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PETITIONER: KHARAK SINGH

       Vs.

RESPONDENT: THE STATE OF U. P. & OTHERS

DATE OF JUDGMENT: 18/12/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SUBBARAO, K. SHAH, J.C. MUDHOLKAR, J.R.

CITATION:  1963 AIR 1295            1964 SCR  (1) 332  CITATOR INFO :  F          1967 SC1836  (28,53,59,60,61,62)  E          1970 SC 898  (58)  R          1974 SC2092  (10)  RF         1975 SC1378  (6,13)  E          1976 SC1207  (59,288,289,520)  R          1977 SC1027  (23,30,42)  D          1978 SC 489  (9)  R          1978 SC 597  (3,10,54,209)  R          1978 SC1514  (5)  R          1978 SC1675  (55,56,226)  RF         1980 SC1579  (40)  R          1981 SC 746  (6)  RF         1981 SC 760  (5)  RF         1986 SC 180  (32)  RF         1986 SC 847  (12)  R          1987 SC 748  (15,16)  RF         1991 SC 101  (239)  RF         1991 SC1902  (24)

ACT: Fundamental Right, Enforcement of-Scope-Right to freedom  of movement   and   personal   liberty,   whether    infringed- Surveillance-Whether  infringes  fundamental   right-Consti- tution  of  India,  Arts. 19 (1) (d),21,32  -U.   P.  Police Regulations, Regulation 236.

HEADNOTE: The  petitioner  was challenged in a dacoity  case  but  was released  is there was no evidence against him.  The  police opened  a history sheet against him.  He was put under  sur- veillance -is defined in Regulation 236 of the U. P.  Police Regulations.  Surveillance involves secret picketing of  the house   or  approaches  to  the  houses  of  the   suspects, domiciliary   visits  at  night,  periodical  enquiries   by officers  not below the rank of Sub-Inspector  into  repute, habits,  association, income, expenses and  occupation,  the reporting  by  constables and chaukidars  of  movements  and absences  from  home,  the  verification  of  movements  and

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absences  by means of inquiry slips and the  collection  and record  on  a history sheet of all  information  bearing  on conduct. The petitioner filed a writ petition under Art. 32 in  which he  challenged the constitutional validity of Chapter XX  of U.  P.  Police  Regulations, in which  Regulation  236  also occurs. The  defence  of  the  respondent  was  that  the   impugned Regulations did not constitute an infringement of any of the freedoms  Guaranteed  by Part III of the  Constitution,  and even if they were, they had been framed in the interests  of the General public and public order and to enable the police to discharge its ditty in a more efficient manner, and hence were reasonable restrictions on that freedom. Held,  (Subba Rao and Shah JJ., dissenting) that out of  the five  kinds of surveillance referred to in  Regulation  236, the  part dealing with domiciliary visits was  violative  of Art. 21 333 of  the  Constitution and as there was no law on  which  the same   could  be  justified  it  must  be  struck  down   as unconstitutional, and the petitioner was entitled to a  writ of  mandamus  directing  the  respondent  not  to   continue domiciliary   visits.    The  other   matters   constituting surveillance   were   not  unconstitutional.    The   secret picketing  of the houses of tile suspects could not  in  any material  or  palpable form affect either the right  on  the part of the suspect to move freely’ or to deprive him of his ’Personal  liberty’  within  the meaning  of  Art.  21.   In dealing  with a fundamental right such as the right to  free movement  or personal liberty, that only can  constitute  an infringement  which is both direct as well as tangible,  and it could not be that under these freedoms the  Constitution- makers  intended  to  protect  or  protected  mere  personal sensitiveness,  ’The term ’picketing’ has been used  in  the Regulation  not in the sense of offering resistance  to  the visitor-physical  or otherwise-or even dissuading  him  from entering the house of the suspect but merely of watching and keeping- a record of the visitors.  Clauses (c), (d) and (e) of Regulation 236 dealt with the details of the shadowing of the  history-sheeters for the purpose of having a record  of their  movements  arid  activities,  and  the  obtaining  of information  relating  to persons with whom they  came  into contact  with  a  view  to ascertain  the  nature  of  their activities,  arid did not infringe any fundamental right  of the  petitioner.  The freedom guaranteed by Art. 19 (1)  (d) was  not infringed by a watch being kept over the  movements of  the  suspect.   Art. 21 was  also  not  applicable.  The suspect  had  the  liberty to answer or not  to  answer  the question  put to him by the police,and no Law  provided  for any  civil or criminal liability if the suspect  refused  to answer a question or remained silent.  The right of  privacy is  not  a  guaranteed right under  our  Constitution,  arid therefore  the  attempt  to ascertain the  movements  of  an individual  is merely a manner in which privacy  is  invaded and is not an infringement of a fundamental right guaranteed in Part III. The  term  ’personal  liberty’  is used  in  Art.  21  as  a compendious term to include within itself all the  varieties of  rights which go to make up the ’personal  liberties’  of man  other than those dealt with in the several  clauses  of Art.  19  (I  ). While Art. 19  (1)  deals  with  particular species  or attributes ’of that freedom, ’personal  liberty’ in  Art.  21 takes in and comprises the residue.   The  word "life"  in  Art.  21  means not  merely  the  right  to  the

