State Interest: If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right.
Interpretation: When there 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
SUPREME COURT OF INDIA
State of Madhya Pradesh and another
(Before: K. K. Mathew, V. R. Krishna Iyer And P. K. Goswami, JJ.)
Writ Petn. No. 72 of 1970,
Decided on : 18-03-1975.
M.P. Police Regulations—Regulation—855 and 856.—Surveillance—Provision of—Validity of—Invasion of right of privacy and personal liberty by domiciliary visit by the police officer—Constitutionality of provision authorising such visit.
Counsel for the Parties:
M/s. A. K. Gupta and R. A. Gupta, Advocates, for Petitioner
M/s. Ram Punjwani, H. S. Parihar and I. N. Shroff. Advocates, for Respondents.
The petitioner is a citizen of India. He challenges the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations purporting to be made by the Government of Madhya Pradesh under S. 46 (2) (c) of the Police Act,
2. The petitioner alleges that several false 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 surveillance.
3. 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 are being watched by the patel 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 repetition has sunk low in the estimation of his neighbours. The 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 information about his destination and the period within which he would return. The petitioner contends that these actions of 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 Regulations 855 and 856 are void as contriving his fundamental rights under the above articles.
4. 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 ` 50/and in default rigorous imprisonment of one month. In the year 1969 the petitioner was convicted under Sections 55/109 Cr.P.C, and was bound over for a period of one year by SDM, Jatara. In the year 1969, the petitioner got compounded a case pending against him under Sections 325/147/ 324 IPC. Similarly, he also got another case under Sections 341/324 IPC compounded.” The case 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.
5. 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 those 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 entered ,in the surveillance register. The Circle Inspector will thereupon (open a?) history sheet if one is not already in existence and the man will be placed under regular surveillance.”
Regulation 856 provides:
“856. Surveillance may, for practical purposes, be defined as consisting at 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.
(d) The reporting 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.
(f) The collection in a history sheet of all information bearing on conduct.
It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an 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 possibly be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.”
6. In Kharak Singh v. The State of U, P., (1964) 1 SCR 332, this Court 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 majority that regulation 236 (b) providing for domiciliary visits was unconstitutional for the reason that it abridged the fundamental right of a person under Article 21 and since Regulation 236 (b) did not have the force of law 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.
7. The petitioner submitted that as the regulations in question here were also not framed under any provision of the Police Act, the provisions regarding domiciliary visits in regulations 855 and 856 must be declared bad and that even if the regulations were framed under S. 46 (2) (c) of the Police Act, they offended the fundamental right of the petitioner under Article 19 (1) (d) as well as under Article 21 of the Constitution.
8. So far as the first contention is concerned, we are of the view that the regulations were framed by the Government of Madhya Pradesh under Section 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 to the provisions of this Act.”
9. The petitioner contended that rules can 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 not for the purpose of giving effect to any of the provisions of the Police Act and therefore regulation 856 is ultra vires.
10. 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 reorganise the police and to make it a more efficient instrument for the prevention and detection of crime.” And, Section 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…..’’
11. We think that the provision in regulation 856 for domiciliary visits and other actions by the police is intended to prevent the commission of offences. The object of domiciliary visits is to see that the person subjected to surveillance is in his home and has not gone out of it for commission of any offence. We are therefore of opinion that Regulations 855 and 856 have the force of law.
12. The next question is whether the provisions of regulation 856 offend any of the fundamental rights of the petitioner.
13. In (1964) 1 SCR 332 (supra) the majority said that ‘personal liberty’ in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Art, 19 (1) (d). According to the Court, while Article 19 (1) (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 Field J. in Munn v. Illinois. (1877) 94 U.S. 113, 142, where the learned Judge pointed out that ‘life’ in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21 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 words ‘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 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 preconceived notion or doctrinaire constitutional theories.”
The Court then quoted a passage from the judgment of Frankfurter J. in Wolf v. Colorado (1948) 338 US 25 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 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. The Court then said that at Common Law every man’s house is his castle and that embodies an abiding principle 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 Art. 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 the view that the other provisions in regulation 236 were not bad as no right of privacy has been guaranteed by the Constitution.
14. Subba Rao, J, writing for the minority, was of the opinion that the word ‘liberty” in Article 21 was comprehensive 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 last resort, a person’s house, where he lives with his family, is his ‘castle’, that nothing 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 Art 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 policeman 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 of his own choice without any apprehension, subject of course to the law of social control and that a person under the shadow of surveillance is certainly deprived of this freedom. He concluded by saying that surveillance by domiciliary visits and other Acts is an abridgment of the fundamental right guaranteed under Article 19 (1) (d) and under Article 19 (1) (a). He however did not specifically consider whether regulation 236 could be justified as a reasonable restriction in public interest falling within Article 19 (5).
15. It was submitted on behalf of the petitioner that right to privacy is itself a fundamental right and that that right is violated as regulation 856 provides for domiciliary visits and other incursions into it. The question whether right to privacy is itself a fundamental right flowing from the other fundamental rights guaranteed to a citizen under Part III is not easy of solution.
