# 9 46 (jOVIND v. STATE OF MADHYA PRADESH & ANR

- **Citation:** [1975] 3 S.C.R. 946
- **Court:** Supreme Court of India
- **Decided:** 1975-03-18
- **Case number:** Writ Petition No. 72 of 1970
- **Bench:** K. K. Mathew, v. R. KRISHNA IYER, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-46-jovind-v-state-of-madhya-pradesh-anr-6430
- **Pages:** 12

## Headnote

Madhya Pradesh Police Regulations, 855 and 856, made under s. 46 (2) (c)
o/ Police Act, 1961--.// violative of Arts. 19(i)(d) and 21.
The petitioner in a petition under Art. 32, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Govern·
ment under the Police Act, 1961. Regulation 855 provides that where on infor·
mation the District Superintendent believes that a particular individual is leadin~
a life of crime, and his conduct shows a determination to lead a life of crime
that individual's name may be ordered to be entered in the surveillance register,
and he would be placed under regular surveillance. Regulation 856 provides that
such surveillance, inter a/ia may consist of don\iciliary visits both by day and
night at frequent but irregular intervals. It was contended· that, (I) the Regula·
tions were not framed under any provision of the Police Act, and (2) even if
they were framed under s. 46(2) of the Police Act, the provisions regarding
dpmiciliary visits offended Arts. 19(1 )(d) and 21.
Dismissing the petition,
HEW: (1) The Regulations were framed under s. 46(2)(c) of the Police
Act al)d have the force of law. The paragraph provides that the State Government may make rules generally for giving effect to the provisions of the Act; and
one of the objects of the Act is to prevent the commission of crimes. The pr0vision regarding domiciliary visits i~ intended to prevent commission of offences,
because, their obiect is to see if the individual is at home or gone out of it for
commL'lSion of offences. [949 F·G, H-950 A]
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(2) (a) Too broad a definition of privacy will raise serious questions about the
E
propriety of ,.idicial reliance on a right that is not explicit in the Constitution.
The right to privacy will, therefore, necessarily. have to go through a process ('f
case by case devdopment. Hence, assuming that the right to personal liberty,
the right to move freely throughout India and the freedom of speech create an
indel'endent fundamental right of privacy as an emanation from them it could
not he absolute. It must be suhjcct to restriction on the basis of coml)elling pul'·
lie interest.
Bl.'.t the law infringing it must satisfy the compelling state interest
test. [954 D..C, H-955 B; 956 B-C]
l·
(b) Oras:ic inroads directly into privacy and indirectly into fundamental right
will b~ made if the ltegulations were to be read too widely. When there are two
int:n>retHtions. one w:<le and unconstitutional, and the other narrower but within
constitutional bounds. the Court will read down the over flowing expressiom to
make them valid .. [955 D·E; 956 G]
(c) A~ the Regulations have force of law, the petitioner's fundamental right
1mdcr Art. 21 is not violated. [955 HJ
(d) It cannot be said that surveillance by domiciliary visits would always he
an unrc~sonablc re~triction upon ihe right of privacv.
It is onlv persons who
are snsoected to be habitnal criminals and those who are determined to k:.id a
crimiml life that arc subiecte<l to surveillance. If 'crime' in this context is con·
fined to such acts as involve public peace or secmitv, the law imposing such a
reasonable restriction mus! be urheld as valid. [956 C-D, F-Hl
G
[Legality apart, these regufotions ill-accord with the essence of personal freeI I
doms and the State will do well to revise these old Po11ce Regulations. Domici·
liarv 'isits and nirketing bv the police should he reduced to the clearest cases
of community security and should no~ become routine follnw un at the end of a
conv!ction or release from jail, or at the whim of a police officer.] (957 A-CJ
A
GCVIND v. M. P. STATE (Mathew, !,)
947
Kharak Singh v. The State of U.P. & Ors., [1964] 1 S.C.R. 332, Griswold v.
Connecticut, 381, U.S. 479, 510; Jane Roe v. Henry Wade, 410 U.S. 113 a11d
Olmstead v. United States, 277 U.S. 438. 471. referred to.
