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PETITIONER:

KHARAK SINGH

Vs.

RESPONDENT:

THE STATE OF U. P. & OTHERS

DATE OF JUDGMENT:

18/12/1962

BENCH:

AYYANGAR, N. RAJAGOPALA

BENCH:

AYYANGAR, N. RAJAGOPALA

SINHA, BHUVNESHWAR P.(CJ)

IMAM, SYED JAFFER

SUBBARAO, K.

SHAH, J.C.

MUDHOLKAR, J.R.

CITATION:

1963 AIR 1295 1964 SCR (1) 332

CITATOR INFO :

F 1967 SC1836 (28,53,59,60,61,62)

E 1970 SC 898 (58)

R 1974 SC2092 (10)

RF 1975 SC1378 (6,13)

E 1976 SC1207 (59,288,289,520)

R 1977 SC1027 (23,30,42)

D 1978 SC 489 (9)

R 1978 SC 597 (3,10,54,209)

R 1978 SC1514 (5)

R 1978 SC1675 (55,56,226)

RF 1980 SC1579 (40)

R 1981 SC 746 (6)

RF 1981 SC 760 (5)

RF 1986 SC 180 (32)

RF 1986 SC 847 (12)

R 1987 SC 748 (15,16)

RF 1991 SC 101 (239)

RF 1991 SC1902 (24)

ACT:

Fundamental Right, Enforcement of-Scope-Right to freedom of

movement and personal liberty, whether infringed-

Surveillance-Whether infringes fundamental right-Consti-

tution of India, Arts. 19 (1) (d),21,32 -U. P. Police

Regulations, Regulation 236.

HEADNOTE:

The petitioner was challenged in a dacoity case but was

released is there was no evidence against him. The police

opened a history sheet against him. He was put under sur-

veillance -is defined in Regulation 236 of the U. P. Police

Regulations. Surveillance involves secret picketing of the

house or approaches to the houses of the suspects,

domiciliary visits at night, periodical enquiries by

officers not below the rank of Sub-Inspector into repute,

habits, association, income, expenses and occupation, the

reporting by constables and chaukidars of movements and

absences from home, the verification of movements and

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absences by means of inquiry slips and the collection and

record on a history sheet of all information bearing on

conduct.

The petitioner filed a writ petition under Art. 32 in which

he challenged the constitutional validity of Chapter XX of

U. P. Police Regulations, in which Regulation 236 also

occurs.

The defence of the respondent was that the impugned

Regulations did not constitute an infringement of any of the

freedoms Guaranteed by Part III of the Constitution, and

even if they were, they had been framed in the interests of

the General public and public order and to enable the police

to discharge its ditty in a more efficient manner, and hence

were reasonable restrictions on that freedom.

Held, (Subba Rao and Shah JJ., dissenting) that out of the

five kinds of surveillance referred to in Regulation 236,

the part dealing with domiciliary visits was violative of

Art. 21

333

of the Constitution and as there was no law on which the

same could be justified it must be struck down as

unconstitutional, and the petitioner was entitled to a writ

of mandamus directing the respondent not to continue

domiciliary visits. The other matters constituting

surveillance were not unconstitutional. The secret

picketing of the houses of tile suspects could not in any

material or palpable form affect either the right on the

part of the suspect to move freely' or to deprive him of his

'Personal liberty' within the meaning of Art. 21. 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, 'The term 'picketing' has been used in the

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. Clauses (c), (d) and (e)

of Regulation 236 dealt with the details of the shadowing of

the history-sheeters for the purpose of having a record of

their movements arid activities, and the obtaining of

information relating to persons with whom they came into

contact with a view to ascertain the nature of their

activities, arid did not infringe any fundamental right of

the petitioner. The freedom guaranteed by Art. 19 (1) (d)

was not infringed by a watch being kept over the movements

of the suspect. Art. 21 was also not applicable. The

suspect had the liberty to answer or not to answer the

question put to him by the police,and no Law provided for

any civil or criminal liability if the suspect refused to

answer a question or remained silent. The right of privacy

is not a guaranteed right under our Constitution, arid

therefore the attempt to ascertain the movements of an

individual is merely a manner in which privacy is invaded

and is not an infringement of a fundamental right guaranteed

in Part III.

