Kharak Singh Vs. The State of U. P.
& Ors [1962] INSC 377 (18 December 1962)
AYYANGAR, N. RAJAGOPALA AYYANGAR, N.
RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SUBBARAO, K. SHAH, J.C.
MUDHOLKAR, J.R.
CITATION: 1963 AIR 1295 1964 SCR (1) 332
CITATOR INFO :
F 1967 SC1836 (28,53,59,60,61,62) E 1970 SC
898 (58) R 1974 SC2092 (10) RF 1975 SC1378 (6,13) E 1976 SC1207
(59,288,289,520) R 1977 SC1027 (23,30,42) D 1978 SC 489 (9) R 1978 SC 597
(3,10,54,209) R 1978 SC1514 (5) R 1978 SC1675 (55,56,226) RF 1980 SC1579 (40) R
1981 SC 746 (6) RF 1981 SC 760 (5) RF 1986 SC 180 (32) RF 1986 SC 847 (12) R
1987 SC 748 (15,16) RF 1991 SC 101 (239) RF 1991 SC1902 (24)
ACT:
Fundamental Right, Enforcement of-Scope-Right
to freedom of movement and personal liberty, whether infringed Surveillance-Whether
infringes fundamental right-Constitution of India, Arts. 19 (1) (d),21,32 -U.
P. Police Regulations, Regulation 236.
HEADNOTE:
The petitioner was challenged in a dacoity
case but was released is there was no evidence against him. The police opened a
history sheet against him. He was put under surveillance -is defined in
Regulation 236 of the U. P. Police Regulations. Surveillance involves secret
picketing of the house or approaches to the houses of the suspects, domiciliary
visits at night, periodical enquiries by officers not below the rank of
Sub-Inspector into repute, habits, association, income, expenses and
occupation, the reporting by constables and chaukidars of movements and
absences from home, the verification of movements and absences by means of
inquiry slips and the collection and record on a history sheet of all
information bearing on conduct.
The petitioner filed a writ petition under
Art. 32 in which he challenged the constitutional validity of Chapter XX of U.
P. Police Regulations, in which Regulation 236 also occurs.
The defence of the respondent was that the
impugned Regulations did not constitute an infringement of any of the freedoms
Guaranteed by Part III of the Constitution, and even if they were, they had
been framed in the interests of the General public and public order and to
enable the police to discharge its ditty in a more efficient manner, and hence
were reasonable restrictions on that freedom.
Held, (Subba Rao and Shah JJ., dissenting)
that out of the five kinds of surveillance referred to in Regulation 236, the
part dealing with domiciliary visits was violative of Art. 21 333 of the
Constitution and as there was no law on which the same could be justified it
must be struck down as unconstitutional, and the petitioner was entitled to a
writ of mandamus directing the respondent not to continue domiciliary visits.
The other matters constituting surveillance were not unconstitutional. The
secret picketing of the houses of tile suspects could not in any material or
palpable form affect either the right on the part of the suspect to move
freely' or to deprive him of his 'Personal liberty' within the meaning of Art.
21. In dealing with a fundamental right such as the right to free movement or
personal liberty, that only can constitute an infringement which is both direct
as well as tangible, and it could not be that under these freedoms the
Constitution makers intended to protect or protected mere personal
sensitiveness, 'The term 'picketing' has been used in the Regulation not in the
sense of offering resistance to the visitor-physical or otherwise-or even
dissuading him from entering the house of the suspect but merely of watching
and keeping a record of the visitors. Clauses (c), (d) and (e) of Regulation
236 dealt with the details of the shadowing of the history-sheeters for the
purpose of having a record of their movements arid activities, and the
obtaining of information relating to persons with whom they came into contact with
a view to ascertain the nature of their activities, arid did not infringe any
fundamental right of the petitioner. The freedom guaranteed by Art. 19 (1) (d)
was not infringed by a watch being kept over the movements of the suspect. Art.
21 was also not applicable. The suspect had the liberty to answer or not to
answer the question put to him by the police, and no Law provided for any civil
or criminal liability if the suspect refused to answer a question or remained
silent. The right of privacy is not a guaranteed right under our Constitution,
arid therefore the attempt to ascertain the movements of an individual is
merely a manner in which privacy is invaded and is not an infringement of a
fundamental right guaranteed in Part III.
The term 'personal liberty' is used in Art.
21 as a compendious term to include within itself all the varieties of rights
which go to make up the 'personal liberties' of man other than those dealt with
in the several clauses of Art. 19 (I ). While Art. 19 (1) deals with particular
species or attributes 'of that freedom, 'personal liberty' in Art. 21 takes in
and comprises the residue. The word "life" in Art. 21 means not
merely the right to the continuance of a person's animal existence, but a right
to the possession of each of his organsarms, legs, etc.
The contention of the respondent that if an
act of the police involved a trespass to property, that could give rise to a
334 claim in tort as that action was not authorised by law, and the remedy of
the petitioner was a claim for damages and not a petition under Art. 32, was
without any substance and wholly irrelevant for considering whether such action
was -in invasion of a fundamental right. It is wholly erroneous to assume that
before the jurisdiction of this Court uinder Art. 32 can be invoked, the
applicant must either establish that he has no other remedy adequate or
otherwise or that he has exhausted such remedies as the law affords and has yet
not obtained pro. per redress, for when once it is proved to the satisfaction of
this Court that by State action the fundamental right of the petitioner tinder
Art. 32 has been infringed, it is not only the right but the duty of this Court
to afford relief to him by passing appropriate orders in this behalf.