ORIGINAL JURISDICTION : Writ Petition No. 72 of 1970.
Petition under Article 32 of the Constitution of

## Text

9 46
(jOVIND
v.
STATE OF MADHYA PRADESH & ANR.
March 18, 1975
[K. K. MATHEW, v. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.]
Madhya Pradesh Police Regulations, 855 and 856, made under s. 46 (2) (c)
o/ Police Act, 1961--.// violative of Arts. 19(i)(d) and 21.
The petitioner in a petition under Art. 32, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Govern·
ment under the Police Act, 1961. Regulation 855 provides that where on infor·
mation the District Superintendent believes that a particular individual is leadin~
a life of crime, and his conduct shows a determination to lead a life of crime
that individual's name may be ordered to be entered in the surveillance register,
and he would be placed under regular surveillance. Regulation 856 provides that
such surveillance, inter a/ia may consist of don\iciliary visits both by day and
night at frequent but irregular intervals. It was contended· that, (I) the Regula·
tions were not framed under any provision of the Police Act, and (2) even if
they were framed under s. 46(2) of the Police Act, the provisions regarding
dpmiciliary visits offended Arts. 19(1 )(d) and 21.
Dismissing the petition,
HEW: (1) The Regulations were framed under s. 46(2)(c) of the Police
Act al)d have the force of law. The paragraph provides that the State Government may make rules generally for giving effect to the provisions of the Act; and
one of the objects of the Act is to prevent the commission of crimes. The pr0vision regarding domiciliary visits i~ intended to prevent commission of offences,
because, their obiect is to see if the individual is at home or gone out of it for
commL'lSion of offences. [949 F·G, H-950 A]
A
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(2) (a) Too broad a definition of privacy will raise serious questions about the
E
propriety of ,.idicial reliance on a right that is not explicit in the Constitution.
The right to privacy will, therefore, necessarily. have to go through a process ('f
case by case devdopment. Hence, assuming that the right to personal liberty,
the right to move freely throughout India and the freedom of speech create an
indel'endent fundamental right of privacy as an emanation from them it could
not he absolute. It must be suhjcct to restriction on the basis of coml)elling pul'·
lie interest.
Bl.'.t the law infringing it must satisfy the compelling state interest
test. [954 D..C, H-955 B; 956 B-C]
l·
(b) Oras:ic inroads directly into privacy and indirectly into fundamental right
will b~ made if the ltegulations were to be read too widely. When there are two
int:n>retHtions. one w:<le and unconstitutional, and the other narrower but within
constitutional bounds. the Court will read down the over flowing expressiom to
make them valid .. [955 D·E; 956 G]
(c) A~ the Regulations have force of law, the petitioner's fundamental right
1mdcr Art. 21 is not violated. [955 HJ
(d) It cannot be said that surveillance by domiciliary visits would always he
an unrc~sonablc re~triction upon ihe right of privacv.
It is onlv persons who
are snsoected to be habitnal criminals and those who are determined to k:.id a
crimiml life that arc subiecte<l to surveillance. If 'crime' in this context is con·
fined to such acts as involve public peace or secmitv, the law imposing such a
reasonable restriction mus! be urheld as valid. [956 C-D, F-Hl
G
[Legality apart, these regufotions ill-accord with the essence of personal freeI I
doms and the State will do well to revise these old Po11ce Regulations. Domici·
liarv 'isits and nirketing bv the police should he reduced to the clearest cases
of community security and should no~ become routine follnw un at the end of a
conv!ction or release from jail, or at the whim of a police officer.] (957 A-CJ
A
GCVIND v. M. P. STATE (Mathew, !,)
947
Kharak Singh v. The State of U.P. & Ors., [1964] 1 S.C.R. 332, Griswold v.
Connecticut, 381, U.S. 479, 510; Jane Roe v. Henry Wade, 410 U.S. 113 a11d
Olmstead v. United States, 277 U.S. 438. 471. referred to.
ORIGINAL JURISDICTION : Writ Petition No. 72 of 1970.
Petition under Article 32 of the Constitution of India.
