UNITEDWORLD SCHOOL OF LAW

Legal Methods
Kharak Singh v State of UP

Submitted To:

Mr. Manthan Sharma

(Lecturer)

Submitted By:

 Anand Chelani (202304010002)

INTRODUCTION..................................................................................................................3
PARTIES, ADVOCATES AND JUDGES INVOLVED........................................................3
JURISDICTION.....................................................................................................................4
FACTS....................................................................................................................................4
ARGUMENTS ADVANCED BY THE PARTIES.................................................................5
JUDGEMENT........................................................................................................................5
DISSENTING OPINION BY K. Subba Rao, J......................................................................6
ANALYSIS.............................................................................................................................7
CONCLUSION......................................................................................................................8
INTRODUCTION
Kharak Singh v State of UP is a landmark legal judgement case and one of the first cases
where the issue about privacy was considered by the Supreme Court.

The petitioner, Kharak Singh, a resident of Uttar Pradesh, had contested the constitutionality
of Chapter 22 of the UP Police Regulations, which includes Regulation 236. These laws
violated people's rights to privacy and personal freedom by allowing the police to monitor
them without any justification or warrant. The argument put forward was that regulations
were in violation of the Indian Constitution's Articles 21 (Protection of Rights and Personal
Liberty) and 19(1)(d) (Freedom of Movement). In this case Kharak Singh was accused of
being a dacoit but was dropped due to lack of evidence. The Police however, continued
making domiciliary visits to Kharak Singh’s residence in an arbitrary manner. The Right to
Privacy was invoked in this case challenging the surveillance of an accused person by the
police.

Although the majority did not recognise privacy as a separate fundamental right, it did
concede that regulations affecting on personal liberty and privacy must meet the essentials of
Article 21 and shall be fair, just and reasonable.

The Kharak Singh case laid the foundation for future judgments that eventually recognized
the right to privacy as a fundamental right. In 2017, the Supreme Court, in the landmark case
of Justice K.S. Puttaswamy (Retd.) v. Union of India, unanimously declared the right to
privacy as a fundamental right protected under Articles 14, 19, and 21 of the Constitution of
India. This decision overruled the majority opinion in the Kharak Singh case, establishing
privacy as an essential and intrinsic part of individual liberty and dignity in India.
PARTIES, ADVOCATES AND JUDGES INVOLVED

The parties involved were:

 The petitioner- Kharak Singh

Advocates for the parties:

 J.P. Goyal, for the petitioner

Judges involved in the case:

A bench of six-judges was involved in the case of Kharak Singh v State of UP

 Chief Justice B. P. Sinha

The case of Kharak Singh v State of Uttar Pradesh, the first court approached was the
Supreme Court of India (Apex Court). The Supreme Court of India is the highest judicial
authority in the country and has jurisdiction over constitutional matters, disputes between
states and the central government, as well as appeals from lower courts and tribunals in India.
The jurisdiction of this case is original. Original Jurisdiction of the Supreme Court is
mentioned under Article 131 of the Indian Constitution.

The Original Jurisdiction of the following case is, ORIGINAL JURISDICTION: Petition No.
356 of 1961. Petition tinder Article 32 of the Constitution of India for the enforcement of
fundamental rights.
FACTS

Kharak Singh was arrested in a dacoity case in 1941, due to lack of evidence UP police had to
release him under Section 169 of Criminal Procedure Code (CrPC), which provides that an
accused shall be released if the evidence is deficient. Later his history sheet was opened
under the UP police regulation. Under Regulation 228 of Chapter XX, history sheets are
personal records of criminals under surveillance. Kharak Singh’s case was stated under Class
A of History-sheets which if for dacoits, burglars, railway-goods-wagon thieves and cattle-
thieves. One of the surveillance powers by UP police regulation was under Regulation 236
that included powers of domiciliary visits, which are applicable for repeat offenders or people
probable of becoming criminals.

According to the petitioner, he has frequently had the local chaukidar and occasionally police
constables visit his home, knock on his door, and shout at him, waking him up in the middle
of the night and disrupting his sleep. They have frequently forced him to get up from his
slumber and go along with them to the police station so that they could report his presence
there. The petitioner must inform the chaukidar of the village or the police station when he
travels from his village to another village or town.

