Personal liberty

The man without bondage

We shall now proceed with the examination of the width, scope and content of the expression “personal liberty” in Art. 21.

Having regard to the terms of Art. 19 (l) (d), we must take it that that expression is used as not to include the right to move about or rather of locomotion. The right to move about being excluded its narrowest interpretation would be that it comprehends, nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other words, freedom from arrest and detention, from false imprisonment or wrongful confinement. 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 dealt with in the several clauses of Art. 19 (1). In other words, while Art.19 (l) deals with particular species or attributes of that freedom, “personal liberty” in Art. 21 takes in and comprises the residue. We have already extracted a passage from the judgment of field, J. in Munn vs. Illinois, (1876) 94 US 113 at page No.142 where the learned Judge pointed out that ‘life” in the 5th and 14th amendments of the U.S. Constitution corresponding to Art. 2, means not merely the right to the continuance of a person’s animal existence, but a right to the possession 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 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 farmers 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 notion or doctrinaire constitutional theories Frankfurter J. observed in Wolf vs. Colorado (1948) 338 US 25.

“The security of one’s privacy against arbitrary intrusion by the police……. is basic to a free society. It is therefore implicit in “the concept of ordered liberty’ and as such enforceable against the states through the Due Process Clause. The knok at the door, whether by day or by night as a prelude to a search without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English speaking peoples……………We have no hesitation is saying that were state affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the Fourteenth Amendment.”

Murphy, J. considered that such invasion was against “the very essence of a scheme of ordered liberty.”

18. It is true that in the decision of the U. S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized”

and that our constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that any 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 concept of civilisation. An English Common Law maxim asserts that ‘`every man’s house is his castle and in Semayne’s case, (supra) 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’s, case (supra) 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.

19. 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.

20. Clauses (c), (d) and (e) may be dealt with together. The actions suggested by these clauses are really details of the shadowing of the history sheeters for the purpose of having a record of their movements and activities and the obtaining information relating to persons with whom they come in contact or associate, with a view to ascertain the nature of their activities. It was urged by learned Counsel that the shadowing of a person obstructed his free movement or in any event was an impediment to his free movement within Art. 19 (1) (d) of the Constitution. The argument that the freedom there postulated was not confined to a mere physical restraint hampering movement but that the term ‘freely’ used in the Article connoted a wider freedom transcending mere physical restraints, and included psychological inhibitions we have already considered and rejected. A few minor matters arising in connection with these clauses might now be noticed. For instance, cls. (d) and (e) refer to the reporting of the movements of the suspect and his absence from his home and the verification of movements and absences by means of enquiries. The enquiry for the purpose of ascertaining the movements of the suspect might conceivably take one of two forms:(1) an enquiry of the suspect himself, and (2) of others. When an enquiry is made of the suspect himself, the question mooted was that some fundamental right of his was violated. The answer must be in the negative because the suspect has the liberty to answer or not to answer the question for ex concessis there is no law on the point involving him in any liability — civil or criminal – if he refused to answer or remained silent. Does then the fact that an enquiry is made as regards the movements of the suspect and the facts ascertained by such enquiry are verified and the true facts sifted constitute an infringement of the freedom to move? 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 fundamental right guaranteed by part III.

Kharak Singh Versus  State of U.P. and others -18/12/1962

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