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Supreme Court of India

18 December 1962

Kharak Singh

State of Uttar Pradesh and Others

Case No : Petition No. 356 of 1961

Bench : N. Rajagopala Ayyangar, K. Subba Rao, Syed Jaffer Imam, Bhuvaneshwar Prasad Sinha,
J.C. Shah, J.R. Madholkar
Citation : 1962 Indlaw SC 577, AIR 1963 SC 1295, 1963 ALJ 711, 1963 CRLJ 329, 1964 (2) SCJ
107, [1964] 1 S.C.R. 332
Summary : Constitution - Human Rights - Defense and Security Forces - Constitution Of India,
1950, arts. 19(I)(d), 19(4), 19(5), 19(6), Cls. (2), (3), (4), (5) and (6) and art. 21 - Uttar Pradesh
Police Regulations, Regn. 236, Cl. (b) - Regulation sanctioning Domiciliary visits - Whether is
violative of art. 21 of Constitution - Held yes, it is unjustified - Police Regulations, Chap. XXX,
Regn. 236- Regulations contained in Chap. XX of Uttar Pradesh Police Regulations have no such
statutory basis but are merely executive or departmental instructions framed for guidance of police
officers - They are not, therefore, 'a law' which State is entitled to make under relevant Cls. (2) to
(6) of art. 19 in order to regulate or curtail fundamental rights guaranteed by several sub cls. of
art. 19(1) nor can same be 'a procedure established by law' within art. 21 - (B) Secret picketing
Regn. 236, Cl. (a) valid - Held, it is valid, secret picketing of houses of suspects, there is no
substance in submission that if suspect does come to know that his house is being subjected to
picketing, that might affect his inclination to move about or that in any event it would prejudice his
'personal liberty' (C) Domiciliary visits - Whether violates fundamental rights? - Held, such visits
do not affect fundamental right under art. 19(I)(d) but they affect personal liberty contemplated
by art. 21 - Domiciliary means 'of a dwelling place' - Scientific methods used to condition a man's
mind are in a real sense physical restraints, for they engender physical fear channeling one's
actions through anticipated and expected grooves - So also creation of conditions which
necessarily engender inhibitions and fear complexes can be described as physical restraints - Right
to be free from restrictions placed on his movements, but also free from encroachments on his
private life - Word 'life' in art. 21 means not merely right to continuance of a person's animal
existence, but a right to possession of each of his organs - His arms and legs - Petition partly
allowed.

The Judgment was delivered by: N. Rajagopala Ayyangar, J.

1. This petition under Art. 32 of the Constitution challenges 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.
2. To appreciate the contention raised it is necessary to set out the facts averred on the basis
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of which the fundamental right of the petitioner, is said to be violated, as well as the answers
by the respondent-State to these allegations.
3. The petitioner-Kharak Singh was challaned in a case of dacoity in 1941 but was released
under s. 169, Criminals Procedure Code as there was no evidence against him. On the basis of
the accusation made against him he states that the police have opened a "history sheet" in
regard to him.
4. 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.
5. These history-sheets are of two classes: Class A for dacoits, burglars, cattle-thieves, and
railway-goods wagon thieves, and class B for those who are confirmed and professional
criminals who commit crimes other than dacoity, burglary, etc. like professional cheats. It is
admitted that a history-sheet in class A has been opened for the petitioner and he is therefore
"under surveillance."
6. The petitioner describes the surveillance to which he has been subjected thus : Frequently
the chaukidar of the village and sometimes police constables enter his house, knock and shout
at his door, wake him up during the night and thereby disturb his sleep. On a number of
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 his destination is contacted by the
police station of his departure and the former puts him under surveillance in the same way as
the latter. There are other allegations made about misuse or abuse of authority by the
chaukidar or the police officials but these have been denied and we do not consider them
made out for the purposes of the present petition. If the officials outstep the limits of their
authority they would be violating even the instructions given to them, but it looks to us that
these excesses of individual officers which are wholly unauthorised could not be complained of
in a petition under Art. 32.
