Kharak Singh vs The State Of U. P. and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 356 of 1961

Decision Date: 18 December, 1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, Syed Jaffer Imam, J.C. Shah, J.R. Mudholkar, Subba Rao

In the matter styled Kharak Singh versus The State of Uttar Pradesh and Others, the Supreme Court of India delivered its judgment on 18 December 1962. The judgment was authored by Justice N. Rajagopala Ayyangar, who also sat on the bench together with Justices Bhuvneshwar P. Sinha, Syed Jaffer Imam, J. C. Shah and J. R. Mudholkar. The case is reported in the 1963 All India Reporter at page 1295 and in the 1964 Supreme Court Reporter (First Series) at page 332. The citation record also notes references in several subsequent reports, including 1967 SC 1836, 1970 SC 898, 1974 SC 2092, 1975 SC 1378, 1976 SC 1207, 1977 SC 1027, 1978 SC 489, 1978 SC 597, 1978 SC 1514, 1978 SC 1675, 1980 SC 1579, 1981 SC 746, 1981 SC 760, 1986 SC 180, 1986 SC 847, 1987 SC 748, 1991 SC 101 and 1991 SC 1902. The principal issue involved the fundamental right to freedom of movement and personal liberty, specifically whether the surveillance powers granted under Regulation 236 of the Uttar Pradesh Police Regulations infringed the Constitution of India, articles 19(1)(d), 21 and 32. The petitioner, Kharak Singh, had been implicated in a dacoity case but was released because the prosecution presented no evidence against him. Subsequently, the police created a “history sheet” on his name and placed him under surveillance as defined in Regulation 236. The regulation described surveillance to include secret observation of the suspect’s residence, nocturnal domiciliary visits, periodic inquiries by officers of at least Sub‑Inspector rank into the suspect’s reputation, habits, associations, income, expenses and occupation, reports by constables and watchmen of the suspect’s movements and absences, verification of such movements through inquiry slips, and the compilation of all relevant information on a history sheet.

The petitioner filed a writ petition under article 32 challenging the constitutional validity of Chapter XX of the Uttar Pradesh Police Regulations, within which Regulation 236 is situated. The State contended that the impugned regulations did not infringe any of the freedoms guaranteed by Part III of the Constitution; and even assuming an infringement, the regulations were enacted in the public interest to maintain order and to enable the police to perform their duties more efficiently, thereby constituting reasonable restrictions. The Court, however, held that out of the five categories of surveillance enumerated in Regulation 236, the provision authorising domiciliary visits violated article 21 of the Constitution. Because no other law existed to justify such visits, the Court declared that portion of the regulation unconstitutional and directed that it be struck down. Consequently, the petitioner was granted a writ of mandamus ordering the State not to continue domiciliary visits. The Court further observed that the remaining forms of surveillance—such as secret picketing of the suspect’s house, monitoring by constables and watchmen, and the recording of movements—did not constitute an infringement of the right to free movement or personal liberty, as they were not direct, tangible interferences with the rights guaranteed by article 21. The judgment therefore limited the invalidation to the domiciliary‑visit component of Regulation 236, leaving the other surveillance measures intact.

In this case the Court concluded that the order directing the authorities not to continue domiciliary visits was valid, while it held that the remaining categories of surveillance set out in the Regulation were not unconstitutional. The Court observed that the secret picketing of a suspect’s residence could not, in any material or palpable way, affect the suspect’s right to move freely or deprive him of his personal liberty as defined in Article 21. The Court explained that an infringement of a fundamental right such as the right to free movement or personal liberty must be both direct and tangible; the Constitution‑makers did not intend to protect merely a subjective feeling of personal sensitivity. The term “picketing” in the Regulation, the Court noted, does not imply physical resistance to the visitor or an attempt to prevent entry into the suspect’s house, but merely refers to observing and maintaining a record of those who come to the house.

Clauses (c), (d) and (e) of Regulation 236 were explained by the Court as dealing with the detailed shadowing of history‑sheeters in order to keep a record of their movements and activities, and to gather information about persons with whom they interact so as to ascertain the nature of those activities. The Court held that these provisions did not infringe any fundamental right of the petitioner. The freedom guaranteed by Article 19(1)(d) was not violated by a watch being kept over the suspect’s movements, and Article 21 was also not applicable. The Court further observed that the suspect retained the liberty to answer or to refuse to answer any question posed by the police, and that no law imposed civil or criminal liability for a refusal to answer or for remaining silent. Because the right of privacy is not a guaranteed right under the Constitution, the attempt to ascertain an individual’s movements constitutes an invasion of privacy but does not amount to an infringement of a fundamental right protected by Part III. The Court explained that the expression “personal liberty” in Article 21 is a comprehensive term that includes all varieties of rights forming personal liberty, apart from those specifically enumerated in the clauses of Article 19(1). While Article 19(1) addresses particular attributes of freedom, “personal liberty” in Article 21 embraces the residual rights. The word “life” in Article 21, the Court said, does not merely denote the continuance of a person’s animal existence but also includes the right to possession of each of his organs, arms, legs and so forth.

The Court rejected the respondent’s contention that an act of the police involving trespass to property could give rise to a tort claim, arguing that such a claim for damages was irrelevant to the question of whether the act constituted an invasion of a fundamental right. The respondent’s suggestion that the petitioner’s remedy lay only in a civil damages action and not in a petition under Article 32 was deemed without substance and wholly immaterial for the purpose of determining whether a fundamental right had been infringed.

The Court held that it was wholly erroneous to assume that, before the jurisdiction of this Court could be invoked under Article 32, the applicant must first demonstrate that no other adequate remedy exists or that all remedies provided by law have been exhausted without obtaining proper redress. Once it is established to the satisfaction of the Court that State action has infringed the petitioner’s fundamental right enforceable under Article 32, the Court not only acquires the right but also bears the duty to provide relief by passing appropriate orders in the petitioner’s favour.

