Payel Biswas vs The Commissioner Of Police

DATED: 04.01.2022

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

WP (MD)No.22667 of 2021

Payel Biswas ... Petitioner

Vs.

1. The Commissioner of Police, Trichy City.

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

Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus to direct the second respondent to issue a No Objection Certificate to the petitioner to run a “SPA” i.e., cross massage in the name and style of “QUEEN AYURVEDIC CROSS SPA CENTRE” at No.A.A.18, King Square, Anna Nagar, Thillai Nagar Main Road, Tennur, Trichy District – 17 by passing orders on the petitioner's representation dated 17.11.2021.

For Petitioner : Mr.N.Edwin Jeyakumar, for Mr.S.Leonard Vasanth. For Respondents : Mr.M.Sakthi Kumar, Government Advocate.

https://www.mhc.tn.gov.in/judis 1/18 ORDER

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?” .

2.Any constitutional democracy (the prefix 'constitutional' is

significant. An authoritarian political arrangement can claim to be

people's democracy) rests on three pillars. When the individual liberty

is threatened by legislative or executive action, one turns to judiciary for

relief and remedy. In State of Madras v. V.G.Row (AIR 1952 SC

196), Justice M.Patanjali Sastri, C.J. remarked that the Supreme Court

had been assigned the role of a sentinel on the qui vive as regards the

fundamental rights. I venture to think that this applies with equal force

to every court and not just the constitutional courts.

3.Why such reflections and prefatory remarks? The petitioner

herein is running a Spa in the name and style of “Queen Ayurvedic https://www.mhc.tn.gov.in/judis 2/18 Cross Spa Centre” at Trichy. Originally, there was no law regulating the

said business and no license was required from any governmental

authority. Since vide Gazette Notification No.252 dated 16.07.2018,

obtaining of license has been made mandatory, the petitioner applied

for such license. Since no action was taken on his request, he filed this

writ petition for directing the police authority to issue “no objection

certificate”. He also wanted this Court to restrain the police from

interfering with the running of the Spa. The petitioner's counsel relied

on an earlier order dated 12.08.2021 made in WP No.16811 of 2021. A

learned Judge of this Court had directed the authorities concerned to

issue “no objection certificate”, if the applicant satisfied all the

requirements. In the event of granting such NOC, the respondents

were restrained from interfering with the activities of the Spa so long as

it is run in accordance with law. I was informed that a number of such

orders have been passed. In line with the same, I disposed of the writ

petition on 21.12.2021.

4.While so, the learned Government counsel made a mention that

another learned Judge of this Court (His Lordship The Hon'ble Mr.Justice

S.M.Subramaniam), while dealing with a similar writ petition, had issued

the following directions vide order dated 20.12.2021 in WP No.37089 of https://www.mhc.tn.gov.in/judis 3/18 2015 (C.P.Girija vs. The Superintendent of Police, Villupuram District and

two others) :

“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.”

The learned Government counsel felt that it was his bounden duty to

bring it to my notice about the passing of such an order a day prior to

the disposal of the present writ petition.

5.I wondered if I should recall the order earlier passed and refer

the matter to My Lord the Hon'ble Chief Justice. The Hon'ble Supreme

Court in S.Kasi vs. State (AIR 2020 SC 2921) had held that a

coordinate Bench cannot take a contrary view and that it can only refer

https://www.mhc.tn.gov.in/judis 4/18 the matter for consideration by a Larger Bench. But where the law has

already been laid down by the Hon'ble Supreme Court, in view of Article

141 of the Constitution of India, one is obliged to follow the same.

6.In my humblest opinion, and I say this with the greatest of

respect to my revered brother Judge, the judgment in C.P Girija v.

The Superintendent of Police and Others appears to run counter to

the law laid down by the 9-judge bench judgment of the Hon’ble

Supreme Court in K.S Puttaswamy v. Union of India, (2017) 10

SCC 1. Article 21 of the Constitution guarantees to all persons the

fundamental right to privacy. Through a unanimous verdict, the Hon'ble

Supreme Court declared in ringing terms that the right to life and

personal liberty guaranteed in Article 21 also includes implicitly within it

a right to privacy. This right to privacy is seen as both possessing

inherent value in that it is important for every person’s basic dignity,

and also instrumental value in that it furthers a person’s ability to live

life free of interference. The Court held that privacy as guaranteed in

Article 21 takes several different forms-it includes a right to bodily

autonomy, a right to informational privacy and a right to a privacy of

choice. The installation of CCTV equipment inside premises such as a

spa would unquestionably infract upon a person’s bodily autonomy. https://www.mhc.tn.gov.in/judis 5/18 These are inviolable spaces where the prying eye of the state simply

cannot be allowed to enter.