7. In deciding this petition we shall proceed upon the basis that the officers conformed strictly
to the terms of the Regulations in Ch. XX properly construed and discard as exaggerated or
not proved the incidents or pieces of conduct on the part of the authorities which are alleged in
the petition but which have been denied. As already pointed out it is admitted that a history-
sheet has been opened and a record as prescribed by the Regulations maintained for the
petitioner and that such action as is required to be taken in respect of history sheeters of Class
A into which the petitioner fell under the classification made in Ch. XX of the Police Regulations
is being taken in regard to him. It is stated in the counter affidavit that the police keep a
confidential watch over the movements of the petitioner as directed by the Regulations in the
interests of the general public and for the maintenance of Public order.
8. Before entering on the details of these regulations it is necessary to point out that the
defence of the State in support of their validity is two-fold:
(1) that the impugned regulations do not constitute an infringement of any of the freedoms
guaranteed by Part III of the Constitution which are invoked by the petitioner, and
(2) that even if they were, they have been framed "in the interests of the general public and
public order" and to enable the police to discharge its duties in a more efficient manner and
were therefore "reasonable restrictions" on that freedom. Pausing here it is necessary to point
out that the second point urged is without any legal basis for if the petitioner were able to
establish that the impugned regulations constitute an infringement of any of the freedoms
guaranteed to him by the Constitution then the only manner in which this violation of the
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fundamental right could be defended would be by justifying the impugned action by reference
to a valid law, i. e., be it a statute, a statutory rule or a statutory regulation. Though learned
counsel for the respondent started by attempting such a justification by invoking s. 12 of the
Indian Police Act he gave this up and conceded that the regulations contained in Ch. XX bad no
such statutory basis but were merely executive or departmental instructions framed for the
guidance of the police officers.
9. They would not therefore be "'a law" which the State is entitled to make under the relevant
cls. 2 to 6 of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the
several sub-clauses of Art. 19 (1); nor would the same be " a procedure established by law"
within Art. 21. 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.
10. There is one other matter which requires to be clarified even at this stage. A considerable
part of the argument addressed to us on behalf of the respondent was directed to showing that
the regulations were reasonable and were directed only against those who were on proper
grounds suspected to be of proved anti-social habits and tendencies and on whom it was
necessary to impose some restraints for the protection of society. We entirely agree that 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.
11. The sole question for determination therefore is whether "surveillance" under the
impugned Ch. XX 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 particular
Regulation which for all practical purposes defines "serveillance" is Regulation 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."
12. Regulation 237 provides that all, history-sheet men" of class A (under which the petitioner
falls) ",starred" and "un starred", would be subject to all these measures of surveillance. The
other Regulations in the chapter merely elaborate the several items of action which make up
the "surveillance" or the shadowing but we consider that nothing material turns on the
provisions or their terms.
13. Learned Counsel for the petitioner urged that the acts set out in cls. (a) to (f) of
Regulation 236 infringed the freedom guaranteed by Art. 19 (1) (d) "to move freely
throughout the territory of India" and also that guaranteeing "personal liberty" in Art. 21 which
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runs:
"No person shall be deprived of his life or personal liberty except according to procedure
established by law."
14. We shall now consider each of these clauses of Regulation 236 in relation to the
"freedoms" which it is said they violate:
(a) Secret picketing of the houses of suspects:- It is obvious that the secrecy here referred to
is 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.