Per Subba Rao and Shah, JJ.-The petitioner
was a class A history-sheeter and hence was subject to the entire field of
surveillance. Policeman were posted near his house to watch his movements and
those of his friends and associates who went to his house. They entered his
house in the night and woke him up to ascertain whether he was in the house and
thereby disturbed his sleep and rest. The officials, not below the rank of
Sub-Inspector, made inquiries from others as regards his habits, associations,
income, -expenses and occupations. They got information from others as regards
his entire way of life. The constables and chaukidars traced his movements,
shadowed him and made reports to their superiors. It was conceded that there
was no law which imposed restrictions on bad characters.
Held, that the whole of Regulation 236 is
unconstitutional and not only cl. (b). The attempt to dissect the act of
surveillance into its various ramifications is not realistic. Clauses (a) to
(f) of Regulation 236 are the measures adopted for the purpose of supervision
or close observation of tile movements of the petitioner and are therefore
parts of surveillance.
Both Arts. 19(1) and 21 deal with two
distinct and independent fundamental rights. The expression "personal
liberty" is a comprehensive one and the right to move freely is an
attribute of personal liberty. But it is not correct to say that freedom to
move freely is carved out of personal liberty and therefore the expression
"Personal liberty" in Art. 21 excludes that attribute. No doubt,
these fundamental rights overlap each other but the question of one being
carved 335 out of the other does not arise. The fundamental rights of life and
personal liberty have many attributes and some of them are found in Art. 19.
The State must satisfy that both the fundamental rights are not infringed by
showing that there is a law within the meaning of Art. 21 and that it does
amount to a reasonable restriction within the meaning of Art. 19(2) of the
Constitution.
The right of personal liberty in Art. 21 implies
a right of an individual to be free from restrictions or encroachments on his
person, whether those restrictions or encroachments are directly imposed or
indirectly brought about by calculated measures. If so understood, all the acts
of surveillance under Regulation 236 infringe the fundamental right of the
petitioner under Art. 21 of the Constitution.
As regards the fundamental rights guaranteed
by Art. 19(1) (d), mere movement unobstructed by physical restritions cannot in
itself be the object of a person's travel. A person travels ordinarily in quest
of some objective. He goes to a place to enjoy, to do business, to meet
friends, to have secret and intimate consultations with other and to do many
other such things. If a man is shadowed, his movements are obviously
constricted. He can move physically but it can only be a movement of an
automation. A movement under the scrutinising gaze of a policeman cannot be
described as a free movement. The whole country is his jail. The freedom of
movement in Art. 19(1)(d) must, therefore, be a movement in a free country,
i.e.. in a country where lie can do whatever lie likes, speak to whomsoever he
wants, meet people of his choice without any apprehension, subject of course to
the law of social control. The petitioner under the shadow of surveillance is
certainly deprived of this freedom. He can move physically, but be cannot do so
freely, for all his activities are watched and the shroud of surveillance cast
upon him perforce engenders inhibitions in him, and he cannot act freely as he
would like to do. Hence, the entire Regulation 236 offends Art. 19(1) (d) of
the Constitution.
Held, also that petitioner's freedom under
Art. 19(1) (a) of the Constitution was also infringed. It was impossible for a
person in the position of the petitioner to express his real and intimate
thoughts to the visitor as fully as he would like to do.
A.K. Gopalan v. State of Madras [1950] S.C.R.
88; Munn v. Illinois, (1877) 94 U. S. 113; Wolf v. Colorado, (1949) 338 U. S.
25; Semayne's case (1604) 5 Coke 91 and Bolling v. Sharpe, (1954) 347 U. S.
497, referred to.
ORIGINAL JURISDICTION : Petition No. 356 of
1961.
Petition tinder Art. 32 of the Constitution
of India for the enforcement of fundamental rights.
J. P. Goyal, for the petitioner.
K. S. Hajela and C. P. Lal, for the
respondents.
1962. December 18. The judgement of Sinha, C.
J., Imam, Ayyangar and Mudholkar, jj., was delivered by Ayyangar, j., Subba Rao
and Shah, jj., delivered a separate judgment.
AYYANGAR, J.--This petition under Art. 32 of
the Constitution challenges the constitutional validity of Ch.
XX of the U. P. Police Regulations and the
powers conferred upon police officials by its several provisions on the ground
that they violate the right guaranteed to citizens by Arts. 19(1)(d) and 21 of
the Constitution.
To appreciate the contention raised it is
necessary to set out the facts averred on the basis of which the fundamental
right of the petitioner, is said to be violated, as well as the answers by the
respondent-State to these allegations.
The petitioner--Kharak Singh -was challaned
in a case of dacoity in 1941 but was released under s. 169, Criminals Procedure
Code as there was no evidence against him. On the basis of the accusation made
against him he states that the police have opened a "historysheet" in
regard to him.
Regulation 228 which occurs in Ch. XX of the
Police Regulations defines "history-sheets" as "the personal
records of criminals under surveillance". That regulation further directs
that a "history-sheet" should be opened only for persons who are or
are likely to become habitual criminals or the raiders or abettors of such
criminals.
337 These history-sheets are of two classes :
Class A for dacoits, burglars, cattle-thieves, and railway-goodswagon thieves,
and class B for those who are confirmed and professional criminals who commit
crimes other than dacoity, burglary, etc. like professional cheats. It is
admitted that a history-sheet in class A has been opened for the petitioner and
he is therefore "under surveillance." The petitioner describes the
surveillance to which he has been subjected thus : Frequently the chaukidar of
the village and sometimes police constables enter his house, knock and shout at
his door, wake him up during the night and thereby disturb his sleep. On a
number of occasions they have compelled him to get up from his sleep and accompany
them to the police station to report his presence there. When the petitioner
leaves his village for another village or town, he has to report to the
chaukidar of the village or at the police station about his departure. He has
to give them information regarding his destination and the period within which
he would return. Immediately the police station of his destination is contacted
by the police station of his departure and the former puts him under
surveillance in the same way as the latter. There are other allegations made
about misuse or abuse of authority by the chaukidar or the police officials but
these have been denied and we do not consider them made out for the purposes of
the present petition. If the officials out step the limits of their authority
they would be violating even the instructions given to them, but it looks to us
that these excesses of individual officers which are wholly unauthorised could
not be complained of in a petition under Art. 32.