7.The following observations from the judgment in Puttaswamy

are apposite:

“While the legitimate expectation of privacy

may vary from intimate zone to the private zone and

from the private to the public arena, it is important to

underscore that privacy is not lost or surrendered

merely because the individual is in a public

place.” (Chandrachud, J, at para 3(f) of his

conclusion)

“The entitlement to such a condition is not

confined only to intimate spaces such as the

bedroom or the washroom but goes with a person

wherever he is, even in a public place.” (J. Bobde at

para 22)

The judgment in CP Girija directs the installation of CCTV cameras not in

public spaces but in what are intimate, private spaces. It is clear from https://www.mhc.tn.gov.in/judis 6/18 the Hon’ble Supreme Court’s judgment that any invasion of life or

personal liberty must meet the three-fold requirement of (i) legality,

which postulates the existence of law; (ii) need, defined in terms of a

legitimate state aim; and (iii) proportionality which ensures a rational

nexus between the objects and the means adopted to achieve them. In

the first place, unless a legislature mandates by law that CCTV cameras

ought to be installed in a certain space, to do so would violate Article

21. In this case, the notification issued by the Government

contemplates 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.

8.No right including a fundamental right can be absolute. But the

restrictions can be put in place only by the legislature or the executive.

The sweep and the reach of the fundamental rights cannot be curtailed

by any judicial measure. The Hon'ble Supreme Court alone can do so in

exercise of its power under Article 142 of the Constitution. 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. https://www.mhc.tn.gov.in/judis 7/18 9.The right to life and personal liberty enshrined in Article 21 of

the Constitution of India includes the right to relax. This right can be

exercised in a variety of forms. The Puttaswamy 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.

10.The Commissioner, Greater Chennai Corporation had issued

Notification under Section 373 of the Chennai City Municipal Corporation

Act, 1919 and the same was also published in Tamil Nadu Government

Gazette No.9, dated 27.02.2019. It reads as follows :

https://www.mhc.tn.gov.in/judis 8/18 https://www.mhc.tn.gov.in/judis 9/18 https://www.mhc.tn.gov.in/judis 10/18 It is not known as to whether other local bodies have passed similar

notifications. C.P.Girija judgment refers to the aforesaid notification. In

the said notification, while a hair cutting saloon and beauty parlour can

be without partition or room, a Spa or massage parlour are to have

partition/room/Sauna/bathing facilities. When the executive notification

itself contemplates that Spa/Massage parlours should have partitions or

rooms, there is no need to issue a further direction that the licensees

should conduct their business activities in a transparent manner and

avoid secluded or closed rooms. One can take judicial notice of the

fact that after a massage session, the customer might prefer to take a

soothing hot water bath. That is why, the aforesaid notification refers to

Sauna/bathing facilities. They have to be necessarily in closed rooms.

There cannot be transparency in such matters.

11.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. The question of whether concerns of breach of morality can be

made a ground for intruding into one's private space was pondered over

in Govind v. State of MP (AIR 1975 SC 1378). While the Hon'ble

Supreme Court did not answer this question, it did however set forth a

principle. Para 22 of the judgment is as follows: https://www.mhc.tn.gov.in/judis 11/18 “If the court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterisation of a claimed right as a fundamental privacy right would be of far less significance.”

When Govind decision was rendered, privacy was not recognised as a

fundamental right. Post Puttaswamy judgment, 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 Hon'ble Supreme

Court in which it was held that in matters of one's private affairs,

constitutional morality shall trump public morality. (Navtej Singh

Johar and Ors. vs. Union of India (UOI) and Ors. (2018) 10 SCC

1).

