# [1964] 1 S.C.R. 332

- **Citation:** [1964] 1 S.C.R. 332
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** B. P. Sinha, S.J. Imam, K. Sunn.A Rao, J. C. Shah, N. RaJAGOPALA AYYASG.AR, J. R. l\1UDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-1-s-c-r-332-2911
- **Pages:** 30

## Headnote

Fundamental Right, Enforcement of-Scope-Right
to
freedom of movement and personal liberty, wluther infringeilSun·eillance-IVhether infringe.• any fundamental right-Constitution of India, Arts. 19 (I) (d), 21,-32-U. P. Police Regulations, ltegulation 236. _ -
--·
_
.
The petitioner \Vas Challenged in a· dacoity case but \vas
released as there. \Va11 no evidence against him~ The police
opened a history sheet against him. He was ·put under surveillance . as defined in Regulation 236 of the U. P. Police
Regu1ations.
Surveillance involves secret pickecing 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 ·absences by means of inquiry slips
and the collection and record on a history sheet of all informat~on 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· C:onstitution, 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 duty in a more efficient manner, and hence were
reasonable restrictions on that freedom.
.
.
Held, (Subba Rao and ShahJJ., dissenting) that out of the
· five kinds of surveillance referred to in Regulation 236, the
part dealing with
domiciliary visit.• was vjolative of Art. gr
i S.C.R.
SUPREME COURT REPORTS
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 respouJent not to continue do1niciliary visits. 'l'hc
other matters constituting surveillance were not unconstitutional.
The secret picketing of the houses of the suspects could not in
any material or palpable form affect either the right en the part
of the suspect to 'move freely' or to deprive him of his
'personal liberty' within the meaning of Art. 21. In dealin!(
wiih a fundamental right such as the right to free inovemen t
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 1ncre personal sensitiveness. The tern1
'picketing' has been used in the Regulation not in the sense oI
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 (c) of Regulation 236 dealt with the
details of the shadowirig of the history-sheeters for the
pw·pose of having a record of their movements and activities
and the obtaining of information relating to persons \vith
whom they came into contact with a view to ascertain th;
nature of their activities, and did not infringe any funda1ncat.,i l
tight
of
the
petitioner. The
freedom guaranteed
hy
Art. 19 (1) (d) was not infringed by a watch Leing kept m·rr
the movements of the suspect. Art. 21 was also not applicable.
The suspect had the liberty to ansvver or not to ans'i\'rr the
questions put to him by the police, and no Law provided for
any civil or criminal liability if the suspect refused to ans\rer
a qUcstion or remained silent.
'l'hc right of privacy is not a
guaranteed right under our Constitution, aud therefore the
atte1npt to ascertain the rnoven1ents of an individual is merely
a manner in which privacy is invaded and is not an infrinO'cment of a fundamental right guaronteed in Part III.
0
The term
'personal li

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.I
\
. 1962
Decemb::r, 18_
332 SUPREME COURT REPORTS [l!l64] VOL.
KHARAK SINGH
v ..
THE STATE OF U. P. & OTHERS
•.
(B. P. SINHA, C.J., S.J. IMAM, K. Sunn.A Rao,
J. C. SHAH, N. RaJAGOPALA AYYASG.AR, and
J. R. l\1UDHOLKAR, JJ.)
Fundamental Right, Enforcement of-Scope-Right
to
freedom of movement and personal liberty, wluther infringeilSun·eillance-IVhether infringe.• any fundamental right-Constitution of India, Arts. 19 (I) (d), 21,-32-U. P. Police Regulations, ltegulation 236. _ -
--·
_
.
The petitioner \Vas Challenged in a· dacoity case but \vas
released as there. \Va11 no evidence against him~ The police
opened a history sheet against him. He was ·put under surveillance . as defined in Regulation 236 of the U. P. Police
Regu1ations.
Surveillance involves secret pickecing 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 ·absences by means of inquiry slips
and the collection and record on a history sheet of all informat~on 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· C:onstitution, 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 duty in a more efficient manner, and hence were
reasonable restrictions on that freedom.