Per the opinions of Subba Rao and Shah, JJ, the petitioner was classified as a “class A history‑sheeter” and consequently was placed under complete surveillance. Police constables were posted near his residence to monitor his movements as well as those of his friends and associates who visited him. The police entered his house during the night, awakened him to ascertain his presence, and thereby disturbed his sleep and rest. Officers of rank not below Sub‑Inspector conducted inquiries into his habits, associations, income, expenses and occupations, and procured information from third parties about every aspect of his way of life. Constables and watchmen traced his movements, shadowed him and reported their observations to superiors. It was conceded that no law expressly imposed restrictions on persons deemed of “bad character”. The Court held that the entire Regulation 236 is unconstitutional, not merely clause (b). The attempt to fragment the act of surveillance into separate ramifications was deemed unrealistic, as clauses (a) to (f) of Regulation 236 constitute measures adopted for the purpose of supervision or close observation of the petitioner’s movements and are therefore integral parts of surveillance. Both Articles 19(1) and 21 protect distinct and independent fundamental rights. The term “personal liberty” in Article 21 is comprehensive, and the right to move freely is an attribute of personal liberty; it is therefore incorrect to say that freedom of movement is carved out of personal liberty so that Article 21 would exclude that attribute. Although the fundamental rights overlap, the notion of one being carved out of the other does not arise. The rights to life and personal liberty contain many attributes, some of which are found in Article 19. The State must demonstrate that neither right is infringed by showing that a law falls within the meaning of Article 21 and that any restriction is reasonable within the meaning of Article 19(2). The Court explained that the right of personal liberty under Article 21 implies that an individual is entitled to be free from restrictions or encroachments on his person, whether those arise directly or indirectly through calculated measures. Viewed in this light, all acts of surveillance carried out under Regulation 236 infringe the petitioner’s fundamental right.

The Court observed that Article 21 guarantees personal liberty, while Article 19(1)(d) secures the right to move freely within the country. It explained that mere physical freedom from restraint does not, by itself, constitute the purpose of a person’s travel. A person ordinarily moves in pursuit of a purpose, such as enjoying a location, conducting business, meeting friends, or holding private and intimate consultations. When a person is subjected to constant surveillance, his movements become effectively constrained. Although the individual may still be able to walk, the movement is reduced to a mechanical act performed under the watchful eye of law‑enforcement officials. Such scrutiny prevents the movement from being truly free, and the Court likened the effect to the whole nation becoming a prison. Accordingly, the freedom protected by Article 19(1)(d) requires that a person be able to move in a society where he may speak, associate, and travel without fear, subject only to reasonable social regulation. The petitioner, being under a persistent shadow of surveillance, was therefore denied this freedom. He could physically relocate, but he could not do so without inhibition, because every action was observed and the awareness of surveillance restrained his behaviour. Consequently, the Court held that the entire Regulation 236 conflicted with the guarantee of free movement in Article 19(1)(d).

The Court further held that the petitioner’s freedom under Article 19(1)(a) was also violated, because a person under such surveillance could not express his genuine and intimate thoughts to a visitor as he wished. The Court referred to precedents including A.K. Gopalan v. State of Madras [1950] SCR 88, Munn v. Illinois (1877) 94 US 113, Wolf v. Colorado (1949) 338 US 25, Semayne’s case (1604) 5 Coke 91, and Bolling v. Sharpe (1954) 347 US 497. The judgment originated from an original jurisdiction petition numbered 356 of 1961, filed under Article 32 for enforcement of fundamental rights. Counsel for the petitioner and respondents were respectively designated, and the judgment was delivered on December 18, 1962 by a bench comprising Chief Justice Sinha, Justice Imam, and Justice Mudholkar, with separate opinions by Justices Ayyangar, Subba Rao and Shah. The petition challenged the constitutional validity of Chapter XX of the Uttar Pradesh Police Regulations, specifically the powers granted to police officers, on the ground that they infringed the rights secured by Articles 19(1)(d) and 21 of the Constitution. The Court proceeded to set out the factual allegations concerning the petitioner, Kharak Singh, who had been charged in a 1941 dacoity case and subsequently released under Section 169 of the Criminal Procedure Code, and to consider the State’s responses to those allegations.

The petitioner claimed that the police had opened a “history‑sheet” against him based on the accusation that had been made, even though there was no evidence to support the charge. Regulation 228, which appears in Chapter XX of the Police Regulations, defined a history‑sheet as the personal record of a criminal who was under surveillance. The same regulation required that a history‑sheet be opened only for persons who were already habitual criminals or who were likely to become habitual criminals, or for persons who assisted or abetted such criminals. The regulation further classified history‑sheets into two categories. Class A covered dacoits, burglars, cattle‑thieves and thieves of railway goods and wagons, while Class B covered confirmed and professional criminals who committed offenses other than dacoity, burglary or similar crimes, such as professional cheats. It was admitted that a Class A history‑sheet had indeed been opened for the petitioner, placing him under police surveillance. The petitioner described the surveillance he endured as follows: the village guard, and on some occasions police constables, would enter his house, knock on the door and shout, often waking him during the night and disturbing his sleep. On several occasions they forced him to rise from sleep and accompany them to the police station to confirm his presence there. Whenever the petitioner left his village for another village or town, he was required to report his departure to the village guard or the police station, providing details of his destination and the expected period of his return. The police station from which he departed would then immediately inform the police station at his destination, which would in turn place him under the same type of surveillance as the original station.