15. 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. It was submitted that if the suspect does come to know that his house is being
subjected to picketing, that might affect his inclination to move about, or that in any event it
would prejudice his "Personal liberty". We consider that there is no substance in this
argument. In dealing with a fundamental right such as the right to free movement or personal
liberty, that only can constitute an infringement which is both direct as well as tangible and it
could not be that under these freedoms the Constitution-makers intended to protect or
protected mere personal sensitiveness. It was then suggested that such picketing might have
a tendency to prevent, if not actually preventing friends of the suspect from going to his house
and would thus interfere with his right "to form associations" guaranteed by Art. 19 (f) (c). We
do not consider it necessary to examine closely and determine finally the precise scope of the
"freedom of association" and particularly whether it would be attracted to a case of the type
now under discussion, since we are satisfied that "picketing" is used in cl. (a) of this
Regulation not in the sense of offering resistance to the visitor-physical or otherwise-or even
dissuading him, from entering the house of the suspect but merely of watching and keeping a
record of the visitors. This interpretation we have reached
(a) on the basis of the provisions contained in the later Regulations in the Chapter, and (b)
because more than even the express provisions, the very purpose of the watching and the
secrecy which is enjoined would be totally frustrated if those whose duty it is to watch,
contacted the visitors, made their presence or identity known and tried to persuade them to
any desired course of action.
(b) Domiciliary visits at night: "Domiciliary visits" is defined in the Oxford English Dictionary as
"Visit to a private dwelling, by official persons, in order to search or inspect it." Webster's Third
New International Dictionary defines the word as "'Visit to a private dweling (as for searching
it) under authority." The definition in Chambers' Twentieth Century Dictionary is almost
identical-"Visit under authority, to a private house for the purpose of searching it." These visits
in the context of the provisions in the Regulations are for the purpose of making sure that the
suspect is staying at home or whether he has gone out, the latter being presumed in this class
of cases, to be with the probable intent of committing a crime. It was urged for the respondent
that the allegations in the petition regarding the manner in which "domiciliary visits" are
conducted, viz., that the policeman or chaukidar enters the house and knocks at the door at
night and after awakening the suspect makes sure of his presence at his home had been
denied in the counter-affidavit and was not true, and that the policemen as a rule merely
watch from outside the suspect's house and make enquiries from third persons regarding his
presence or whereabouts. We do not consider that this submission affords any answer to the
challenge to the Constitutionality of the provision. In the first place, it is clear that having
regard to the plain meaning of the words "domiciliary visits," 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. The fact that in any
particular instance or even generally they do not exercise to the full the power which the
regulation vests in them, is wholly irrelevant for determining the validity of the regulation since
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if they are so minded they are at liberty to exercise those powers and do those acts without
out stepping the limits of their authority under the regulations.
16. Secondly, we are, by no means, satisfied that having regard to the terms of Regulation
236 (b) the allegation by the petitioner that police constables knock at his door and wake him
up during the night in the process of assuring themselves of his presence at home are entirely
false, even if the other allegations regarding his being compelled to accompany the constables
during the night to the police station be discarded as mere embellishment.
17. The question that has next to be considered is whether the intrusion into the residence of
a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort
which such action must necessarily involve, constitute a violation of the freedom guaranteed
by Art. 19 (1) (d) or "a deprivation" of the "personal liberty" guaranteed by Art. 21. Taking
first Art. 19 (1) (d) the "freedom" here guaranteed is a right "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, we agree that 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, whenever one likes and however one likes subject to any valid law enacted
or made under cl. 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. Learned Counsel
suggested that the knowledge or apprehension that the police were on the watch for the
movements of the suspect, might induce a psychological inhibition against his movements but,
as already pointed out, we are unable to accept the argument that for this reason there is an
impairment of the "'free" movement guaranteed by sub-cl. (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.
18. The content of Art. 21 next calls for examination.
19. 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 'modeled, 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 prohabits 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."
20. It true that in Art. 21, as contrasted with the 4th and 14th Amendment in the U. S., 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-cls. 2 to 6 of the article on the several species of liberty dealt with in the several clauses
of Art. 19 (I). In view of the very limited nature of the question before us it is unnecessary to
pause to consider either the precise relationship between the "liberties" in Art. 19 (1) (a) & (d)
on the one hand and that in Art. 21 on the other, or the content and significance of the words
"'procedure established by law" in the latter article, both of which were the subject of
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elaborate consideration by this Court in A. K. Gopalan v. State of Madras ([1950] S.C.R. 88).
