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TMI Blog1962 (12) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ation made against him he states that the police have opened a historysheet in regard to him. Regulation 228 which occurs in Ch. XX of the Police Regulations defines history-sheets as the personal records of criminals under surveillance . That regulation further directs that a history-sheet should be opened only for persons who are or are likely to become habitual criminals or the aiders or abettors of such criminals. These history-sheets are of two classes : Class A for dacoits, burglars, cattle-thieves, and railway-goodswagon thieves, and class B for those who are confirmed and professional criminals who commit crimes other than dacoity, burglary, etc. like professional cheats. It is admitted that a history-sheet in class A has been opened for the petitioner and he is therefore under surveillance. The petitioner describes the surveillance to which he has been subjected thus : Frequently the chaukidar of the village and sometimes police constables enter his house, knock and shout at his door, wake him up during the night and thereby disturb his sleep. On a number of occasions they have compelled him to get up from his sleep and accompany them to the police station t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore reasonable restrictions on that freedom. Pausing here it is necessary to point out that the second point urged is without any legal basis for if the petitioner were able to establish that the impugned regulations constitute an infringement of any of the freedoms guaranteed to him by the Constitution then the only manner in which this violation of the fundamental right could be defended would be by justifying the impugned action by reference to a valid law, i. e., be it a statute, a statutory rule or a statutory regulation. Though learned counsel for the respondent started by attempting such a justification by invoking s. 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Ch. XX bad no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be a law which the State is entitled to make under the relevant clauses 2 to 6 of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19 (1); nor would the same be a procedure established by law within Art. 21. The position therefore is that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence from home; (e) the verification of movements and absences by means of inquiry slips; (f) the collection and record on a historysheet of all information bearing on conduct. Regulation 237 provides that all ,,history-sheet men of class A (under which the petitioner falls) ,starred and unstarred , would be subject to all these measures of surveillance. The other Regulations in the chapter merely elaborate the several items of action which make up the surveillance or the shadowing but we consider that nothing material turns on the provisions or their terms. Learned Counsel for the petitioner urged that the acts set out in cls. (a) to (f) of Regulation 236 infringed the freedom guaranteed by Art. 19 (1) (d) to move freely throughout the territory of India and also that guaranteeing personal liberty in Art. 21 which runs: No person shall be deprived of his life or personal liberty except according to procedure established by law. We shall now consider each of these clauses of Regulation 236 in relation to the freedoms which it is said they violate: (a) Secret picketing of the houses of suspects:-- It is obvious that the secrecy here referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s Third New International Dictionary defines the word as Visit to a private dweling (as for searching it) under authority. The definition in Chambers Twentieth Century Dictionary is almost identical- Visit under authority, to a private house for the purpose of searching it. These visits in the context of the provisions in the Regulations are for the purpose of making sure that the suspect is staying at home or whether he has gone out, the latter being presumed in this class of cases, to be with the probable intent of committing a crime. It was urged for the respondent that the allegations in the petition regarding the manner in which domiciliary visits are conducted, viz., that the policeman or chaukidar enters the house and knocks at the door at night and after awakening the suspect makes sure of his presence at his home had been denied in the counter-affidavit and was not true, and that the policemen as a rule merely watch from outside the suspect s house and make enquiries from third persons regarding his presence or whereabouts. We do not consider that this submission affords any answer to the challenge to the constitutionality of the provision. In the first place, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out, we are unable to accept the argument that for this reason there is an impairment of the free movement guaranteed by sub-cl. (d). We are not persuaded that Counsel is right in the suggestion that this would have any effect even on the mind of the suspect, and even if in any particular case it had the effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Art. 19 (1) (d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion. The content of Art. 21 next calls for examination. Explaining the scope of the words life and liberty which occurs in the 5th and 14th Amendments to the U. S. Constitution reading No person ...... shall be deprived of life, liberty or property without due process of law , to quote the material words, on which Art. 21 is largely modeled, Field, J. observed: By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally proha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental right. Similarly it was urged that the petitioner or persons against whom such action was taken might be within their rights in ejecting the trespasser and even use force to effectuate that purpose, but that for what was a mere tort of trespass or nuisance the Jurisdiction of this Court under Art. 32 could not be invoked. These submissions proceed on a basic fallacy. The fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the ordinary courts is wholly immaterial and, we would add, irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State executive infringes a guaranteed liberty only when it is not authorised by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action-civil or criminal at the instance of the injured person for redress. It is wholly erroneous to assume that before the,jurisdiction of this Court under Art. 32 could be invoked the applicant must either establish that he has no other rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is designed to assure the dignity of the individual and therefore of those cherished human value 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 notions or doctrinaire constitutional theories. Frankfurter, J. observed in Wolf v. Colorado ((1949) 338 U.S. 25) : The security of one s privacy against arbitrary instrusion by the police........................ is basic to a free society. It is therefore implicit in the concept of ordered liberty and as such enforceable against the States through the Due Process Clause. 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 right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hadowing of the history-sheeters for the purpose of having a record of their movements and activities and the obtaining of information relating to persons with whom they come in contact or associate, with a view to ascertain the nature of their activities. It was urged by learned Counsel that the shadowing of a person obstructed his free movement or in any event was an impediment to his free movement within Art. 19 (1) (d) of the Constitution. The argument that the freedom there postulated was not confined to a mere physical restraint hampering movement but that the term freely used in the Article connoted a wider freedom transcending mere physical restraints, and included psychological inhibitions we have already considered and rejected. A few minor matters arising in connection with these clauses might now be noticed. For instance, cls. (d) (e) refer to the reporting of the movements of the suspect and his absence from his home and the verification of movements and absences by means of enquiries. The enquiry for the purpose of ascertaining the movements of the suspect might conceivably take one of two forms : (1) an enquiry of the suspect himself, and (2) of others. When an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng restrictions on a bad character, for admittedly there is no such law. Therefore, the petitioner s fundamental right, if any, has to be judged on the basis that there is no such law. To state it differently, what fundamental right of the petitioner has been infringed by the acts of the police? If he has any fundamental right which has been infringed by such acts, he would be entitled to a relief straight away, for the State could not justify it on the basis of any law made by the appropriate Legislature or the rules made thereunder. The petitioner in his affidavit attributes to the respondents the following acts :- Frequently the chaukidar of the village and sometimes police constables awake him in the night and thereby disturb his sleep. They shout at his door and sometimes enter inside his house. On a number of occasions they compel him to get up from his sleep and accompany them to the police station, Civil Lines, Meerut, (which is three miles from the petitioner s village) to report his presence there. When the petitioner leaves his village for another village or town, he has to report to the chaukidar of the village or at the police station about his departure. He has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case that the petitioner is a Class A historysheeter and, therefore, lie is subject to the entire field of surveillance. Before we construe the scope of the said Regulation, it will be necessary to ascertain the meaning of some technical words used therein. What does the expression surveillance mean ? Surveillance conveys the idea of supervision and close observance. The person under surveillance is not permitted to go about unwatched. Clause (a) uses the expression secret-picketing . What does the expression mean ? Picketing has many meanings. A man or a party may be stationed by trade union at a workshop to deter would-be workers during strike. Social workers may stand at a liquor shop to intercept people going to the shop to buy liquor and prevail upon them to desist from doing so. Small body of troops may be sent out as a picket to watch for the enemy. The word picketing may, therefore, mean posting of certain policemen near the house or approaches of the house of a person to watch his movements and to prevent people going to his house or having association with him. But the adjective secret qualifies the word picketing and to some extent limits its meaning. What d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal liberty except according to procedure established by law. Art. 19 (1): All citizens shall have the right:- (a) to freedom of speech and expression; x x x x x x (d) to move freely throughout the territory of India. At this stage it will be convenient to ascertain the scope of the said two provisions and their relation inter se in the context of the question raised. Both of them are distinct fundamental rights. No doubt the expression personal liberty is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression personal liberty in Art. 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamen. tal right of life and personal liberty have many attributes and some of them are found in Art. 19. If a Person s fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that does not admit of legal justification. Blackstone in his commentaries on the Laws of England, Book 1, at p.134, observed : Personal liberty includes the power to locomotion of changing situation, or removing one s person to whatsoever place one s inclination may direct, without imprisonment or restraint, unless by due course of law. In A. K. Gopalan s case ([1950] S.C.R.88), it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercion. The expression is wide enough to take in a night to be free from restrictions placed on his movements. The expression coercion in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more. effective than physical ones. The scientific methods used to condition a man s mind are in a real sense physical restraints, for they engender physical fear channelling one s actions through anticipated and expected groves. So also the creation of condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a place to enjoy, to do business, to meet friends, to have secret and intimate consultations with 0thers and to do many other such things. If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automation. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail. 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. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Art. 19 (1) (d) of the Constitution. Assuming that Art. 19 (1) (d) of the Constitution must be confined only to physical movements, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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