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1 court, 1 issue, 2 judges, 2 judgments — How Madras HC created ‘confusion’ over CCTVs in spa

A single-judge bench of Madras HC mandated installation of CCTV cameras in spas, in December. Last week, another single-bench of the HC said right to privacy makes it impermissible.

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New Delhi: In less than a fortnight the Madras High Court has given conflicting orders on whether CCTV camera installation in spas and massage centres violates the ‘right to privacy’ of those visiting such places. Notably, both the orders were by two separate single-judge benches.

While the first order was delivered on 20 December 2021, the second was pronounced Tuesday (4 January).

In his December order mandating installation of CCTV cameras in spas, Justice S.M. Subramaniam had directed the law-enforcement agencies to issue appropriate instructions so that such centres conduct their business “transparently”, thereby avoiding “secluded or closed rooms”.

However, Justice G.R Swaminathan this week gave a contrary order. Considering the right to privacy, which is a declared fundamental right in view of a Supreme Court verdict, presence of cameras in these centres is impermissible, he said.

ThePrint explains the two contradictory judgments that could lead to arbitrary action by the police, given that both the rulings are binding and open to subjective interpretation.

Also read: ‘Wholly devoid of merit’: Why Delhi HC dismissed Subramanian Swamy’s challenge to Air India sale

Cameras to check spa centres operate legally, says order 1

Justice Subramaniam’s order came on a petition filed by spa owners, seeking to curb the Tamil Nadu police from repeatedly conducting inspections. It was the petitioners’ case that the actions of the police in carrying out constant checks amounted to interference with the “lawful business” run by the former.

In his judgment, Justice Subramaniam had upheld the powers of the law enforcement authorities to conduct inspections. The court had noted that there were “large scale allegations” against such centres, and the powers of the police to carry out such checks under the law cannot be trampled with.

Justice Subramaniam had ordered the authorities to issue orders providing CCTV cameras in such centres ‘which must be functional in all circumstances’. He had additionally ordered for “appropriate directions” so that such centres transparently conduct their business, thereby avoiding “secluded or closed rooms”.

“The powers and actions of the law enforcing agencies cannot be curtailed by the Court unnecessarily thereby paving way for any illegal activities by any person in the name of spa or massage centres,” the court said.

To curtail the power of police from carrying out inspections would be unconstitutional and result in “encouragement of crimes in society”, the judge had opined. However, he noted that the exercise of such powers must always be in “accordance with law”.

Justice Subramaniam had ordered the authorities to issue orders providing CCTV cameras in such centres so that they transparently conduct their business, avoiding “secluded or closed rooms”.

Cameras in private intimate spaces impermissible in law, says order 2

Justice Swaminathan’s judgment this week, however, held that cameras in spas violate the right to privacy recognised under Article 21 of the Constitution.

He extensively relied on the Supreme Court’s 2017 judgment in K.S. Puttaswamy v. Union of India case and opined installation of such cameras would infringe a person’s bodily autonomy. “These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter,” the judge said.

In the Puttaswamy judgment, the SC had said that the right to privacy includes both an “inherent and instrumental” value, allowing a person to live a life of dignity, free of interference.

Justice Swaminathan noted that according to the Puttaswamy judgment, a person does not lose his “privacy” merely because he is in a public space. The installation of the cameras is in “private, intimate” spaces and is impermissible in law.

Elaborating the three key features of privacy — repose (freedom from unwarranted attention), sanctuary (freedom of keeping things to oneself), and intimate decisions (freedom to make personal life choices), the court said an individual’s right to avail means of relaxation (such as a spa) falls under “repose and sanctuary”. 

Therefore, any intrusion with such a right must satisfy the test of “legality, legitimate aim, and proportionality”.

Justice Swaminathan also recognised that when there is an existing notification by an appropriate authority on a subject, it may not be open for the judiciary to supplement the same.

Has the order been overturned?

In law, an order by a court is said to only be “overturned” or “overruled” when it is considered by a larger bench of the same court or by an appellate court. In the present case, the conflicting cases are both single-judge orders and thus the earlier order has not been “overruled”.

While considering the present case, Justice Swaminathan made a mention of an earlier decision, according to which a coordinate bench cannot take a contrary view to another bench. In case of such a conflict, the only recourse is to refer the matter to a larger bench comprising the court’s chief justice.

However, the judge took note that the Supreme Court has in the past emphasised under Article 141 that courts are bound to follow the law laid down by the apex court. Hence, Justice Swaminathan held, it was lawful on his part to give a contrary opinion even though his bench was of the same strength as that of Justice Subramaniam.

Speaking to ThePrint, senior advocate K.T.S. Tulsi said the conflict in law must be resolved by a larger bench.

“A larger bench of the high court must resolve the conflict keeping in view judicial discipline. In case there is still a conflict, the parties must approach the Supreme Court to pronounce an authoritative judgment on the issue,” he said.

Also read: SC directs Punjab & Haryana HC registrar general to preserve records of PM Modi’s Punjab visit


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