B
A. K. Gupta and R. A. Gupta for the Petitioner.
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Ram Punjwani, H. S. Parihar and /. M. Shroff, for
the Res·
pondents.
The Judgment of the Court was delivered by
MATHEW, J.
The petitioner is a citizen of India. He challenges
the validity of Regulations 855 and 856 of the Madhya Pradesh Police
Regulations pmporting to be made by the Government of Madhya
Pradesh under s.46(2)(c) of the Police Act, 1961.
The petitioner alleges that several fu.lse cases have been filed
against him in criminal courts by the police but that he was acquitted
in all but two cases.
He says that on the basis that he is a habitual
criminal, the police have opened a history sheet against him and that
he has been put under surveilla,nce.
The petitioner says that the police are making domiciliary visits
both by day and by night at frequent intervals, that they are secretly
picketing his house and the approaches to his -house, that his movements arc being watched by the pate! of the village and that when the
police come to the village for any purpose, he is called and harassed
with the result that his reputation has sunk I-ow in the estimation of
his neighbours.
Tue petitioner submits that whenever he leaves the
village for another place he has to report to the Chowkidar of the
village or to the police station about his departure and that he has
to give further informatron about his destination and the period within which he would return.
The petitioner contends that these actions
or the police are violative of the fundamental right guaranteed to him
under Articles 19(1 )( d) and 21 of the Constitution, and he prays for
a declaration that Regnlations 855 and 856 are void as contravening
his fundamental rights under the above Articles.
In the return filed, it is stated that "the petitioner has managed
to commit many crimes during the period 1960 to 1969.
In the year
1962 the petitioner was convicted in one case under Section 452 IPC
and was fined Rs. 100/- in default rigorous imprisonment
of two
months and in another case he was convicted under Section 456 IPC
and was fined Rs. 50/- and in default rigorous imprisonment of one
nronth.
In the year 1969 the petitioner was convicted under Section
55/109 Cr.P.C. and was bound over for a period of one year by
SDM, Jatara.
In the year 1969, the petitioner e:ot cornoounded a
case pending :igainst him under Section 325/147 /324 IPC.
Similarly, he also got another case under Section 341/324 IPC compounded."
948
SUPREME COURT REPORTS
[19751 3 S.c.R.
The c~e of the respondent in short is that the petitioner is a dangerous criminal whose conduct shows that he is determined to lead . a
criminal life and that he was put under surveillance in order to prevent him from committing offences.
Regulation 855 reads :·
. "855. Surveillance proper, as
distinct· from
general
supervision, should be restricted to those persons, whether
or not previously convicted, whose conduct shows a determination to lead a life of crime. . The list of persons under
surveillance should include only tlrose persons who are believed to be really dangerous criminals.
When the entries in
a history sheet, or any. other information at his disposal,
leads the District Superintendent to believe that a particular
individual is leading a life of crime, he may order that his
name be 'ntered in the surveillance register. The Circle
Inspector will thereupon (open a ?) history sheet, if one is
oot already in existence, and the man will be placed under
regular surveillance."
·
Regulation 856 provides:
"856. Surveillance may', , for practical
purpo!;cs,
be
defined as consisting of the following measures :
(a) Thorough periodical enquiries by the station-house
officer as to repute, habits, - association,
income,
expenses and occupation.
(b) Domiciliary visits both by day and night at frequent
but irregular intervals. , -
• ( c) Secret picketing of the house and approaches on any
occasion when the surveillance
(surveillant?)
is
found absent.
--- (cl) The r~porting by. patels~ mukaddams and kotwars
Of movements and absences from home.
(e) The verification of such movements and absences by
means of bad character rolls.
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(I) The collection in a history sheet of all information
bearing on conduct.
.
It must be remembered that the surest way of drivino
a man to a life of crime is to prevent him from earning a~
honest living. · Surveillance should, therefore never be an
impediment to steady employment and should not be made
unnecessarily irksome or humiliating. The person
under '· ·.
surveillance should, if possible be assisted in finding steady
employment, and the practice of warning persons against
employing him must be strongly discouraged."