.
.
Held, (Subba Rao and ShahJJ., dissenting) that out of the
· five kinds of surveillance referred to in Regulation 236, the
part dealing with
domiciliary visit.• was vjolative of Art. gr
i S.C.R.
SUPREME COURT REPORTS
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 respouJent not to continue do1niciliary visits. 'l'hc
other matters constituting surveillance were not unconstitutional.
The secret picketing of the houses of the suspects could not in
any material or palpable form affect either the right en the part
of the suspect to 'move freely' or to deprive him of his
'personal liberty' within the meaning of Art. 21. In dealin!(
wiih a fundamental right such as the right to free inovemen t
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 1ncre personal sensitiveness. The tern1
'picketing' has been used in the Regulation not in the sense oI
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 (c) of Regulation 236 dealt with the
details of the shadowirig of the history-sheeters for the
pw·pose of having a record of their movements and activities
and the obtaining of information relating to persons \vith
whom they came into contact with a view to ascertain th;
nature of their activities, and did not infringe any funda1ncat.,i l
tight
of
the
petitioner. The
freedom guaranteed
hy
Art. 19 (1) (d) was not infringed by a watch Leing kept m·rr
the movements of the suspect. Art. 21 was also not applicable.
The suspect had the liberty to ansvver or not to ans'i\'rr the
questions put to him by the police, and no Law provided for
any civil or criminal liability if the suspect refused to ans\rer
a qUcstion or remained silent.
'l'hc right of privacy is not a
guaranteed right under our Constitution, aud therefore the
atte1npt to ascertain the rnoven1ents of an individual is merely
a manner in which privacy is invaded and is not an infrinO'cment of a fundamental right guaronteed in Part III.
0
The term
'personal liberty' is used in Art. 21 as a
compendious term to include \Vi thin itself all the varieties of
rights which go to make up the 'personal Jiberties' of inan
other than those dealt with in the several clauses of Ai t. JV { l ).
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 continuance of a person's anirnal
existence, but a right to the possession of each uf his or,,·,u1s-
"
arins, 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
1962
Kliarnk Singh
v.
The Stall of U. P.
/I
-
KharOk Singh
v •
. Thi Stale ef U.P.
3~4 . SUPREl\fE COURT REPORTS [l DG4] V6i.
claim in tort as that action was noLauthorised 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 'vhe.ther such action was an invasion
of a fundamental right. It is wholly erroneous to assume that
before the jurisdiction . of this Court under 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 proper redress, for when once it is proved to the satisfaction of
this Court that by State action the fundamental rig hf of the
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 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.
Policemen ·were posted ·near his house to
watch his movements and those of his frieiids 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 occupa·
tions. They got information from others as regards his entire way
of life. The constables and chaukidars traced his movements,
shadowed him and made re!'orts to their superiors. It was conceded that the:e 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 the
. movements of the petitioner and are therefore parts of surveillance.
Both Arts. 19(1) arid 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
lil;erty 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
i S.C.R.
SUPREME COURT REPORTS
335
out of the other docs 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 sathfy that iJ,,tJ1
I lie fuuda1ncntal rights are not infringed by sho\ving that there
is a law within the meaning of /\rt. 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 restricti..>ns or encroachments
on his person, whether those restrictions or encroachments are
directly imposed or indirectly brought about by calculated measures. lf so understood, all the acts of surveillance under Regulation 236 infringe the fundan1ental right of the petitioner under
Art. 21 of the Constitution.
As
r• gards
the
fundamental
right guaranteed by
Art. 19(1)(d), mere movement unobstructed by physical restrictions cannot in itself be the object of a person's travel. 1\
person travels ordinarily in quest of so1nc objective.
I-le goes
to a place to enjoy, to do business, to meet friends, to have
secret and intin1ate consultations \Vith other and to do n1auy
other such things.