1950 Indlaw SC 42 In fact, in Gopalan's case1950 Indlaw SC 42 there was unanimity of
opinion on the question that if there was no enacted law, the freedom guaranteed by Art. 21
would be violated, though the learned judges differed as to whether any and every enacted
law satisfied the description or requirements of "a procedure established by law."
21. Before proceeding further a submission on behalf of the respondent requires notice. It was
said that if the act of the police involved a trespass to property , i. e., the trespass involved in
the act of the police official walking into the premises of the petitioner and knocking at the
door, as well as the disturbance caused to him, might give rise to claim in tort, since the action
was not authorised by law and that for these breaches of the petitioner's rights damages might
be claimed and recovered from the tortfeasor, but that the same could not constitute an
infraction of a fundamental right. Similarly it was urged that the petitioner or persons against
whom such action was taken might be within their rights in ejecting the trespasser and even
use force to effectuate that purpose, but that for what was a mere tort of trespass or nuisance
the Jurisdiction of this Court under Art. 32 could not be invoked. These submissions proceed
on a basic fallacy.
The fact that an act by the State executive or by a State functionary acting under a pretended
authority gives rise to an action at common law or even under a statute and that the injured
citizen or person may have redress in the ordinary courts is wholly immaterial and, we would
add, irrelevant for considering whether such action is an invasion of a fundamental right. An
act of the State executive infringes a guaranteed liberty only when it is not authorised by a
valid law or by any law as in this case, and every such illegal act would obviously give rise to a
cause of action-civil or criminal at the instance of the injured person for redress. It is wholly
erroneous to assume that before the, jurisdiction of this Court under Art. 32 could be invoked
the applicant must either establish that he has no other remedy adequate or otherwise or that
he has exhausted such remedies as the law affords and has yet not obtained proper redress,
for when once it is proved to the satisfaction of this court that by State action the fundamental
right of a petitioner under Art. 32 has been infringed, it is not only the right but the duty of
this Court to afford relief to him by passing appropriate orders in that behalf.
22. We shall now proceed with the examination of the width, scope and content of the
expression "personal liberty" in Art. 21. Having regard to the terms of Art. 19(1)(d), we must
take it that expression is used as not to include the right to move about or rather of
locomotion. The right to move about being excluded its narrowest inter pretation would be that
it comprehends nothing more than freedom from physical restraint or freedom from
confinement within the bounds of a prison; in other words, freedom from arrest and detention,
from false imprisonment or wrongful confinement.
23. We feel unable to hold that the term was 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). In other
words, while Art. 19(1) deals with particular species or attributes of that freedom, "personal
liberty" in Art. 21 takes in and comprises the residue. We have already extracted a passage
from the judgment of Field, J. in Munn v. Illinois (1877) 94 U.S. 113,142), where the learned
judge pointed out that "life" in the 5th and 14th Amendments of the U. S. Constitution
corresponding to Art. 21, means not merely the right to the continuance of a person's animal
existence, but a right to the possession of each of his organs-his arms and legs etc.
We do not entertain any doubt that the word "'life" in Art. 21 bears the same signification. 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 in appropriate to refer here to the words of the
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preamble 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.
24. We are referring to 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 sense 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.
25. Frankfurter, J. observed in Wolf v. Colorado (1949) 338 U.S. 25):
"'The security of one's privacy against arbitrary intrusion by the police........................ is
basic to a free society. It is therefore implicit in the concept of ordered liberty' and as such
enforceable against the States through the Due Process Clause. 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 and the basic
constitutional documents of English-speaking peoples........................ We ha-Are no
hesitation in laying that were a State affirmatively to sanction such police incursion into
privacy it would run counter to the guaranty of the Fourteenth Amendment."