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GOVJND v, .M, P.· STATE. (Mathew, J,)
949
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In Kha~ak Singh v. The siate of U.P. and Others(') this C~mrt .
had occasion to consider, the validity of Regulation 236 of the U.P.
Police Regulations which is in pari materia with Regulation 856 here.
There it was held by a majorily that regulation 236(b). providin,g for ·
domiciliary visits was unconstitutional for the reason that it abridged ..
. .. the fundamental right of a person under Article 21 and since Regula- .
. n ·.
tion 236(b) did not have the force of Jaw, the regulation was declared ·
. bad. The other provisions of the regulation were held to be constitutional. The decision that the. regulation in question there was not
' law was based upon a concession made on behalf of the State of
· U.P. that the. U.P. Police Regulations were not framed under any
of the provisions of the Police Act.
c .
The 'petitioner submitted that as: the regulations. inquestion here
· were also not framed under any provision of the Police Act, the pro- ·
visions regarding domiciliary visits ·in. regulations 855. and 856 must ·
be declared bad and that even if the regulations were framed .under
s.46(2)(d) of the Police· Act, they offended the fundamental right of
the petitioner under Article 19(l)(d) as well as under Article 21 of
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. the Constitution.
·
So far as the first contentioll, is concerned, we are of the view :
that the rerulalions were framed by the Government of Madhya
Pradesh under s.46(2) (c) of the Police Act. Section 46(2) states that
the State ·Government may,· from time to time, by notification in the.
official gazette, make rules consistent with the Act-
. ''(c) generally, for giving effect io the provisions of this ..
Act."
The petitioner contended that· rules cari be framed by the State
Government under s.46(2)(c) only for giving effect to the provisions
of the Act and that the provisions in Regulation· 856 for domiciliary
visits and other matters are notfor the purpose of giving effect to.
any of the provisions of the Police Act and therefore regulation 856
is ultra vire~.
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We do not think that. the contention is right.
There .can be no
doubt that one of the objects of the Police Act is to prevent commission of offences.
The preamble to the Act states :
"Whereas it is expedient to re-organise the police and to
make it a more efficient instrument for the prevention and
detection of crime.".
·
And, s. 23 of the Act (so far as it is material) reads:
"It shall be the duty of every police officer .. to prevent the
commission of offences and public nuisances.; . ". .
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We think that the provision in regulation 856 fur domiciliary
vi~its and other actions by th~ police is intended to prevent the com-
. mission of offences.
Thi? object of domiciliary viSits is to see that
(I) [1964] I S.C.R. 332.
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950
SUPREME COURT REPORTS
[19751 3 s.c.R.
the person subjected to su~veillance is in his home and has not goll:e
out of it for commission of any offence.
We are therefore of opinion that Regulations 855 and 856 have the force of law.
The next question is whether the provisions of regulation 856
offend any of the fundamental rights of the petitioner.
In Kharak Singh v. The State of U.P. & Others (supra) the majority said that 'personal liberty' in Article 21 is comprehensive ~ include all varieties of rights which go to make up the personal liberty
of a man other than those dealt with in Article 19(1)(d). According
to the Court, while Article 19(l)(d) deals with the particular types
of personal freedom, Article 21 takes in and deals with the residue.
The Court said :
"We have already extracted a passage from the judgment ·
of Fh:ld J. in Munn v. Illinois (1877) 94 U.S. 113, 142,
where the learned Jud_ge 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 ,x:•sscssion of each of his organs-his arms and legs etc.
We
do not entertain any doubt that the word 'life' in Art. 21
bears the same signification.
Is then the word
'personal
liberty' to be construed as excluding from its purview an
invasion on the part of the police of the sanctity of a man's
bome and an intrusion into his personal security and his
right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might
not be in appropriate to refer here to the words of th()
preamble to the Constitution that it is designed to "assure
the dignity ef the individual" and therefore of those cherished human value as the means of ensuring his full development and evolution.
We are referring to these objectives
of the framers merely to drav: 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
wou~d promote and achieve those objectives and by no means
to stretch ·the meaning of the phrase to square with any
prnconceived notions or doctrinaire constitutional theories."
