This post is authored by Suhavi Arya.
In Justice (Retd.) K.S. Puttaswamy vs. Union of India (“Puttaswamy”) the Apex Court noted that there is a distinction between public and private spaces. Keeping this in mind, this post investigates the scope of one’s right to privacy in one’s own home. In the course of writing this post, I relied on CCG’s Privacy High Court Tracker to identify cases that discuss the extent to which the right to privacy may be interpreted in light of this public-private distinction.
The case of Vilasini vs. State of Kerala from the High Court of Kerala sheds some light on the issue. This case relates to Kerala’s toddy (palm wine) shops, that were increasingly being described as somewhat of an eyesore, with the manufacturing, storage, consumption, and disposal of toddy creating a challenging atmosphere for surrounding residents. The people affected most by the existence of these toddy shops were immediate neighbours. Several individuals filed writ petitions against the operation of toddy shops in their neighbourhoods. One such petition also challenged the shifting of a toddy shop to the petitioner’s colony, which is also near a local “anganwadi”. The writ petitions filed — concerned several different toddy shops and varied issues, however, the Kerala High Court noted that the underlying concern in all these petitions was the protection of their privacy in their own homes and therefore considered these petitions together in a common judgement.
In the judgement, a single judge bench of Justice A. Muhamed Mustaque, stated that since the sale of liquor is regulated by the State, the State is bound to address any implication on the rights of others who are affected by the conduct and placement of toddy shops. Crucially, in this case it was the State that determined the location of toddy shops through a licensing regime. The High Court observed that the Apex court noted in the Puttaswamy case that privacy is not lost or surrendered merely because the individual is in a public space. Privacy attaches to the person and not the place as it part of the dignity of the human being. Furthermore, the Court added that “Privacy has both positive and negative content: The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual”. This is important because, while Puttaswamy did not enumerate an exhaustive list of rights that fall under ‘privacy’, it stated that anything that is essential to the dignity of a human being in private can be enforced by the person in public, including their well-being in their homes.
With this in mind, in the case of Vilasini, the Kerala High Court observed that there needs to be a standard by which a violation of privacy can be assessed. The High Court sought guidance from certain judgements of the European Court of Human Rights (‘ECtHR’) and laid down a framework of assessment that may apply in the Indian context as well. After having perused several European cases, the High Court noted that the ECtHR had developed a test; for an action to be a “breach of privacy, it must have a direct immediate consequence to the applicants’ right to respect for their homes” under Article 8 of the European Convention of Human Rights (respect for home and private life). These ECtHR cases balanced the gravity and severity of nuisance caused by the impugned action with the community’s interests as a whole, assessing if the State had struck a fair balance or violated the right to privacy of an individual. For example, one case concerned noise pollution from bars and discotheques near the petitioner’s house, with the ECtHR ruling that the excessive noise was above the permitted levels and had occurred over a number of years, thus violating the privacy of the petitioner.
In Vilasini, the High Court uses the phrase, a ‘threshold severity test’ to describe this analysis. But the roots of this test, can be traced from these ECtHR cases which relate to the minimum level of severity of the action complained against and an evaluation of the authorities’ role upon a complaint being made. Although Article 8 of the European Convention expressly refers to ‘the home, private life, and family’, the Kerala High Court has read this as a facet of India’s right to privacy doctrine. Based on this interpretation of the right to privacy, the High Court restrained the operation of one toddy shop and directed the State authorities to assess the privacy impact of the operation of other shops.
The case of Puttaswamy has led to a diverse applicability of privacy and Article 21. New contours of privacy are now being explored in different high courts around the country. While courts now study the scope of the right to privacy and associated rights, it’s important to chart trends and understand the implications of new facets of privacy being recognised. The specific contours of privacy and its interactions with the public realm are being developed by courts on a case by case basis, with each new challenge to state action throwing up novel questions for Indian privacy jurisprudence. In furthering this jurisprudence, it is important to keep in mind the most fundamental aspect of privacy – that it is integral to every aspect of a person’s overall well-being. The Kerala High Court’s recognition that the right to privacy includes a right to be left alone and at peace in one’s own home, and the State’s duty to facilitate this, is the concrete application of a new facet of the right to privacy.
 of Moreno Gomez vs. Spain (Application No.4143/02); Hatton and Others vs. the United Kingdom [GC] (No. 36022/97, ECHR 2003- VIII); Lopez Ostra vs. Spain (Application No.16798/90); Guerra and Others vs. Italy [Application No.116/1996/735/932]; Cuenca Zarzoso vs. Spain [Application No.23383/12]; of Deés vs. Hungary [Application No.2345/06] and Fadeyeva vs. Russia [Application No.55723/00]