The petitioner also alleged other instances of misuse or abuse of authority by the village guard and police officials, but those allegations were denied and were not considered to be proved for the purposes of the petition. The Court noted that if officials exceeded the limits of their authority, they would be violating the instructions given to them; however, such individual excesses, being wholly unauthorised, could not be the basis of a petition under Article 32. Consequently, the Court proceeded on the assumption that the officers had acted strictly in accordance with the provisions of Chapter XX, as properly interpreted, and it chose to disregard as exaggerated or unproved any incidents or conduct alleged by the petitioner that had been denied. The Court reaffirmed that it was a matter of record that a history‑sheet had been opened and that a record prescribed by the regulations was being maintained for the petitioner. Furthermore, it noted that the actions required under the regulations for a Class A history‑sheet holder were being applied to him. The counter‑affidavit submitted by the respondents asserted that the police kept a confidential watch over the petitioner’s movements in accordance with the regulations, acting in the interest of the public and for the maintenance of public order.

It was submitted that the police maintain a confidential observation of the petitioner’s movements in accordance with the Regulations, and that this surveillance is carried out for the benefit of the general public and for the preservation of public order. The Court first observed that the State’s defence of the Regulations’ validity consists of two principal arguments. The first argument asserts that the Regulations being challenged do not infringe any of the freedoms guaranteed by Part III of the Constitution, which the petitioner claims have been violated. The second argument contends that even if the Regulations were to affect a constitutional freedom, they were enacted “in the interests of the general public and public order,” that they enable the police to perform their duties more efficiently, and therefore constitute reasonable restrictions on that freedom.

The Court then noted that the second argument lacks any legal foundation. It explained that should the petitioner demonstrate that the Regulations do infringe a constitutional freedom, the only permissible defence would be to justify the action by reference to a valid law, whether that law be a statute, a statutory rule, or a statutory regulation. Counsel for the respondent initially attempted such a justification by invoking section 12 of the Indian Police Act, but subsequently conceded that the provisions contained in Chapter XX of the Police Regulations have no statutory basis. Instead, they are merely executive or departmental instructions intended to guide police officers.

Because these instructions are not “a law” made under the relevant clauses of Article 19, they cannot be used to modify or restrict the fundamental rights enumerated in the various sub‑clauses of Article 19(1). Likewise, they do not constitute “a procedure established by law” within the meaning of Article 21. Consequently, the Court held that if the police action—being an act of the executive—were found to encroach upon any of the petitioner’s guaranteed freedoms, the petitioner would be entitled to the writ of mandamus he seeks, which would restrain the State from implementing the Regulations in his case.

The Court further observed that another issue required clarification at this stage. A substantial portion of the respondent’s argument focused on the reasonableness of the Regulations and their application solely to individuals who, on proper grounds, were suspected of proven anti‑social habits or tendencies, thereby necessitating certain restraints for the protection of society. The Court agreed that, had the Regulations possessed a statutory basis and qualified as a “law” under Article 13(3), the consideration of their target group could carry considerable weight in demonstrating that the classification was rational and that the restrictions were reasonable and aimed at preserving public order.

In this matter, the Court held that the central issue was to determine whether the surveillance provisions contained in Chapter XX of the Uttar Pradesh Police Regulations infringed any of the fundamental rights guaranteed to a citizen by Part III of the Constitution. The Court observed that because the regulations did not constitute a law within the meaning of Article 13(3), the considerations advanced by the State concerning the reasonableness of the measures could not be used to validate the provisions. Consequently, the Court said that the constitutional validity of the surveillance regime had to be assessed as if it were applied to every individual, including respectable and law‑abiding citizens who were neither suspected nor even potentially dangerous to public order.

The Court identified Regulation 236 as the provision that, for all practical purposes, defined “surveillance.” The regulation states: “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) periodical inquiries by officers not below the rank of Sub‑Inspector into repute, habits, associations, income, expenses and occupation; (d) the reporting by constables and chaukidars of movements and absence from home; (e) the verification of movements and absences by means of inquiry slips; (f) the collection and record on a history‑sheet of all information bearing on conduct.” Regulation 237 further provides that all “history‑sheet men” of class A, whether “starred” or “unstarred,” are subject to all of these surveillance measures. The Court noted that the remaining regulations in the chapter merely elaborate the various actions that comprise surveillance, and that nothing substantive turned on the precise wording of those auxiliary provisions.

Counsel for the petitioner argued that each of the activities listed in clauses (a) to (f) of Regulation 236 violated the freedom of movement guaranteed by Article 19(1)(d) and also infringed the guarantee of personal liberty under Article 21, which provides that no person shall be deprived of life or personal liberty except according to procedure established by law. The Court undertook to examine each clause of Regulation 236 in relation to the purported infringements. Regarding clause (a), secret picketing of the houses of suspects, the Court explained that the secrecy referred to in the provision is secrecy from the suspect; its purpose is to enable the police to ascertain the identity of persons who visit the suspect’s house and to maintain a record of the suspect’s activities. The Court concluded that such secret picketing could not, in any material or palpable manner, affect the suspect’s right to move freely, nor could it be said to deprive the suspect of personal liberty within the meaning of Article 21. Consequently, the Court found that the argument that secret picketing interferes with the right to free movement or personal liberty was without substance.

