CASE ANALYSIS – Kharak Singh vs The State of U.P & Others AIR 1963 SCR 332.

FACTS OF THE CASE

1. This writ case involves Kharak Singh, the petitioner, who approached the Supreme Court of India seeking relief against the State of Uttar Pradesh, the respondent. The matter concerned the alleged infringement of his fundamental rights, particularly the right to privacy, due to continuous police surveillance. He contested the validity of Regulations 228 and 236 of the U.P. Police Regulations, using the remedy available under Article 32 of the Constitution.
2. The petitioner had previously been arrested in connection with a dacoity (armed robbery) case. However, due to the absence of sufficient evidence, he was released by the police under Section 169 of the Criminal Procedure Code, which allows release without requiring a magistrate’s permission when no case is made out.
3. Even after his release, the police treated him as a suspected habitual offender and opened a “history sheet” under Class A surveillance, as per the U.P. Police Regulations. Notably, this classification was done without any formal charge or conviction, based solely on subjective police assessment.
4. Under this classification, a series of surveillance measures were initiated. These included secret picketing of his home and surrounding area, domiciliary visits during night-time, routine inquiries into his habits and associations, shadowing his movements, and documentation through police reports. Importantly, none of these actions were authorized by a court order or formal legal process.
5. The petitioner argued that this intensive and constant police surveillance—particularly the night intrusions and being followed by the police—violated his right to privacy, disturbed his daily life, and restricted his freedom of movement, thereby infringing his fundamental rights under the Constitution.

ISSUES OF THE CASE 

1. The first issue was whether the surveillance scheme outlined under Chapter U.P. Police Regulations, specifically Regulations 228 and 236, amounted to a violation of fundamental rights guaranteed under Part III of the Constitution, including Articles 19 and 21.
2. The second question raised was whether entering into the home of a person at night, causing disturbance to sleep and domestic comfort, could be considered a violation of the freedom of movement under Article 19(1)(d) or a deprivation of personal liberty under Article 21.
3. The third legal issue concerned whether executive instructions, such as those issued under police regulations not backed by statutory law, can be permitted to curtail or restrict the enjoyment of fundamental rights conferred by the Constitution. 

JUDGMENT 

1. The Supreme Court issued a split verdict in this case. The majority opinion, delivered by Justice N. Rajagopala Ayyangar on behalf of Chief Justice Sinha, Justice Imam, and Justice Mudholkar, held that most of the surveillance provisions under the challenged regulations did not infringe the fundamental rights of the petitioner which was guaranteed under Articles 19 and 21.
2. However, the Court took exception to the clause permitting domiciliary visits at night—Clause (b) of Regulation 236. The majority bench observed that entering someone’s residence at night and causing disturbance infringes upon personal liberty, which is protected by Article 21, and thus, this specific provision was invalid and unconstitutional.
3. More specifically, the Court held that Clause (b)—which allowed for night-time domiciliary visits by the police—amounted to a violation of personal liberty, especially in the absence of any legal procedure or court authorization, making it inconsistent with constitutional safeguards.
4. The Court observed that such an intrusion into the privacy of an individual’s home, particularly without legislative support, failed the test of legality. Since no statutory law authorized this form of surveillance, the Court found the practice to be constitutionally untenable.
5. At the same time, the majority upheld the other clauses of Regulation 236, including secret picketing, shadowing, collecting information, and maintaining surveillance records. It concluded that these acts did not infringe Articles 19(1)(d) or 21, as they did not involve physical or legal restraint.
6. The Court emphasized that mere monitoring or observation, without tangible or physical interference, does not restrict a citizen’s liberty in a constitutional sense. Therefore, surveillance, unless amounting to direct coercion, was deemed permissible.
7. The ruling further clarified that for any interference with personal liberty to be constitutional, it must be carried out in accordance with “procedure established by law” under Article 21. This means only a legislative enactment, not executive directions, can restrict such rights.
8. Based on the above findings, the Court issued a writ of mandamus, directing the authorities to cease domiciliary visits as practiced under Clause (b) of Regulation 236. The Court declared such visits illegal and unenforceable, as they had no statutory authority and violated the petitioner’s fundamental rights.
9. In a dissenting opinion, Justice K. Subba Rao, joined by Justice J.C. Shah, expressed a broader interpretation of fundamental rights, arguing that every aspect of Regulation 236 violated the petitioner’s constitutional protections and should be entirely struck down.
10. The dissent held that the constant, unbroken surveillance caused mental stress and acted as a form of psychological restraint, thereby infringing both the right to move freely under Article 19(1)(d) and Article 21.
11. Furthermore, the dissent recognized that although privacy was not explicitly mentioned in the Constitution at that time, it was inherent in the concept of personal liberty. The justices concluded that unwarranted state surveillance deeply violated the dignity, autonomy, and privacy of individuals, making such practices constitutionally impermissible.

