DATE OF JUDGMENT: 18/12/1962
BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA
P. (CJ) IMAM, SYED JAFFER SUBBARAO, K. SHAH, J.C. MUDHOLKAR, J.R.
Citation – 1963 AIR 1295, 1964 SCR (332)
The applicable rules allowing police to undertake domiciliary visits to 'habitual offenders' or persons likely to become habitual criminals were deemed illegal by the Supreme Court of India. Kharak Singh's residence was visited by the police at strange hours, often waking him up from his sleep. The visits infringed on the petitioner's right to life, which may only be limited by law, not executive measures like the Uttar Pradesh Police Regulations, according to the Court. The petitioner's allegation that the shadowing of chronic offenders infringed on his right to privacy was dismissed by the Court since this right is not recognised as a basic right in India's Constitution. The latter section of the verdict was overturned in the historic Puttaswamy v. India judgement of August 2017, in which a nine-judge Supreme Court panel unanimously decided that the right to privacy is a basic right under the Indian Constitution.
The Petitioner, Kharak Singh, was discharged from a dacoity inquiry due to a lack of evidence, but the Uttar Pradesh Police Department filed a 'history sheet' against him under Chapter 20 of the Uttar Pradesh Police Regulations. Individuals who were habitual offenders or were suspected of becoming habitual criminals were subjected to monitoring under these regulations. The police used Regulation 236 of the Uttar Pradesh Police Regulations to undertake surveillance, which included hidden picketing of Petitioner's home, overnight domiciliary visits, occasional officer questions, and monitoring and verification of his activities. The Petitioner argued that Chapter 20 of the U.P. Police Regulations, which permitted police officers to perform this kind of surveillance on him, was unconstitutional.
Perhaps "surveillance" under the challenged Chapter 20 of the U.P. Police Regulations was a violation of Part III of the Constitution's fundamental rights.
The Petitioner claimed that all of Regulation 236's sections infringed on his constitutional rights to "travel freely within the territory of India" Article 19(1)(d) and "personal liberty" Article 21. He said that trailing a person impeded his "free mobility" and might lead to psychological inhibitions.
The Respondent-State maintained that the Regulations were not illegal since no basic rights were violated. They argued that, even though the Regulations did infringe fundamental rights, they were framed "in the general public and public order" and enabled the police to fulfil their tasks effectively, therefore they qualified as "reasonable limits" on fundamental rights.
The Court stated right away that the Regulations were executive rather than legislative in character since they were not based on any statute, delegated or otherwise. Because the Regulations were departmental instructions created for the direction of police personnel, they did not constitute legislation as needed by Article 21's definition of procedure established by law,' nor did they pass the test outlined in Articles 19(2)-(3). (6). Since a result, if the Regulations were found to infringe basic rights, the Respondent would be unable to use the protection of reasonable limits, as that defence is reserved for properly enacted 'law.'
The Court looked at the validity of all of Regulation 236's provisions. The Court ruled that keeping a close eye on a suspect and surreptitiously recording their actions did not obstruct mobility in physical terms, and that a psychological barrier to action was not protected by Article 19(1). (d). Furthermore, it did not violate the suspect's 'personal liberty' as defined by Article 21.
The Court debated whether intrusion into a citizen's home constituted a breach of Articles 19(1)(d) or 21 in relation to clause (b), which called for nightly domiciliary visits by the historysheeters. The Court determined that Article 19(1)(d) was not violated since it did not encompass psychological inhibition but only bodily mobility, which was not hampered. While debating Article 21, the Court considered the meaning, breadth, and substance of the word 'personal liberty,' as well as a number of US Supreme Court judgments in this regard. It cited Justice Field's decision in Munn vs. Illinois ((1877) 94 U.S. 113) in which he stated that "life" in the Fifth and Fourteenth amendments of the United States Constitution, which corresponds to Article 21, "means not merely the right to the continuation of a person's animal of existence, but a right to the possession of each of his organs - his arms and legs, etc," and Justice Frankfurter's decision in Wolf vs It also pointed to the US Constitution's Fourth Amendment, which protects the "right of the people to be secure in their persons, homes, documents, and belongings against arbitrary searches and seizures," and highlighted that the Indian Constitution lacked a similar clause. The Court referenced to the English common law phrase "every man's home is his fortress" when considering principles relating to personal liberty.
The Court also looked at the relationship between the 'liberties' in Articles 19(1) and 21, concluding that while Article 19(1) dealt with specific species or attributes of freedom, "the term 'personal liberty' is used as a compendious term in Art. 21 as a compendious term," which took in and comprised the remainder. It was noted that the word 'personal liberty' is intended to support the constitutional goal of ensuring the dignity of the individual, as stated in the Constitution's Preamble. Based on the above, the Court determined that clause (b) violated Article 21 and invalidated Regulation 236(b), which permitted domiciliary visits. The remainder of Chapter 20 of the U.P. Police Regulations, however, was upheld, since efforts to monitor an individual's movements simply disturbed his private, and that "the right to privacy is not a protected right under our Constitution."
"It is true that our Constitution does not directly identify a right to privacy as a basic right," the minority judgement concluded, "but the aforementioned right is an important part of human liberty." It went on to say that "nothing is more harmful to a man's bodily pleasure and health than a planned intrusion into his private," and cited Justice Frankfurter's remarks in Wolf vs. Colorado to emphasise the necessity of protecting a person's privacy against arbitrary police intrusion. It was decided that the word 'personal liberty' was broad enough to include a right to be free of constraints put on his movements, either directly or indirectly.
Furthermore, the minority held that the entire Regulation, not just Regulation 236(b), was unconstitutional because it violated both Articles 19(1)(d) and 21 of the Constitution, and that the attempt to break down the act of surveillance into different consequences was unjustified because all of the sub-clauses of Regulation 236 were adopted for the same purpose. Furthermore, it ruled that Regulation 236 infringed on a person's right to freedom of speech under Article 19(1)(a) by preventing them from expressing their true and personal feelings.
This article is written by Mridula Pandey of Symbiosis Law School Pune.