In deciding this petition we shall proceed
upon the basis that the officers conformed strictly to the terms of the
Regulations in Ch. XX properly construed and discard as exaggerated or not
proved the 338 incidents or pieces of conduct on the part of the authorities
which are alleged in the petition but which have been denied. As already
pointed out it is admitted that a history-sheet has been opened and a record as
prescribed by the Regulations maintained for the petitioner and that such
action as is required to be taken in respect of history sheters of Class A into
which the petitioner fell under the classification made in Ch. XX of the Police
Regulations is being taken in regard to him. It is stated in the counter
affidavit that the police keep a confidential watch over the movements of the
petitioner as directed by the Regulations in the interests of the general
public and for the maintenance of Public order.
Before entering on the details of these
regulations it is necessary to point out that the defence of the State in
support of their validity is two-fold : (1) that the impugned regulations do
not constitute an infringement of any of the freedoms guaranteed by Part III of
the Constitution which are invoked by the petitioner, and (2) that even if they
were, they have been framed "in the interests of the general public and
public order" and to enable the police to discharge its duties in a more
efficient manner and were therefore "reasonable restrictions" on that
freedom. Pausing here it is necessary to point out that the second point urged
is without any legal basis for if the petitioner were able to establish that
the impugned regulations constitute an infringement of any of the freedoms
guaranteed to him by the Constitution then the only manner in which this
violation of the fundamental right could be defended would be by justifying the
impugned action by reference to a valid law, i. e., be it a statute, a
statutory rule or a statutory regulation.
Though learned counsel for the respondent
started by attempting such a justification by invoking s. 12 of the Indian
Police Act he gave this up and conceded that the regulations contained in Ch.
XX bad no such statutory basis but were merely executive or departmental 339
instructions framed for the guidance of the police officers.
They would not therefore be "'a
law" which the State is entitled to make under the relevant clauses 2 to 6
of Art.
19 in order to regulate or curtail fundamental
rights guaranteed by the several sub-clauses of Art. 19 (1); nor would the same
be " a procedure established by law" within Art. 21. The position
therefore is that if the action of the police which is the arm of the executive
of the State is found to infringe any of the freedoms guaranteed to the
petitioner the petitioner would be entitled to the relief of mandamus which he
seeks to restrain the State from taking action under the regulations.
There is one other matter which requires to
be clarified even at this stage. A considerable part of the argument addressed
to us on behalf of the respondent was directed to showing that the regulations
were reasonable and were directed only against those who were on proper grounds
suspected to be of proved anti-social habits and tendencies and on whom it was
necessary to impose some restraints for the protection of society. We entirely
agree that if the regulations had any statutory basis and were a "law'
within Art. 13 (3), the consideration mentioned might have an overwhelming and
even decisive weight in establishing that the classification was rational and
that the restrictions were reasonable and designed to preserve public order by
suitable preventive action. But not being any such "law", these considerations
are out of place and their constitutional validity has to be judged on the same
basis as if they were applied against everyone including respectable and law abiding
citizens not being or even suspected of being, potential dangers to public
order.
The sole question for determination therefore
is whether "surveillance" under the impugned Ch. XX of the U.P.
Police Regulations constitutes an infringement of any of a citizen's
fundamental rights 340 guaranteed by Part III of the Constitution. The particular
Regulation which for all practical purposes defines "surveillance" is
Regulation 236 which reads :
"Without prejudice to the right of
Superintendents of Police to put into practice any legal measures, such as
shadowing in cities, by which they find they can keep in touch with suspects in
particular localities or special circumstances, surveillance may for most
practical purposes be defined as consisting of one or more of the following
measures :
(a) Secret picketing of the house or
approaches to the house of suspects;
(b) domiciliary visits at night;
(c) through periodical inquiries by officers
not below the rank of Sub-Inspector into repute, habits, associations, income,
expenses and occupation;
(d) the reporting by constables and
chaukidars of movements and absence from home;
(e) the verification of movements and
absences by means of inquiry slips;
(f) the collection and record on a history sheet
of all information bearing on conduct." Regulation 237 provides that all
,,history-sheet men" of class A (under which the petitioner falls)
",starred" and "unstirred", would be subject to all these
measures of surveillance. The other Regulations in the chapter merely elaborate
the several items of action which make up the "surveillance" or the
shadowing but we consider that nothing material turns on the provisions or
their terms.
341 Learned Counsel for the petitioner urged
that the acts set out in cls. (a) to (f) of Regulation 236 infringed the
freedom guaranteed by Art. 19 (1) (d) "to move freely throughout the
territory of India" and also that guaranteeing "personal
liberty" in Art. 21 which runs:
"No person shall be deprived of his life
or personal liberty except according to procedure established by law." We
shall now consider each of these clauses of Regulation 236 in relation to the
"freedoms" which it is said they violate:
(a) Secret picketing of the houses of
suspects:-It is obvious that the secrecy here referred to is secrecy from the
suspect; in other words its purpose is to ascertain the identity of the person
or persons who visit the house of the suspect, so that the police might have a
record of the nature of the activities in which the suspect is engaged.