The Court then quoted a passage from the judgment of Frankfurter
J. in Wolf v.
Co'Vrado(') to the effect that the security of one's
privacy against arbitrary intrusion by the police is basic to a free
society and that 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
ia.uthority of the police, did not need 'the commentary of recent
h_isfory to b~ con?emned .as inconsistent wi'.h the c?nception of human
nghts enshrined m the history and the basic constitutional documents
of English-speakinP, peoples.
The Court then said that at Common
Law every man's house is his castle and that embodies an abiding
(I) f1949J 338 U.S. 25.
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GOVIND v. M. P. STATE (Mathew, J,)
951
princ~fo transcending mere protection of property rights and expounds a concept of 'personal liberty' which does not rest upon any·
element of feudalism or any theory of freedom which has ceased to
exist.
The Court ultimately came to the conclusion that regulation
236(b) which authorised domiciliary visits was violative of Article 21
and "as there is no 'law' on the basis of which the same could be
justified, it must be struck down as. unconstitutional". The Court
was of tlie view that the other provisions in regulation 236 were not
bud as no right of privacy has been guaranteed by the Constitution.
Subba Rao, J. writing for the minority was of the opinion that
the word 'liberty' in Article. 21 was c0mprehensivc enough to include
privacy also.
He said that although it is true our Constitution does
not expressly declare a right to privacy as a fundamental right, but
the right is an essential ingredient of personal liberty, that in the iast
resort, a perso,1's house where he lives with his family, is his ,castle',
that nothmg is more deleterious to a man's physical happiness and
health than a calculated interference with his privacy and that all
the acts of surveillance under Regulation 236 infringe the fundamental
right of the petitioner under Article 21 of the Constitution.
And,
as regards Article 19(1)(d), he was of the view that that right also
was violated. He said that the right under that sub-Article is not mere
freedom to move without physical
obstruction and observed
that
movement under the scrutinizing gaze of the policemen cannot be
free movement, that the freedom of movement in cl. (d)
therefore
must be a movement in a free country, i.e., in a country where he can
do whatever he likes, speak to whomsoever· he wants, meet people
r· of his own choice without any apprehension, subject of course to the
'
law 0f social control and that a person under the shadow 'Of surveillance
is Gcrtainly deprived of this freedom.
He concluded by sayin~ that
surveillance by domiciliary visits and other acts is •an abridgement of
the fundamental right iiuaranteed under Article 19 (l)(d) and under
Article 19(1) (a).
He however did not specificallv consider whether
regulation 236 could be justified as a reasonable restriction in public
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interest falling within Arti::le 19(5).
It was submitted on behalf of the petitioner that right to privacy
is itself a fundamental rh!ht and that that ri!!ht is violated as regulation
85 6 provides. for domiciliary visits and other incursions into it. The
qu~~tion whether right to privacy is itself a fundamental right flowing
. from the other fun:iamental rights guaranteed to a citizen under Part Ill
is not easy of S'Olution.
In Griswold v. Connecticut(!), a Connecticut statute made the use
of contraceptives a criminal offence.
The executive
and
medical
directors of the Planned Parenthood LeaoUe of Connecticut were convicted in the Circuit <Xlurt on a chame of havinQ violated the statute
as accessories by ,givinQ information.
instructhn and advice to married persons as to -the means of preventing conception. The appellate
Division of the Circuit Court affirmed and its judgment was affirmed
by the Suoreme Court of Errors of Connecticut.
On appeal the
U l 381 U. S. 479, 510.
1l52
SUPR.EMB .COUR. T R.BPOR TS
£197.Sl 3 s.c.R..
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Supreme Court of the United States reversed. In an opinion by Douglas,
J., expressing view-of five members of the Court, it was held that the
statute was invalid as an unconstitutiona! invasion of the r!gh, · of
privacy of married persons. . He said. that the right of freedom of
speech press inc1udes not only the right to utter or to priot but also
. the right to disribute, the right to receive, the· right to read and that
without those peripheral rights the specific right would be less secure and
that likewise, the other specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help g.ve
them lif~ and substance, that the various guarantees create zones of pri·
vacy, and that protection against all governmental invasion "of the
sanctity of a man's home and the privacies of life" was fundamental.