12.It may not be out of place to refer to the decision of the

Hon'ble Division Bench in WA No.576 of 2015 (Raptakos Brett and

https://www.mhc.tn.gov.in/judis 12/18 Co.Ltd vs. Raptakos Brett Employees Union and ors). The Writ Appeal

was filed by the appellant after suffering an order of writ of mandamus

under Article 226 of the Constitution of India for removal of the Closed

Circuit Television Units (CCTVs) installed in the rest room and lockers

room. The Hon'ble Division Bench observed that such installation is

not only objectionable but also impermissible in law in light of

Puttaswamy judgment. The essence of Puttaswamy was summarised

in the following terms :

“....the right to privacy is a fundamental right that does not need to be separately articulated, but can be derived from Articles 14, 19 & 21 of the Constitution of India; that it is a natural right that subsists as an integral part to the right to life and liberty; that it is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/she makes; that it protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc., therefore, any action by the State that results in an infringement of the right of privacy is subject to judicial review, in the case on hand, since there is no infringement of privacy by the State, the first respondent/writ petitioner cannot lay their claim before this Court under Article 226 of the Constitution of India. In the judgment of the Hon'ble Apex Court in Justice K.S. Puttaswamy (Retd.) v. Union of https://www.mhc.tn.gov.in/judis 13/18 India (supra), Hon'ble Justice Sanjay Kishan Kaul (in his separate opinion) recognizing the breach of privacy committed by private individuals/private entities/non-State actors, called upon the legislature to legislate on this issue and ensure privacy of individuals against other citizens as well.”

The Hon'ble Division Bench of course doubted the maintainability of the

Writ Petition only because it was sought to be enforced against a

private management.

13.Most of us view privacy as an individual right. Time has come

to look beyond. Priscilla M Regan in her seminal work “Legislating

Privacy”, highlights the importance of developing and understanding of

the social importance of privacy. She conceptualizes privacy as a value

and as a goal of public policy.

14.In the decision reported in 2015 (1) MLJ 308 (Masti

Health and Beauty Private Limited vs. The Commissioner of

Police Chennai City), a learned Judge of this Court disposed of a

similar writ petition in the following terms :

“67.In the light of the above, all the writ petitions are disposed of to the following effect:

https://www.mhc.tn.gov.in/judis 14/18 (i) The respondents shall not, as a matter of routine and without any basis, conduct any raids and interfere with the business carried on by the petitioners; (ii) In specific cases where the police have reasonable grounds to believe that an offence punishable under the Immoral Traffic (Prevention) Act has been or is being committed, it is open to the police to take action, after scrupulously following all the steps indicated in Section 15 of the said Act. The steps to be followed are narrated by me in paragraph 28 above; and (iii) Based upon the laws enacted in various States of the United States of America and Singapore, which I have dealt with in paragraphs 39 to 54, the respondents may take appropriate steps for bringing in either a new legislation or a subordinate legislation in terms of the provisions of the Chennai City Municipal Corporation Act or the Chennai City Police Act, so that public order, decency and morality, which can form the basis for a regulatory law under Article 19(2) of The Constitution, are taken care of. The Government shall file a report on or before 31.3.2015, before this Court, about the decision taken.”

Obviously, pursuant to the aforesaid order, the Chennai City Municipal

Corporation issued the Notification dated 27.02.2019. When the

https://www.mhc.tn.gov.in/judis 15/18 notification issued by the appropriate authority is holding the field, it

may not be open to the court to supplement the same. In these

circumstances, the first respondent is directed to consider the

petitioner's representation dated 17.11.2021 and dispose of the same on

merits and in accordance with law within a period of four weeks from

the date of receipt of copy of this order. If the first respondent issues

No Objection Certificate and if based thereon, the competent authority

grants license in favour of the petitioner, of course, the respondents will

not thereafter interfere with the petitioner's business so long as it is

running in the manner known to law.

15.The writ petition is disposed of. No costs.

04.01.2022

Index : Yes / No Internet : Yes/ No skm

Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis 16/18 To:

1. The Commissioner of Police, Trichy City.

2. The Inspector of Police (L & O), Thillai Nagar Police Station. Trichy City – 600 017.

3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis 17/18 G.R.SWAMINATHAN, J.

SKM

W.P.(MD)No.22667 of 2021

04.01.2022

https://www.mhc.tn.gov.in/judis 18/18