This, of course, cannot in any material or
palpable form affect either the right on the part of the suspect to "'move
freely" nor can it be held to deprive him of his "personal
liberty" within Art. 21. It was submitted that if the suspect does come to
know that his house is being subjected to picketing, that might affect his
inclination to move about, or that in any event it would prejudice his
"Personal liberty". We consider that there is no substance in this
argument. In dealing with a fundamental right such as the right to free
movement or personal liberty , that only can constitute an infringement which
is both direct as well as tangible and it could not be that under these
freedoms the Constitution-makers intended to protect or protected mere personal
sensitiveness. It was then suggested that such picketing might have a tendency
to prevent, if not actually preventing friends of the suspect from 342 going to
his house and would thus interfere with his right "to form
associations" guaranteed by Art. 19 (f) (c). We do not consider it
necessary to examine closely and determine finally the precise scope of the
"freedom of association" and particularly whether it would be
attracted to a case of the type now under discussion, since we are satisfied
that "picketing" is used in cl. (a) of this Regulation not in the
sense of offering resistance to the visitor-physical or otherwise-or even
dissuading him, from entering the house of the suspect but merely of watching
and keeping a record of the visitors. This interpretation we have reached (a)
on the basis of the provisions contained in the later Regulations in the
Chapter, and (b) because more than even the express provisions, the very
purpose of the watching and the secrecy which is enjoined would be totally
frustrated if those whose duty it is to watch, contacted the visitors, made
their presence or identity known and tried to persuade them to any desired
course of action.
(b) Domiciliary visits at night:"Domiciliary
visits" is defined in the Oxford English Dictionary as "Visit to a
private dwelling, by official persons, in order to search or inspect it."
Webster's Third New International Dictionary defines the word as "'Visit
to a private dweling (as for searching it) under authority." The
definition in Chambers' Twentieth Century Dictionary is almost
identical-"Visit under authority, to a private house for the purpose of
searching it." These visits in the context of the provisions in the
Regulations are for the purpose of making sure that the suspect is staying at
home or whether he has gone out, the latter being presumed in this class of
cases, to be with the probable intent of committing a crime. It was urged for
the respondent that the allegations in the petition regarding the manner in
which "domiciliary visits" are conducted, viz., that the policeman or
chaukidar 343 enters the house and knocks at the door at night and after
awakening the suspect makes sure of his presence at his home had been denied in
the counter-affidavit and was not true, and that the policemen as a rule merely
watch from outside the suspect's house and make enquiries from third persons
regarding his presence or whereabouts. We do not consider that this submission
affords any answer to the challenge to the constitutionality of the provision.
In the first place, it is clear that having regard to the plain meaning of the
words "domiciliary visits," the police authorities are authorised to
enter the premises of the suspect, knock at the door and have it opened and
search it for the purpose of ascertaining -his presence in the house. The fact
that in any particular instance or even generally they do not exercise to the
full the power which the regulation vests in them, is wholly irrelevant for
determining the validity of the regulation since if they are so minded they are
at liberty to exercise those powers and do those acts without out stepping the
limits of their authority under the regulations.
Secondly, we are, by no means, satisfied that
having regard to the terms of Regulation 236 (b) the allegation by the
petitioner that police constables knock at his door and wake him up during the
night in the process of assuring themselves of his presence at home are
entirely false, even if the other allegations regarding his being compelled to
accompany the constables during the night to the police station be discarded as
mere embellishment.
The question that has next to be considered
is whether the intrusion into the residence of a citizen and the knocking at
his door with the disturbance to his sleep and ordinary comfort which such
action must necessarily involve, constitute a violation of the freedom
guaranteed by Art. 19 (1) (d) or "a deprivation" of the
"personal liberty" guaranteed 344 by Art. 21. Taking first Art. 19
(1) (d) the "freedom" here guaranteed is a right "to move
freely" throughout the territory of India. Omitting as immaterial for the
present purpose the last words defining the geographical area of the guaranteed
movement, we agree that the right to "'move" denotes nothing more
than a right of locomotion, and that in the context the adverb
"'freely" would only connote that the freedom to move is without
restriction and is absolute, i.
e., to move wherever one likes, whenever one
likes and however one likes subject to any valid law enacted or made under cl.
5. It is manifest that by the knock at the door, or by the man being roused
from his sleep, his locomotion is not impeded or prejudiced in any manner.
Learned Counsel suggested that the knowledge or apprehension that the police
were on the watch for the movements of the suspect, might induce a
psychological inhibition against his movements but, as already pointed out, we
are unable to accept the argument that for this reason there is an impairment
of the "'free" movement guaranteed by sub-cl. (d). We are not
persuaded that Counsel is right in the suggestion that this would have any
effect even on the mind of the suspect, and even if in any particular case it
had the effect of diverting or impeding his movement, we are clear that the
freedom guaranteed by Art. 19 (1) (d) has reference to something tangible and
physical rather and not to the imponderable effect on the mind of a person
which might guide his action in the matter of his movement or locomotion.
The content of Art. 21 next calls for
examination.
Explaining the scope of the words
"life" and "'liberty" which occurs in the 5th and 14th
Amendments to the U. S.
Constitution reading "'No person ......
shall be deprived of life, liberty or property without due process of
law", to quote the material words, on which Art. 21 is largely 'modeled,
Field, J. observed:
345 "By the term "'life" as
here used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all these limits and faculties by which life
is enjoyed. The provision equally prohibits the mutilation of the body or amputation
of an arm or leg or the putting out of an eye or the destruction of any other
organ of the body through which the soul communicates with the outer
world................ by the term liberty, as used in the provision something
more is meant than mere freedom from physical restraint or the bonds of a
prison." It it true that in Art. 21, as contrasted with the 4th and 14th
Amendment in the U. S., the word "liberty" is qualified by the word
"personal" and therefore its content is narrower. But the qualifying
adjective has been employed in order to avoid overlapping between those
elements or incidents of "liberty" like freedom of speech, or freedom
of movement etc., already dealt with in Art. 19 (1) and the
"'liberty" guaranteed by Art. 21-and particularly in the context of
the difference between the permissible restraints or restrictions which might
be imposed by sub-cls. 2 to 6 of the article on the several species of liberty
dealt with in the several clauses of Art. 19 (I). In view of the very limited nature
of the question before us it is unnecessary to pause to consider either the
precise relationship between the "liberties" in Art. 19 (1) (a) &
(d) on the one hand and that in Art. 21 on the other, or the content and
significance of the words "'procedure established by law" in the
latter article, both of which were the subject of elaborate consideration by
this Court in A. K. Gopalan v. State of Madras (1). In fact, in Gopalan's case
there was unanimity of opinion on the question that if there was no enacted
law, the freedom guaranteed by Art. 21 would be violated, though the learned
judges differed as to whether any and every enacted (1) [1950] S.C.R. 88.