He must give them information regarding his destination and the period within which he
would return. The police station of his departure informs the police station of his destination
promptly, and both stations immediately put him under surveillance. The petitioner argued
that the officials were outstepping the authority given and these unauthorized powers were
infringing his fundamental right guaranteed under Part III of the Indian Constitution.

To question the constitutionality of Chapter 22 of the U.P. Police Regulations and the powers
granted to police personnel, the petitioner filed a case under Article 32 of the Constitution. He
said that the actions taken against him violated Article 21, which guaranteed him the right to
a life with dignity, in his plea to the Supreme Court. In his petition to the Supreme Court, he
argued that these activities infringed his right to privacy, which is protected under Article 21
of the Indian Constitution and is one of his fundamental rights. He went on to argue that the
police's actions violated the principles of his fundamental rights, which are guaranteed by
Article 19 of the Indian Constitution.
ISSUES

1. Were the excesses committed by the police officials with the accused authorized as
per the UP Police Regulations?
2. Was the act of Domiciliary visits by the police officers violating Article 19(1)(d) and
21 of the Constitution?
3. Was the act of maintaining history sheets of the suspected person and keeping track of
their movements violated Article 19(1)(d) and 21 of the Indian Constitution.
ARGUMENTS ADVANCED BY THE PARTIES

PETITIONERS ARGUMENTS

a. Petitioner argues that the regulations which the respondent is relying upon to defend
their act has no statutory basis and are merely departmental or executor instructions to
guide the officers. Since an executor's or a department's command in the absence of a
statutory basis cannot be "a reasonable restriction" with the intent of violating a
fundamental right, the state's actions are therefore unlawful and unjustifiable.
b. The argument was also made that the regulations themselves are very excessive in
nature and therefore must be struck down on the grounds of infringing fundamental
rights.

RESPONDENTS ARGUMENT

a. The act of the police officers to keep the accused under the surveillance was valid as
the Police regulation authorizes the police to keep surveillance on Class A history
sheeters.
b. They also argued that such surveillance is required to be done to maintain public order
and it is also in public interest to keep surveillance of the accused.
c. The respondent defended the constitutional validity of the police regulations by
stating that the regulations are very “reasonable” and confers power on officials to put
surveillance only on those accused that are habitual offender or have the tendency to
do harm to the public or become a probable criminal in future.
d. The petitioner cannot claim infringement of fundamental right as they are subject to
reasonable restrictions including to public order and public interest.
JUDGEMENT

The judgement of Sinha, Bhuvneshwar P. (CJ), Imam, Syed Jaffer, Ayyangar, N. Rajagopala
and Mudholkar, J.R. was delivered by Ayyangar, j., SubbaRao, K. and Shah, j.c., delivered a
separate judgment.

N. Rajagopala Ayyangar, J.

1. The State defends the validity of regulations by arguing that they do not infringe on
freedoms guaranteed by Part III of the Constitution, and that they were framed "in the
interests of the general public and public order" to enable the police to discharge their duties
more efficiently. The respondent's counsel argued that the regulations had no statutory basis
and were executive or departmental instructions for police officers. They would not be a law
under Art. 19, or a procedure established by law. If the police action infringes on freedoms,
the petitioner would be entitled to relief of mandamus, restraining the State from acting under
the regulations.

2. The particular Regulation which for all practical purposes defines "surveillance" is
Regulations 236 which reads : "Without prejudice to the right of Superintendents of Police to
put into practice any legal measures, such as shadowing in cities, by which they find they can
keep in touch with suspects in particular localities or special circumstances, surveillance may
for most practical purposes be defined as consisting of one or more of the following measures
: (a) Secret picketing of the house or approaches to the house of suspects; (b) domiciliary
visits at night; (c) through periodical inquiries by officers not below the rank of Sub Inspector
into repute, habits, associations, income, expenses and occupation; (d) the reporting by
constables and chaukidars of movements and absence from home; (e) the verification of
movements and absences by means of inquiry slips; (f) the collection and record on a history-
sheet of all information bearing on conduct."

3. Learned Counsel for the petitioner urged that the acts set out in class (a) to (f) of
Regulation 236 infringed the freedom guaranteed by Art. 19(1)(d) "to move freely throughout
the territory of India" and 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."
4. The clauses under Regulation 236 in relation to “freedom” which are violated are
following:

a. Secret picketing of the houses of suspects - 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. 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 Constitution-makers intended to protect or protected
mere personal sensitiveness.
b. Domiciliary visits at night - The fact that in any particular instance or even generally
they do not exercise to the full the power which the regulation vests in them, is wholly
irrelevant for determining the validity of the regulation 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 regulations

5. We are not persuaded 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 movement, we are clear that the freedom guaranteed by Art.19(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 or
locomotion.

