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Analyzing the Landmark Case: Kharak Singh v/s State of Uttar Pradesh: A Commentary

Right to privacy is a fundamental right, guaranteed under Article 21[2] ( Right to life and personal Liberty). The major question was to challenge the surveillance of an accused person by the police. The petition filed under article 32[3] of the Indian constitution is to challenge the Constitutional validity of chapter XX of the U.P. Police Regulation Act, Regulation 236[4], conferring on police officials on various grounds that they are violative of Fundamental rights, i.e. Freedom of speech and expression[5], Protection of life and personal liberty[6]of the constitution.

The issue before the court is to decide whether the power conferred by the police officials by its provisions is constitutionally valid as they violate the rights guaranteed to the citizens. A Writ of Mandamus was issued by the supreme court, emphasizing some provisions of the act as unconstitutional.

In this case, the petitioner, Kharak Singh was arrested on the charge of dacoity in 1941. Due to the lack of pieces of evidence, he was released under (release of accuse when evidence deficient)[7]. Soon after, a history sheet, defined under regulation 238[8], explaining "p169ersonal records of the criminals under surveillance" was opened against him by the police for surveillance- defined 236 regulation[9] of U.P police regulations, providing 6 types of powers on the part of the police, including:
  1. Secret picketing of the house of the suspect.
  2. Domiciliary visits at night.
  3. Periodical inquiries by the police officers not below the rank of sub-inspector.
  4. Reporting by Chawkidar and constable in case of absence from home.
  5. Verification of movements.
  6. Collection and record in the history sheet regarding all information.
The history sheet is of two categories. Category A deals with Dacoits, Cattle thieves, burglars, etc. And Category B is for the professional cheats who are likely to become habitual Offenders, confirmed and professional criminals. History-sheet of class A was opened for the petitioner, therefore, he was under surveillance of such nature that the village chowkidaR and police constable used to enter his house, shout at his door, used to wake him up during the night, disturb his sleep.

There were several occasions when he was compelled by them to get up and visit a police station to report his presence. For the departure and period of returning, he had to inform the village chowkidar or at a police station, so that he could be better kept on watch.

  • Whether Chapter XX of U.P. Police Regulation and the powers which are provided to the police officials by the concerned provisions constitutionally valid, as they violate the right of citizens guaranteed under Article 19(1)(d)[10]and Article 21[11]of the constitution?

Kharak Singh was put under surveillance, which is defined under the regulation 236[12] of the U.P. Police Regulation Act. The term "surveillance", in its definition includes secret picketing as well as domiciliary visits. Petitioner also claimed that the frequent visits at night and periodical inquiries by the police officials as well as village chowkidars disturbed his sleep and somewhere infringed his right to free movement throughout Indian and the rights defined in Articles 19(1)(d)[13], 21, respectively.

Respondent contended that challenged regulations did not infringe any of the fundamental rights provided in part III of the constitution and if they restrict a person and deprive them of their freedoms, then the restrictions are reasonable. These limitations are made in order to make the society more stable and put efficiency in the duties of police officials.

In a bench of Six honorable judges: Justice B.P. Sinha, J.C Shah, J.R. Mudholkar, K.Subba Rao, N. RajgopalaAyyanagar, and S.J Imam, the lawfulness of Chapter XX of U.P. Police Regulation Act was challenge. The issue was raised regarding the infringement of Fundamental Rights of the petitioner by the act. Kharak Singh, the petitioner, contended that the acts of the police somewhere violated or made him deprived of his inalienable rights guaranteed under third part of the constitution.

In defense, state supported the validity of the act in two folds:
  1. Firstly, the impugned regulations do not infringe the fundamental rights of the petitioner under article 19(1)(d)[14], 21 and
  2. secondly, if these provisions of the act violate the laws and restrict the person of his rights, these are meant for the public order and power conferred on the part of the police is to ensure the smooth functioning and to perform their duties efficiently.
Respondent justified the claims that the second reason does not constitute a valid law and justified the point by evoking section 12, Indian Police Act[15]. This does not form any law but is merely instructions and guidelines of the police officials. Respondent also claimed that the restrictions imposed on the petitioner were reasonable as they are formed to curb the anti-social behavior in society. These restrictions are not laws but regulations, which covers under the definition of Article 13(3)[16].

Petitioner, on the other hand, emphasized that clause 1 of regulations 236[17], dealing with the secret picketing, ascertaining an identity of the suspect, and the persons visiting the house of the suspect violates the right to move freely in any part of the territory of India. The term freely denotes the action of a person's own will and simultaneously, it is depriving the person to form an association, guaranteed under Article 19(1)(c)[18] and freedom of free speech and expression, Article 19(1)(a)[19]. The true essence of the secret picketing is to keep a watch not to restrict.