346 law satisfied the description or
requirements of "a procedure established by law." Before proceeding
further a submission on behalf of the respondent requires notice. It was said
that if the act of the police involved a trespass to property , i. e., the
trespass involved in the act of the police official walking into the premises
of the. petitioner and knocking at the door, as well as the disturbance caused
to him, might give rise to claim in tort, since the action was not authorised
by law and that for these breaches of the petitioner' strights damages might be
claimed and recovered from the tortffeasor, but that the same could not
constitute an infraction of a fundamental right. Similarly it was urged that
the petitioner or persons against whom such action was taken might be within
their rights in ejecting the trespasser and even use force to effectuate that
purpose, but that for what was a mere tort of trespass or nuisance the
Jurisdiction of this Court under Art. 32 could not be invoked. These
submissions proceed on a basic fallacy. The fact that an act by the State
executive or by a State functionary acting under a pretended authority gives
rise to an action at common law or even under a statute and that the injured
citizen or person may have redress in the ordinary courts is wholly immaterial
and, we would add, irrelevant for considering whether such action is an
invasion of a fundamental right. An act of the State executive infringes a
guaranteed liberty only when it is not authorised by a valid law or by any law
as in this case, and every such illegal act would obviously give rise to a
cause of action-civil or criminal at the instance of the injured person for
redress. It is wholly erroneous to assume that before the, jurisdiction of this
Court under Art. 32 could be invoked the applicant must either establish that
he has no other remedy adequate or otherwise or that he has exhausted such
remedies as the law affords and has yet not 347 obtained proper redress, for
when once it is proved to the satisfaction of this court that by State action
the fundamental right of a petitioner under Art. 32 has been infringed, it is
not only the right but the duty of this Court to afford relief to him by
passing appropriate orders in that behalf.
We shall now proceed with the examination of
the width., scope and content of the expression "personal liberty" in
Art. 21. Having regard to the terms of Art. 19(1)(d), we must take it that
expression is used as not to include the right to move about or rather of
locomotion. The right to move about being excluded its narrowest inter pretention
would be that it comprehends nothing more than freedom from physical restraint
or freedom from confinement within the bounds of a prison; in other words,
freedom from arrest and detention, from false imprisonment or wrongful
confinement.
We feel unable to hold that the term was
intended to bear only this narrow interpretation but on the other hand consider
that "'personal liberty" is used in the Article as a compendious term
to include within itself all the varieties of rights which go to make up the
"personal liberties" of man other than those deal with in the several
clauses of Art. 19 (1). In other words, while Art. 19(1) deals with particular
species or attributes of that freedom, "personal liberty" in Art. 21
takes in and comprises the residue. We have already extracted a passage from
the judgment of Field, J. in Munn v. Illinois (1), where the learned judge
pointed out that "life" in the 5th and 14th Amendments of the U. S.
Constitution corresponding to Art.
21, means not merely the right to the
continuance of a person's animal existence, but a right to the possession of
each of his organs-his arms and legs etc. We do not entertain any doubt that
the word "'life" in Art. 21 bears the same signification. Is then the
word "'personal liberty" to be construed as excluding from its purview
an invasion on the part (1) (1877) 94 U.S. 113,142.
348 of the police of the sanctity of a man's
home and an intrusion into his personal security and his right to sleep which
is the normal comfort and a dire necessity for human existence even as an animal
? It might not be in appropriate to refer here to the words of the preamble the
Constitution that it is designed to "assure the dignity of the
individual" and therefore of those cherished human value as the means of
ensuring his full development and evolution.
We are referring to these objectives of the
framers merely to draw attention to the concepts underlying the constitution
which would point to such vital words as "personal liberty" having to
be construed in a reasonable manner and to be attributed that sense which would
promote and achieve those objectives and by no means to stretch the meaning of
the phrase to square with any preconceived notions or doctrinaire
constitutional theories.
Frankfurter, J. observed in Wolf v. Colorado
(1) :
"'The security of one's privacy against
arbitrary intrusion by the police........................ is basic to a free
society. It is therefore implicit in the concept of ordered liberty' and as
such enforceable against the States through the Due Process Clause. The knock
at the door, whether by day or by night, as a prelude to a search, without
authority of law but solely on the authority of the police, did not need the
commentary of recent history to be condemned as inconsistent with the
conception of human rights enshrined in the history and the basic
constitutional documents of English-speaking peoples........................ We
ha-Are no hesitation in laying that were a State affirmatively to sanction such
police incursion into privacy it would run counter to the guaranty of the
Fourteenth Amendment." Murphy, J. considered that such invasion was (1)
(1949) 338 U.S. 25.
349 against "the very essence of a
scheme of ordered liberty".
It is true that in the decision of the U. S.
Supreme Court from which we have made these extracts, the Court had to consider
also the impact of a violation of the Fourth Amendment which reads .
,,The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no warrants shall issue but upon probable
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized." and that our
constitution does not in terms confer any like constitutional guarantee.
