Govind Versus State of Madhya Pradesh
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This case summary is written by Arushi Chopra, a first-year law student at Symbiosis Law School, Noida. 

Introduction

“Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.”

This quotation by Bruce Schneir aptly provides for the need to respect the right to privacy of every individual. The Indian Legal System provides right to privacy and among the cases which make its way to the Indian courts, a lot of them are cases where some law made by the legislature is challenged on the grounds that they are not in accordance with the right to privacy. 

The case of Govind v. State of Madhya Pradesh [1] is one of the most important landmark cases under the ambit of the right to privacy in India. It is about the petitioner- Govind and the respondent- State of Madhya Pradesh, where a regulation made by the government was challenged. This article would provide a deep insight on the facts and issues involved in the case and deal with the reasoning provided by the honourable judges to arrive at the judgement along with a critical analysis of the judgement.

The Number of Judges or the Coram- Justice K.R. Mathew, Justice V.R. Krishnaiyer and Justice P.K. Goswami.

Original judgement consists of 11 pages.

Identification of Parties

PETITIONER: Govind

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGEMENT: 18 March, 1975

BENCH: Justice K.R. Mathew, Justice V.R. Krishnaiyer and Justice P.K. Goswami 

Summary of Facts

Govind, the petitioner, is a citizen of India. He had been accused of a number of crimes during the period 1960-1969, some of which he contends to be false. In the year 1962, he was convicted for trespass and served with an imprisonment of two months and a fine of Rs. 100 was levied. Next, he was convicted of house breaking and was served with one month of imprisonment as well as a fine of Rs. 501.

In the meanwhile, the Government of Madhya Pradesh instituted Regulations 855 and 856 of the Madhya Pradesh Police Regulations according to which the name of the persons who are suspected of being indulging in some or the other criminal activity should be noted down in a register and such persons should be kept under constant surveillance. There should be visits at irregular intervals to the home of these individuals to ensure that they do not indulge in any criminal acts which are against the public policy.

After this regulation came into being, Govind was listed as a habitual criminal and he was subjected to regular surveillance. He claimed that there were regular visits by the police officers in his house and many times he was beaten and assaulted by these policemen. He contested Regulations 855 and 856 on the grounds that they were not in accordance with the right to privacy and was also not backed by a law in force. 

Relevant Laws and Issues

Legislative Enactments

There are multiple legislative enactments and rules of law that were used by the court to arrive at a decision in this case.

First and foremost is Regulation 855 and 856 whose constitutional validity is challenged in the given case Regulation 855 of the Police Regulations provides that surveillance should be conducted against persons whose conduct shows a determination to lead a life of crime and if the district superintendent suspects the person to be indulging in some criminal activities. There is no bar as to whether or not the person has been previously convicted for an offence. The name of such a person would be included in the surveillance register and a history sheet, if not already in existence, should be opened by the Circle Inspector.

Regulation 856 of the Police Regulations provides that surveillance may include the following measures:

  1. Periodic enquiries regarding the person’s habit, conduct, expenses, income and occupation by the station house officer.
  2.  Domiciliary visits at irregular intervals.
  3. Secret picketing of the house at an occasion when the person is not at home.
  4. Tracking movement of the person and reporting absences from home.
  5. Verification of such movements by bad character rolls.
  6. Collection of all the gathered information in the history sheet.

Section 46(2)(c) of the Police Act, 1888 states that the state government can make rules which are consistent with the act for the purpose of giving effect to the provisions of the act by notifying it to the official Gazette.

Article 19(1)(d) of the Indian Constitution provides freedom to move freely throughout the territory of India to each and every citizen of the country.

Article 21 of the Constitution of India provides the right to life and personal liberty to the citizens of India. The provision states that no person shall be deprived of his life and personal liberty except through the procedure established by law. 

Right to Privacy is not expressly provided under the Constitution of India but can be implied from the fundamental rights of personal liberty and freedom of speech and expression provided under the Indian Constitution. Right to privacy can be regarded as a “right provided to each and every citizen of the country to be free from intrusion into or publicity concerning matters of personal nature.

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Judicial precedents

Apart from the applicable laws, various judicial precedents were cited in order to arrive at a justifiable and appropriate judgement.

  1. Kharak Singh v State of UP and others [1963 AIR 1295]

It was held 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 and thus includes the right to privacy.

  1. Wolf v. Colorado [338 U.S. 25]

The majority contended that 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 day or night, as a prelude to a search, is inconsistent with human rights.