The term 'personal liberty' is used in Art. 21 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 dealt with in the several clauses of

Art. 19 (I ). While Art. 19 (1) deals with particular

species or attributes 'of that freedom, 'personal liberty'

in Art. 21 takes in and comprises the residue. The word

"life" in Art. 21 means not merely the right to the

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continuance of a person's animal existence, but a right to

the possession of each of his organsarms, legs, etc.

The contention of the respondent that if an act of the

police involved a trespass to property, that could give rise

to a

334

claim in tort as that action was not authorised by law, and

the remedy of the petitioner was a claim for damages and not

a petition under Art. 32, was without any substance and

wholly irrelevant for considering whether such action was

-in invasion of a fundamental right. It is wholly erroneous

to assume that before the jurisdiction of this Court uinder

Art. 32 can 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 pro. per redress, for when once it is proved to

the satisfaction of this Court that by State action the

fundamental right of the petitioner tinder 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 this behalf.

Per Subba Rao and Shah, JJ.-The petitioner was a class A

history-sheeter and hence was subject to the entire field of

surveillance. Policeman were posted near his house to watch

his movements and those of his friends and 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 from others

as regards his habits, associations, income, -expenses and

occupations. They got information from others as regards

his entire way of life. The constables and chaukidars

traced his movements, shadowed him and made reports to their

superiors. It was conceded that there was no law which

imposed restrictions on bad characters.

Held, that the whole of Regulation 236 is unconstitutional

and not only cl. (b). The attempt to dissect the act of

surveillance into its various ramifications is not

realistic. Clauses (a) to (f) of Regulation 236 are the

measures adopted for the purpose of supervision or close

observation of tile movements of the petitioner and are

therefore parts of surveillance.

Both Arts. 19(1) and 21 deal with two distinct and

independent fundamental rights. The expression "personal

liberty" is a comprehensive one and the right to move freely

is an attribute of personal liberty. But it is not correct

to say that freedom to move freely is carved out

of personal liberty and therefore the expression "Personal

liberty" in Art. 21 excludes that attribute. No doubt,

these fundamental rights overlap each other but the question

of one being carved

335

out of the other does not arise. The fundamental rights of

life and personal liberty have many attributes and some of

them are found in Art. 19. The State must satisfy that both

the fundamental rights are not infringed by showing that

there is a law within the meaning of Art. 21 and that it

does amount to a reasonable restriction within the meaning

of Art. 19(2) of the Constitution.

The right of personal liberty in Art. 21 implies 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

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right of the petitioner under Art. 21 of the Constitution.

As regards the fundamental rights guaranteed by Art. 19(1)

(d), mere movement unobstructed by physical restritions

cannot in itself be the object of a person's travel. A

person travels ordinarily in quest of some objective. He

goes to a place to enjoy, to do business, to meet friends,

to have secret and intimate consultations with other and to

do many other such things. If a man is shadowed, his

movements are obviously constricted. He can move physically

but it can only be a movement of an automation. A movement

under the scrutinising gaze of a policeman cannot be

described as a free movement. The whole country is his

jail. The freedom of movement in Art. 19(1)(d) must,

therefore, be a movement in a free country, i.e.. in a

country where lie can do whatever lie likes, speak to

whomsoever he wants, meet people of his 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 be cannot do so freely, for all his activities are

watched and the shroud of surveillance cast upon him

perforce engenders inhibitions in him, and he cannot act

freely as he would like to do. Hence, the entire Regulation

236 offends Art. 19(1) (d) of the Constitution.

Held, also that petitioner's freedom under Art. 19(1) (a) of

the Constitution was also infringed. It was impossible for

a person in the position of the petitioner to express his

real and intimate thoughts to the visitor as fully as he

would like to do.

A.K. Gopalan v. State of Madras [1950] S.C.R. 88; Munn v.

Illinois, (1877) 94 U. S. 113; Wolf v. Colorado, (1949) 338

U. S. 25; Semayne's case (1604) 5 Coke 91 and Bolling v.

Sharpe, (1954) 347 U. S. 497, referred to.

336

JUDGMENT:

ORIGINAL JURISDICTION : Petition No. 356 of 1961.

Petition tinder Art. 32 of the Constitution of India for the

enforcement of fundamental rights.