The domiciliary visit meant the visit to a private dwelling under authority. Frequent visits to the house of the petitioner made not only physical, tangible as well as psychological inhibition on him which deprived him to live a normal life.

Court also tried to explain the issue concerning English laws. Court elaborated that the term "Life" and "personal liberty" has the same meaning which was explained in the 5th and 14th U.S. constitutional amendments. Court also referred certain case judgments to describe the position of the scenario. Absence of law makes the provisions of life and personal Liberty violative[20]. What constitutes a free society is the security from the arbitrary attitude of officials[21].

The term "life" does not denote mere animal existence, rather it includes a person's right to life with dignity and to perform tasks of his own choice[22]. Keeping a watch on the activities of the suspect does not infringe his rights. Regulation 236(b)[23], explaining the 'domiciliary visits', held unconstitutional.

Petitioner was permitted to issue the writ of 'Mandamus' directing the respondent not to continue the domiciliary visits. Clause (b)[24]of regulation 236 violates Article 21[25] and hence must be struck down as unconstitutional. On the other hand, the mere watch kept on the pursuit and movements of the suspect does not violate Article 19 (1)(d)[26]. It was concluded that the Right to privacy is not guaranteed under the constitution. An attempt to discover the movement of the individual which is merely a manner in which privacy is invaded is not an infringement of the right guaranteed by Part III.

Analysis of the case
"Privacy includes the preservation of personal intimacies, the sanctity of family, life, marriage, procreation, the home, and sexual orientation"[27]. Judicial pronouncements have made path-breaking changes in the field of justice. At the time when the judgment of Kharak Singh was delivered, the right to privacy was not considered or included to be part of Article 21[28] of the constitution which guarantees the right to life and personal Liberty.

Since a person's home is considered to be his castle, he is entitled to every sort of liberty and freedom within the boundaries of his house and the state becomes duty-bound to protect such dignities of an individual. When an offender is likely to commit a crime and kept under the strict watch that each movement is recorded and reported, the person would feel a true sense of insecurity and would be indirectly deprived of the joy of his life.

Asking the neighbors about his whereabouts and keeping an eye on or shadowing him will make him feel a constant fear. A human life is far more different from an animal existence and it needs to be distinguished from the same. As per famous saying, "Power corrupts and absolute power corrupts absolutely" when some laws are immune to a particular section of the society, domination is likely to happen which will ultimately make the powerless suffer.

To cope with this situation, the judiciary should plays an integral role in protecting the interests of the public at large. The subsequent judgment which was made in the Puttaswamy case broadened the scope of Life and Personal Liberty by including the right to privacy under its ambit that eventually availed justice to the sufferer in a true manner. True, defining Life and personal Liberty in a narrower sense might lead to overly tight limits on the freedoms and rights of the citizens. Apex courts should at least endeavor to highlight as many as possible, controversial issues, building an arbitrary attitude among a particular section of society to avoid injustice and to drive the minds out of the shackles of backwardness.

  1. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.
  2. Constitution of India, 1950, art 21.
  3. Constitution of India, 1950, art 32.
  4. U.P. Police Regulations, regulation 236.
  5. Constitution of India, 1950, art 19.
  6. Constitution of India, 1950, art 21.
  7. Code of Criminal Procedure, 1973 s 169.
  8. U.P. Police Regulations, regulation 238.
  9. U.P. Police Regulations, regulation 236.
  10. Constitution of India, 1950, art 19(1)(d).
  11. Constitution of India, 1950, art 21.
  12. U.P. Police Regulations, regulation 236.
  13. Constitution of India, 1950, art 19(1)(d).
  14. Constitution of India, 1950, art 19(1)(d).
  15. The Police Act 1861 (5 of 1861), section 12.
  16. Constitution of India, 1950, art 13(3).
  17. U.P. Police Regulations, regulation 236.
  18. Constitution of India, 1950, art 19(1)(c).
  19. Constitution of India, 1950, art 19(1)(a).
  20. A.K. Gopalan v. State of Madras AIR 1950 SC 27: 1950 SCR 88.
  21. Wolf v. Colorado-338 U.S. 25, 69 S. Ct 1359 (1949).
  22. Munn v. Illinois-94 U.S. 113 (1876).
  23. U.P. Police Regulations, regulation 236(b).
  24. U.P. Police Regulations, regulation 236(b).
  25. Constitution of India, 1950, art 21.
  26. Constitution of India, 1950, art 19(1)(d).
  27. Justice K.S. Puttaswamy v. Union of India AIR 2017 SC 4161.
  28. Constitution of India, 1950, art 21.

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