6. In our view clause (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.

7. The result therefore is that the petition succeeds in part and Regulation 236(b) which
authorises "domiciliary visits" is struck down as unconstitutional. The petitioner would be
entitled to the issue of a writ of mandamus directing the respondent not to continue
domiciliary visits. The rest of the petition fails and is dismissed. There will be no order as to
costs.
DISSENTING OPINION BY K. Subba Rao, J.

1.We have had the advantage of perusing the judgment prepared by our learned brother
Rajagopala Ayyangar, J. We agree with him that Regulation 236(b) is unconstitutional, but we
would go further and hold that the entire Regulation is unconstitutional on the ground that it
infringes both Art. 19(1)(d) and Art. 21 of the Constitution.

2. The petitioner's fundamental right, if any, must be judged on the basis that there is no such
law. To state it differently, what fundamental right of the petitioner has been infringed by the
acts of the police? If he has any fundamental right which has been infringed by such acts, he
would be entitled to a relief straight away, for the State could not justify it based on any law
made by the appropriate Legislature or the rules made thereunder.

3. Learned Counsel for the petitioner contends that by the said act of surveillance the
petitioner's fundamental rights under class. (a) and (d) of Art. 19(1) and Art. 21 are infringed.
The said Article 21: No person shall be deprived of his life or personal liberty except
according to procedure established by law and Art. 19(1): All citizens shall have the right- (a)
to freedom of speech and expression & (d) to move freely throughout the territory of India.

4. It will be convenient to ascertain the scope of the two provisions and their relation inter se
in the context of the question raised. Both are distinct fundamental rights. 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 Art. 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 Art. 19.

5. 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 Art. 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 Art. 19(1)(d) and Art. 21 are infringed by the State.

6. 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) 338 U.S. 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.

7. Art. 19(1)(d) of the Constitution is assumed to be confined only to physical movements, its
combination with the freedom of speech and expression leads to the conclusion we have
arrived at. The act of surveillance is certainly a restriction on the said freedom.

8. In the result, we would issue an order directing the respondents not to take any measure
against the petitioner under Regulation 236 of Chapter XX of the U.P. Police Regulations.
The respondents will pay the costs of the petitioner.

Decision by the Court- In accordance with the opinion of the majority this Writ Petition is
partly allowed and Regulation 236(b) which authorises "domiciliary visits" is struck down as
unconstitutional. The Petitioner would be entitled to the issue of a writ of mandamus
directing the respondent not to continue domiciliary visits. The rest of the petition fails and is
dismissed. There will be no order as to costs.
ANALYSIS

This case was partially overruled by Justice K.S. Puttaswamy v Union of India [2017]

The Ratio of Opinion in the six-judge bench was 4:2

The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b) of
the Police Regulations which provided for nightly domiciliary visits, the majority construed
this to be an unauthorized intrusion into a person's home and a violation of ordered liberty.
The majority in Kharak Singh proceeded to repel the challenge to other clauses of Regulation
236 on the ground that the right of privacy is not guaranteed under the Constitution and hence
Article 21 had no application. This part of the judgment in Kharak Singh is inconsistent with
the earlier part of the decision. The decision of the majority in Kharak Singh suffers from an
internal inconsistency. Kharak Singh to the extent that it holds that the right to privacy is not
protected under the Indian Constitution is overruled.

Majority took the view that the impugned Regulation insofar as it provided for 'domiciliary
visits at night' is unconstitutional whereas the minority opined the impugned Regulation is in
its entirety unconstitutional.
CONCLUSION

The judgement in K.S. Puttaswamy v Union of India has interpreted correctly the right to
privacy as a fundamental right. The decision in Kharak Singh failed to interpret the right to
privacy because the legal understanding prevalent at that time had failed in recognising the
necessity and growing importance of fundamental right in relation to social changes in the
society.

The partial overruling in the case of Kharak Singh ended with the recognition of right to
privacy as a fundamental right, although not expressly mentioned in the Indian Constitution.
This laid the foundation for subsequent cases and discussions on privacy rights in India