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Kharak Singh Vs. The State of U.P. and Ors.
AIR 1963 SC 1295, 1963 CriLJ 329, [1964] 1 SCR 332
Hon’ble Judges/Coram: N. Rajagopala Ayyangar, B.P. Sinha, C.J., J.C. Shah, J.R. Mudholkar, K. Subba Rao and Syed Jaffer Imam, JJ.
Date of Decision: 18.12.1962
FACTS: –
The petitioner, Kharak Singh, was challaned in a case of dacoity but was released under section 169 Criminals Procedure Code as there was no evidence against him. On the basis of the accusation made against him, police have opened a “history-sheet” 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 for persons who are or are likely to become habitual criminals or the aiders or abettors of such criminals. Surveillance includes frequent visit of the chaukidar of the village and sometimes police constables, knocking and shouting at his door, waking him up during the night and thereby disturbing his sleep, compelling him to get up from his sleep and accompany them to the police station to report his presence there. Therefore, accused challenged 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.
ISSUE:-
Whether there is violation of Article 19(1)(d) and Article 21 of the Accused due to powers conferred upon the Police Officials under Ch. XX of the UP Police Regulations?
JUDGMENT:-
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 law-abiding citizens not being or even suspected of being, potential dangers to public order.
The particular Regulation which for all practical purposes defines “surveillance” is Regulations 236 which reads :
“Without prejudice to the right of Superintendents 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 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 certain class (under which the petitioner falls) would be subject to all these measures of surveillance.
In the context of secret picketing of the house, the 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. Using id verification service can help keep your identity safe. 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.
Domiciliary visits at night – 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. Art. 19(1)(d) provides the “freedom 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, 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, and however one likes subject to any valid law enacted or made under clause 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. 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.
In Article 21, 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-clauses 2 to 6 of the article on the several species of liberty dealt with in the several clauses of Article 19(1). Having regard to the terms of Art. 19(1)(d), It must be taken that expression ‘Personal Liberty’ is used as not to include the right to move about or rather of locomotion. The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other works, freedom from arrest and detention, from false imprisonment or wrongful confinement. It was not 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). Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part 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 inappropriate to refer to the words of the preamble to 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. 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 these 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.
Justice Frankfurter observed in Wolf v. Colorado (1949) 338 U.S. 25 :
“The security of one’s privacy against arbitrary instruction by the police………………… is basic to a free society. 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…….”
Therefore, clause (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.
The actions suggested by Clauses (c), (d) and (e) 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.
The freedom guaranteed by Art. 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. 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.
HELD: –
Regulation 236(b) which authorises “domiciliary visits” is struck down as unconstitutional and other parts of the regulations are constitutional.
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