The Court observed that the mere possibility that a suspect might discover his house is being subject to picketing does not amount to a direct or tangible interference with his constitutional right to move freely throughout the territory of India or with his personal liberty guaranteed under article 21. The contention that such knowledge could influence the suspect’s inclination to travel or could, in any event, prejudice his personal liberty was found to be without merit. The Court explained that for an infringement of a fundamental right to exist, the violation must be direct and palpable; the framers of the Constitution did not intend to protect merely a subjective feeling of personal sensitivity. It was further suggested that the picketing might have the tendency to prevent, if not actually prevent, friends of the suspect from visiting his residence and thereby impinge upon the right to form associations protected by article 19(1)(c). The Court held that it was unnecessary to examine in detail the precise scope of the freedom of association for the present case because the term “picketing” used in clause (a) of Regulation 236 was understood, on the basis of the later regulations in the same chapter, to mean the observation and recording of persons who come to the suspect’s house, not the physical resistance to, or the dissuasion of, any visitor. Moreover, the purpose of maintaining secrecy would be completely frustrated if those tasked with observing were to approach the visitors, disclose their own presence or identity, or attempt to persuade the visitors to act in any particular manner.

The Court turned to the meaning of “domiciliary visits” as employed in the regulation. Reference was made to standard dictionary definitions, which describe a domiciliary visit as a visit by official persons to a private dwelling for the purpose of searching or inspecting it, emphasizing that the visit is undertaken under authority. In the context of the regulation, such visits are intended to ascertain whether the suspect remains at home or has left the premises, the latter circumstance being presumed in these cases to indicate a probable intent to commit an offence. The respondent argued that the allegations in the petition concerning the manner in which these domiciliary visits are carried out—specifically, that a policeman or watchman enters the house at night, knocks on the door, awakens the suspect and thereby confirms his presence—had been denied in the counter‑affidavit and were therefore untrue, maintaining that, as a rule, police officers simply observe from outside the suspect’s house and obtain information about his presence from third parties. The Court found that this contention did not address the constitutional challenge to the provision. The Court noted that, irrespective of how the powers are actually exercised in individual instances, the plain meaning of “domiciliary visits” authorises police authorities to enter the suspect’s premises, knock, have the door opened and conduct a search for the purpose of ascertaining the suspect’s presence. Consequently, the respondent’s description of ordinary practice was irrelevant to the determination of the regulation’s validity.

The submission did not answer the challenge to the constitutionality of the provision. It was observed that, when the ordinary meaning of the expression “domiciliary visits” was considered, the regulation authorised police officers to enter a suspect’s dwelling, to knock at the door, to have the door opened and to conduct a search for the purpose of ascertaining the person’s presence in the house. The fact that, in a particular case or even in general, the police might not fully exercise the authority that the regulation confers was held to be irrelevant to the question of the regulation’s validity. The reasoning was that, if the police chose to exercise those powers, they could do so without exceeding the limits set by the regulation.

Further, the judgment expressed that it was not satisfied that, under Regulation 236 (b), the petitioner’s allegation that police constables knocked at his door and woke him during the night in order to verify his presence at home was completely false. Although other allegations concerning an alleged compulsion to accompany the constables to the police station at night were regarded as embellishments, the core claim about the night‑time knock was not rejected outright. The next issue to be examined was whether the intrusion into a citizen’s residence, the act of knocking at the door and the consequent disturbance of sleep and ordinary comfort, amounted to a violation of the freedom guaranteed by Article 19(1)(d) or constituted a deprivation of “personal liberty” under Article 21.

Regarding Article 19(1)(d), the judgment clarified that the “freedom” protected by this clause was a right to move freely throughout the territory of India. The geographical limitation was deemed immaterial for the present discussion. It was agreed that the term “move” referred merely to the right of locomotion, and that the adverb “freely” indicated that the movement must be without restriction and absolute, subject only to any valid law made under clause 5. The judgment noted that the act of knocking at the door or waking a person from sleep did not impede or prejudice his locomotion in any way.

It was observed that counsel had suggested that the knowledge or apprehension that the police were watching the suspect’s movements might cause a psychological inhibition affecting his movements. The judgment rejected this argument, stating that such a mental effect could not be said to impair the “free” movement guaranteed by sub‑clause (d). Even assuming that, in a particular instance, the suspect’s mind was affected and his movement was diverted or impeded, the judgment affirmed that the constitutional guarantee under Article 19(1)(d) related to a tangible, physical freedom of movement, not to an imponderable effect on the mind.

The Court observed that the freedom protected by Article 19(1)(d) referred to a concrete, physical liberty rather than to any intangible mental influence that might affect a person’s decision regarding his movement. The Court then turned to examine the content of Article 21. In doing so, it explained that the terms “life” and “liberty” used in the Fifth and Fourteenth Amendments of the United States Constitution, which state that “No person … shall be deprived of life, liberty or property without due process of law,” served as a model for Article 21. Citing the remarks of Justice Field, the Court noted that the word “life,” as employed in that context, signified more than mere animal existence; it encompassed all the capacities and faculties through which life is experienced. Accordingly, the provision prohibited not only the removal of life itself but also any mutilation of the body, such as amputation of a limb, loss of an eye, or destruction of any organ essential for the soul’s interaction with the external world. Similarly, the Court stated that “liberty,” as used in the provision, meant more than simple freedom from physical restraint or confinement in a prison. The Court acknowledged that, unlike the Fourth and Fourteenth Amendments of the United States, Article 21 qualified the word “liberty” with the adjective “personal,” thereby giving the term a somewhat narrower meaning. However, the Court explained that this qualification was intended to prevent overlap with the various aspects of liberty already covered by Article 19(1), such as freedom of speech and freedom of movement, and with the “liberty” guaranteed by Article 21 itself, especially when considering the permissible restraints that might be imposed under clauses (2) to (6) of Article 21 on the different species of liberty enumerated in the various clauses of Article 19(1). Because the question before the Court was very limited, the Court found it unnecessary to venture into a detailed analysis of the precise relationship between the “liberties” protected under Article 19(1)(a) and (d) and those protected under Article 21, nor to delve into the meaning of the phrase “procedure established by law” in Article 21, topics that had already been examined at length in A.K. Gopalan v. State of Madras. The Court recalled that, in Gopalan’s case, there was unanimous agreement that a deprivation of the liberty guaranteed by Article 21 would violate the Constitution if no enacted law existed, although the judges differed on whether every enacted law satisfied the description of “procedure established by law.” Before proceeding, the Court noted that a submission on behalf of the respondent required notice. The respondent contended that the police action amounted to a trespass on property—that the police had entered the petitioner’s premises and knocked on the door, thereby causing disturbance, and that such conduct, not being authorized by law, could give rise to a tort claim for damages against the police as a tortfeasor, though it would not constitute an infringement of a fundamental right. The respondent further argued that the petitioner or any other persons subjected to such police conduct might be justified in ejecting the trespasser, possibly using force, and that because the incident represented only a tort of trespass or nuisance, the jurisdiction of this Court under Article 32 could not be invoked. The Court regarded these submissions as based on a fundamental misconception.

