This article is written by Mayur Sherawat. This article seeks to provide a case brief on Kharak Singh v. The State of U.P. along with tracing the case as an inception point leading to a concrete Right to Privacy in India. Further, it includes all the details, facts, issues, arguments of the parties and the judgement the Bench gave in this case.
It has been published by Rachit Garg.
Table of Contents
Introduction
Kharak Singh v. State of Uttar Pradesh (1962) stands as a landmark judgement, addressing questions pertaining to the Right to Privacy and the attack by law enforcement agencies on the same. Adjudicated by the Supreme Court (SC) in 1962, it marked a critical juncture in the interpretation of constitutional rights and balancing them with the needs of state surveillance. The petitioner, Kharak Singh, in this case, challenged aggressive surveillance measures employed by the Uttar Pradesh Police as being violative of his Right to Privacy. The surveillance methods adopted by the police included secret picketing, domiciliary visits at night, and periodical inquiries. These actions were authorised by U.P. Police Regulations. The SC provided relief to the petitioner not on the grounds that the actions violated his Right to Privacy but on the basis that a person’s Right to Life may only be restricted by law and not executive order. The case initiated a jurisprudential debate shaping the contours of Privacy Rights in India, making the case an inception point while tracing the development of the Right to Privacy from its nascent reference to unanimously being held as a fundamental right in the K.S. Puttaswamy case (2018).
Details of Kharak Singh v. the State of Uttar Pradesh (1962)
Let us take a look at the details involving the case.
Supreme Court Bench
The then Hon’ble Chief Justice of India, Bhuvneshwar Prasad Sinha,
Hon’ble Justice Rajagopala Ayyangar,
Hon’ble Justice Jaffer Imam Syed,
Hon’ble Justice K. Subbarao,
Hon’ble Justice, J.C. Shah,
Hon’ble Justice, J.R. Mudholkar.
Parties to the case
Petitioner
Kharak Singh
Respondent
State of Uttar Pradesh
Date of decision
18th December 1962
Case citation
(1963) AIR 1295 1964 SCR (1) 332
Facts of Kharak Singh v. the State of Uttar Pradesh (1962)
Kharak Singh, the petitioner, was a resident of Uttar Pradesh who filed a writ petition in the Supreme Court of India in 1962 challenging the validity of certain surveillance tactics employed by the police under the U.P. Police Regulations. Kharak Singh was earlier put on trial in 1941 for allegedly being part of an armed robbery but was released due to a lack of evidence under Section 169 of the Code of Criminal Procedure, 1973. The U.P. Police also opened a “history sheet” defined under Section 228 of the U.P. Police Regulations for the petitioner, classifying him under Class A of criminals under surveillance. Class A was meant for dacoits, burglars, cattle thieves and railway goods waggon thieves. Meanwhile, Class B was meant for confirmed criminals who were highly likely to commit crimes other than those mentioned above, such as professional cheating. The Petitioner had said that the authorities had watched him around the clock. He had said that the village guard and sometimes the cops arrived at his house, had banged and shouted at the petitioner’s door, and had disturbed his sleep at night. The police also went so far as to make him wake up and take him to the police station to verify his identity. Whenever Kharak Singh travelled to another place, he had to tell the village guard or the police station about his trip. He had to inform the station where he had gone and when he would come back and as soon as he had reached his destination, the police station at his destination had been informed by the police from where he resided to keep an eye on him in the same exorbitant way. This displayed the intensity of the poking surveillance that Kharak Singh was put under.
These acts were carried out under the garb of U.P. Police Regulations that were validated by Section 12 of the Police Act, 1861. The police were authorised to carry out surveillance, maintain records of the movement and activities of individuals, and conduct domiciliary visits between 10 p.m. and 6 a.m. without a warrant. Kharak Singh argued that these actions violated his Right to Privacy, which should be considered a fundamental right protected under Articles 19 and 21 of the Constitution of India. The Petitioner claimed that the surveillance and domiciliary visits not only infringed upon his personal liberty but also affected his right to live with dignity and security. He argued that the police actions were without any reasonable grounds as considered under Article 21 and were conducted solely based on suspicion or mala fide satisfaction of the police authorities. The State of Uttar Pradesh, represented by the respondents, defended the validity of the U.P. Police Regulations. They contended that the regulations were necessary for the prevention of crime and the protection of public safety, thus effectively painting the petitioner as a public enemy whose rights can be restricted in favour of society.