Nevertheless, these extracts would show that an unauthorised intrusion into a
person's home and the disturbance caused to him thereby, is as it were the
violation of a common law right of a man -an ultimate essential of ordered liberty,
if not of the very concept of civilization. An English Common Law maxim asserts
that "every man's house is his castle" and in Semayne's case (1),
where this was applied, it was stated that ,the house of everyone is to him as
his castle and fortress as well as for his defence against injury and violence
as for his repose". We are not unmindful of the fact that Semayne's case
was concerned with the law relating to executions in England, but the passage
extracted has a validity quite apart from the context of the particular
decision. It embodies an abiding principle which transcends mere protection of
property rights and expounds a concept of "personal liberty" which
does not rest on any element of feudalism or on any theory of freedom which has
ceased to be of value.
(1) (1604) 5 Coke 91 : I Sm. L.C. (13th Edn.)
104,105.
350 In our view cl. (b) of Regulation 236 is
plainly violative of Art. 21' and as there is no "law" on which the
same could be justified it must be struck down as unconstitutional.
Clauses (c), (d) and (e) may be dealt with
together. The actions suggested by these clauses are really details of the
shadowing of the history-sheeters for the purpose of having a record of their
movements and activities and the obtaining of information relating to persons
with whom they come in contact or associate, with a view to ascertain the
nature of their activities. It was urged by learned Counsel that the shadowing
of a person obstructed his free movement or in any event was an impediment to
his free movement within Art. 19 (1) (d) of the Constitution. The argument that
the freedom there postulated was not confined to a mere physical restraint
hampering movement but that the term 'freely' used in the Article connoted a
wider freedom transcending mere physical restraints, and included psychological
inhibitions we have already considered and rejected. A few minor matters
arising in connection with these clauses might now be noticed. For instance,
cls. (d) & (e) refer to the reporting of the movements of the suspect and
his absence from his home and the verification of movements and absences by
means of enquiries. The enquiry for the purpose of ascertaining the movements
of the suspect might conceivably take one of two forms : (1) an enquiry of the
suspect himself, and (2) of others. When an enquiry is made of the suspect
himself the question mooted was that some fundamental right of his was
violated. The answer must be in the negative because the suspect has the
liberty to answer or not to answer the question for ex concusses there is no
law on the point involving him in any liability-civil or criminal-if he refused
to answer or remained silent.
Does then the fact that an enquiry is made as
regards the movements of the 351 suspect and the facts ascertained by such
enquiry are verified and the true facts sifted constitute an infringement of
the freedom to move? Having given the matter our best consideration we are
clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not
infringed by a watch being kept over the movements of the suspect. Nor do we
consider that Art. 21 has any relevance in the context as was sought to be
suggested by learned Counsel for the petitioner. As already pointed out, the
right of privacy is not a guaranteed right under our Constitution and therefore
the attempt to ascertain the movements of an individual which is merely a
manner in which privacy is invaded is not an infringement of a fundamental
right guaranteed by Part III.
The result therefore is that the petition succeeds
in part and Regulation 236 (b) which authorises "domiciliary visits"
is struck down as unconstitutional. The petitioner would be entitled to the
issue of a writ of mandamus directing the respondent not to continue
domiciliary visits. The rest of the petition fails and is dismissed. There will
be no order as to costs.
Subba Rao,J. We have had the advantage prepared
by our learned Ayyangar, J. We agree with him that Regulation 236 (b) is
unconstitutional, but we would go further and hold that the entire Regulation
is unconstitutional on the ground that it infringes both Art.
19 (1) (d) and Art. 21 of the Constitution.
This petition raises a question of
far-reaching importance.
namely, a right of a citizen of India to lead
a free life subject to social control imposed by valid law. The fact that the
question has been raised at the instance of an alleged disreputable character
shall not be allowed to deflect our perspective. If the police could do what
they did to the petitioner, they 352 could also do the same to an honest and
law-abiding citizen.
Let us at the outset clear the ground. We are
not concerned here with a law imposing restrictions on a bad character, for
admittedly there is no such law. Therefore, the petitioner's fundamental right,
if any, has to be judged on the basis that there is no such law. To state it
differently, what fundamental right of the petitioner has been infringed by the
acts of the police? If he has any fundamental right which has been infringed by
such acts, he would be entitled to a relief straight away, for the State could
not justify it on the basis of any law made by the appropriate Legislature or
the rules made there under.
The petitioner in his affidavit attributes to
the respondents the following acts :"Frequently the chaukidar of the
village and sometimes police constables awake him in the night and thereby
disturb his sleep. They shout at his door and sometimes enter inside his house.
On a number of occasions they compel him to get up from his sleep and accompany
them to the police station, Civil Lines, Meerut, (which is three miles from the
petitioner's village) to report his presence there. When the petitioner leaves
his village for another village or town, he has to report to the chaukidar of
the village or at the police station about his departure. He has to give
information regarding his destination and the period within which he will
return.
Immediately the police station of his
destination is contacted by the police station of his departure and the former
puts him under surveillance in the same way as the latter does." "'It
may be pointed out that the chaukidar of the village keeps a record of the
presence and 353 absence of the petitioner in a register known as chaukidar's
Crime Record Book." "All the entries in this book are made behind the
petitioner's back and he is never given any opportunity of examining or
inspecting these records." There are other allegations made about the
misuse or abuse of authority by the chaukidar or the police officials.
In the counter-affidavit filed by the
respondents it is admitted that the petitioner is under the surveillance of the
police, but the allegations of abuse of powers are denied. A perusal of the
affidavit and the counter affidavit shows that the petitioner tries to inflate
the acts of interference by the police in his life' while the respondents
attempt to deflate it to the minimum. In the circumstances we would accept only
such of the allegations made by the petitioner in his affidavit which are in
conformity with the act of surveillance described by Regulation 236 of Chapter
XX of the U. P. Police Regulations. The said Regulation reads :"Without
prejudice to the right of Superintendents of Police to put into practice any
legal measures, such as shadowing in cities, by which they find they can keep
in touch with suspects in particular localities or special circumstances,
surveillance may for most practical purposes be defined as consisting of one or
more of the following measures :(a) Secret picketing of the house or approaches
to the houses of suspects;
(b) Domiciliary visits at night;
354 (c) through periodical inquiries by
officers not below the rank of Sub-Inspector into repute, habits,,
associations, income, expenses and occupation;
(d) the reporting by constables and
chaukidars of movements and absences from home;
(e) the verification of movements and
absences by means of inquiry slips;
(f) the collection and record on a history sheet
of all information bearing on conduct." Regulation 237 provides that all
"history sheet men" of Class A, "starred" and
"unstarred", would be subject to all the said measures of
surveillance. It is common case that the petitioner is a Class A history sheet
and, therefore, lie is subject to the entire field of surveillance.