In the case, it was argued that the police officer who entered the petitioner’s premises and knocked on the door, thereby causing disturbance, could give rise to a tort claim because the act was not authorized by law; consequently, damages for the breach of the petitioner’s rights could be sought from the tortfeasor, although such conduct could not be said to amount to a violation of a fundamental right. The same argument further maintained that the petitioner or any persons affected by such entry were entitled to eject the trespasser and even to use force to do so, but that because the matter concerned only a civil wrong of trespass or nuisance, the jurisdiction of this Court under article thirty‑two could not be invoked.

The Court held that these submissions rested on a basic fallacy. It observed that the fact that an act of the State executive or of a State official, even if undertaken under a purported authority, may give rise to a cause of action in a common‑law or statutory forum, and that the aggrieved citizen may obtain relief in ordinary courts, was wholly irrelevant to the question of whether the act constituted an invasion of a fundamental right. The Court explained that an act of the State executive infringed a guaranteed liberty only when it was performed without authority of a valid law, or without any law at all, as was the case here; every such illegal act inevitably created a civil or criminal cause of action for the injured party.

The Court further rejected the contention that, before invoking its jurisdiction under article thirty‑two, the applicant must first demonstrate that no other adequate remedy existed or that all other remedies had been exhausted without success. The Court clarified that once it is satisfied that a State action has infringed a petitioner’s fundamental right, the Court not only has the power but also the duty to grant appropriate relief.

Turning to the question of the scope and content of the expression “personal liberty” in article twenty‑one, the Court noted that, in view of article nineteen paragraph one sub‑paragraph (d), the term does not include the right to move about or locomotion. Excluding the right of movement, the narrowest interpretation of “personal liberty” would be limited to freedom from physical restraint or confinement, such as freedom from arrest, detention, false imprisonment, or wrongful confinement. The Court expressed that it could not accept such a restricted meaning and, instead, considered “personal liberty” to be a comprehensive term that embraces all the various rights that constitute the personal liberties guaranteed by the Constitution.

In this case, the Court observed that the term “personal liberty” in Article 21 is intended to cover those aspects of freedom that are not specifically dealt with in the various clauses of Article 19(1). In other words, while Article 19(1) enumerates particular attributes or species of the broader freedom, the expression “personal liberty” in Article 21 embraces the residual portion of that freedom which remains after the specific attributes have been accounted for. The Court recalled a passage from the judgment of Field, J. in Munn v. Illinois, where the learned judge explained that the word “life” in the Fifth and Fourteenth Amendments of the United States Constitution – provisions that correspond to Article 21 of this Constitution – does not merely signify the continuation of a person’s animal existence, but also includes the right to possess each of the person’s organs, such as his arms and legs. The Court stated that it harboured no doubt that the word “life” in Article 21 carries the same meaning. Consequently, the Court asked whether the expression “personal liberty” should be understood as excluding an intrusion by the police into the sanctity of a man’s home, an invasion of his personal security, or an interference with his right to sleep – the normal comfort and a vital necessity for human existence even in its most animal form. The Court noted that it would not be inappropriate to refer to the pre‑amble of the Constitution, which declares that the Constitution is designed to “assure the dignity of the individual,” and that this dignity is the cherished human value that secures full development and evolution of the person. Those objectives of the framers were cited merely to draw attention to the underlying concepts of the Constitution, which indicate that a vital term such as “personal liberty” must be interpreted reasonably and given a meaning that promotes and achieves those objectives, and not stretched to fit preconceived doctrinaire constitutional theories. The Court then quoted Frankfurter, J. in Wolf v. Colorado, who observed that “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 that such a principle is enforceable against the States through the Due Process Clause. The Court further noted that a police knock on a door, whether by day or night, as a prelude to a search conducted without legal authority but solely on police authority, has long been condemned as inconsistent with the conception of human rights enshrined in the history and basic constitutional documents of English‑speaking peoples. The Court expressed no hesitation in stating that if a State were to affirmatively sanction such police intrusion into privacy, it would run counter to the guarantee of the Fourteenth Amendment. Murphy, J. was also cited as considering such an invasion to be an assault on “the very essence of a scheme of ordered liberty.” The Court acknowledged that the United States Supreme Court decisions from which these extracts were taken also had to consider the impact of a violation of the Fourth Amendment, which safeguards against unreasonable searches and seizures.

The Court quoted the well‑known provision that “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.” It then observed that the Constitution of India does not contain an identical guarantee. Nevertheless, the Court held that these extracts demonstrate that an unauthorised intrusion into a person’s home and the disturbance thereby caused amount to a violation of a common‑law right of a man—an ultimate component of ordered liberty, and, arguably, of the very notion of civilisation itself. The Court referred to the English common‑law maxim that “every man’s house is his castle” and cited Semayne’s case, noting that the decision stated that a person’s house is his castle and fortress, serving both as defence against injury and violence and as a place for repose. Although Semayne’s case concerned the law of execution in England, the Court said the passage expresses a principle of enduring validity that lies beyond the specific context of that decision. The passage, the Court explained, embodies a lasting principle that transcends mere protection of property rights and articulates a concept of “personal liberty” that is not rooted in feudal notions or obsolete theories of freedom. The citation given for this principle was (1) (1604) 5 Coke 91: I Sm. L.C. (13th Edn.) 104,105.

