Decision in Kharak Singh

THE SUPREME COURT OF INDIA has laid down the law that  right to privacy is a fundamental right, in WRIT PETITION (CIVIL) NO 494 OF 2012, JUSTICE K S PUTTASWAMY (RETD.), AND ANR. VERSUS UNION OF INDIA AND ORS.

The judgment by Dr D Y CHANDRACHUD, J , states 

C. Decision in Kharak Singh

11 After being challaned in a case of dacoity in 1941, Kharak Singh was released for want of evidence. But the police compiled a “history sheet” against him. ‘History sheets’ were defined in Regulation 228 of Chapter XX of the U P Police Regulations as “the personal records of criminals under surveillance”. Kharak Singh, who was subjected to regular surveillance, including midnight knocks, moved this Court for a declaration that his fundamental rights were infringed. Among the measures of surveillance contemplated by Regulation 236 were the following: “(a) Secret picketing of the house or approaches to the houses of suspects; (b) domiciliary visits at night; (c) thorough 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; 11 Ibid, at page 1096-97 PART C 12 (c) 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.” 12 This Court held that the freedom to move freely throughout the territory of India, guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner since “his locomotion is not impeded or prejudiced in any manner”. 13 When the decision in Kharak Singh was handed down, the principles governing the inter-relationship between the rights protected by Article 19 and the right to life and personal liberty under Article 21 were governed by the judgment in Gopalan. Gopalan considered each of the articles in the Chapter on fundamental rights as embodying distinct (as opposed to over-lapping) freedoms. Hence in Kharak Singh, the Court observed : “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 Article 19(1)(a) & (d) on the one hand and that in Article 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. State of Madras.”12 14 The decision in Kharak Singh held that clause (b) of Regulation 236 which provided for domiciliary visits at night was violative of Article 21. The Court observed: “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 12 Kharak Singh (Supra note 2), at page 345 PART C 13 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 the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitutional theories.”13 15 In taking this view, Justice Rajagopala Ayyangar, speaking for a majority of five judges, relied upon the judgment of Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado14, which held : “The security of one's privacy against arbitrary intrusion by the police … is basic to a free society… We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the Fourteenth Amendment.”15 (emphasis supplied) While the Court observed that the Indian Constitution does not contain a guarantee similar to the Fourth Amendment of the US Constitution, it proceeded to hold that : “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 an ultimate essential of ordered liberty, if not of the very 13 Ibid, at pages 347-348 14 338 US 25 (1949) 15 Cited in Kharak Singh (Supra note 2), at page 348 PART C 14 concept of civilisation. An English Common Law maxim asserts that “every man's house is his castle” and in Semayne case [5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] 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 case [(1604) 5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of “personal liberty” which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value.”16 (emphasis supplied) 16 Kharak Singh regards the sanctity of the home and the protection against unauthorized intrusion an integral element of “ordered liberty”. This is comprised in ‘personal liberty’ guaranteed by Article 21. The decision invalidated domiciliary visits at night authorised by Regulation 236 (b), finding them to be an unauthorized intrusion into the home of a person and a violation of the fundamental right to personal liberty. However, while considering the validity of clauses (c),(d) and (e) which provided for periodical enquiries, reporting by law enforcement personnel and verification of movements, this Court held as follows : “…the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in 16 Ibid, at page 349 PART C 15 which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”17 (emphasis supplied) In the context of clauses (c), (d) and (e), the above extract indicates the view of the majority that the right of privacy is not guaranteed under the Constitution. 17 Justice Subba Rao dissented. Justice Subba Rao held that the rights conferred by Part III have overlapping areas. Where a law is challenged as infringing the right to freedom of movement under Article 19(1)(d) and the liberty of the individual under Article 21, it must satisfy the tests laid down in Article 19(2) as well as the requirements of Article 21. Justice Subba Rao held that : “No doubt the expression “personal liberty” is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression “personal liberty” in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Article 19(1)(d) and Article 21 are infringed by the State.”18 17 Ibid, at page 351 18 Ibid, at pages 356-357 PART C 16 18 Justice Subba Rao held that Article 21 embodies the right of the individual to be free from restrictions or encroachments. In this view, though the Constitution does not expressly declare the right to privacy as a fundamental right, such a right is essential to personal liberty. The dissenting opinion places the matter of principle as follows: “In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under PART D 17 Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.”19 (emphasis supplied) Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v Colorado which specifically advert to privacy. The majority, while relying upon them to invalidate domiciliary visits at night, regards the sanctity of the home as part of ordered liberty. In the context of other provisions of the regulation, the majority declines to recognise a right of privacy as a constitutional protection. Justice Subba Rao recognised a constitutional by protected right to privacy, considering it as an ingredient of personal liberty.