Before we construe the scope of the said Regulation,
it will be necessary to ascertain the meaning of some technical words used
therein.
What does the expression
"surveillance" mean ? Surveillance conveys the idea of supervision
and close observance. The person under surveillance is not permitted to go
about unwatched. Clause (a) uses the expression "secret-picketing".
What does the expression mean ? Picketing has many meanings. A man or a party
may be stationed by trade union at a workshop to deter would-be workers during
strike. Social workers may stand at a liquor shop to intercept people going to
the shop to buy liquor and prevail upon them to desist from doing so. Small
body of troops may be sent out as a picket to watch for the enemy.
The word "picketing"' may,
therefore, mean posting of certain policemen near the house or approaches of
the house of a person to watch his movements and to prevent people going to his
house or having association with him. But the adjective "secret" qualifies
355 the word "picketing and to some extent limits its meaning. What does
the expression "secret" mean ? Secret from whom ? Does it mean
keeping secret from the man watched as well as from the people who go to his
house ? Though the expression is not clear, we will assume that
secret-picketing only means posting of the police at the house of a person to
watch his movements and those of his associates without their knowledge. But in
practice, whatever may have been the intention of the authorities concerned, it
is well nigh impossible to keep it secret. It will be known to everybody
including the person watched.
The next expression is "domiciliary
visit" at night. Domiciliary means "of a dwelling place". A
domiciliary visit is a visit of officials to search or inspect a private house.
Having ascertained the meaning of the said
three expressions, let us see the operation of the Regulation and its impact on
a person like the petitioner who comes within its scope.
Policemen were posted near his house to watch
his movements and those of his friends or associates who went to his house.
They entered his house in the night and woke him up to ascertain whether lie
was in the house and thereby disturbed his sleep and rest. The officials not
below the rank of Sub-Inspector made inquiries obviously from others as regards
his habits, associations, income, expenses and the occupation, i.e., they got
information from others as regards his entire way of life. The constables and
the chaukidars traced his movements, shadowed him and made reports to the
superiors. In short, his entire life was made an openbook and every activity of
his was closely observed and followed. It is impossible to accept the
contention that this could have been made without the knowledge of the petitioner
or his friends, associates and others in the locality. The attempt to dissect
the act of surveillance into its various ramifications 356 is not realistic.
Clause (a) to (f) are the measures adopted for the purpose of supervision or
close observation of his movements and are, therefore, parts of surveillance.
The question is whether such a surveillance infringes any of the petitioner's
fundamental rights.
Learned Counsel for the petitioner contends
that by the said act of surveillance the petitioner's fundamental rights under
cls. (a) and (d) of Art. 19 (1) and Art. 21 are infringed. The said Articles
read:Art. 21 : No person shall be deprived of his life or personal liberty
except according to procedure established by law.
Art. 19 (1): All citizens shall have the
right:(a) to freedom of speech and expression;
x x x x x x (d) to move freely throughout the
territory of India.
At this stage it will be convenient to
ascertain the scope of the said two provisions and their relation inter se in the
context of the question raised. Both of them are distinct fundamental rights.
No doubt the expression "personal liberty" is a comprehensive one and
the right to move freely is an attribute of personal liberty. It is said that
the freedom to move freely is carved out of personal liberty and, therefore,
the expression "personal liberty" in Art. 21 excludes that attribute.
In our view, this is not a correct approach. Both are independent fundamental
rights, though there is overlapping. There is no question of one being carved
out of another. The fundamental right of life and personal liberty have many
attributes and some of them are found in Art. 19. If a 357 Person's fundamental
right under Art. 21 is infringed, the State can rely upon a law to sustain the
action; but that cannot be a complete answer unless the said law satisfies the
test laid down in Art. 19 (2) so far as the attributes covered by Art. 19 (1)
are concerned. In other words, the State must satisfy that both the fundamental
rights are not infringed by showing that there is a law and that it does amount
-to a reasonable restriction. within the meaning of Art. 19 (2) of the
Constitution. But in this case no such defence is available, as admittedly
there is no such law.
So the petitioner can legitimately plead that
his fundamental rights both under Art. 19 (1) (d) and Art. 21 are infringed by
the State.
Now let us consider the scope of Art. 21. The
expression "life" used in that Article cannot be confined only to the
taking away of life, i.e., causing death. In Munn v.
Illinois (1), Field, J., defined
"life" in the following words:
"Something more than mere animal
existence.
The inhibtion against its deprivation extends
to all those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by the amputation of an arm or leg, or the
putting out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world." The expression
"'liberty" is given a very wide meaning in America. It takes in all
the freedoms. In Bolling v. Sharpe (2), the Supreme Court of America observed
that the said expression was not confined to mere freedom from bodily restraint
and that liberty under law extended to the full range of conduct which the
individual was free to pursue.
But this absolute right to liberty was
regulated to protect other social interests by the State exercising its powers
(1) (1877) 94 U.S. 113.
