The case of ‘Govind’ is considered important for establishing ‘Right to Privacy’ in India.
Facts of the Case
In the case, the petitioner challenged the validity of
- Regulations 855 and 856 of the Madhya Pradesh Police Regulations purporting to be made by the Government of Madhya Pradesh under s. 46(2)(c) of the Police Act, 1961.
- The petitioner alleged that several false cases have been filed against him in criminal courts by the police but that he was acquitted in all but two cases.
- He said that on the basis that he was a habitual criminal, the police have opened a history sheet against him and that he has been put under surveillance.
- The petitioner said that the police were making domiciliary visits both by day and by night at frequent intervals, that they were secretly picketing his house and the approaches to his house, that his movements 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 submitted 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 contended 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 prayed for a declaration that Regulations 855 and 856 are void as contravening his fundamental rights under the above Articles.
Answer from the side of Respondent
In the return filed by the respondent, it was shown that the petitioner has been indulged in crimes form 1960-1969. And the petitioner is a dangerous criminal whose conduct shows that he is determined to lead a criminal life and that he was put under surveillance in order to prevent him from committing offences.
A quick Glance on the disputed regulations
Regulation 855 reads:
“855. Surveillance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. The list of persons under surveillance should include only those persons who are believed to be really dangerous criminals. When the entries in a history sheet, or any other information at his disposal, leads the District Superintendent to believe that a particular individual is leading a life of crime, he may order that his name be entered in the surveillance register. The Circle Inspector will thereupon open a history sheet, if one is not already in existence, and the man will be placed under regular surveillance.”
“856. Surveillance may, for practical purposes, be defined as consisting of the following measures:
(a) Thorough periodical enquiries by the station-house officer as to repute, habits, association, income, expenses and occupation.
(b) Domiciliary visits both by day and night at frequent but irregular intervals.
(c) Secret picketing of the house and approaches on any occasion when the surveillance (surveillant) is found absent.
(d) The reporting by patels, mukaddams and kotwars ,of movements and absences from home.
(e) The verification of such movements and absences by means of bad character rolls.
(f) The collection in a history sheet of all information bearing on conduct. It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an honest living. Surveillance should, therefore, never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating. The person under surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.”
The case of Kharak Singh
It should be remembered that before this case, a case was decided in 1964, which had similar facts and disputed provisions in that case too were pari materia to the provisions of this case. This was the case of ‘Kharak Singh v. State of U.P”[1].
In this case, the Court had 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.”
First contention- the regulations have not force of law
The petitioner submitted that as the regulations- in question were 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)(d) of the Police Act, they offended the fundamental right of the petitioner under Article 19(1)(d) as well as under Article 21 of the Constitution.
Answer of the Court
- So far as the first contention is concerned, the court was of the view that the regulations were framed by the Government of Madhya Pradesh under s.46(2) (c) of the Police Act.
Section 46(2) states that the State Government may, from time to time, by notification in the official gazette, make rules consistent with the Act-
“(c) generally, for giving effect to the provisions of this Act.”
The petitioner contended that rules can be framed by the State Government under s.46(2)(c) only for giving effect to the provisions of the Act and that the provisions in Regulation 856 for domiciliary visits and other matters are not for the purpose of giving effect to any of the provisions of the Police Act and therefore regulation 856 is ultra vires.
The court denied to agree with the contention and said that the main purpose of the Police Act is too prevent commission of Crime. And, the provision in regulation 856 for domiciliary visits and other actions by the police is intended to prevent the commission of offences. The object of domiciliary visits is to see that the person subjected to surveillance is in his home and has not gone out of it for commission of any offence. Therefore, the court was of opinion that Regulations 855 and 856 have the force of law.
Second Contention- whether the provisions of regulation 856 offend any of the fundamental rights of the petitioner ?
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.
Answer of the Court
The court while finally deciding the case, said that,
- We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be, entitled to attack such action as-unconstitutional and void.
- Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.
- As regulation 856 has the force of law, it cannot be said that the fundamental right of, the petitioner under Article 21 has been violated by the provisions contained in it for, what is guaranteed under that Article is that no person shall he deprived of his life or personal liberty except by the procedure established by ‘law’.
- We think that the procedure is reasonable having regard to the provisions of Regulations 853 (C) and 857. Even if we hold that Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19 (5); or,
even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.
- Surveillance is also confined to the limited class of citizens who are determined to lead a criminal life or whose antecedents would reasonably lead to the conclusion that they will lead such a life.
- Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead it life of criminal in this context being confined to such as involve public peace or security only and if they are dangerous security risks.
- Mere Convictions in criminal cases where nothing gravely imperilling safety of society cannot be regarded as warranting surveillance under this Regulation.
- Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.
Reference
Govind v. state of Madhya Pradesh; 1975 AIR 1378,
[1] [1964] 1 S.C.R. 332.