Point of law
- The petitioner Kharak Singh was challenged in a dacoity case in 1941 but was
released under section 169 of the Criminal Procedure Code as there was no
evidence against him. The petitioner states that the police opened a history
sheet against him based on this accusation.
- The petitioner describes the surveillance to which he has been subjected
- Frequently the chaukidar of the village and sometimes the police constables
enter his house, knock and shout at his door, wake him up during the night and
thereby disturb his sleep.
- On several 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 the
destination is contacted by the police of his departure and the former put
him under surveillance in the same as the latter.
- It is argued by the petitioner that the officials are outstepping the
authority given and these unauthorised powers are infringing his fundamental
- Thus a petition was filed under Article 32 of the constitution and it
challenges the constitutional validity of Chapter 22 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 the citizens
by Article 19(1)(d) and 21 of the constitution.
According to the learned court, the question for interpretation was whether
surveillance under the impugned chapter 22 of the U.P.Police regulations
constitutes an infringement of any of a citizen's fundamental rights guaranteed
by part III of the constitution.
(The judgement was delivered by N.RAJAGOPALA AYYANGAR, J.)
The court opined that the petition succeeds in parts 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.
The court opined that "Before going into the specifics of these regulations, it
is important to note that the State's defence of their legality is twofold: (1)
that the regulations in question do not violate any of the rights guaranteed by
Part III of the Constitution that the petitioner claims they do; and (2) that
even if they did, they were drafted "in the interests of the general public and
public order" and to enable the police to carry out their duties.
The regulations in Chapter 22 lacked a statutory basis and were instead just
executive or departmental directives made for the guidance of the police
officers. Therefore, they would not constitute "a law" that the State may enact
in accordance with the pertinent provisions of Article 19's clauses 2 to 6, nor
would they constitute "a procedure established by law" under Article 21.
Instead, they would not regulate or limit the fundamental rights protected by
the various sub clauses of Article 19 (1).
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.
However, the court opined on domiciliary visits at night 22(b):
Whether entering a citizen's home and banging on his door, along with the
disruption to his sleep and daily comfort that such an action must necessarily
imply, constitutes a breach of the freedom provided by Art. 19 (1)(d). Or "a
deprivation" of the "personal liberty" guaranteed by Art.21.
It is clear that the man's movement is not in any way hampered or adversely
affected by the knock on the door or by being roused from sleep. We are unable
to accept the argument that the "free" movement is impaired as a result of the
learned counsel's suggestion that the suspect's awareness or suspicion that the
police were monitoring his movements may cause a psychological restriction
against those movements (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 'modelled, Field, J. Observed:
"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."
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
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.
(Delivered by k. Subba Rao, j)
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 on 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 22 of the U. P. Police Regulations.
The respondents will pay the costs of the petitioner.
Justic Subba Rao, stated that they agree with Ayyangar, J. 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.
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.
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 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 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
impossible to keep it secret. It will be known to everybody including the person
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 he 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 open book 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 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 surveillance infringes any of the
petitioner's fundamental rights.
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 he lives with his family, is his
"castle": it is his rampart against encroachment on his personal liberty.
The 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. He defined
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.
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 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.
In the case of Kharak Singh v. State of U.P,
the question raised by the
petitioner was whether chapter 22 of U.P. Regulations infringes the fundamental
rights under article (19).(21).
However, the Supreme Court considered whether surveillance under the impugned
chapter 22 of the U.P. Police regulations constitutes an infringement of any of
a citizen's fundamental rights guaranteed by part III of the constitution as the
point of law. Later a question was raised that whether right to privacy is a
fundamental right or not.
The majority decision was that the petition succeeds in parts and Regulation
236(b) which authorises domiciliary visits is struck down as unconstitutional.
The Rest petition was dismissed.
The court observed that regulation 236(b) is volitive of Article 21. They said
that life isn't just animal existence. Life and liberty have more ambit than
mere freedom from physical restraint or bonds of prison. The court said that the
suspect has the liberty to answer or not to answer questions inquired by the
police thus their fundamental right is not infringed by any means.
Regarding the right to privacy, the court said since our Constitution does not
guarantee the right to privacy, the effort to track out a person's whereabouts,
which is only a way in which privacy is invaded, does not violate a fundamental
right protected by Part III.
The dissenting opinion was that the entire Regulation 236 is unconstitutional on
the ground that it infringes both Art.19(1) (d) and Art.21 of the Constitution.
- Kharak Singh v. State of U.P and others, 1964 SCR (1) 332