If a inan is shadowed 1 his n1oven1ents arc
obviously constricted. He can move physically Lut it can only
be a move1nent of an aUton1ation. ·A 1novc1ucnt under the
scrutinising gaze of a policenian cannot be dcscriUed as a free
1novc1nent. The whole country is his jail. 1'he frcedont of
movement iu Art. 19(l)(<l) 1nust, therefore, be a 1novc1nc11t
in a free country, i.e .• in a country \vhere he call d<> whatc,·cr
he likes, speak to whoinsoever he wauts, rneet people of his choice
without any apprehension, s1tl1ject of course to the Ja\V of social
control. 'fhe petitioner un<lcr the shadow of surveillance is
certainly deprived of this frccdo!n.
He can move physically,
but l'e cannot do so freely, for all his activities are watched
and the shroud of surveillance cast upon him perforce engendcr:s
inhibitions in him, and he cannot act freely as he would like
to do.
Hence, the entire Regulation 236 offends Art. l9(1)(d)
of the Constitution.
•
Held, also that petitioner's freedo111 under Art. l9(l)(a)
of the Constitution was also infringed. It was i111possiblc 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.[(. Cop<tlrm v. Stale of JJ(urlras [1950] S.C.R. H::;
Mumiv. Illinoi,,, (1877) 94 U.S. 113; !Vulfv. Colurudo, (1949)
338 U. S. 25; Semayne's ca.oe (l60l) 5 Coke 91 and Bolting v.
Sharpe, (1954) 347 U.S. 497, referred to.
1962
J;harflk Singh
v.
T/11 State of L:.P.
1962
/{}1Jraft.,i1i';lt
~.
Th, St•t10JU.P.
Ayynngar,. J.
336 StJPREME·COURT REFORTS.[1964] VOL.
ORIGINAL• JuinsDICTION : <Petition No. 3G6 of
I !161.
"
tJ
,., I•
. .Petitiou ,under' ,\rt. 32 o~ tpe Cou;tilutiuu 0f
India for the enforcement of fundamental 1•ights.
J. I'. Uoyal, for 'the petitioner.
1
h
I
l
.;
•
·1(.· 11,. !~ciJ.e(a and 0. P. Lal~ for ihc respondents.
•'
1
J.
I
1UG:!.. December 18.
The.Judgment of 'Sinha,
U. J., !main, Ayyangar. and Mudholkar. JJ., was
delivered by Ayyangat, :J., Subba Rao and Shah, JJ.,
delivered ii' s~paratc J udgms:nt.,
AYYANGAR, }""'-This petition under Art. :12 of
the ·Constitution ch al lcnges "the consti tu tiona 1 validity
of Ch. XX qf·the U .°i'. Police iRcgulations and the
pol'.'.9rs,cqnferrcd upon police o(ficials by its scv~r~l
pro.visions on th.<! grqund that they "violate thc,r·ight
guaranteed to citizens· by Arts. l!J(l)(d) and':!! of tlic-~ - ""-
Constitution!.
'
"I
;1
I
t!
..
'fo,anprci;ia.tc the contenli,un raist:d it is 11ccess~rv tu; set out the facts averred on the basis of
wlii~:h· the ftindamcntal right• of the petitioner is said
to be 'violatc;:d, as weJI as the' 'an~wers PY the respondcnt-S,~ate fq 't,lu;s9
aHegations1
;fh,c. petitioner---·
Kharak ,'Singh .,.-was challancd in a case ·of dacoity
in 19.J."I but was "released undet s, lGQ, Criminals
Procdlurc <::ode ·as "tliefe was no evidence against
him. On the basis of the accl!sation made against
him lrc.s.tate~ !hat the.police· have opened a "history·
sheet"· in regard to him. J.legulat.ion 228 which
occurs in Chi XX· of'th~-- .Police ;Reg11lati9ns defines
"history-sheets" as "the p'ersonal records of·criminals
1 mllcr ·s,111jyt:i I I ;;ince".
'l\liat rq~u lat ion furth i::r· directs
that a "history-slrcct" should be opened only for
persons \vho arc· oi·· ~u-c~· likely to become habitual
c;riminals or the aiders or"abc\to'rs Of such crirnirials.