16. In Griswold vs Connecticut, 381 U.S. 479 at page No. 510, a Connecticut statute made the use of contraceptives a criminal offence. The executive and medical directors of the Planned Parenthood League of Connecticut were convicted in the Circuit Court on a charge of having violated the statute as accessories by giving information, instruction 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 Supreme Court of Errors of Connecticut. On appeal the Supreme Court of the United States reversed. In an opinion by Douglas, J., expressing the view of five members of the Court, it was held that the statute was invalid as an unconstitutional invasion of the right of privacy of married persons. He said that the right of freedom of speech and press includes not only the right to utter or to print, but also the right to distribute, 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 give them life and substance, that the various guarantees create zones of privacy, and that protection against all governmental invasions “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 involved “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’.”
17. 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 provisions forbidding the passage of any law that might abridge the ‘privacy’ of individuals.
18. In Jane Roe v. Henry Wade, (1973) 410 US l13 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 a declaratory judgment that the Texas criminal abortion statutes, which prohibited abortions 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 privacy, or a guarantee, of certain areas or zones of privacy, does exist under the Constitution, and
“that the roots of that right may be found in the First Amendment, in the Fourt and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment” and that the “right to privacy is not absolute.”
19. The usual starting point in any discussion of the growth of legal concept of privacy, though not necessarily the correct one, is the famous article, “The Right to Privacy” by Charles Warren and Louis D. Brandeis; see 4 Harvard Law Rev. 193. What was truly creative in the article was their insistence that privacy – the right to be let alone-was an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. To protect man’s “inviolate personality” against the intrusive behaviour so increasingly evident in their time, Warren and Brandeis thought that the law should provide both a criminal and 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 material, between the sacred and the profane, between the realm of God and the realm of Caesar, 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 and solitude, it becomes impossible to avoid the idea of privacy by whatever name it may be called- the idea of a “private space in which man may become and remain ‘himself’”:see “Privacy and the Law:A philosophical prelude” by Milton R. Konvitz in 31 Law and Contemporary Problems (1966) p. 272, 273.
20. There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized, as Brandeis, J. said in his dissent in Olmstead v. United States, (1927) 277 US 438, 471, the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the government a sphere where he should be let alone.
21. “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 Lockian ideal of the politically free man in a minimally regulated society; the third, the Kantian ideal of the morally autonomous man, acting on principles that he accepts as rational”:see Benn, “Privacy. Freedom and Respect for Persons” in J. Pennock and J. Chapman, Eds., Privacy, Nomos XIII, 1, 15-16.
22. There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a state interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.
23. Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be”. Time works changes and brings into existence new conditions. Subtler and far-reaching means of invading 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 propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore, relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.
24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive 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 right implicit in the concept of ordered liberty.
25. 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 personality shall be free from official interference except where a reasonable basis for intrusion exists. “Liberty against government” a phrase coined by Professor Crown expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.
26. As Ely says:”There is nothing to prevent one from using the word ‘privacy’ to mean the freedom 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”:See “The Wages of Crying Wolf:A Comment on Roe v. Wade, 82 Yale L.J. 920, 932.
27. 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 might be engaging in such activities and that such ‘harm’ is -not constitutionally protractible by the state. The second is that individuals need a place 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 projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures:see 26 Stanford Law Rev. l161 at l187.
28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that 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 characterize as a fundamental right, we do not think that the right is absolute.
29. 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 worth citing:see “Privacy and Human Rights”, ed. A. H. Robertson, p. 176,
“1. Everyone has the right to respect for his private and family life, his home and his correspondence:
“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being at the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
30. Having reached this conclusion, we are 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 read widely. To interpret the rule in harmony with the Constitution is therefore necessary and canalisation of the powers vested in the police by the two Regulations earlier read becomes necessary, if they are to be saved at all. Our founding fathers were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it. The relevant Articles of 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 boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void.
31. 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 upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental, right must be subject to restriction on the basis of compelling public interest. As regulation 856 has the force of law, it cannot be said that the fundamental right of the petitioner under Article 21 has been violated by the provisions contained in it:for, what is guaranteed under that Article is that no person shall be deprived of his life or personal liberty except by the procedure established by ‘law’. We think that the procedure is reasonable having regard to the provisions of Regulations 853 (c) and 857. Even if we hold that Article 19 (1) (d) guarantees to a 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 upheld as valid.
32. 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 effectively 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 assistants should go carefully through the histories of persons 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 thereupon be closed and surveillance discontinued. In the case of a person under surveillance who has been lost sight of and is still untracked, the name will continue on the register for as long as the District Superintendent considers necessary.”
Surveillance is also confined to the limited class of citizens who are determined to lead a criminal life or whose antecedents would reasonably lead to the conclusion that they will lead such a life.
33. When there 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 regulations are more restricted than counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist 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 security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperials safety of society can be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger 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.
34. With these hopeful observations, we dismiss the writ petition.
AIR 1975 SC 1378 : (1975) 3 SCR 946 : (1975) 2 SCC 148 : (1975) CriLJ SC 1111