REASONING

1. The Court concluded that domiciliary visits during night hours, as authorized under Clause (b) of Regulation 236, were a clear violation of personal liberty under Article 21. This conclusion was based on the understanding that personal liberty includes the sanctity of one’s home, the ability to rest undisturbed, and the right to be secure in one’s private space. The act of police entering or knocking on someone’s door in the night without judicial sanction was held to be an unauthorized intrusion, fundamentally incompatible with the dignity and liberty of a citizen.
2. The Court further emphasized that this particular form of intrusion could not be saved under the Constitution because there was no statutory provision to support such police conduct. The State had admitted that these regulations were merely executive instructions and not made under any legislative authority. Therefore, such actions lacked a “procedure established by law” as required under Article 21. In the absence of any enacted legislation or statutory backing, the fundamental right to liberty could not be restricted based on such informal directions.
3. With regard to the other forms of surveillance (such as secret picketing, collecting information, shadowing, and reporting movements), the Court held that these actions, although intrusive to some extent, did not amount to an infringement of the petitioner’s fundamental rights. These actions did not involve physical coercion, arrest, or forceful restraint, and thus were not found to violate the legal thresholds under Articles 19(1)(d) or 21.
4. The majority bench clarified that not every form of psychological or indirect effect on liberty would qualify as a violation of fundamental rights. For a constitutional right to be considered infringed, there must be a direct and tangible restriction—such as actual physical restraint or a legally binding obligation. The majority ruled that mere apprehension, discomfort, or feeling of being watched was not enough to trigger protection under Articles 19 or 21.
5. The Court reinforced the constitutional principle that any limitation on personal liberty under Article 21 must be carried out only through a valid legal framework. The phrase “procedure established by law” requires that such actions must stem from duly enacted legislation, not from departmental regulations or police manuals. Hence, unless the law is made by the legislature or under legislative authority, executive guidelines alone are insufficient to justify interference with a citizen’s liberty.
6. Based on the finding that domiciliary visits lacked statutory authority and directly interfered with personal liberty, the Court concluded that such visits must cease immediately. Therefore, it issued a writ of mandamus directing the State not to continue the practice of night-time home inspections, as this practice was held to be illegal and unconstitutional.
7. In his dissent, Justice Subba Rao took a broader view of personal liberty. He reasoned that even if individual acts of surveillance may seem harmless in isolation, when practiced together over time such as consistent shadowing, midnight visits, inquiries, and documentation they form a coordinated system of oppression. Thus, he held that the entire surveillance mechanism under Regulation 236 imposed an unconstitutional burden on the petitioner’s liberty and must be struck down completely.
8. Justice Subba Rao further elaborated that psychological pressure created by continuous surveillance was not trivial. The presence of police personnel around the home, or their inquiries into one’s daily life, chills the right to move freely and live without fear, amounting to a constructive deprivation of liberty. He stated that even though the petitioner could technically move from place to place, his actions were constantly monitored, which eroded the essence of Article 19(1)(d).
9. The dissent also recognized that while the Indian Constitution, at the time, did not explicitly guarantee a right to privacy, the concept of privacy is inherent in the idea of personal liberty protected under Article 21. Justice Subba Rao argued that freedom from State intrusion into one’s private life—including one’s home, associations, and thoughts—is essential for human dignity and democratic living. Therefore, the surveillance system operated by the police without any legal safeguards or oversight constituted an impermissible violation of the petitioner’s constitutional rights.

CONCLUSION

The Supreme Court, while delivering a split verdict, partially upheld the petitioner’s claim, striking down domiciliary night visits as unconstitutional for violating Article 21, since such action lacked legal backing and constituted an unlawful intrusion into personal life.

While the majority opinion limited the scope of “personal liberty” and upheld other surveillance practices, the dissenting judges offered a broader interpretation, asserting that all forms of sustained surveillance.

Although privacy was not explicitly recognized as a fundamental right in this judgment, the dissent laid the foundation for future recognition of privacy as intrinsic to personal liberty. This case remains significant for highlighting the limitations of executive action, reinforcing the requirement of “procedure established by law”, and paving the way for the landmark Puttaswamy judgment in 2017, which finally recognized privacy as a fundamental right under the Constitution.

REFERENCES

1. https://indiankanoon.org/doc/486341/

Written by Sivasundhari N.S an Intern under Legal Vidhiya

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