Factual background

1. 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.
    
2. The petitioner describes the surveillance to which he has been subjected to as:
   
   1. 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.
   2. 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.
   3. 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.
   4. It is argued by the petitioner that the officials are outstepping the authority given and these unauthorised powers are infringing his fundamental right.
       
3. 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.

Point of law
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.

Majority decision
(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.

Rationale
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 unconstitutional.

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.

Dissenting opinion-
(Delivered by k. Subba Rao, j)

Judgement:
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.

Rationale:
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 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 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.

Summary
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.

Reference:

• Kharak Singh v. State of U.P and others, 1964 SCR (1) 332