Govind v. State of Madhya Pradesh & Anr.

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 72 of 1970. Petition under Article 32 of the Constitution of India. A. K. Gupta and R. A. Gupta for the Petitioner. 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." [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. (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." II GOVJND v, .M, P.· STATE. (Mathew, J,) 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.

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 II . 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~. 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.; . ". .

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. [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. GOVIND v. M. P. STATE (Mathew, J,) 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 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.. 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 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. lJ GOVIND v. M. P. STA TE (Matkw, J.) 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 calledthe 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.- :: 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. n GOVJND v. M. P. STATE (Mathew, I.)_ 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.

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 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 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. 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 and 857. Even if we h:old that Article 19(1)(d) guarantees to 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, the other narrower but within constitutional bounds, this Court will 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 peace or securilly only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of 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.