J. P. Goyal, for the petitioner.

K. S. Hajela and C. P. Lal, for the respondents.

1962. December 18. The judgement of Sinha, C. J., Imam,

Ayyangar and Mudholkar, jj., was delivered by Ayyangar, j.,

Subba Rao and Shah, jj., delivered a separate judgment.

AYYANGAR, J.--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.

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

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for persons who are or are likely to become habitual

criminals or the aiders or abettors of such criminals.

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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."

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.

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

338

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.

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

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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

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

339

instructions framed for the guidance of the police officers.

They would not therefore be "'a law" which the State is

entitled to make under the relevant clauses 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.

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 lawabiding citizens not being or even

suspected of being, potential dangers to public order.

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

340

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 Superin-

tendents 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

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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

class A (under which the petitioner falls) ",starred" and

"unstarred", 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.

341

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 runs:

"No person shall be deprived of his life or

personal liberty except according to procedure

established by law."

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.

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

342

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,

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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

343

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 if they are so minded they are at

liberty to exercise those powers and do those acts without

outstepping the limits of their authority under the regu-

lations.

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.

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

344

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

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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.

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

'modeled, Field, J. observed:

345

"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."

It 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 elabo-

rate consideration by this Court in A. K. Gopalan v. State

of Madras (1). In fact, in Gopalan's case 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

(1) [1950] S.C.R. 88.

346

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law satisfied the description or requirements of "a

procedure established by law."

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'strights 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

347

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.

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 freedam from confinement within the

bounds of a prison; in other words, freedom from arrest and

detention, from false imprisonment or wrongful confinement.

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 (1), where the

learned judge pointed out that "life" in the 5th and 14th

Amendments of the U. S. Constitution corresponding to Art.

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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

(1) (1877) 94 U.S. 113,142.

348

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 inapropriate

to refer here to the words of the 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.

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.

Frankfurter, J. observed in Wolf v. Colorado (1) :

"'The security of one's privacy against arbi-

trary instrusion 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."

Murphy, J. considered that such invasion was

(1) (1949) 338 U.S. 25.

349

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 .

,,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 unauthorised intrusion into a person's

home and the disturbance caused to him thereby, is as it

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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 (1), 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.

(1) (1604) 5 Coke 91 : I Sm. L.C. (13th Edn.) 104,105.

350

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.

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 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.

Does then the fact that an enquiry is made as regards the

movements of the

351

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

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privacy is invaded is not an infringement of a fundamental

right guaranteed by Part III.

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.

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.

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

352

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.

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

353

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."

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There are other allegations made about the misuse or abuse

of authority by the chaukidar or the police officials.

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 Superinten-

dents 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, ex-

penses 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

"unstarred", 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.

Before we construe the scope of the said Regu-

lation, 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. 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.

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

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his house or having association with him. But

the adjective "secret" qualifies

355

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 po-

sting 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.

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 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 openbook 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

356

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 a

surveillance infringes any of the petitioner's

fundamental rights.

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.

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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.

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 fundamen. tal right of

life and personal liberty have many attributes and some of

them are found in Art. 19. If a

357

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.

So the petitioner can legitimately plead that his

fundamental rights both under Art. 19 (1) (d) and Art. 21

are infringed by the State.

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 (1), Field, J., defined "life" in the following

words:

"Something more than mere animal existence.

The inhibtion 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."

The expression "'liberty" is given a very wide mea. ning in

America. It takes in all the freedoms. In Bolling v.

Sharpe (2), the Supreme Court of America observed that the

said expression was not confined to mere freedom from bodily

restraint and that liberty under law extended to the full

range of conduct which the individual was free to pursue.

But this absolute right to liberty was regulated to protect

other social interests by the State exercising its powers

(1) (1877) 94 U.S. 113.

(2) (1954) 347 U.S. 407, 499,

358

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

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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."

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."

In A. K. Gopalan's case (1), 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

(1) [1950] S.C.R.88.

359

fear channelling 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 (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. 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 fund-

amental right of the petitioner under Art. 21 of the

Constitution.

This leads US Lo the second question, namely, whether the

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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

(1) (1949) 338 U.S. 25.

360

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 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.

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.

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

361

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. So understood, 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 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 XX of the U. P. Police

Regulations. The respondents will pay the costs of the

petitioner.

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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.

362