KOCHI: No new
licence
or renewal should be granted for toddy shops in residential areas without assessing impact on privacy of nearby residents, the high court has ordered.
The order was issued by Justice A Muhamed Mustaque after considering five petitions by residents alleging violation of fundamental rights due to operation of toddy shops in residential areas.
In the 46-page judgment, the court also asked the state government to consider ways to modernize toddy shops.
Being the protector and guardian of fundamental rights, the government is obliged to take positive measures against breach of fundamental rights due to its action or private action, the court said.
“There is no embargo in our Constitution in recognizing human rights protected under Article 8 of the European Convention on Human Rights to have protection to respect for private and family life and his home. Therefore, no toddy shops can be established in a residential area in derogation of the rights of the individual to have respect for his private and family life and home,” the judgment said.
Whether operation of a
toddy shop
violates the fundamental rights of nearby residents is a matter that can only be ascertained on a case by case basis, the court said. European Convention on Human Rights adopted assessment based on ‘threshold severity test’, which refers to the minimum level of severity of the action complained of, the court noted.
As per the judgment, such tests would take place in proximity of toddy shop with a residential building and other factors that would affect privacy right such as noise, emissions, odours, and any other forms of interference for the quiet enjoyment of one’s home. The assessment should also contain a negative test, which refers to amenities one would be able to enjoy in the absence of a toddy shop nearby. The court also said no empirical data is needed and violation of one person’s privacy right is sufficient to deny licence.
Laying down the test of assessment on the impact of privacy rights, the court said no toddy shop should be located in a residential area infringing the right of privacy of a nearby resident, that threshold severity test assessment must be conducted for assessing breach of privacy right, and the commissioner of excise can consider complaints of privacy breach.
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