October 2, 2022

Khadak Singh Case- An Ode to Personal Liberty

Khadak singh case[1] is a landmark case under Article 21 when the supreme Court of India gave multi dimension to the right to live and held that personal liberty is very essential to ‘Right to live’.

In this case, petitioner filed the petition against the frequent visits of Police to the house of petitioner to check his presence. The petitioner who was an offender, had to inform ‘Police station’ when he had to go anywhere. The police had the right to awake him in the night for checking purposes. Against this, the petitioner challenged the provisions of U.P police regulations which gave the right to police for such visits.

Personal liberty is included in Article 21

In the case, the majority said that ‘personal liberty’ in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1)(d).

According to the Court, while Article 19(1)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue.

The Court said,

“We have already extracted a passage from the judgment of Field J. in Munn v. Illinois[2], 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 necessity 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 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.”

Every Man’s house is his castle

The Court then quoted a passage from the judgment of Frankfurter J. in Wolf v. Coloradol,[3] to the effect that the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and that 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 rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

The Court then said that at Common Law every man’s house is his castle and that embodies an abiding principle transcending mere protection of property rights and expounds a concept of ‘personal liberty’ which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist.”

The Court ultimately came to the conclusion in ‘kharak singh case’ that regulation 236(b) which authorised domiciliary visits was violative of Article 21 and “as there is no ‘law’ on the basis of which the same could be justified, it must be struck down as unconstitutional.

The seeds of ‘Right to privacy’ in minority Opinion

The Court was of the view that the other provisions in regulation 236 were not bad as no right of privacy has been guaranteed by the Constitution.

Subba Rao, J. writing for the minority was of the opinion that the word ‘liberty’ in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty, that in the last resort, a person’s house where he lives with his family, is his ‘castle’s that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy and that all.”

The acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution. And as regards Article 19(1)(d), he was of the view that that right also was violated. He said that the right under that sub- Article is not mere freedom to 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).

Reference

Govind v. state of Madhya Pradesh; 1975 AIR 1378,


[1] [1964] 1 S.C.R. 332.

[2] (1877) 94 U.S. 113, 142

[3] [1949] 338 U.S. 25