Opinion Kanwariyas have their right to choose. But eatery owners also have their right to privacy

However, on Tuesday, the SC found this petition infructuous, given that the yatra is over, and directed the petitioners to approach the High Court for a detailed order on the merits of the directive. This is a constitutional quagmire impacting not only the right to privacy of the owners of the eateries, but also affecting the very tenets of secularism. The imminent threat of police action could also provoke an infringement of Fundamental Rights guaranteed under Article 14, 15(1), 17 and 19(1)(g) of the Constitution.

The major question rests on the touchstone of the guidelines laid down in KS Puttaswamy vs Union of India regarding the right to privacy. The guidelines state that every state action impacting an individual’s right to privacy must satisfy the tests of proportionality, necessity, legitimate aim and suitability. This, in the context of Article 21, means that an invasion of privacy must be justified based on a law that stipulates a procedure that is fair, just, and reasonable. An invasion of life or personal liberty must also meet the threefold requirement of (i) legality, which postulates the existence of a statute; (ii) need, defined in terms of a state’s legitimate aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

However, in this case, the state action does not seem to have qualified any of the aforementioned requirements. Firstly, as rightly argued by several petitioners in this case, the directive was neither authorised by a statute nor was it proportionate or necessary to achieve its slated objectives.

As argued by the petitioners, if the slated purpose of the directive was to ensure that the Kanwariyas have access to pure vegetarian food along the route of the yatra, then the mandate to disclose the names of the eatery owners has no bearing, if all eateries are anyway serving pure vegetarian food as per their dietary requirements.

Lastly, the names of the owners of these eateries are an inevitable marker of their caste and religious identities, and a mandate for the disclosure of these details by state action is violative of their fundamental right to privacy under Article 21.

This particular case called for a balancing act by the SC, to maintain the crucial equilibrium between the consumer’s right to know (for religious sentiments), vis-a-vis the right of the eatery owners to maintain their privacy. The impact of the Court’s order refusing to intervene with the QR code requirement shall stand out as a case wherein the customer’s right to know trumped the fundamental right to privacy of the eatery owners.

If a balancing act between competing rights is not adequately performed by the constitutional courts, it may affect the constitutional ethos. The constitutionality of such directives must be tested by the existing legal provisions.

The writer is a research fellow at Vidhi Centre for Legal Policy