Provisions
Before we consider the issues involved, let us go over some of the essential provisions of the law involved. Article 19 guarantees six freedoms to all citizens, including the freedom of speech and expression, the freedom to assemble peacefully without arms, to carry on any trade, profession or business, to form associations or unions, and to move and reside freely in part of the country. However, these freedoms are not absolute and are subject to reasonable restrictions such as the interests of the state and order, public health, and morality or the interest of any marginalised groups in the country.
Article 21 ensures the Right to Life and personal liberty, protects against arbitrary actions, and emphasises a fair legal procedure for deprivation of any of the person’s rights. Article 21 has been used to expand the ambit of fundamental rights, bringing within its scope more and more rights as part of what constitutes life and personal liberty. It also provides the judiciary with the option to fine-tune the fundamental rights to be in conformity with changing circumstances and the level of development in the country.
Issues of Kharak Singh v. the State of Uttar Pradesh (1962)
The main issue while hearing this case before the Hon’ble Supreme Court of India was to determine whether the surveillance and domiciliary visits carried out by the police under the U.P. Police Regulations violated the fundamental Right to Privacy guaranteed under Article 21 of the Constitution of India. The specific issue can be further broken down into the following components:
- Right to Privacy: The Court had to determine whether the Right to Privacy is encompassed within the broader concept of personal liberty under Article 19 of the Constitution. The constitutionality of surveillance and domiciliary visits was closely linked to the recognition of the Right to Privacy as a fundamental right.
- Constitutionality of Surveillance: The Court had to analyse whether the provisions of the U.P. Police Regulations, such as classifying them within Classes A and B of criminals, which authorised surveillance by the police without proper safeguards and oversight, were in violation of the Right to Privacy. The issue was whether such surveillance infringed upon an individual’s Right to Privacy and personal liberty.
- Constitutionality of Domiciliary Visits: The Court needed to assess the validity of domiciliary visits conducted by the police under the U.P. Police Regulations, which allowed entry into individuals’ dwellings without a warrant at odd hours of the night.
- Standard for Justifying Surveillance and Domiciliary Visits: The Court had to establish the standards for justifying surveillance and domiciliary visits. It needed to determine whether only suspicion or subjective satisfaction of the police authorities were sufficient grounds for such actions, or if there needed to be more objective and reasonable grounds.
- Procedural Safeguards: The Court needed to evaluate whether the U.P. Police Regulations provided adequate procedural safeguards to safeguard against the arbitrary exercise of police powers. The issue was whether there should be a requirement for a warrant and specific objective criteria to ensure that the Right to Privacy was not unlawfully infringed upon. The decision in the Kharak Singh case not only addressed these specific issues, but it also laid down foundational principles that continue to shape the interpretation and protection of the Right to Privacy in India.
Petitioner’s arguments
- Violation of Fundamental Right to Privacy: It was urged before the SC that acts set out in clauses (a) to (f) of Regulation 236 infringed upon the rights given by Article 19 (1)(d) “to move freely throughout the territory of India”. Along with Article 19 it was argued that personal liberty under Article 21 was also shadowed over by the acts mentioned in the clauses. The Petitioner argued that the continuous police surveillance and nightly domiciliary visits violated his fundamental Right to Privacy. He contended that Privacy is an essential aspect of personal liberty and dignity, and a compelling state interest must justify any infringement upon it.
- Arbitrary and Unreasonable Actions: The Petitioner asserted that the surveillance and domiciliary visits were conducted without any reasonable grounds or objective criteria. He argued that mere suspicion or subjective satisfaction of the police authorities cannot be a valid basis for intruding upon an individual’s Privacy. He described that the chaukidar of the village enters his house at odd hours and demands loudly that he accompany the chaukidar to the police station to report his presence. The Petitioner also alleged misuse of authority by the chaukidar, going beyond the scope of instructions given to him. However, this was out right denied by the police officials and not taken into consideration by the Bench. The basic argument under this head rested on how there are minimum requirements of the state to deter crime by having surveillance on “habitual criminals” but the U.P. regulation goes above and beyond those requirements, allowing for totalitarian and arbitrary powers to be exercised by the police officials.