Turning to the specific provisions under challenge, the Court said that, in its view, clause (b) of Regulation 236 plainly violates Article 21 and, because there is no “law” on which that clause could be justified, it must be struck down as unconstitutional. The Court indicated that clauses (c), (d) and (e) could be considered together. These clauses, the Court observed, merely describe the shadowing of persons who are listed as history‑sheeters, for the purpose of keeping a record of their movements and activities and of obtaining information about persons with whom they associate, so as to ascertain the nature of their activities. Learned counsel had contended that such shadowing obstructed a person’s free movement or, at the very least, impeded it, thereby infringing Article 19(1)(d) of the Constitution. The counsel further argued that the freedom guaranteed by that article was not limited to a physical restraint on movement, but that the word “freely” also encompassed psychological inhibitions. The Court stated that it had already considered and rejected this broader interpretation. The Court then noted a few minor matters arising from these clauses. In particular, clauses (d) and (e) refer to the reporting of a suspect’s movements, his absence from his home, and the verification of such movements and absences by means of enquiries. The Court explained that an enquiry aimed at ascertaining a suspect’s movements could conceivably take one of two forms.

The Court observed that an enquiry can be made either of the suspect himself or of other persons. When the enquiry is directed to the suspect, the question presented was whether any fundamental right of the suspect was being violated. The Court answered in the negative, holding that the suspect retains the liberty either to answer the questions or to remain silent, and that no provision of law imposes either civil or criminal liability for refusing to answer. Consequently, the mere fact that an enquiry is undertaken concerning the suspect’s movements, and that the facts obtained are verified and sifted, does not amount to an infringement of the freedom of movement guaranteed by Article 19(1)(d) of the Constitution. The Court further held that Article 21 was not relevant to the matter, contrary to the suggestion of counsel for the petitioner. It was reiterated that the Constitution does not guarantee a right to privacy; therefore, an attempt to ascertain an individual’s movements, even though it may be described as an invasion of privacy, does not contravene any fundamental right under Part III. On this basis, the Court concluded that the petition succeeded in part. It struck down Regulation 236(b), which authorises “domiciliary visits”, as unconstitutional, and granted the petitioner a writ of mandamus directing the respondent not to continue such visits. The remainder of the petition was dismissed and no order as to costs was made. The Court, having considered the earlier judgment of a learned judge, agreed that Regulation 236(b) was unconstitutional but went further to declare that the entire Regulation 236 was unconstitutional because it infringed both Article 19(1)(d) and Article 21. The Court noted that the case raised a question of far‑reaching importance: the right of a citizen of India to lead a free life subject only to lawful social control. It emphasized that the fact the question arose from an alleged disreputable character should not distract from the principle that if the police could act as they did to the petitioner, the same could be done to an honest, law‑abiding citizen. The Court clarified that it was not dealing with a law that imposes restrictions on a bad character, as no such law exists. Accordingly, any alleged infringement of the petitioner’s fundamental right must be examined in the absence of any specific legislative provision. The Court therefore framed the issue as follows: what, if any, fundamental right of the petitioner was infringed by the police actions, and whether such infringement, if established, would entitle the petitioner to relief.

Accordingly, the petitioner would be entitled to immediate relief because the State would be unable to justify the alleged conduct on the basis of any legislation enacted by the competent Legislature or any rules made thereunder. In the petitioner’s affidavit he attributes a series of specific acts to the respondents. He states that, on a frequent basis, the village watchman – the chaukidar – and at times police constables wake him during the night, thereby disturbing his sleep. He further alleges that these officials shout at his door and on certain occasions actually enter his house. He recounts that on several occasions they have forced him to rise from sleep and accompany them to the police station at Civil Lines, Meerut, which lies three miles from his village, for the purpose of reporting his presence there. The petitioner also claims that whenever he departs his village for any other village or town, he is required to inform either the village chaukidar or the police station of his departure, providing details of his intended destination and the period within which he expects to return. He adds that, immediately after such a departure, the police station at his destination is contacted by the police station of his point of origin, and the receiving station then subjects him to surveillance in exactly the same manner as the originating station had done. He further points out that the village chaukidar maintains a register, known as the chaukidar’s Crime Record Book, in which the petitioner’s presence and absence are recorded. All entries in this register, he asserts, are made without his knowledge and he is never afforded any opportunity to examine or inspect these records. The petitioner also makes additional allegations of misuse or abuse of authority by the chaukidar and other police officials.

In the respondents’ counter‑affidavit it is acknowledged that the petitioner is indeed placed under police surveillance, but the respondents categorically deny any abuse of power. A careful examination of the petitioner’s affidavit alongside the respondents’ counter‑affidavit reveals that the petitioner appears to magnify the instances of police interference in his daily life, whereas the respondents seek to portray those instances in the most minimal light. Consequently, the Court elects to accept only those allegations asserted by the petitioner that are consistent with the type of surveillance prescribed by Regulation 236 of Chapter XX of the Uttar Pradesh Police Regulations. The Regulation, as quoted, provides: “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; (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”