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continuance  of a person’s animal existence, but a right  to the possession of each of his organsarms, legs, etc. The  contention  of  the respondent that if an  act  of  the police involved a trespass to property, that could give rise to a 334 claim in tort as that action was not authorised by law,  and the remedy of the petitioner was a claim for damages and not a  petition  under Art. 32, was without  any  substance  and wholly  irrelevant for considering whether such  action  was -in invasion of a fundamental right.  It is wholly erroneous to assume that before the jurisdiction of this Court  uinder Art. 32 can be invoked, the applicant must either  establish that he has no other remedy adequate or otherwise or that he has  exhausted such remedies as the law affords and has  yet not obtained pro. per redress, for when once it is proved to the  satisfaction  of this Court that by  State  action  the fundamental right of the petitioner tinder Art. 32 has  been infringed,  it  is not only the right but the duty  of  this Court to afford relief to him by passing appropriate  orders in this behalf. Per  Subba  Rao and Shah, JJ.-The petitioner was a  class  A history-sheeter and hence was subject to the entire field of surveillance. Policeman were posted near his house to  watch his  movements and those of his friends and  associates  who went to his house.  They entered his house in the night  and woke  him  up to ascertain whether he was in the  house  and thereby  disturbed his sleep and rest.  The  officials,  not below the rank of Sub-Inspector, made inquiries from  others as  regards his habits, associations, income, -expenses  and occupations.   They got information from others  as  regards his  entire  way  of life.  The  constables  and  chaukidars traced his movements, shadowed him and made reports to their superiors.   It  was conceded that there was  no  law  which imposed restrictions on bad characters. Held,  that the whole of Regulation 236 is  unconstitutional and  not  only cl. (b).  The attempt to dissect the  act  of surveillance   into   its  various  ramifications   is   not realistic.   Clauses  (a) to (f) of Regulation 236  are  the measures  adopted  for the purpose of supervision  or  close observation  of  tile movements of the  petitioner  and  are therefore parts of surveillance. Both  Arts.  19(1)  and  21  deal  with  two  distinct   and independent  fundamental rights.  The  expression  "personal liberty" is a comprehensive one and the right to move freely is an attribute of personal liberty.  But it is not  correct to say that freedom to move freely is carved             out of  personal liberty and therefore the expression  "Personal liberty"  in  Art. 21 excludes that  attribute.   No  doubt, these fundamental rights overlap each other but the question of one being carved 335 out of the other does not arise.  The fundamental rights  of life  and personal liberty have many attributes and some  of them are found in Art. 19.  The State must satisfy that both the  fundamental  rights are not infringed by  showing  that there  is  a law within the meaning of Art. 21 and  that  it does  amount to a reasonable restriction within the  meaning of Art. 19(2) of the Constitution. The right of personal liberty in Art. 21 implies a right  of an individual to be free from restrictions or  encroachments on  his person, whether those restrictions or  encroachments are   directly  imposed  or  indirectly  brought  about   by calculated  measures.   If so understood, all  the  acts  of surveillance  under Regulation 236 infringe the  fundamental