1 S.C.R.
SUPREME COURT REPORTS
337
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 accompany them to the police station to report his presence
there. When the petitioner leaves his village for
another village or town, he ha~ to report to the
chaukidar of the village or at the p0lice 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 ot 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 officer> 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
1962
Kharak ~i•ti
v.
Tiu Stat1 of U. P.
/~62
/,·!Jarak Singh
v.
Tiu St!Jft OJ U.P.
338 SUPREME COURT REPORTS (1964) VOL.
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 ~uch 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 intere!ts 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: (I)
that the impugned regulations do not constitute an
infringement of any of the freedoms guaranteed by
Part III of the Comtitution 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 w~re able to establish that the impugned regulations constitute an infringement of any of the freedoms
guaranteed to him by the Constitution then the only
manner in which this violation of the 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 had no such statu·
tory basis but were merely executive or departmental
1 S.C.R. SUPREME COURT REPORTS
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 ~of Art. 19 in order to regulate or
curtail fundamental rights guaranteed by the several
sub-clauses of Art. 19 (I); nor would the same be
"a procedure established by law" within Art. 21.
Th~ 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 ifthe 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 con,titutional 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
1961
Khar.k Slllp
v.
Th• <tat"~ U.P.
A.y)'angar, /.
1962
Klwrak ~ingh
v.
The Statt of (J.P.
AY)'angar, /,
340
SUPREME COURT REPORTS [1964] VOL.
guaranteed by Part III of the Constitution. The
particular Regulation which for all practical purposes
defines "serveillance" is Regulation 23ti which reads:
"Without prejudice to the right of Supcrintcndcuts 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
follow :ng 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,
a~sociations,
.income,
expenses and occupation;
(d)
the reporting by constables and chaukidars
of movements and absence from home;
(e) the verification of movements aPd 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 "unstarrcd", would be subject to all
these measures of surveillance. The other Regulations in the chapter merely elab.Jrate 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.
1 S.C.R..
SUPREME COURT REPORTS
341
Learned Counsel for the petitioner urged that
the acts set out in els. (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 engagecJ.
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 Constitu·
don-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
1962
J..'harr.k Singh
v.
Tiu ..llate of U.P.
A;)'tmgar1 /,
1962
A'lo>a.t Si•th
••
TlwSlaU ofU.P.
A,v<ap, J.
342 SUPREME COURT REPORTS [1964] VOL.
going to his house and would thus interfere with his
right "to form associations" guaranteed by Art. 19
(l) (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
discuS1ion, 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) be·
cause more than even the express provisions, the very
purpose of the watching and the secrecy which is en·
joined would be totally frustrated if those whose duty
it is to watch, contacted the visitors, made their presc·
nee or identity known and tried to persuade them to
any desired course of action.
(b) Domiciliary visits at night. -
"Domiciliar} 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 dwellin~ (as for sear·
ching it) under authority." The definition in Cham·
hers' Twentieth Century Dictionary is almost identi·
cal-"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 pur·
pose 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 prob·
able 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
1 S.C.R.
SUPREME COURT REPORTS
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 t hat the policemen as a rule merely watch from outside the suspect's house and make
enquiries from third persons regarding his p~esence ?r
whereabouts. We do not consider that this submission affords any answer to the c hallenge 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 tci the full the
power which the regulation vests in them, is wholly
irrelevant for determining the validity of' the regul ation since if they are so minded they are at liberty to
exercise those powers and do those acts without out·
stepping the limits of their authority under the 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
Khorok Singh
v.
The State of U.P.
Ay)'angar, J.
196Z
KiuJ,ak Singh
y,
Tht StatlOf U.P.
A JY""I"'• J.
344 SUPREME COURT REPORTS [1964) VOL.
by Art. 21. Taking first Art. 19 (1) (d) the "freedom"
here guaranteed is a right "to move freely" throughout the territory of India. Omitting as immaterial
for the present purpose the last words defining the
geographical area of the .guaranteed movement, we
agree that the right to "move" denotes nothing more
than a right of locomotion, and that in the context
the adverb "freely" would only connote that the
freedom to move is without restriction and is absolute,
i. e.,
to move wherever one likes, whenever
one likes
and however one likes subject
tc 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 movemcntll 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 pi.:rsua.ded 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
mov~ment, we are clear that the freedom guaranteed
by Art. I !J ( 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 nr 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 modelled, Field, J.
observed:
1 s.c.R.