He further said that the inquiry is whether a right involed "is of such
· a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions' and that · 'privacy is a
fundamental
personal right, emanating from the totality of the
constitutional
scheme under which we (Americans) live'."
In his dissenting opinion, Mr. Justice Black berated the majority
for discovering and applying a constitutional right to privacy.
His
reading of the Constitution failed to uncover any provision or provi·
sions forbidding the passage of anl law that might abridge the 'privacy'
of individuals. . .
.
.
·In Jane Roe v. Henry Wade(>), an unmarried pregnant woman who
wished to terminate
her · pregnancy
by
abortion
instituted
an . action· · in the
United
States
District Court for
the
Northern District of
Texas,
seeking
a
declaratory judg·
ment that the Texas criminal abortion statutes, which prohibited abor·
tions except with respect to those procured or attempted by medical
·advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court said that although the Constitution of
the U.S.A. does not explicitly mention
any right of privacy,
the
United States Supreme Court recognizes that a right of personal pri·
v:u;y, or a guarantee of certain areas or zones of . privacy, does exist
under the Constitution, and "that the roots of t'12t righ• may be found
in the First Amendment, in the. Fourth· 11nd Fl(
Amendments. in tho
penumbras of the Bill of Rights, in the Nin~h Amendment, and in the·
concept of liberty guaranteed by the firs• section of the' Fourteenth
Amendment" and that the ''right to privacy is not absolute."
··The usual .starting ·point in any discu_ssion of the growth' of legal
concept of pnvacy, thou~h not necessanly the correct one is
the
famous article, "The Right to Privacy" by Charles Warren ai:.d Louis
D. Brandeis(•) .. · What was truly creative in the article was
their
insistence that privacy,-the right to be let alone-was an interest
· ~at man should be able to :issert directlv and not derivatively from
his efforts to protect other mterests.
To protect man's "inviolate
personality" against . the intrusive behaviour so increasingly
evident
(I) 410 U.S. 113.
(2) See 4 Harvard Law Rev. 193.
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GOVIND v. M. P. STA TE (Matkw, J.)
953
in their time, Warren a;id Brandeis thought that the law should provide··
. both a criminal and a private law remedy. "Once a civilization has
made a distinction between the 'outer' and the 'inner' man, between
the life of the soul and the life of the body, between the spiritual and
the ma~crial, between the sacred and the profane, between the· realm
of God and the realm of Ca'!Sar, between Church and state, between
rights inherent and inalienable and rights that are in the power of .
government to give and take away, between public and private, between society ancl solitude, it becomes impossible to avoid. the idea
of privacy by whatever name it may be called- the idea of a 'private
space in which man may beccme and remain 'himselr "(1).
.
There can be no doubt that the mnkers .of our Constitution wlUlted
to ensure condi•ions favourable to the pursuit of happiness.
They
certainly realized as Brandeis, J. said in his dissent in Olmstead v.
United State( 2 ), the significance of man's spiritual nature.
of his
feelings and of. his intellect and that only a part of the pain, pleasure,
satisfication of life can be found in material things and · therefore
they must be deemed to have conferred upon the individual as ap.imt
the government a sphere where he should be let alone.
"The liberal individualist tradition has stressed, in particular, three
personal ideals, to each of which corresponds a ·range of 'private
affairs'.
The first is the ideal of personal relations; the second, the
· Lockean ideal of the politically free man in a minimally regulated
society; the third, tlie Kantian. ideal of the morally autonomous man,
acting on principles that he accepts as rational"(').
There can be no doubt that privacy-dignity claims deserve to be
examined with care and to be denied only when an important conn- .
tervai!in~ interest is shown to be superior. If. the Court does find
that a claimed rieht is entitled to protection as a fundamental privacy·
· right, a law in:fringing it must satisfy the compelling state interest
test. . Then the question would be whether a state interest is of such .
paramount impartance as would justify an infringement of the rieht.
Obviouslv, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a
claimed riehts as a fundamental orivacv rieht would be of far less
significance. The ques•ion whether enforcement of morality is a state
interest sufficient to iu<>ifv •he infringement of a fundamental privacy
right need not be considered for the oumme of this case and therefore
we refuse to enter the controversial thicket whether enforcement of
morality is a function of state.