Regulation 237 of Chapter XX of the Uttar Pradesh Police Regulations stipulated that every individual classified as a “history‑sheet” person of Class A, whether designated as “starred” or “unstarred”, would be subject to all the measures of surveillance enumerated in the preceding regulation. The petitioner was identified by the authorities as a Class A history‑sheet individual and, consequently, the regulation placed him within the full ambit of the surveillance system prescribed by the police. Before the Court could determine the extent of the regulation’s operation, it was necessary to ascertain the precise meaning of several technical expressions employed therein. The term “surveillance” was explained as conveying the idea of supervision and close observation, implying that a person who was under surveillance was not permitted to move about without being watched. The expression “secret‑picketing” required particular attention. The word “picketing” could refer to various activities, such as trade‑union workers stationed at a workshop to deter strikebreakers, social workers positioned outside a liquor shop to dissuade patrons, or small military detachments sent to monitor an enemy. In the police context, “picketing” therefore denoted the posting of police personnel near a house or its approaches in order to monitor the movements of the resident and to prevent others from visiting or associating with him. The adjective “secret” qualified this activity, suggesting that the police presence was intended to be concealed from the individual under observation as well as from any visitors to his house. Although the expression was not perfectly clear, the Court assumed that “secret‑picketing” meant the covert stationing of police officers at the person’s residence for the purpose of observing his movements and those of his associates without their knowledge. In practice, however, such secrecy was difficult to maintain because the presence of police officers would eventually become known to the person watched and to members of the community.

The phrase “domiciliary visit at night” was also examined. “Domiciliary” meant “relating to a dwelling place”, and a “domiciliary visit” therefore referred to an entry by officials into a private house for the purpose of searching or inspecting the premises, particularly during the night hours. After clarifying the meanings of these three expressions, the Court proceeded to assess how the regulation operated in the petitioner’s case. Police officers were positioned near the petitioner’s house to monitor his movements and to observe the movements of any friends or associates who came to his residence. The officials entered his house during the night, awakened him, and searched the premises to determine whether he was present, thereby disturbing his sleep and rest. Officers of not less than the rank of Sub‑Inspector conducted periodic inquiries with persons other than the petitioner in order to gather information about his habits, associations, income, expenses, and occupation, effectively obtaining a comprehensive picture of his way of life. Constables and night watchmen (chaukidars) tracked his movements, shadowed him, and submitted reports of his whereabouts and activities to their superiors. In this manner, the various components of the surveillance scheme—secret‑picketing, nocturnal domiciliary visits, systematic inquiries, and continuous monitoring by lower‑rank police—were applied to the petitioner, subjecting his entire life to close observation and record‑keeping.

In this case the Court observed that the petitioner’s entire existence had been turned into a public record, with every action closely watched and recorded. It held that it was unrealistic to claim that such surveillance could have been carried out without the knowledge of the petitioner, his friends, his associates, or other persons in the neighbourhood. The Court explained that attempting to separate the various aspects of the surveillance into isolated components did not reflect the reality of the situation. It noted that the measures listed in clauses (a) through (f) of the regulation were all intended to supervise or closely observe the petitioner’s movements, and therefore each of those measures formed part of a single surveillance operation. The central issue, the Court said, was whether this surveillance violated any of the petitioner’s fundamental rights. Counsel for the petitioner argued that the surveillance infringed the rights guaranteed by clauses (a) and (d) of Article 19(1) as well as the protection afforded by Article 21. The Court reproduced the text of those provisions, stating that Article 21 declares that no person shall be deprived of life or personal liberty except according to procedure established by law, and that Article 19(1) guarantees, among other freedoms, the right to freedom of speech and expression and the right to move freely throughout the territory of India. The Court then examined the scope of these two provisions and their relationship. It observed that although both are distinct fundamental rights, the term “personal liberty” in Article 21 is broad and includes many attributes, some of which are also mentioned in Article 19. The Court rejected the view that the right to move freely is merely carved out of personal liberty, insisting that the two rights are independent, though they may overlap. Consequently, when a violation of Article 21 is alleged, the State must rely on a law that satisfies the test of reasonableness laid down in Article 19(2) for any overlapping attribute. In the present matter, the Court found that no such law existed; the surveillance was carried out without any statutory authority that could meet the requirement of a reasonable restriction. Therefore, the petitioner was entitled to contend that both his rights under Article 19(1)(d) and Article 21 had been infringed by the State. The Court then turned to the meaning of “life” in Article 21, noting that it cannot be limited to the mere taking of life. It cited the definition of “life” given by Justice Field in Munn v. Illinois, which describes life as more than mere animal existence and includes all the limbs and faculties through which life is enjoyed, thereby extending the protection of Article 21 to bodily integrity as well as to the broader aspects of personal liberty.

