Law Maker

Kharak Singh v. State of Uttar Pradesh

Supreme Court of India · 18 December 1962 · 6 judges · 1963 AIR 1295; 1964 SCR (1) 332

Overruled in whole or in part by Justice K.S. Puttaswamy v. Union of India (2017), which says: “The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled”

The Court struck down the provision for night-time domiciliary visits in the U.P. Police Regulations as violating personal liberty under Article 21, but held that the other forms of police surveillance infringed no fundamental right.

Facts

The petitioner was challaned in a dacoity case in 1941 but released under Section 169 of the Criminal Procedure Code as there was no evidence against him. The police opened a class A history-sheet for him and kept him under surveillance under Chapter XX of the U.P. Police Regulations. He alleged that the village chaukidar and police constables entered his house, knocked and shouted at his door at night and woke him, and that he had to report his departures and destinations. The State admitted the surveillance but denied the alleged abuses, and conceded that the Regulations had no statutory basis and were only executive instructions to the police. By a petition under Article 32 he challenged Chapter XX as violating Articles 19(1)(d) and 21.

Questions before the Court

  1. Do the measures of surveillance in Regulation 236 of the U.P. Police Regulations, which have no statutory basis, infringe the freedom of movement under Article 19(1)(d)?
  2. Do those measures, in particular domiciliary visits at night, deprive the petitioner of personal liberty under Article 21?
  3. Is relief under Article 32 barred because the petitioner might have a remedy in tort?

What the Court held

  • Since the Regulations were executive instructions without statutory basis, they were not a 'law' under clauses (2) to (6) of Article 19 nor a 'procedure established by law' under Article 21. If police action under them infringed a fundamental right, the petitioner was entitled to mandamus.
  • 'Personal liberty' in Article 21 is a compendious term covering all the rights that make up the personal liberties of a person other than those in Article 19(1), and 'life' means more than mere animal existence.
  • Domiciliary visits at night under Regulation 236(b), an unauthorised intrusion into a person's home disturbing his sleep and ordinary comfort, violate Article 21. As no law supported them, clause (b) was struck down and a mandamus issued against continuing such visits.
  • Secret picketing, shadowing and enquiries into the suspect's movements do not infringe Article 19(1)(d), which protects physical locomotion and not psychological inhibitions, nor Article 21. The right of privacy is not a guaranteed right under the Constitution.
  • The possibility of a remedy in tort does not bar relief under Article 32. Once State action is shown to infringe a fundamental right, it is the Court's duty to grant relief.

Why it matters

The majority read 'personal liberty' in Article 21 as covering the residue of personal liberties not dealt with in Article 19(1), and treated an unauthorised intrusion into the home as a deprivation of personal liberty. It also held that executive instructions are not 'law' for Articles 19 and 21. It held that the right of privacy is not a guaranteed right, so watching a suspect's movements infringed no fundamental right.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”
Ayyangar, J.Page 10 of the judgment
“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.”
Ayyangar, J.Page 12 of the judgment
“Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
Ayyangar, J.Page 12 of the judgment
“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.”
Subba Rao, J. (dissenting)Page 17 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Kharak Singh v. The State of U.P.
Case
Petition No. 356 of 1961 (Original Jurisdiction)
Decided
18 December 1962
Bench
Ayyangar, N. Rajagopala, Sinha, Bhuvneshwar P. (CJ), Imam, Syed Jaffer, Subbarao, K., Shah, J.C., Mudholkar, J.R.
Opinions
Majority 4:2. Ayyangar, J. delivered the judgment of Sinha, CJ, Imam, Ayyangar and Mudholkar, JJ. Subba Rao, J. delivered a separate judgment for himself and Shah, J., agreeing that Regulation 236(b) was unconstitutional but holding the whole of Regulation 236 invalid under Articles 19(1)(d) and 21, and also under Article 19(1)(a).