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right of the petitioner under Art. 21 of the Constitution. As  regards the fundamental rights guaranteed by Art.  19(1) (d),  mere  movement unobstructed  by  physical  restritions cannot  in  itself be the object of a  person’s  travel.   A person  travels ordinarily in quest of some  objective.   He goes  to a place to enjoy, to do business, to meet  friends, to have secret and intimate consultations with other 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.  A  movement under  the  scrutinising  gaze  of  a  policeman  cannot  be described  as  a free movement.  The whole  country  is  his jail.   The  freedom  of movement  in  Art.  19(1)(d)  must, therefore,  be  a  movement in a free country,  i.e..  in  a country  where  lie  can do whatever  lie  likes,  speak  to whomsoever  he wants, meet people of his 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  be  cannot  do so freely, for all  his  activities  are watched  and  the  shroud  of  surveillance  cast  upon  him perforce  engenders  inhibitions in him, and he  cannot  act freely as he would like to do.  Hence, the entire Regulation 236 offends Art. 19(1) (d) of the Constitution. Held, also that petitioner’s freedom under Art. 19(1) (a) of the Constitution was also infringed.  It was impossible  for a  person in the position of the petitioner to  express  his real  and  intimate thoughts to the visitor as fully  as  he would like to do. A.K.  Gopalan v. State of Madras [1950] S.C.R. 88;  Munn  v. Illinois, (1877) 94 U. S. 113; Wolf v. Colorado, (1949)  338 U.  S.  25; Semayne’s case (1604) 5 Coke 91 and  Bolling  v. Sharpe, (1954) 347 U. S. 497, referred to. 336

JUDGMENT: ORIGINAL JURISDICTION : Petition No. 356 of  1961. Petition tinder Art. 32 of the Constitution of India for the enforcement of fundamental rights. J.   P. Goyal, for the petitioner. K.   S. Hajela and C. P. Lal, for the respondents. 1962.   December 18.  The judgement of Sinha, C.  J.,  Imam, Ayyangar and Mudholkar, jj., was delivered by Ayyangar,  j., Subba Rao and Shah, jj., delivered a separate judgment. AYYANGAR,   J.--This   petition  under  Art.   32   of   the Constitution  challenges the constitutional validity of  Ch. XX of the U. P. Police Regulations and the powers  conferred upon  police  officials  by its several  provisions  on  the ground that they violate the right guaranteed to citizens by Arts. 19(1)(d) and 21 of the  Constitution. To  appreciate the contention raised it is necessary to  set out the facts averred on the basis of which the  fundamental right of the petitioner, is said to be violated, as well  as the  answers by the respondent-State to  these  allegations. The  petitioner--Kharak  Singh -was challaned in a  case  of dacoity  in  1941 but was released under s.  169,  Criminals Procedure Code as there was no evidence against him.  On the basis of the accusation 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

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for  persons  who  are  or are  likely  to  become  habitual criminals or the aiders or abettors of such criminals.  337 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  accom- pany  them  to  the police station 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 give them information regarding his destination  and the  period within which he would return.   Immediately  the police station of his destination is contacted by the police station  of  his  departure and the former  puts  him  under surveillance in the same way as the latter.  There are other allegations  made about misuse or abuse of authority by  the chaukidar or the police officials but these have been denied and we do not consider them made out for the purposes of the present  petition.  If the officials outstep the  limits  of their   authority   they  would  be   violating   even   the instructions  given to them, but it looks to us  that  these excesses   of   individual   officers   which   are   wholly unauthorised could not be complained of in a petition  under Art. 32. In  deciding this petition we shall proceed upon  the  basis that  the  officers conformed strictly to the terms  of  the Regulations  in  Ch.  XX properly construed and  discard  as exaggerated or not proved the 338 incidents   or  pieces  of  conduct  on  the  part  of   the authorities which are alleged in the petition but which have been  denied.  As already pointed out it is admitted that  a history-sheet has been opened and a record as prescribed  by the Regulations maintained for the petitioner and that  such action  as  is required to be taken in respect  of  history- sheeters of Class A into which the petitioner fell under the classification made in Ch.  XX of the Police Regulations  is being  taken in regard to him.  It is stated in the  counter affidavit that the police keep a confidential watch over the movements  of the petitioner as directed by the  Regulations in  the  interests  of  the  general  public  and  for   the maintenance of Public order. Before  entering on the details of these regulations  it  is necessary  to  point out that the defence of  the  State  in support  of  their  validity  is two-fold  :  (1)  that  the impugned  regulations do not constitute an  infringement  of any   of  the  freedoms  guaranteed  by  Part  III  of   the Constitution  which are invoked by the petitioner,  and  (2) that  even  if  they were, they have  been  framed  "in  the interests  of  the general public and public order"  and  to enable  the  police  to  discharge  its  duties  in  a  more efficient    manner   and   were    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

