Case Law Analysis | Kharak Singh V. State of UP

Author: Dhananjay Bhattacharya

1. Introduction

The Case is Landmark Judgement, and is one of the first cases where the question about Privacy was considered upon by the Supreme Court.

The Petitioner Kharak Singh had challenged in the Supreme Court of India the Constitutional Validity of the Chapter 22 of the UP police Regulations. This challenge was made on the argument that the regulations were vilative of the Art. 19(1)(d) and Art.21 of the Constitution of India. The case wherein Kharak Singh was accused of being a dacoit was dropped because of a lack of evidence. The Police however, continued to make domiciliary visits to his residence in an arbitrary manner seeking protection in the police regulations.

Thus, the case was of Surveillance by the state and the questions if such an act was violative of the individual’s right to privacy.

2. Fact of the case

• The petitioner, Kharak Singh was known to the Police as a person who was involved in armed robberies, he was charged with the same in one such case wherein he has charged or been part of an armed gang in 1941; but due to the paucity of evidence to prove a case against him, he was acquitted by the court of law.

• The UP Police Department didn’t leave things at that. He was considered a criminal in the eyes of the authorities and his tory sheet was started to be kept in his name. This was done under the UP Police Regulations. These regulations gave the police broad surveillance powers over the petitioner, this included the right to domiciliary visits to habitual offenders and to those individuals who were at risk of becoming criminals.

• Using the powers of these regulations, the police would often visit Singh’s house at odd hours, to the point of waking him up when he was sleeping. The petitioners thus, in his petition to the Supreme Court submitted that such actions against him were violated under Art.21 which conferred to him the right to life with dignity.

• He argued in his petition to the apex judicial body that such actions were violative of his right to privacy which was included in his fundamental rights as enshrined under Article 21 of the Indian Constitution. He also made arguments, claiming the actions of the police were also violative of the principles of his fundamental right as guaranteed under Art 19 of the Indian Constitution.

3. Issue of the case

1. Whether the Police regulations were law and if they were Constitutional.
2. Whether the Police had the right to Domiciliary rights on the petitioner.
3. Whether The Fundamentals rights of the petitioners under Art. 21 were Violated.
4. Whether The Fundamentals rights of the petitioners under Art. 19(1)(d) were  Violated.

 4. Legal provisions used in the case

Article 19

All citizens shall have the right-

(a) to freedom of speech and expression;

(d) to move freely throughout the territory of India;

 Nothing in [sub-clauses (d) and (e)] of the said clause shall-

• affect the operation of any existing law in so far as it imposes, or;
• prevent the State from making any law imposing,
• reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either
• in the interests of the general public or
• for the protection of the interests of any Scheduled Tribe.

Article 21

No person shall be deprived of his life or personal liberty except

according to the procedure established by law

Article 32

• The Supreme Court shall have the power to issue directions or orders or writs,
• including writs in the nature of –

(a) habeas corpus, (b) Mandamus, (c) Prohibition, (d) Quo warranto, and; (e) Certiorari,

• whichever may be appropriate, for the enforcement of;
• any of the rights conferred by this Part.

Chapter 22 UP Police Regulations

5. Judgment

In its Judgement the Constitutional Bench with Six Supreme Court Bench gave concurring opinions, it ruled that relevant provisions of the Uttar Pradesh police regulations as unconstitutional.

Injustice Subba Rao’s opinion, there was a unanimous agreement, where he agreed in his judgement on the case of domiciliary visits to be termed as unconstitutional; however, he opined further that the regulations in its entirety violated the right to freedom of movement^[1] and the right to life^[2]  and were therefore unconstitutional. Justice Subba Rao expressed in his judgement that the regulations in their entirety violated the freedom of movement and the right to life and were thus unconstitutional. Justice Subba Rao held that the right under art 21 protected against any encroachments on personal liberties, whether they are direct and indirect. He considered that the right to privacy was to be considered a fundamental right under Art.21 even though the constitution did not expressly communicate such a view. He further argued that the supervision of one’s private life as provided in the regulations clearly were made with the intention to violate this right. Since it was ruled that the regulations were not “law”, it did not have the powers to restrict the individual from enjoying his fundamental rights.

He further considered that the infringement of the rights were such that it prevented a person from expressing their innermost thoughts. Justice Subba Rao thus, found that the regulations to be violative of the fundamental right of freedom and expression under art.19(1)(a) of the Indian Constitution. He subsequently also held that the regulations were violative of the fundamental right so protected under Art. 19(1)(d), the reasoning was being; that the fundamental right not only protected him from the physical obstructions but also the right to freely move, without undue restrictions. He was of the opinion that the policy shadowing him wherever he went was a gross violation of that right. Justice Subba Rao thus, considered in his opinion and thus pounced the judgement that the regulations were violative of the principles of the fundamental rights and were these unconstitutional.

6. Conclusion and suggestions

The Supreme Court of India in its judgement declared that the provision was codified under chapter 22 of the UP Police Regulations that allowed the Police to make domiciliary visits to ‘habitual criminals’  or any individual who the police deemed likely to become habitual criminals as unconstitutional. The visits the police made to the residence of Kharak Singh as odd hours waking him up from sleep was found to be bad in law and thus ultra vires. The court in it’s Judgement therefore, reasoned that such visits infringed upon the petitioner’s right to life. Because the authority that gave the police such powers were not law as defined by the constitution, such rules were in violation of the fundamental rights and thus were void. The court however rejected the claim that shadowing the petitioner’s was a violation. Justice Subba Rao in his Dissenting Judgement gave out reason for why it should have been, something recent case on the theme of Privacy now accepts

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^[1] Art. 19 (d) to move freely throughout the territory of India

^[2] Art. 21 The right to life and personal liberty