Full Judgment Text
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PETITIONER:
KHARAK SINGH
Vs.
RESPONDENT:
THE STATE OF U. P. & OTHERS
DATE OF JUDGMENT:
18/12/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
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-Consti-
tution 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 sur-
veillance -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
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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
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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
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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.
336
JUDGMENT:
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
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for persons who are or are likely to become habitual
criminals or the aiders 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 accom-
pany 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 outstep 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-
sheeters 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
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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 lawabiding 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
"serveillance" is Regulation 236 which reads :
"Without prejudice to the right of Superin-
tendents 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
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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
"unstarred", 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,
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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
outstepping the limits of their authority under the regu-
lations.
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
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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 prohabits
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 elabo-
rate 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
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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 tortfeasor, 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 pretation
would be that it comprehends nothing more than freedom from
physical restraint or freedam 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.
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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 inapropriate
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 arbi-
trary instrusion 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
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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 concessis 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
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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 ment
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 thereunder.
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."
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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 Superinten-
dents 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, ex-
penses 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-
sheeter and, therefore, lie is subject to the
entire field of surveillance.
Before we construe the scope of the said Regu-
lation, 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
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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 po-
sting 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.
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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 fundamen. tal 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 mea. ning 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
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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 fund-
amental right of the petitioner under Art. 21 of the
Constitution.
This leads US Lo the second question, namely, whether the
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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.
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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.
362