The Court explained that the right to life, as understood in the United States, means more than merely the existence of a living creature. The prohibition against depriving a person of life extends to every limb and faculty through which a person experiences life. Accordingly, the provision also bars the mutilation of the body, such as the amputation of an arm or a leg, the removal of an eye, or the destruction of any other organ through which the soul communicates with the external world. The Court further observed that the term “liberty” has a very broad meaning in American jurisprudence. It embraces all the freedoms that an individual may enjoy. In the case of Bolling v. Sharpe, the United States Supreme Court stated that the expression is not limited to freedom from physical restraint, and that liberty under law includes the entire spectrum of conduct that a person may freely pursue. Nevertheless, this absolute right to liberty is not unfettered; it is regulated in order to protect other societal interests. The State may limit liberty through the exercise of its police power, its power of eminent domain, its power of taxation, and other similar authorities, as noted in the cited American decisions from 1877 and 1954. The Court emphasized that the proper exercise of these powers, known as due process of law, is itself subject to oversight by the United States Supreme Court. Turning to Indian constitutional law, the Court pointed out that the word “liberty” in the Indian Constitution has been qualified by the term “personal,” signifying that it is confined to the liberty of the person alone. Other dimensions of liberty are covered by different articles of the Constitution. The concept of personal liberty has been succinctly described by the constitutional scholar Dicey, who, in his ninth edition of Constitutional Law, defines the ambit of the right as the guarantee that a person shall not be subjected to imprisonment, arrest, or any other physical coercion unless such action is justified by law. Blackstone, in his Commentaries on the Laws of England (Book 1, page 134), similarly described personal liberty as the power to move, to change one’s situation, or to go wherever one wishes, without being imprisoned or restrained, except as provided by lawful procedure. In the landmark Indian case of A. K. Gopalan, the Court explained that personal liberty refers to the freedom pertaining to the individual’s body and person, and that it is the opposite of physical restraint or coercion. The expression is broad enough to include the right to be free from any restrictions placed on a person’s movements. The Court also warned that the modern understanding of “coercion” cannot be limited to purely physical constraints. In a primitive society where no inhibitions exist, only physical restraints might affect personal liberty. However, as civilization progresses, psychological restraints become more effective than physical ones. The scientific methods employed to condition a person’s mind act as physical restraints in a real sense because they generate fear and channel actions through anticipated and expected patterns. Likewise, the creation of circumstances that produce inhibitions and fear complexes can also be described as forms of physical restraint. Moreover, the right to personal liberty encompasses not only the freedom to move without restriction but also includes a broader protection of the individual’s private life.

In this judgment the Court explained that personal liberty under Article 21 includes not only freedom from physical restraints on a person’s movements but also freedom from any intrusion into the private sphere of life. Although the Constitution does not expressly name a right to privacy as a fundamental right, the Court held that such a right forms an essential component of personal liberty. The Court observed that every democratic nation respects domestic life and is expected to provide individuals with rest, physical well‑being, peace of mind and security. Accordingly, a person’s home, where he lives with his family, is described as a “castle,” serving as a defensive barrier against violations of personal liberty.

The Court then referred to the famous words of Justice Frankfurter in Wolf v. Colorado (1), which stressed the importance of safeguarding an individual’s privacy against arbitrary police intrusion. The Court noted that the principle articulated by Justice Frankfurter applies equally to an Indian home as it does to an American one. It was further observed that while physical restraints on movement affect personal liberty, direct intrusions into private life constitute an even greater impairment of liberty. The Court emphasized that nothing harms a person’s physical happiness and health more than a calculated invasion of privacy.

Consequently, the Court defined the right to personal liberty in Article 21 as the right of each individual to be free from any restriction or encroachment on his person, whether such restriction is imposed directly or is the result of indirect, calculated measures. Under this definition, the Court concluded that every act of surveillance carried out under Regulation 236 infringes the petitioner’s fundamental right guaranteed by Article 21.

The judgment then turned to the second issue, namely whether the petitioner’s fundamental right under Article 19(1)(d) is also violated. The Court examined the content of that right and rejected the argument that it merely guarantees the ability to move physically from one point to another without restraint, an argument that relied on a United States case (1) (1949) 338 U.S. 25. The Court pointed out that this argument overlooks the word “freely” in clause (d). The presence of the adverb “freely” expands the scope of the right beyond simple physical movement.

The Court explained that mere movement unimpeded by physical barriers cannot, by itself, constitute the object of a person’s travel. Individuals travel in pursuit of objectives such as enjoyment, business, social interaction, secret consultations and many other purposes. When a person is constantly shadowed, his movements become constrained; he may be able to move physically, but the movement is reduced to an automatic routine. The Court questioned how movement under the constant scrutiny of police could be described as “free.” It likened the situation to a country that becomes a jail for the individual.

Accordingly, the Court held that the freedom of movement guaranteed by clause (d) must be understood as the ability to move in a free country—one in which a person can act as he wishes, speak to anyone, and meet chosen individuals without fear, subject only to lawful social control. The Court concluded that the petitioner, being subjected to pervasive surveillance, is unquestionably deprived of the freedom contemplated in Article 19(1)(d).

The Court observed that although the petitioner is capable of physical movement, his movement is not free because all his activities are watched and recorded. The shroud of surveillance placed over him inevitably creates inhibitions, preventing him from acting as he would like. Consequently, the Court held that the entire Regulation 236 offends Article 19 (1) (d) of the Constitution. Assuming that Article 19 (1) (d) is confined only to physical movements, its combination with the freedom of speech and expression leads to the same conclusion. The Court stated that the act of surveillance is certainly a restriction on that freedom. It clarified that the freedom is not stripped of its subjective or psychological content, but the restriction affects only the mechanics of speech and expression. To illustrate the point, the Court compared the situation to a prisoner who may receive a visitor such as a wife, son or friend while a guard is present. The prisoner can speak with the visitor, yet it cannot be said that he fully enjoys the freedom because he cannot express his most intimate thoughts as fully as he would like. The Court noted that the restrictions on that freedom are supported by valid law. Extending the analogy to the present case, the Court treated the man under surveillance as a prisoner within the confines of the country, with the authorities enforcing surveillance acting as guards, but without any law of reasonable restrictions sustaining or protecting their action. In this understanding, the Court concluded that the petitioner’s freedom under Article 19 (1) (a) of the Constitution is also infringed. It was not necessary to express a view on whether other freedoms enshrined in Article 19 are also violated by the regulation. Accordingly, the Court issued an order directing the respondents not to take any measure against the petitioner under Regulation 236 of Chapter XX of the Uttar Pradesh Police Regulations and ordered the respondents to pay the petitioner’s costs. In accordance with the majority opinion, the writ petition was partly allowed and Regulation 236 (b), which authorises “domiciliary visits,” was struck down as unconstitutional. The petitioner is entitled to a writ of mandamus directing the respondent not to continue domiciliary visits. The remaining part of the petition fails and is dismissed, and there will be no order as to costs.