Individual autonomy, perhaos the central concern ot any svstem of
limited government, is protected in part under our Constitution by
(I) see "Prl"va.;-and the Law: A philo•ophfcal pre!ude" by Milton R. Kon•
vitz in 31 Law & Contemporary Problem• (1966) p. 272, 273.
(2) 277 u. s. 438, 471.
.. _ ....
(3) sea B"!t"'U19 ••Privacy, Freedom and Respect for Persons" in 1. Pennock 4. J.
Chapmm,Eds .• Priv~ Nomo' XIII, I, 15·16.- ::
~
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954
SUPRliM~ COURT REPORTS
[197 Sl 3 S.C.R.
explicit constitutional guaranteea.
"In the application of the Cons_titution our contemplation cannot only be of what has been but :-vhat .
may be." Time works changes and brings into existence new cond1t1ons.
Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yet,
too broad a definition of privacy raises serious questions about the
proprieny of judicial reliance on a right that. is not explicit in the Cons·
titution.
Of course, privacy primarily concerns the ind.ividuals.
It
therefore relates to and overlaps with the concept of liberty.
The
most serious advocate of privacy must confess that there are serious
prob1ems of defining the essence and scope of the right.
Privacy
interest in autonomy must also be placed in the context of other ri&hts
and values.
Any right to privacy must encompass and protect the personal
intimacies of the home, the family marriage, motherh'aod, procreation
and child rearing. Tliis catalogue approach to the question is obviously
not as instructive as it does not give analytical picture of that distin·
tive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept
has been the assertion that a claimed right must be a fundamental ri~J1t
implicit in the concept of ordered liberty.
Rights and freedoms of citizens are set forth in the Constitution
in order to guarantee that the individual,
his personality and those
things stamped with his person1lity shall be free from official interference except where a reasonable basis for intrusion exists. "Liberty
against government" a phrase coined by Professor Corwin expre .~.cs
this idea forcefutly.
In this sense, many of the fundamental rights
of citizens can be described as contributing to the right to privacy.
As Ely says: "There is nothing to prevent one from using the word
'privacy' to mean the freed:im to live one's life without governmental
interference.
But the Court obviously does not so use the term. Nor
could it, for such a right is at stake in every case"('•)
There are two possible theories for protecting privacy of home.
The first is that activities in the home harm others only to the extent
that they cause offence resulting from the mere thought that individuals
mi1?ht he engaginv. in such activities and that such' hann' is not constitutionally protectible by the state. The second is that individuals
need a plate of sanctuary where they can be free from societal control.
The importance of such a sanctuary is that individuals can drop the
mask. desist for a while from orojecting on the world the ima~e they
want to be accepted a~ themselves,
an image that may reflect ·the
values of their peers rather than the realities of their natures(2 ).
.
The right to privacy in any event will necessarily have to go through
a process of case-1:_Y-case development.
Therefore, even assuming
(l) s~ "The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale
L. J. 920, 932.
(2) see 26Standford Law Rev. 1161 at 1187.
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GOVJND v. M. P. STATE (Mathew, I.)_
955
A
th~t the right to personal liberty, the right to move freely throughout
the territory of India and the freedom of speech create an independent
right of privacy as an emanation from them which one can .charac·
terize as a fundamental right, we do not think that the right is abso·
Jute.
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The European Convention on Human Rights, which came Into
force on 3-9-1953, represents a valiant attempt to tackle the new
problem.
Article 8 of the Convention is worm citing : (11).
"1. Everyone has the right to respect for his private
and
family life, his home and his correspondence.
"2. There shall be P.o interference by a public authority with
the exercise of this right except such as i;; in accordance
with the law and is necessary in a democratic society in
the interests of national security, public safet_y or the
economic well-being of the country, for the prevention of
disorder or crime, for the protecti,111 of health or morals
or for the protection, of the
rights ar.d
frecd•)ms
of
others."
