1. Challenge to constitutional validity of police regulations authorizing surveillance of suspected habitual criminals — including secret picketing, domiciliary visits, and movement tracking — alleging violation of fundamental rights. (Para 1 , 2 , 3 , 7 , 8 )
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1962 Supreme(SC) 441
SUPREME COURT OF INDIA
B.P.Sinha, C.J.I., J.C.Shah, J.R.Mudholkar, K.Subba Rao, N.Rajagopala Ayyangar, Syed Jafar Imam, JJ.
Kharak Singh
Versus
State Of U.P.
Case No. : 356 of 1961
Date of Decision : 12/18/62
Advocates Appeared: Goyal J.P. : Hajela K.S. : Lal C.P.
Advocates:
C.P.LAL, J.P.GOYAL, K.S.Hajela
C.P.LAL, J.P.GOYAL, K.S.Hajela
Executive instructions without statutory basis cannot restrict fundamental rights. Domiciliary visits at night violate the right to personal liberty under Article 21, but surveillance/shadowing does not infringe the right to move freely under Article 19(1)(d) as it does not physically impede locomotion.
Headnote:(A) Constitution of India - Articles 19(1)(d) and 21 - Police Regulations - Surveillance - Domiciliary visits at night - Personal liberty - Freedom of movement - Validity of executive instructions - Whether executive instructions constitute 'law' for the purpose of restricting fundamental rights - Executive instructions lacking statutory basis are not 'law' under Article 13(3) nor 'procedure established by law' under Article 21, and therefore cannot justify the infringement of fundamental rights (Paras 5, 6).
(B) Article 21 - Personal liberty - Scope and ambit - 'Personal liberty' is a compendious term comprising all varieties of rights that make up the personal liberties of man other than those dealt with in Article 19(1) - Includes the right to be free from unauthorized intrusion into the home and the right to sleep, which are essential to human dignity and ordered liberty - An unauthorized police incursion into the privacy of a home is a violation of personal liberty (Paras 17, 18, 19).
(C) Article 19(1)(d) - Freedom of movement - Meaning of 'freely' - The right to move freely denotes a right of locomotion without physical restriction - Psychological inhibition or the knowledge of being watched does not constitute a tangible or physical impairment of the freedom of movement (Paras 14, 20).
(D) Right to Privacy - The right to privacy is not a guaranteed fundamental right under the Constitution; therefore, the attempt to ascertain the movements of an individual through surveillance does not infringe a fundamental right guaranteed under Part III (Para 20).
Facts of the case:
A citizen, classified as a habitual criminal under police regulations, was subjected to surveillance measures including secret picketing of his house, domiciliary visits at night, and the reporting of his movements and absences from home. The petitioner challenged the constitutional validity of these regulations on the ground that they violated the right to move freely and the right to personal liberty.
Findings of Court:
The court found that the impugned regulations were merely executive or departmental instructions and lacked a statutory basis, meaning they could not be used to justify restrictions on fundamental rights. While secret picketing and the reporting of movements were held not to violate fundamental rights, domiciliary visits at night were found to be an unauthorized intrusion into the sanctity of the home and a violation of personal liberty.
Issues: Whether the measures of surveillance prescribed under the police regulations, specifically domiciliary visits at night and the reporting of movements, infringe the fundamental rights guaranteed under Articles 19(1)(d) and 21 of the Constitution.
Ratio Decidendi: Executive instructions without statutory authority cannot curtail fundamental rights. The right to personal liberty under Article 21 includes the right to be free from arbitrary police incursions into the home and the right to sleep. However, the freedom of movement under Article 19(1)(d) is limited to physical locomotion and is not violated by surveillance or the resulting psychological inhibitions.
Result: Writ Petition partly allowed; Regulation 236(b) authorizing domiciliary visits struck down as unconstitutional.
Legal Category Hierarchy
- constitutional law
- administrative law
- crime and sentencing
Table of Contents
2. Petitioner alleges violation of freedom of movement and personal liberty — State contends regulations are reasonable restrictions for public order and efficient police discharge of duties. (Para 1 , 5 , 9 )
3. Executive instructions lacking statutory basis cannot restrict fundamental rights — domiciliary visits violate personal liberty — surveillance of movements does not physically impede locomotion. (Para 5 , 6 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 20 , 27 , 28 , 29 , 30 , 31 , 32 , 33 )
4. Executive instructions not constituting law cannot curtail fundamental rights — unauthorized intrusion into a home and disturbance of sleep violate the right to personal liberty. (Para 5 , 19 , 31 )
5. Petition partly allowed — Regulation 236(b) authorizing domiciliary visits struck down as unconstitutional — writ of mandamus issued to restrain such visits. (Para 21 , 36 )
6. Can executive instructions be used to restrict fundamental rights guaranteed by the Constitution?
No. Restrictions on fundamental rights must be justified by a valid law, such as a statute, statutory rule, or statutory regulation. Executive or departmental instructions framed for police guidance do not constitute law and cannot be used to regulate or curtail fundamental rights. (Para 5 , 6 )
7. Does the right to personal liberty under Article 21 include the sanctity of a person's home?
Yes. Personal liberty is a compendious term that includes the right to be free from unauthorized intrusions into one's home and the right to sleep, as the security of privacy against arbitrary police intrusion is basic to a free society. (Para 17 , 18 , 19 )
8. Does the surveillance of a person's movements infringe upon the right to move freely under Article 19(1)(d)?
The court held that the right to move freely denotes the right of locomotion. Mere shadowing or keeping a watch over movements does not physically impede or prejudice locomotion and therefore does not constitute an infringement of the freedom guaranteed by Article 19(1)(d). (Para 14 , 20 )
9. Is the right to privacy a guaranteed fundamental right under the Indian Constitution?
The court observed that the right to privacy is not an expressly guaranteed fundamental right under the Constitution; therefore, the attempt to ascertain an individual's movements, which is a manner of invading privacy, does not infringe a fundamental right. (Para 20 )
N.R.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 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. 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 `historysheet` 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. These history-sheets are of two classes : Class A for dacoits, burglars, cattle-thieves, and railway-goodswagon 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.`
(3) 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 accom- pany 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.
(4) 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.
(5) BEFORE entering on the details of these regulations it is necessary to point out that the defence of the State in s