- Lack of Procedural Safeguards: The petitioner brought notice to the absence of proper procedural safeguards in the U.P. Police Regulations. He asserted that the regulations did not require a warrant or provide any oversight mechanisms for surveillance and domiciliary visits. The police could enter his house without having to follow any of the standard procedures due to the regulations. This lack of procedural safeguards gave wide room for abuse of authority and effectively made it simpler to violate the petitioner’s Privacy.
Respondent’s arguments
The respondent’s arguments can be divided into 2 parts :
- The U.P. Regulations do not constitute an infringement on any of the freedoms guaranteed under Part 3 of the Constitution.
- Even if the Regulations do infringe upon the freedoms under Part 3 then such infringement is a reasonable restriction as they were framed to allow the police to act more efficiently to protect the interests of the general public. The regulations so made were only directed towards those
Now, because the second point was without any legal basis, there was a requirement by the bench to prove that the impugned regulations form part of valid law and have a statutory basis. The defence for the state attempted to show the regulations as part of valid law, as they traced their authority from Section 12 of the Police Act, 1861.
Ratio decidendi
The ratio decidendi, or the legal principle underlying the decision, in this case revolves around the recognition of the Right to Privacy as a fundamental right under Article 21 of the Constitution of India and the insistence on procedural safeguards and objective standards for limiting this right. The key components of the ratio decidendi can be summarised as follows:
Regulations made under Section 12 were not statutory provisions
The regulations permitting classification and extra surveillance on ‘habitual criminals’ were not valid laws within which the state could make restrictions for clauses 2 to 6 under Article 19. The regulations also do fall under the ‘procedure established by law’ and thus could not be construed as reasonable restrictions on the life and liberty of an individual as guaranteed by Article 21. The Court granted a part writ of mandamus sought by the Petitioner, directing the U.P. Police not to continue domiciliary visits to Kharak Singh.
Domiciliary visits at odd hours employed by U.P. Police were held to be unconstitutional
The Court recognised that while the Right to Privacy is not explicitly mentioned in the Constitution of India, it is implied in the broader concept of autonomy and personal liberty under Article 21. The right of the accused to move freely was also violated due to the need to inform the station wherever he goes. The Court held that an individual’s Right to Privacy is essential for preserving personal intimacies, safeguarding one’s personality, and leading a life free from unnecessary interference. It was highlighted that the term ‘personal liberty’ is intended to complement the constitutional purpose of ensuring individual dignity, as expressed in the Constitution’s Preamble this was put down by looking at the relationship between the ‘liberties’ in Articles 19(1) and 21, concluding that while Article 19(1) dealt with specific types or attributes of freedom, “the term ‘personal liberty’ is used as a compendious term in Art. 21 as a compendious term,” which encompassed and included the rest.
Restricting the Right to Privacy
The Court held that the Right to Privacy can only be limited if there is a compelling state interest. Mere suspicion or subjective satisfaction of the police authorities cannot be sufficient grounds for infringing upon an individual’s privacy. The Court further held that neither Article 19(d) nor 21 was being violated through picketing of the petitioner’s house, as it was important to keep track of the person’s contacts and activities that habitual criminals or those about to become habitual criminals might engage in. The rights granted by the Constitution were not intended to protect mere personal sensitiveness.
Procedural Safeguards
The Court ruled that the U.P. Police Regulations, which allowed surveillance and domiciliary visits without proper safeguards, were unconstitutional. The Court highlighted the importance of procedural safeguards, such as the requirement of a warrant and objective criteria for the police, to prevent arbitrary exercise of their powers.
Objective Standards and Oversight:
The Court stressed the need for objective standards and oversight mechanisms to ensure that any intrusion on privacy is justified. It asserted that surveillance and domiciliary visits can only be justified if conducted under specific laws with adequate safeguards in place. The ratio decidendi of the case emphasises the importance of procedural safeguards, objective standards, and justifiable state actions when limiting the Right to Privacy.