Having reached this conclusion, we arc satisfied that drastic inroads directly into the privacy and indirectly into the fundamental
rights, of a citizen will be made if Regulations 855 and 856 were to
be rc;;d widely. To interpret the rule in harmo:1y with the Constitution
is therefore necessary and canalisation of the powers vested in the
police by the two Regulations earlier
read become3
necessary, if
they are to be saved at all.
Our foundiag fathers were 1horoughly
opposed to a Police Raj even as our history of the s!ruggle_for freedom has borne eloquent testimony to it. The relevant Article§. •Jf the
Constitution we have adverted to earlier, behove us therefore
to
narrow down the scope for play of the two Regulations. We proceed
to give direction and restriction to the application of the. said regulations with the caveat that if any action
were taken beyond the
boundaries so set, the citizen will be entitled to attack such action
as unconstitutional and void.
Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which
surveillance is made, it cannot be said surveillance by domiciliary visits
G
would always be unreasonable restriction U]'.Y'.ln the right of privacy.
Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbra! zones and that the ril!ht to privacy is itself a
fundamental right, that fundamental right must be subject to restriction on t'1e ba<!s of comnell'"!! n11b.ic in•P.re<t.
A< r<::r!ulation 856
has the force of law, it cannot be said that the fundamental ri!>:ht
'
-of. the petitioner under Article 21 has been vi·olated by the provisions
H
contained in it : for, what is guaranteed under that Article is that no
person shall he depri\l_Cd of his life or personal liberty except by the
(I) see "Privacy and Human Rights", ed. A.H. Robertson, p. 176.
956
SUPREME. COURT REPORTS
l1975l 3 s.c.11..
procedure established by 'law'.
We think that the procedure is
reasonable having regard to the provisions of Regulations 853
(c)
and 857. Even if we h:old that Article 19(1)(d) guarantees to
a
citizen a right to privacy in his movement as an emanation from that
Article and is itself a fundamental right, the . question Will arise
whether regulation 856 is a law imposing reasonable restriction in
public interest on the freedom of movement falling within' Article 19
(5); or, even if it be assumed that Article 19(5) does not apply in
terms, as the. right to privacy of movement cannot be absolute, a law
imposing reasonable restriction upon it for compelling interest of State
must be uphr.ld as valid.
Under clause (c) of Regulation 853, it is only persons who are
suspected to be habitual criminals who will be subjected to domiciliary visits.
Regulation 857 provides as follows :
"A comparatively short period of surveillance, if effecti·
vely maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish
evidence justifying a criminal prosecution, or action under
the security sections.
District Superintendents and their
assistance should go carefully through the histories of per ..
sons under surveillance during their inspections, · and remove
from the register the names of such as appear to be earning
an honest livelihood.
Their histories will there upon bCl
closed and surveillance discontinued. In the case of person.
under surveillance who has been lost sight of and is sti11
untraced, the name will continue on the register for as long
as the District Superint .. .ndent considers necessary."
Surveillance is also conhned to the limited class of citizens wh<>
are determined to lead a criminal life or whose antecedents would
reasonably lead to the conclusion that they will lead such a life.
When them are two interpretations, one wide and unconstitutional,
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the other narrower but within constitutional bounds, this Court will
G
read down the overflowing expressions to make them valid. So read,
the two regulatjons. are more restricted than counsel fGr the petitioner
sought to impress upol) us..
Regulation 8$5, in our view, empowers
surveillance only of persons· against whom reasonable materials exis.t
to induce the opinion that they show a determination, to lead a life of
crime-crime in this context being confined to such as involve public
H
peace or securilly only and if they are dangerous security risks. Mere
convictions in criminal cases where nothing gravely imperilling safety of
A
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GOVIND v. M. P. HATE (Mathew, J.)
9 57
iiociety cannot be regarded as warranting surveillance und~r this Regulation.
Similarly, domiciliary visits and
picketing by the police
should be reduced to the clearest cases of dariger to community security and. not routine follow-up at the end of a conviction or release
from prison or at the whim of a police officer. In truth, legality
apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations
verging perilously near unconstitutionality.
With these hopeful observations, we dismiss the writ petition.
V.P.S.
Pefition dismissed.