  1. Griswold v. Connecticut [381 U.S. 479]

Douglas J. expressed that the statute making use of contraceptives a criminal offence was invalid as an unconstitutional invasion of the right of privacy of married persons and 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 live.

Issues

  1. Whether the regulations made by the government has any statutory backing or are in consonance with some law in place?
  2. Whether domiciliary visits by the policemen can be regarded as unconstitutional and against public policy?
  3. Whether the right to privacy is absolute or can be subjected to some restrictions and whether in this sense, regulation 856 can be declared to be reasonable and justifiable?

Judgement (Ratio and Obiter)

The court dismissed the petition made by Govind. The court contended that regulations 855 and 856 made by the government have necessary statutory backing as they have been created under Section 46(2)(c) of the Police Act, 1888.

The court stated that the right to privacy is not explicitly provided under the Constitution of India. It can be implied from Article 21 of the Indian Constitution and therefore is not absolute in its entirety. Thus, reasonable restriction can be imposed on an individual’s right to privacy and this is to be determined through a comprehensive analysis of the facts of the case and through the compelling state interest test. Domiciliary visits by the policemen were not regarded to be violating the fundamental rights as these were reasonable in their nature and with an objective to secure the public interest. Only persons who are suspected of being indulging in crimes are subjected to domiciliary visits and surveillance and thus these regulations were considered to be reasonable and thereby upheld to be valid. [4]

The court urged the police officers to take steps under the regulations with extreme caution. Only the persons with clearest cases of criminal activities should be subjected to the surveillance so as to ensure that the significance of the regulations is maintained.

Judge’s Reasoning

The judges in this case dismissed the writ petition filed by Govind on various grounds. They quoted paragraphs from the English cases and some prominent Indian cases to arrive at this particular judgement. Each and every aspect and issue arising in the case was given a deep thought and analysis by the presiding judges.

As regards issue 1, the judges were of the view that regulations 855 and 856 had statutory backing which is provided under section 46(2)(c) of the Police Act, 1888. This provision states that the government can make rules which would aid in the prevention of crimes. The judges contend that through regular surveillance and domiciliary visits to the houses of people who are suspected of being criminals, the people will stop indulging into such crimes in the fear of getting caught by the police. [5] This would thereby stop the people in indulging into criminal activities whose long term effect would be a decrease in the crime rates. Thus, there is an appropriate reason and justification of the regulations having a statutory backing in the eyes of law. To arrive at an appropriate conclusion regarding the issue in consideration, the judges went ahead to distinguish this case from the case of Kharak Singh v. State of Uttar Pradesh [6] where the framed regulations were considered to be unlawful and unconstitutional due to the absence of a backing of some law.

The next issue before the court was whether domiciliary visits had a constitutional validity. To this, the majority contended that only the people who were suspected to be indulging in criminal activities were subjected to such visits. It was opined that these visits are not against public policy and are necessary to ensure peace and harmony and to catch dangerous criminals.

While taking the third issue into consideration, the court stated that the right to privacy is not explicitly mentioned in the Constitution of India unlike the right to equality provided under Article 14. The right to privacy can be implied through various fundamental rights including the right to personal liberty, right to move freely throughout India and the freedom of speech. The court opined that the right to privacy cannot be absolute and should always be subjected to some reasonable restrictions. It was contended that the reasonableness of the restrictions can be determined only when the laws and legislations that are violating the right to privacy are subjected to the compelling state interest test. Only after the compelling state interest test is satisfied through case by case development, the right to privacy of an individual can be restricted. Hence, it was held that as the objective of regulation 856 is to prevent the people from indulging into criminal activities and ensure peace and harmony, the compelling state interest test is satisfied and therefore the restrictions are reasonable in nature.

Critical Analysis of the Judgement

The judgement in the case of Govind v. State of MP given by the learned judges was delivered after due deliberations and a deep analysis of each and every perspective of the case. The judges had quoted texts from various authors to arrive at an appropriate solution. The judgement given by the Hon’ble Supreme Court of India in this case was justifiable and correct to the most extent. However, there are some gaps in the judgement which have not been given enough thought.

The judgement on the issue of whether the regulations have any statutory backing is fair and justified. The judgement given in this regard is appropriate as the regulations have a statutory backing under the Police act, 1888 as the objective for which the regulations were framed were to prevent the people from indulging into criminal activities.

As regards the second issue, I have a dissenting opinion from that of the learned judges. According to me, domiciliary visits should not be entirely valid. It is against the public policy to subject an innocent person to regular visits and there is a probability that the person who is being subjected to the surveillance is actually innocent. The person may have been listed as a habitual criminal owing to human errors and if he is subjected to domiciliary visits, it would clearly amount to the violation of the right to privacy. Regular domiciliary visits by the policemen would result in defaming him in the eyes of the society.