(2) (1954) 347 U.S. 407, 499, 358 such as
police power, the power of eminent domain, the power of taxation etc. The
proper exercise of the power which is called the due process of law is
controlled by the Supreme Court of America. In India the word
"liberty" has been qualifie by the word "Personal",
indicating thereby that it is confined only to the liberty of the person. The
other aspects of the liberty have been provided for in other Articles of the
Constitution. The concept of personal liberty has been succinctly explained by
Dicey in his book on Constitutional Law, 9th edn. The learned author describes
the ambit of that right at pp. 207-208 thus:
"The right not to be subjected to
imprisonment, arrest or other physical coercion in any manner that does not
admit of legal justification." Blackstone in his commentaries on the Laws
of England, Book 1, at p.134, observed :
"Personal liberty" includes
"the power to locomotion of changing situation, or removing one's person
to whatsoever place one's inclination may direct, without imprisonment or
restraint, unless by due course of law." In A. K. Gopalan's case (1), it
is described to mean liberty relating to or concerning the person or body of
the individual; and personal liberty in this sense is the antithesis of
physical restraint or coercion. The expression is wide enough to take in a
night to be free from restrictions placed on his movements. The expression
"coercion" in the modern age cannot be construed in a narrow sense. In
an uncivilized society where there are no inhibitions, only physical restraints
may detract from personal liberty, but as civilization advances the
psychological restraints are more. effective than physical ones. The scientific
methods used to condition a man's mind are in a real sense physical restraints,
for they engender physical (1) [1950] S.C.R.88.
359 fear channelling one's actions through
anticipated and expected groves. So also the creation of conditions which
necessarily engender inhibitions and fear complexes can be described as
physical restraints. Further, the right to personal liberty takes in not only a
right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not
expressly declare a right to privacy as a fundamental right, but the said right
is an essential ingredient of personal liberty. Every democratic country
sanctifies domestic life; it is expected to give him rest, physical happiness,
peace of mind and security. In the last resort, a person's house, where lie
lives with his family, is his "castle" : it is his rampart against
encroachment on his personal liberty. The pregnant words of that famous Judge,
Frankfurter J., in Wolf v. Colorado (1), pointing out the importance of the
security of one's privacy against arbitrary intrusion by the police, could have
no less application to an Indian home as to an American one. If physical
restraints on a person's movements affect his personal liberty, physical
encroachments on his private life would affect it in a larger degree. Indeed,
nothing is more deleterious to a man's physical happiness and health than a
calculated interference with his privacy. We would, therefore, define the right
of personal liberty in Art. 21 as a right of an individual to be free from
restrictions or encroachments on his person, whether those restrictions or
encroachments are directly imposed or indirectly brought about by calculated
measures. If so understood, all the acts of surveillance under Regulation 236
infringe the fundamental right of the petitioner under Art. 21 of the
Constitution.
This leads US Lo the second question, namely,
whether the petitioner's fundamental right under Art. 19 (1) (d) is also
infringed. What is the content of the said fundamental right? It is argued for
the (1) (1949) 338 U.S. 25.
360 State that it means only that a person
can move physically from one point to another without any restraint.' This
argument ignores the adverb "freely" in cl. (d). If that adverb is
not in the clause, there may be some justification for this Contention; but the
adverb "freely" gives a larger content to the freedom Mere movement
unobstructed by physical restrictions cannot in itself be the object of a
person's travel. A person travels ordinarily in quest of some objective. He
goes to a place to enjoy, to do business, to meet friends, to have secret and
intimate consultations with 0thers and to do many other such things.
If a man is shadowed, his movements are
obviously constricted. He can move physically, but it can only be a movement of
an automation. How could a movement under the scrutinizing gaze of the
policemen be described as a free movement? The whole country is his jail. The
freedom of movement in cl. (d) therefore must be a movement in a free country,
i. e., in a country where he can do whatever he likes, speak to whomsoever he
wants, meet people of his own choice without any apprehension, subject of
course to the law of social control. The petitioner under the shadow of
surveillance is certainly deprived of this freedom. He can move physically, but
he cannot do so freely, for all his activities are watched and noted. The
shroud of surveillance cast upon him perforce engender inhibitions in him and
he cannot act freely as he would like to do. We would, therefore, hold that the
entire Regulation 236 offends also Art. 19 (1) (d) of the Constitution.
Assuming that Art. 19 (1) (d) of the
Constitution must be confined only to physical movements, its combination with
the freedom of speech and expression leads to the conclusion we have arrived
at. The act of surveillance is certainly a restriction on the said freedom. It
cannot be suggested that the said freedom is also bereft of its subjective or
psychological content, but will sustain only the mechanics 361 of speech and
expression. An illustration will make our point clear. A visitor, whether. a
wife, son or friend, is allowed to be received by a prisoner in the presence of
a guard. The prisoner can speak with the visitor; but, can it be suggested that
he is fully enjoying the said freedom? It is impossible for him to express his
real and intimate thoughts to the visitor as fully as he would like. But the
restrictions on the said freedom are supported by valid law.
To extend the analogy to the present case is
to treat the man under surveillance as a prisoner within the confines of our
country and the authorities enforcing surveillance as guards., without any law
of reasonable restrictions sustaining or protecting their action. So
understood, it must be held that the petitioner's freedom under Art. 19 (1) (a)
of the Constitution is also infringed.
It is not necessary in this case to express
our view whether some of the other freedoms enshrined in Art. 19 of the
Constitution are also infringed by the said Regulation.
In the result, we would issue an order directing
the respondents not to take any measure against the petitioner under Regulation
236 of Chapter XX of the U. P. Police Regulations. The respondents will pay the
costs of the petitioner.
By COURT : In accordance with the opinion of
the majority this Writ Petition is partly allowed and Regulation 236 (b) which
authorises "domiciliary visits" is struck down as unconstitutional.
The Petitioner would be entitled to the issue of a writ of mandamus directing
the respondent not to continue domiciliary visits. The rest of the petition
fails and is dismissed. There will be no order as to costs.
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