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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 339 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 the  action  of the police which is the arm of the executive of the State is found  to  infringe any of the freedoms  guaranteed  to  the petitioner the petitioner would be entitled to the relief of mandamus  which he seeks to restrain the State  from  taking action under the regulations. There  is  one other matter which requires to  be  clarified even  at  this stage.  A considerable part of  the  argument addressed to us on behalf of the respondent was directed  to showing  that  the  regulations  were  reasonable  and  were directed  only  against  those who were  on  proper  grounds suspected to be of proved anti-social habits and  tendencies and  on whom it was necessary to impose some restraints  for the  protection of society.  We entirely agree that  if  the regulations had any statutory basis and were a "law’  within Art.  13  (3),  the consideration mentioned  might  have  an overwhelming  and even decisive weight in establishing  that the  classification was rational and that  the  restrictions were  reasonable  and designed to preserve public  order  by suitable  preventive action.  But not being any such  "law", these   considerations   are   out  of   place   and   their constitutional  validity has to be judged on the same  basis as   if  they  were  applied  against   everyone   including respectable  and  lawabiding  citizens  not  being  or  even suspected of being, potential dangers to public order. The  sole  question for determination therefore  is  whether "surveillance" under the impugned Ch. XX of the U.P.  Police Regulations   constitutes  an  infringement  of  any  of   a citizen’s fundamental rights 340 guaranteed by Part III of the Constitution.  The  particular Regulation   which  for  all  practical   purposes   defines "serveillance" is Regulation 236 which reads :               "Without  prejudice to the right  of  Superin-               tendents  of Police to put into  practice  any               legal  measures, such as shadowing in  cities,               by which they find they can keep in touch with               suspects  in particular localities or  special               circumstances,   surveillance  may  for   most               practical purposes be defined as consisting of               one or more of the following measures :               (a)   Secret   picketing  of  the   house   or               approaches to the house of suspects;               (b)   domiciliary visits at night;               (c)   through periodical inquiries by officers               not  below  the  rank  of  Sub-Inspector  into               repute, habits, associations, income, expenses

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             and occupation;               (d)   the   reporting   by   constables    and               chaukidars of movements and absence from home;               (e)   the   verification  of   movements   and               absences by means of inquiry slips;               (f)   the collection and record on a  history-               sheet 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.  341 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 to is  secrecy from the suspect; in other words its purpose is to ascertain the identity of the person or persons who visit the house of the  suspect, so that the police might have a record of  the nature  of the activities in which the suspect  is  engaged. This,  of  course, cannot in any material or  palpable  form affect either the right on the part of the suspect to "’move freely"  nor can it be held to deprive him of his  "personal liberty"  within  Art.  21.  It was submitted  that  if  the suspect does come to know that his house is being  subjected to  picketing,  that might affect his  inclination  to  move about, or that in any event it would prejudice his "Personal liberty".   We consider that there is no substance  in  this argument.   In dealing with a fundamental right such as  the right  to free movement or personal liberty , that only  can constitute  an infringement which is both direct as well  as tangible  and it could not be that under these freedoms  the Constitution-makers  intended to protect or  protected  mere personal  sensitiveness.   It was then suggested  that  such picketing might have a tendency to prevent, if not  actually preventing friends of the suspect from 342 going  to his house and would thus interfere with his  right "to form associations" guaranteed by Art. 19 (f) (c).  We do not  consider it necessary to examine closely and  determine finally  the precise scope of the "freedom  of  association" and particularly whether it would be attracted to a case  of the  type now under discussion, since we are satisfied  that "picketing" is used in cl. (a) of this Regulation not in the sense  of  offering resistance to  the  visitor-physical  or otherwise-or even dissuading him, from entering the house of the  suspect but merely of watching and keeping a record  of the  visitors.  This interpretation we have reached  (a)  on the   basis  of  the  provisions  contained  in  the   later Regulations  in the Chapter, and (b) because more than  even the express provisions, the very purpose of the watching and the secrecy which is enjoined would be totally frustrated if those  whose  duty it is to watch, contacted  the  visitors,