Also, Regulation 855 provides that a person may be subjected to surveillance on the mere suspicion of the police superintendent even if he has never been convicted of any crime. Thus, there can be circumstances where the right to privacy of a person is violated without any concrete evidence of his being indulging in some criminal activities. This is clearly against the principle of justice and therefore should not have a constitutional validity.

The regulations do not take the concept of gravity of the crime into consideration which is a serious flaw. There may be an instance where a person who has been convicted of petty thievery is subjected to surveillance and regarded as a habitual criminal. In the above mentioned case, the restrictions imposed on that person’s right to privacy is clearly unreasonable.

Taking the third issue into consideration, the judges stress on the need for the compelling state interest test in order to determine if violation of the right to privacy in this case is constitutionally valid or not. Compelling state interest test provides that there should be a comparative analysis of the interest of the state and the rights of the individual and only when there is sufficient grounds to believe that the interest of the state supersedes the right of the individual, the fundamental rights of a person can be taken away. However, the compelling state interest test is an English concept and is generally applicable to cases revolving around discrimination [7]. In order to implement the compelling state interest test, the court has impliedly also included the narrow tailoring test which provides that the laws should be made and interpreted in such a way so that only a narrower scope i.e. to achieve the intended goal is presented. The court has interpreted regulation 855 in a narrow sense to only ensure peace and harmony of the state which in my opinion is not justified. The regulations do not take into consideration the impact that the surveillance can create on the people.

Keeping the gaps in the judgement into consideration, I am of the opinion that a more strict approach should be followed while dealing with such cases. Regulation 855 should be amended and the phrase which states that a person can be put under surveillance even in the absence of any concrete evidence or a past conviction should be struck off.

Conclusion

The case of Govind v. State of Madhya Pradesh is the landmark case regarding the right to privacy. Each and every aspect and issue arising in the case was given a deep thought and analysis by the presiding judges.

The writ petition filed by the petitioner, Govind was rejected by the Hon’ble Supreme Court of India on various grounds. However, there were some areas which were not explored and some gaps which were not given due importance. For instance, there may be a circumstance wherein a person may be innocent but is suspected of being a criminal and subjected to surveillance. The court did not consider the concept of gravity of the crime which can prove to be derogatory in certain circumstances. Also, regulation 855 provides that a person may be subjected to surveillance on mere suspicion of the police and there is no provision which mandates that there must be some earlier conviction or reliable evidence to declare a person as a habitual criminal.

The judgement in the case of Govind v. State of MP given by the learned judges was delivered after due deliberations and a deep analysis of each and every perspective of the case. The observations of the judges in this case helped shape the rule regarding the interpretation of right to privacy to a great extent. The court ruled that the right to privacy is not absolute in nature in this case and this principle was later on used in a number of cases to arrive at a judgement. Therefore, the case of Govind v State of MP is one of the most significant Indian cases dealing with the right to privacy which has significantly helped in developing the rule regarding the right to privacy and its nature.

References

  1. ‘Govind v. State of Madhya Pradesh and Anr.’ (Indian Kanoon) <indiankanoon.org/doc/436241/> accessed 4 February 2020
  2. Liang L., ‘A right for the future’ (The Hindu) <www.thehindu.com/opinion/lead/a-right-for-the-future/article19576761.ece> accessed 4 February, 2020
  3. Gautam Bhatia, ‘State surveillance and the right to privacy in India: A constitutional biography’ [2014] 26 NLSI Rev., Pg 132-136, <https://www.jstor.org/stable/44283638> accessed 4 February, 2020

Endnotes

[1] 1975 AIR 1378

[2] Article 19(1)(d) of the Constitution of India

[3] Article 21 of the Constitution of India

[4] ‘Govind v. State of Madhya Pradesh and Anr.’ (Indian Kanoon) < indiankanoon.org/doc/436241/> accessed 4 February 2020

[5] Liang L., ‘A right for the future’ (The Hindu) <www.thehindu.com/opinion/lead/a-right-for-the-future/article19576761.ece> accessed 4 February, 2020

[6] 1963 AIR 1295\

[7] Gautam Bhatia, ‘State surveillance and the right to privacy in India: A constitutional biography’ [2014] 26 NLSI Rev., Pg 132-136, < https://www.jstor.org/stable/44283638> accessed 4 February, 2020


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