The petition sought a writ of Mandamus to direct the police authority to issue a “No-Objection Certificate (NOC)” to the petitioner’s lawful spa business.

OVERVIEW

1. Before the Gazette Notification No.252 dated 16th July 2018 there was no law in place in Tiruchirappalli that mandated a license from any governmental authority for the said business. Notification No. 252 made the license mandatory. The petitioner applied for the license for his establishment named “Queen Ayurvedic Cross Spa Centre”. Due to non-action, the petitioner filed the writ petition to direct the police authorities to issue a NOC so that the petitioner can continue his business. Moreover, the petitioner also sought relief in the form of an order to direct non-interference in his business by the police.
2. The Counsel for the petitioner relied on an earlier order of the High Court of Karnataka w.r.t Writ Petition No.16811 of 2021 where the learned judge directed the authorities to issue a “No-Objection Certificate” if the applicant satisfied all the requirements in such matters.
3. The Counsel for the respondents relied on the judgment in the case of C. P. Girija v. Superintendent of Police & Ors. penned by Justice S.M. Subramanian of the High Court of Karnataka. Here, the Court directed the state to issue appropriate orders to all the Spa and Massage centers, Therapy centers, etc., across the State of Tamil Nadu to install CCTV cameras. The Court also held that the law enforcing authorities are bound to conduct frequent inspections under law and prevention of such activities by the Court is unconstitutional as it only leads to an increase in crime.

LEGAL PROVISIONS

Constitution of India

Article 226- Power of High Courts to issue certain writs.

Article 141- Law declared by Supreme Court to be binding on all courts.

ISSUES

1. Whether police can interfere in lawful business of the petitioner in guise of protection of morality?

JUDGMENT

1. In the course of the order, the Court referred to multiple judgments for a better understanding of the complexity of the issue. To solve the jurisdictional issue, the Court first relied on the judgment in the case of S.Kasi vs. State where the Hon’ble Supreme Court held that the coordinate Bench of the same Court cannot take a contrary view and that it can only refer the matter for consideration by a Larger Bench. But if the rule of law is already laid by the Supreme Court of India, the Court is obliged to follow the same under Article 141 of the Constitution of India.
2. The Court then noted that the aforementioned order in the case of C. P. Girija v. Superintendent of Police & Ors. violates the law laid down by the Supreme Court in the landmark case of K.S Puttaswamy v. Union of India. The Supreme Court in the Puttaswamy case declared that the right to privacy falls within the scope of the right to life under Article 21 of the Constitution of India. The Supreme Court further held that the right to privacy also means ‘bodily autonomy." Relying on this judgment the Court in the present case noted that CCTV cameras inside spa premises would “unquestionably” violate a person’s bodily autonomy. Such places are “inviolable spaces” where the “prying eye” of the state simply cannot be allowed to enter.
3. The Court then went to explain the essentials of Privacy as derived in the Puttaswamy verdict. The Court noted that “repose, sanctuary, and intimate decisions” are the most essential ingredients of privacy where “repose” refers to freedom from unwarranted action, “intimate decisions” refers to the freedom of autonomy to make personal life choices and “sanctuary” refers to the freedom of keeping things to oneself. The High Court noted that services of the spa are availed for relaxation purposes and that very well fall within the scope of “Repose” and “Sanctuary.” Any intrusion of privacy in such places is bound to fail the proportionality test derived in the Puttaswamy case.
4. Judgment in C. P. Girija's case refers to the notification issued by the Commissioner, Greater Chennai Corporation. The said notification issued multiple guidelines w.r.t spa/massage parlors/beauty parlor and all such places. Noting this fact, the Court stated that when the executive notification has already been issued in this regard, there is no need for further directions by the Court. The Court further noted that suspicion of immoral activities in massage centers cannot be reason enough to intrude into an individual's right to relax for it intrinsically is part and parcel of his fundamental right to privacy.
5. Explaining the relationship between privacy and morality, the court referred to the landmark judgment in the case of Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. where the Court held that in matters of one's private affairs, “constitutional morality shall trump public morality.”
6. The Court also referred to the judgment in the case of Masti Health and Beauty Private Limited vs. The Commissioner of Police Chennai City due to the similarity of circumstances and the cause of the writ petition. The Court, in this case, held that the respondents (police) shall not, as a matter of routine and without any basis, conduct any raids and interfere with the business carried on by the petitioners.
7. In the order, the Court directed the police authorities to dispose of the matter of NOC within 4 weeks. The Court also directed that once the license is granted, the authorities shall not intervene in the business of the petitioner.

CONCLUSION

This broad and liberal interpretation of the Right to Privacy is a fairly new phenomenon as we have noted in the present case. There is a need for the sensitization of Courts as the archaic and conservative mindset hinders the Constitutional dictates. The Constitutional morality triumphs social morality and the Courts must not get swayed by any social principle that denies justice to common people.

Click here to download the original copy of the judgement