TMI Blog1975 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... are being watched by the patel of the village and that when the police come to the village for any purpose, he is called and harassed with the result that his reputation has sunk how in the estimation of his neighbours. The petitioner submits that whenever he leaves the village for another place he has to report to the Chowkidar of the village or to the police station about his departure and that he has to give further information about his destination and the period within which he would return. The petitioner contends that these actions of the police are violative of the fundamental right guaranteed to him under Articles 19(1)(d) and 21 of the Constitution, and he prays for a declaration that Regulations 855 and 856 are void as contravening his fundamental rights under the above Articles. In the return filed, it is stated that the petitioner has managed to commit many crimes during the period 1960 to 1969. In the year 1962 the petitioner was convicted in one case under Section 452 IPC and was fined ₹ 100/- in default rigorous imprisonment of two months and in another case he was convicted under Section 456 IPC and was fined ₹ 501- and in default rigorous imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged. In Kharak Singh v. The State of U.P. and Others([1964] 1 S.C.R. 332) this Court dad occasion to consider the validity of Regulation 236 of the U.P. Police Regulations which is in pari materia with Regulation 856 here. There it was held by a majority that regulation 236(b) providing for domiciliary visits was unconstitutional for the reason that it abridged the fundamental right of a person under Article 21 and since Regulation 236(b) did not have the force of law, the regulation was declared bad. The other provisions of the regulation were held to be constitutional. Teh decision that the regulation in question there was not taw was based upon a concession made on behalf of the State of U.P. that the U.P. Police Regulations were not framed under any of the provisions of the Police Act. The petitioner submitted that as the regulations- in question here were also not framed under any provision of the Police Act, the provisions regarding domiciliary visits in regulations 855 and 856 must be declared bad and that even if the regulations were framed under s.46(2)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Field J. in Munn v. Illinois (1877) 94 U.S. 113, 142, where the learned Judge pointed out the,,, life in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art. 21 means not merely the right to the continuance of a person s animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word life in Art. 21 bear,., the same signification. Is then the word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire neecessity for human existence even as an animal ? It might not be in appropriate to refer here to the words of the preamble to the Constitution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move without physical obstruction and observed that movement under the scrutinizing gaze of the policemen cannot be free movement, that 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 and that a person under the shadow of surveillance is certainly deprived of this freedom. He concluded by say in that Surveillance by domiciliary visits and other acts is -an abridgement of the fundamental right guaranteed under Article 19 (1)(i) and under Article 19(1) (a). He however did not specifically consider whether regulation 236 could be justified as a reasonable restriction in public interest falling within Article 19(5). It was submitted on behalf of the petitioner that right to privacy is itself a fundamental right and that that right is violated as regulation 856 provides for domiciliary visits and other incursions into it. The question whether right to privacy is itself a fundamental right lowing from the other fundamental rights guaranteed to a citizen under Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d abortions except with respect to those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and that the roots of that right may be found in the First Amendment, in the Fourth and Fif, Amendments. in the penumbras of the Bill of Rights, in the ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment and that the right to privacy is not absolute , The usual starting point in any discussion of the growth of legal concept of privacy, though not necessarily the correct one, is the famous article, The Right to Privacy by Charles Warren and Louis D. Brandeis (2).What was truly creative in the article was their insistence thatprivacy,- the right to be let alone-was an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. To Protect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed rights as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a interestsufficient to justify the infringement of a fundamental right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state. Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new condition Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yes too broad a, definition of privacy raises serious questions about this propriety of judicial reliance on a right that is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their natures (see 26 Standford Law Rev. 1161 at 1187.). The right to privacy in any event will necessarily have to go through a process of case-by se development. Therefore, even assuming, that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute. The European Convention on Human Rights, which came Into, force \on 3-9-1953, represents a valiant attempt to tackle the new problem. Article 8 of the Convention is worth citing:( see Privacy- Human Rights , ed. A. H. Robertson p. 176. 1. Everyone has the right to respect for his private andfamily life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid. Under clause (c) of Regulation 853, it is only persons who are suspected to be habitual criminals who will be subjected to domiciliary visits. Regulation 857 provides as follows: A comparatively short period of surveillance, if effectively maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish evidence justifying a criminal prosecution, or action under the security sections. District Superintendents and their assistance should go carefully through the histories of persons under surveillance during their inspections, and remove from the register the names of such as appear to be earning an honest livelihood. Their histories will there upon be closed and surveillance discontinued. In the case of person under surveillance, who has been lost sight of and is still untraced, the name will continue on the register for as long as the District Superintendent considers necessary. Surveillance is also confined to the limited class of citizens who are determined to lead a criminal life o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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