SUPREME COURT REPORTS
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 provisio!! 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 pwvision 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 {l) 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-els. 2 to 6 of the article on the several species of
liberty dealt with in the several clauses of Art. 19 (1 ).
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 elaborate consideration by this Court in A. K. Gopalan v.
St,ate 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
(I) [1950] S.C.R. 88.
1962
Kharak Singh
v.
The State of U.P.
Ayyangar, J.
1962
!Juzrak Sinfh
••
The S1a11 './ U.P.
AIJanzor, J.
•
•
•
346 SUPREME COURT REPORTS [1964] VOL.
law satisfied the description or requirements of "a
procedure established by law."
Before proceeding further a submission on be·
half 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
pahce official walking into the premises of the petit10ner and .knocking at the door, as well ;,s the
disturbance caused to him, might give rise to claim
in tort, since the action was not authorised by law
and that for.these breaches of the petitioner's rights
damages might be claimed and recovered from the
tortfeasor, but that the same could not constitute an
infraction of a fundamental right. Similarly it was
urged that the petitioner or persons against whom
such action was taken might be within their rights
in ejecting the trespasser and even use force to
effectuate that purpose, but that for what was a
mere tort of trespass or nuisance the jurisdiction
of this Court under Art. 3?, 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 authonty 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 con·
sidering 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
I S.C.R.
SUPREME COURT REPORTS
3±7
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(l)(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 interpretation 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 ('), where the learned Judge
pointed out that "life" in the 5th and 14th Amendments of the U. S. Constitution corresponding to
Art. 21, means not merely the right to the continuance of a person's animal existence, but a right to
the possession of each of his organs-his arms and
legs etc. We do not entertain any doubt that the
word "life" in Art. 21 bears the same signification.
Is then the word "personal liberty" to be construed
as excluding from its purview an invasion on the part
(I) (1877) 94 U.S. 113, 142.
1961
Kharak Singh
v.
The State of U.P.
Ayyangar, J.
1962
KharJ. s;n1h
••
Tht S1a11 of II.I'.
3-18
SUPREME COURT REPORTS [1964] VOL.
of the police of the sanctity of a man's home and an
intrusion into his personal security and his right to
sleep which is the normal comfort and a dire
necessity for human existence even as an animal ?
It might not be inappropriate to refer here to l he
words of the preamble to the Constitution that it is
designed to "assure the dignity of the individual"
and therefore of those cherished human value as the
means of ensuring his full development and evolution.
We arc 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 meauing 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 arbitrary instrusion by the police ....................... .
is basic to a free society.
It is therefore
implicit in 'the concept of ordered liberty' and
as such enforcea blc 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 have no hesitation
in saying 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
(I) (1949) 338 U.S. 2~.
1 s.c.R.
SUPREME COURT REPORTS
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
consitutional
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 were the violation of a
common law right of a man -<in 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
8emayne'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 execuiions 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
~ere protection of property rights and expounds a
concept of "personal liberty" which does not rest
on any element of
feud~lism or on any theory of
freedom which has ceased to be of value.
(I) (1604) 5 Poke 911 I Sm. L.C. (13th Edn.) 104, 105.
1962
Khorak Singh
y,
Thi SlGll of r..r .• o.
A_7yangar, J.
1962
Kh111aA: Singh
v.
Th~ S1au of U.P.
350
SUPREME COURT REPORTS [1964] VOL.
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 (I) (d) of the
Constitution. The argument that the freedom there
postu hted 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, els. (d) & (e) refer to the
reporting of the movements of the suspect and
his a'!Jsence 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 : (I) an enquiry of the suspect himself, and
12) of others. When an enquiry is made of the sus·
pcct 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
liherty to answer or not to answer the question ftor 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
1 s.c.R.
SUPREME COURT REPORTS
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.