26. Murphy, J. considered that such invasion was against "the very essence of a scheme of
ordered liberty". It is true that in the decision of the U. S. Supreme Court from which we have
made these extracts, the Court had to consider also the impact of a violation of the Fourth
Amendment which reads.
27. The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated; and no warrants shall issue but
upon probable cause, supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized." and that our Constitution does not in
terms confer any like constitutional guarantee. Nevertheless, these extracts would show that
an un authorised intrusion into a person's home and the disturbance caused to him thereby, is
as it were the violation of a common law right of a man an ultimate essential of ordered
liberty, if not of the very concept of civilization. An English Common Law maxim asserts that
"every man's house is his castle" and in Semayne's case (1604) 5 Coke 91: I Sm. L.C. (13th
Edn.) 104,105), where this was applied, it was stated that, the house of everyone is to him as
his castle and fortress as well as for his defence against injury and violence as for his repose".
We are not unmindful of the fact that Semayne's case was concerned with the law relating to
executions in England, but the passage extracted has a validity quite apart from the context of
the particular decision. It embodies an abiding principle which transcends mere protection of
property rights and expounds a concept of "personal liberty" which does not rest on any
element of feudalism or on any theory of freedom which has ceased to be of value.
28. 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.
29. Clauses (c), (d) and (e) may be dealt with together. The actions suggested by these
clauses 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. It was urged by learned Counsel that the shadowing of a person obstructed his free
movement or in any event was an impediment to his free movement within Art. 19 (1) (d) of
the Constitution. The argument that the freedom there postulated was not confined to a mere
physical restraint hampering movement but that the term 'freely' used in the Article connoted
a wider freedom transcending mere physical restraints, and included psychological inhibitions
we have already considered and rejected. A few minor matters arising in connection with these
clauses might now be noticed. For instance, cls. (d) & (e) refer to the reporting of the
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movements of the suspect and his absence from his home and the verification of movements
and absences by means of enquiries. The enquiry for the purpose of ascertaining the
movements of the suspect might conceivably take one of two forms: (1) an enquiry of the
suspect himself, and (2) of others. When an enquiry is made of the suspect himself the
question mooted was that some fundamental right of his was violated. The answer must be in
the negative because the suspect has the liberty to answer or not to answer the question for
ex concessis there is no law on the point involving him in any liability-civil or criminal-if he
refused to answer or remained silent.
30. Does then the fact that an enquiry is made as regards the movements of the suspect and
the facts ascertained by such enquiry are verified and the true facts sifted constitute an
infringement of the freedom to move? 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.
31. The result therefore is that the petition succeeds in part 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.
32. Subba Rao,J.- We have had the advantage ment prepared by our learned Ayyangar, J. We
agree with him 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.
33. This petition raises a question of far-reaching importance namely, a right of a citizen of
India to lead a free life subject to social control imposed by valid law. The fact that the
question has been raised at the instance of an alleged disreputable character shall not be
allowed to deflect our perspective. If the police could do what they did to the petitioner, they
could also do the same to an honest and law-abiding citizen. Let us at the outset clear the
ground. We are not concerned here with a law imposing restrictions on a bad character, for
admittedly there is no such law. Therefore, the petitioner's fundamental right, if any, has to be
judged on the basis that there is no such law. To state it differently, what fundamental right of
the petitioner has been infringed by the acts of the police? If he has any fundamental right
which has been infringed by such acts, he would be entitled to a relief straight away, for the
State could not justify it on the basis of any law made by the appropriate Legislature or the
rules made thereunder.
34. The petitioner in his affidavit attributes to the respondents the following acts:
"Frequently the chaukidar of the village and sometimes police constables awake him in the
night and thereby disturb his sleep. They shout at his door and sometimes enter inside his
house. On a number of occasions they compel him to get up from his sleep and accompany
them to the police station, Civil Lines, Meerut, (which is three miles from the petitioner's
village) 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 information regarding his destination and the period within which he
will return. Immediately the police station of his destination is contacted by the police station
of his departure and the former puts him under surveillance in the same way as the latter
does."