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made their presence or identity known and tried to  persuade them to any desired course of action. (b)  Domiciliary visits at night:- "Domiciliary  visits"  is  defined  in  the  Oxford  English Dictionary  as  "Visit to a private  dwelling,  by  official persons, in order to search or inspect it." Webster’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 343 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  is clear that having regard to the plain meaning of  the words  "domiciliary  visits,"  the  police  authorities  are authorised  to enter the premises of the suspect,  knock  at the door and have it opened and search it for the purpose of ascertaining  -his presence in the house.  The fact that  in any  particular  instance  or even  generally  they  do  not exercise to the full the power which the regulation vests in them,  is wholly irrelevant for determining the validity  of the  regulation  since  if they are so minded  they  are  at liberty  to exercise those powers and do those acts  without outstepping  the limits of their authority under  the  regu- lations. Secondly, we are, by no means, satisfied that having  regard to  the  terms of Regulation 236 (b) the allegation  by  the petitioner that police constables knock at his door and wake him  up  during  the  night  in  the  process  of   assuring themselves of his presence at home are entirely false,  even if  the other allegations regarding his being  compelled  to accompany  the  constables during the night  to  the  police station be discarded as mere embellishment. The  question that has next to be considered is whether  the intrusion  into the residence of a citizen and the  knocking at  his door with the disturbance to his sleep and  ordinary comfort   which  such  action  must   necessarily   involve, constitute a violation of the freedom guaranteed by Art.  19 (1)  (d)  or  "a  deprivation"  of  the  "personal  liberty" guaranteed 344 by Art. 21.  Taking first Art. 19 (1) (d) the "freedom" here guaranteed  is  a  right "to  move  freely"  throughout  the territory of India.  Omitting as immaterial for the  present purpose the last words defining the geographical area of the guaranteed  movement,  we agree that the  right  to  "’move" denotes nothing more than a right of locomotion, and that in the context the adverb "’freely" would only connote that the freedom  to move is without restriction and is absolute,  i. e.,  to  move  wherever one likes, whenever  one  likes  and

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however  one likes subject to any valid law enacted or  made under  cl. 5. It is manifest that by the knock at the  door, or by the man being roused from his sleep, his locomotion is not  impeded or prejudiced in any manner.   Learned  Counsel suggested that the knowledge or apprehension that the police were  on the watch for the movements of the  suspect,  might induce a psychological inhibition against his movements but, as already pointed 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:  345               "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  prohabits               the mutilation of the body or amputation of an               arm or leg or the putting out of an eye or the               destruction  of  any other organ of  the  body               through  which the soul communicates with  the               outer   world................  by   the   term               liberty,  as used in the  provision  something               more is meant than mere freedom from  physical               restraint or the bonds of a prison." It  it true that in Art. 21, as contrasted with the 4th  and 14th Amendment in the U. S., the word "liberty" is qualified by  the  word  "personal"  and  therefore  its  content   is narrower.  But the qualifying adjective has been employed in order  to  avoid  overlapping  between  those  elements   or incidents of "liberty" like freedom of speech, or freedom of movement  etc.,  already dealt with in Art. 19 (1)  and  the "’liberty"  guaranteed  by Art. 21-and particularly  in  the context of the difference between the permissible restraints or restrictions which might be imposed by sub-cls. 2 to 6 of the article on the several species of liberty dealt with  in the  several  clauses of Art. 19 (I).  In view of  the  very limited  nature of the question before us it is  unnecessary to pause to consider either the precise relationship between the "liberties" in Art. 19 (1) (a) & (d) on the one hand and that   in  Art.  21  on  the  other,  or  the  content   and significance of the words "’procedure established by law" in the latter article, both of which were the subject of elabo- rate consideration by this Court in A. K. Gopalan  v.  State of  Madras  (1).   In  fact, in  Gopalan’s  case  there  was unanimity  of opinion on the question that if there  was  no enacted  law,  the freedom guaranteed by Art.  21  would  be violated,  though the learned judges differed as to  whether any and every enacted (1)  [1950] S.C.R. 88. 346