Dissenting opinion of Justice Subba Rao
The total bench was composed of 6 members, out of whom Justice Subba Rao had a dissenting opinion, which is of particular importance. Justice Subba Rao not only argued to hold Section 236(b) unconstitutional but also did the same for the entire Regulation on the basis that it is inherently against Articles 19 and 21. The view held by Justice Rao was forward-looking, he understood the fact that the petition raised questions that would have far-reaching effects. He considered the possible expansion of the meaning of life, given Article 21. To that purpose, he brought to light the case of Munn v. Illinois (1876), which defined life as not being mere animal existence. Further, he illustrated how, in the case of Bolling v. Sharpe (1954), the offence against liberty was not simply restricting the body of a person but also confining the full range of actions that an individual conducts in his/her life. In his dissent, he further adds that as civilization progresses, there must not be a narrow understanding of a person’s liberty because society moves away from mere physical restriction to mental fears and grievances that may be conditioned by actions such as those that the U.P. Police was performing against the petitioner. As discussed in Wolf v. Colorado (1949), surveillance of a person’s private life restricts his liberty to a greater extent than simply imprisoning a person. According to Justice Rao, the application of security against the police’s arbitrary intrusion on a person’s privacy has as much application to Indian jurisprudence as it does to its American counterpart.
Aftermath of Kharak Singh v. the State of Uttar Pradesh (1962)
The case of Kharak Singh acted as an effective precedent for promoting the Right to Privacy. In Govind v. State of Madhya Pradesh (1975), regulations similar to the U.P. Police Regulations were challenged by the petitioner on the grounds of being unconstitutional and against the Right to Privacy. In this case, the Court upheld the regulations and the accompanying domiciliary visits and picketing that the Madhya Pradesh regulations provided for. The two-judge Bench listed that Right to Privacy cannot be read widely as it would raise questions about the judiciary’s reliance on a right not expressly mentioned in the constitution. However, in part relief, it was held that domiciliary visits should not become routine follow-ups by the police but only be used for the clearest cases of persons threatening the security of a community.
These different stances of the state judiciary culminated in People’s Union of Civil Liberties v. UOI (1996), where the constitutionality of Section 5(2) of the Indian Telegraph Act, 1885, was challenged and subsequently struck down. It was held that phone tapping was a serious invasion of a person’s privacy and against Article 21. Up until this junction, privacy was not yet set forth as a fundamental right; however, this changed with the Aadhar case.
The complete recognition of a Right to Privacy came in through the case of Justice K.S.Puttaswamy (Retd) v. Union of India (2018). The case started as a batch of petitions challenging the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which required citizens to link their biometric and demographic information to a unique 12-digit identity number. The petitioners argued that privacy is an intrinsic part of the Right to Life and personal liberty guaranteed under Article 21 of the Constitution. While upholding the Right to Privacy, the Court ruled that the Aadhaar scheme would be constitutionally valid, but certain restrictions were imposed to protect privacy, such as making it non-mandatory for various services. The case became a cornerstone in giving constitutional roots to the Right to Privacy making it an important jewel in the freedoms guaranteed under Part 3 of the Constitution.
Conclusion
The judgement in the Kharak Singh case marks the first time the Supreme Court of India, in-relief granted the Right to Privacy although the Court did not acknowledge it as a fundamental right. It laid the foundation for subsequent cases that strengthened the Right to Privacy and set limits on state surveillance. The decision also emphasised the importance of procedural safeguards and the need for any intrusion on privacy to be based on objective standards rather than subjective satisfaction. This later led to the establishment of the principle that the Right to Privacy is fundamental and should only be restricted through procedures established by law.
Frequently Asked Questions (FAQs)
What is the Right to Privacy?
Right to Privacy refers to the fundamental right of an individual to protect their personal sphere against interference by the state or non-state actors. This right entails that individuals are guaranteed the autonomy to make their life choices without requiring authorization for each and every action.
What other fundamental rights trace their origins to landmark judgements?
Apart from the Right to Privacy, the judiciary, as the guardian of the Constitution, has set forth other fundamental rights. These include the freedom of the press discussed in Bennett Coleman & Co. v. Union of India (1973), the right to a healthy environment elaborated as part of Article 21 discussed in Vellore Citizens Welfare Forum v. Union of India (1996), and the right to information that was deliberated and ruled as a fundamental right in the case of State of U.P. v. Raj Narain (1975).
References
- Mody, Z. (n.d.). 10, Judgements That Changed India, Penguin UK.
- Supreme Court’s Verdict on Privacy – Analysis of the Puttaswamy Case, 1.3 JCLJ (2021) 442
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