"It may be pointed out that the chaukidar of the village keeps a record of the presence and
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absence of the petitioner in a register known as chaukidar's Crime Record Book."

"All the entries in this book are made behind the petitioner's back and he is never given any
opportunity of examining or inspecting these records."
35. There are other allegations made about the misuse or abuse of authority by the chaukidar
or the police officials.
36. In the counter-affidavit filed by the respondents it is admitted that the petitioner is under
the surveillance of the police, but the allegations of abuse of powers are denied. A perusal of
the affidavit and the counter affidavit shows that the petitioner tries to inflate the acts of
interference by the police in his life' while the respondents attempt to deflate it to the
minimum. In the circumstances we would accept only such of the allegations made by the
petitioner in his affidavit which are in conformity with the act of surveillance described by
Regulation 236 of Chapter XX of the U. P. Police Regulations. The said Regulation 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 houses of suspects;
(b) Domiciliary visits at night; 354
(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 absences 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 Class A, "starred" and "un starred",
would be subject to all the said measures of surveillance. It is common case that the petitioner
is a Class A history sheeter and, therefore, lie is subject to the entire field of surveillance."
37. 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. Cl. (a) uses the expression "secret-
picketing". What does the expression mean? Picketing has many meanings. A man or a party
may be stationed by trade union at a workshop to deter would-be workers during strike. Social
workers may stand at a liquor shop to intercept people going to the shop to buy liquor and
prevail upon them to desist from doing so. Small body of troops may be sent out as a picket to
watch for the enemy.
38. 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 of 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 well nigh impossible to keep it secret. It will be
known to everybody including the person watched.
39. 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.
40. 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.
03/11/2015 Delivery | Westlaw India Page 10

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 lie 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. Cl. (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 a surveillance infringes any of
the petitioner's fundamental rights.
41. Learned Counsel for the petitioner contends that by the said act of surveillance the
petitioner's fundamental rights under cls. (a) and (d) of Art. 19 (1) and Art. 21 are infringed.
The said Articles read:-
Art. 21 : No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Art. 19 (1): All citizens shall have the right:-
(a) to freedom of speech and expression; x x x x x x
(d) to move freely throughout the territory of India.
42. At this stage it will be convenient to ascertain the scope of the said two provisions and
their relation inter se in the context of the question raised. Both of them are distinct
fundamental rights. No doubt the expression "personal liberty" is a comprehensive one and the
right to move freely is an attribute of personal liberty. It is said that the freedom to move
freely is carved out of personal liberty and, therefore, the expression "personal liberty" in Art.
21 excludes that attribute. In our view, this is not a correct approach. Both are independent
fundamental rights, though there is overlapping. There is no question of one being carved out
of another. The fundamental right of life and personal liberty have many attributes and some
of them are found in Art. 19. If a Person's fundamental right under Art. 21 is infringed, the
State can rely upon a law to sustain the action; but that cannot be a complete answer unless
the said law satisfies the test laid down in Art. 19 (2) so far as the attributes covered by Art.
19 (1) are concerned. In other words, the State must satisfy that both the fundamental rights
are not infringed by showing that there is a law and that it does amount to a reasonable
restriction within the meaning of Art. 19 (2) of the Constitution. But in this case no such
defence is available, as admittedly there is no such law.
43. So the petitioner can legitimately plead that his fundamental rights both under Art. 19 (1)
(d) and Art. 21 are infringed by the State.
44. Now let us consider the scope of Art. 21. The expression "life" used in that Article cannot
be confined only to the taking away of life, i.e., causing death. In Munn v. Illinois (1877) 94
U.S. 113), Field, J., defined "life" in the following words:
"Something more than mere animal existence. The inhibition against its deprivation extends to
all those limbs and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body by the 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."
