Madras High Court: Expressing that right to life and personal liberty enshrined in Article 21 of the Constitution of India includes the right to relax, G.R. Swaminathan, J., held that the said right can be exercised in a variety of forms.
Suspicion that immoral activities are taking place in massage centres 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.
Few Words from the Madras High Court:
After a tiring day trekking in the forest, Lord Rama chose a resting place. He dropped his bow and arrows on the ground. When he woke up the next morning, he found that one of his arrows had fatally pierced a frog. The frog was about to breathe its last. The anguished Rama asked the frog as to why it did not raise an alarm. The innocent frog replied, “when others hurt me, I call your name “Rama Rama”-but when you are the source of trouble-who else can I call?.
When individual liberty is threatened by legislative or executive action, one turns to judiciary for relief and remedy, in the Supreme Court decision of State of Madras v. V.G. Row, AIR 1952 SC 196, Justice M. Patanjali Sastri, CJ remarked that the Supreme Court had been assigned the role of a sentinel on the qui vive as regards the fundamental rights.
Bench stated that the above-stated applies with equal force to every court and not just the constitutional courts.
In the present matter, the petitioner was running a Spa. Originally, there was no law regulating the said business and no license was required from any governmental authority, since vide Gazette Notification No. 252 obtaining of license had been made mandatory, the petitioner applied for such license.
Since no action was taken on the petitioner’s request, he filed the present petition for directing the police authority to issue “no objection certificate”.
The Bench noted that a number of orders in the past were passed wherein the authorities concerned were directed to issue “no objection certificate” if the applicant satisfied all the requirements. Hence, this Court disposed of the petition on 21-12-2021.
Though the Government counsel mentioned that another Judge of this Court issued the following directions in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015:
“1)The respondents are directed to issue appropriate orders to all the Spa and Massage centers, Therapy centers etc., across the State of Tamil Nadu to install CCTV cameras which must be functional in all circumstances.
2)Appropriate directions are to be issued to ensure that these Spa, Massage centers, Therapy centers etc., are conducting their business activities in a transparent manner and avoid secluded or closed rooms paving way for illegal activities.
3)In the event of any reasonable suspicion, information or complaint, the Police authorities are directed to initiate all appropriate actions in the manner known to law.”
Bench stated that the decision in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015 appeared to run counter to the law laid down by the 9-Judge Bench Judgment of the Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.
In Court’s opinion,
The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person’s bodily autonomy. These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter.
Further elaborating, the Court stated that, the notification issued by the Government contemplated installation of CCTV cameras only at the entry and exit points. It consciously caveats that this would be without prejudice to the individual’s privacy.
Thus, the executive while enacting subordinate legislation has been conscious of the privacy concerns of the citizens.
No right including a fundamental right can be absolute.
The Bench added that a decision to install a CCTV camera which has a bearing on a person’s privacy requires the most careful of considerations—it requires the government to apply its mind prudently and determine what manner of regulations ought to be put in place for its proper use.
Right to Relax
The K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 verdict posits that there are three essential features of privacy – repose, sanctuary and intimate decisions.
“Repose” refers to freedom from unwarranted attention, “sanctuary” refers to the freedom of keeping things to oneself and “intimate decisions” refers to the freedom of autonomy to make personal life choices.
The right of an individual to avail means of relaxation (in this case, via spa) falls within the ambit of the right of repose and sanctuary. Therefore, any intrusion into the right to relax shall necessarily have to satisfy the test of legality, legitimate aim and proportionality.
High Court added that the Supreme Court decision of Govind v. State of M.P., (1975) 2 SCC 148, pondered over the question of whether concerns of breach of morality can be made a ground for intruding into one’s private space.
When the Govind decision was rendered, privacy was not recognised as a fundamental right.
Post the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, privacy right can be curtailed only on grounds set out therein. Morality cannot be invoked as a mere incantation to justify such curtailment. This was also the essence of the landmark “Section 377” verdict of the Supreme Court in which it was held that in matters of one’s private affairs, constitutional morality shall trump public morality, Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Lastly, the Bench held that when the notification issued by appropriate authority is holding the field, it may not be open to the Court to supplement the same. In the said circumstances, the first respondent is directed to consider the petitioner’s representation and dispose of the same and if the first respondent issues ‘No Objection Certificate’ and the competent authority grants license in favour of the petitioner, the respondents will not interfere with the petitioner’s business so long as it is running in the manner known to law.
Therefore, the petition was disposed of in view of the above discussion. [Payel Biswas v. Commr. Of Police, 2022 SCC OnLine Mad 76, decided on 4-1-2022]
Advocates before the Court:
For Petitioner: Mr N. Edwin Jeyakumar, for Mr S.Leonard Vasanth.
For Respondents: Mr M. Sakthi Kumar, Government Advocate.