45. The expression "liberty" is given a very wide meaning in America. It takes in all the
freedoms. In Bolling v. Sharpe (1954) 347 U.S. 407, 499), the Supreme Court of America
observed that the said expression was not confined to mere freedom from bodily restraint and
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that liberty under law extended to the full range of conduct which the individual was free to
pursue.
46. But this absolute right to liberty was regulated to protect other social interests by the
State exercising its powers such as police power, the power of eminent domain, the power of
taxation etc. The proper exercise of the power which is called the due process of law is
controlled by the Supreme Court of America. In India the word "liberty" has been qualifie by
the word "Personal", indicating thereby that it is confined only to the liberty of the person. The
other aspects of the liberty have been provided for in other Articles of the Constitution. The
concept of personal liberty has been succinctly explained by Dicey in his book on Constitutional
Law, 9th edn. The learned author describes the ambit of that right at pp. 207-208 thus:
"The right not to be subjected to imprisonment, arrest or other physical coercion in any
manner that does not admit of legal justification."
47. Blackstone in his commentaries on the Laws of England, Book 1, at p.134, observed :
"Personal liberty" includes "the power to locomotion of changing situation, or removing one's
person to whatsoever place one's inclination may direct, without imprisonment or restraint,
unless by due course of law."
48. In A. K. Gopalan's case ([1950] S.C.R.88)1950 Indlaw SC 42, it is described to mean
liberty relating to or concerning the person or body of the individual; and personal liberty in
this sense is the antithesis of physical restraint or coercion. The expression is wide enough to
take in a night to be free from restrictions placed on his movements. The expression "coercion"
in the modern age cannot be construed in a narrow sense. In an uncivilized society where
there are no inhibitions, only physical restraints may detract from personal liberty, but as
civilization advances the psychological restraints are more effective than physical ones. The
scientific methods used to condition a man's mind are in a real sense physical restraints, for
they engender physical fear channeling one's actions through anticipated and expected groves.
So also the creation of conditions which necessarily engender inhibitions and fear complexes
can be described as physical restraints. 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 lie
lives with his family, is his "castle": it is his rampart against encroachment on his personal
liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado (1949)
338 U.S. 25), 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. We would, therefore, define 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.
49. This leads US Lo the second question, namely, whether the petitioner's fundamental right
under Art. 19 (1) (d) is also infringed. What is the content of the said fundamental right? It is
argued for the State that it means only that a person can move physically from one point to
another without any restraint.' This argument ignores the adverb "freely" in cl. (d). If that
adverb is not in the clause, there may be some justification for this contention; but the adverb
"freely" gives a larger content to the freedom Mere movement unobstructed by physical
restrictions cannot in itself be the object of a person's travel. A person travels ordinarily in
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quest of some objective. He goes to a place to enjoy, to do business, to meet friends, to have
secret and intimate consultations with 0thers and to do many other such things.
50. If a man is shadowed, his movements are obviously constricted. He can move physically,
but it can only be a movement of an automation. How could a movement under the
scrutinizing gaze of the policemen be described as a free movement? The whole country is his
jail. The freedom of movement in cl. (d) therefore must be a movement in a free country, i. e.,
in a country where he can do whatever he likes, speak to whomsoever he wants, meet people
of his own choice without any apprehension, subject of course to the law of social control. The
petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move
physically, but he cannot do so freely, for all his activities are watched and noted. The shroud
of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as
he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Art.
19 (1) (d) of the Constitution.
51. 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.
52. 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. So
understood, it must be held that the petitioner's freedom under Art. 19 (1) (a) of the
Constitution is also infringed.
53. It is not necessary in this case to express our view whether some of the other freedoms
enshrined in Art. 19 of the Constitution are also infringed by the said Regulation.
54. In the result, we would issue an order directing the respondents not to take any measure
against the petitioner under Regulation 236 of Chapter XX of the U. P. Police Regulations. The
respondents will pay the costs of the petitioner.
By COURT
In accordance with the opinion of the majority this Writ Petition is partly allowed 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.
Petition disposed of.
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