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law   satisfied  the  description  or  requirements  of   "a procedure established by law." Before  proceeding  further a submission on  behalf  of  the respondent requires notice.  It was said that if the act  of the  police  involved a trespass to property ,  i.  e.,  the trespass involved in the act of the police official  walking into  the  premises of the. petitioner and knocking  at  the door,  as well as the disturbance caused to him, might  give rise  to claim in tort, since the action was not  authorised by    law   and   that   for   these   breaches    of    the petitioner’strights  damages might be claimed and  recovered from the tortfeasor, but that the same could not  constitute an  infraction  of a fundamental 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 remedy adequate or otherwise or that he has  exhausted such remedies as the law affords and has yet not 347 obtained  proper redress, for when once it is proved to  the satisfaction  of  this  court  that  by  State  action   the fundamental  right  of a petitioner under Art. 32  has  been infringed,  it  is not only the right but the duty  of  this Court to afford relief to him by passing appropriate  orders in that behalf. We  shall  now proceed with the examination of  the  width., scope  and content of the expression "personal  liberty"  in Art.  21.  Having regard to the terms of Art.  19(1)(d),  we must  take it that expression is used as not to include  the right  to move about or rather of locomotion.  The right  to move  about  being excluded its  narrowest  inter  pretation would be that it comprehends nothing more than freedom  from physical  restraint or freedam from confinement  within  the bounds of a prison; in other words, freedom from arrest  and detention, from false imprisonment or wrongful  confinement. We  feel unable to hold that the term was intended  to  bear only  this  narrow  interpretation but  on  the  other  hand consider that "’personal liberty" is used in the Article  as a  compendious  term  to  include  within  itself  all   the varieties  of  rights  which go to  make  up  the  "personal liberties" of man other than those deal with in the  several clauses  of Art. 19 (1).  In other words, while  Art.  19(1) deals with particular species or attributes of that freedom, "personal  liberty"  in Art. 21 takes in and  comprises  the residue.   We  have  already extracted a  passage  from  the judgment  of  Field, J. in Munn v. Illinois (1),  where  the learned  judge pointed out that "life" in the 5th  and  14th Amendments  of the U. S. Constitution corresponding to  Art.

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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  bears the  same  signification.   Is  then  the  word   "’personal liberty"  to be construed as excluding from its  purview  an invasion on the part (1)  (1877) 94 U.S. 113,142. 348 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  inapropriate to refer here to the words of the preamble 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. Frankfurter, J. observed in Wolf v. Colorado (1) :               "’The security of one’s privacy against  arbi-               trary         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               rights enshrined in the history and the  basic               constitutional  documents of  English-speaking               peoples........................  We ha-Are  no               hesitation   in  laying  that  were  a   State               affirmatively   to   sanction   such    police               incursion into privacy it would run counter to               the guaranty of the Fourteenth Amendment." Murphy, J. considered that such invasion was (1)  (1949) 338 U.S. 25. 349 against "the very essence of a scheme of ordered liberty". It  is true that in the decision of the U. S. Supreme  Court from  which  we have made these extracts, the Court  had  to consider  also  the  impact of a  violation  of  the  Fourth Amendment which  reads .               ,,The  right  of the people to  be  secure  in               their  persons, houses, papers,  and  effects,               against  unreasonable searches  and  seizures,               shall  not be violated; and no warrants  shall               issue  but upon probable cause,  supported  by               oath   or   affirmation,   and    particularly               describing  the place to be searched, and  the               persons or things to be seized." and that our constitution does not in terms confer any  like constitutional  guarantee.   Nevertheless,  these   extracts would  show that an unauthorised intrusion into  a  person’s home  and  the disturbance caused to him thereby, is  as  it

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were  the  violation  of a common law right  of  a  man  -an ultimate  essential of ordered liberty, if not of  the  very concept  of  civilization.   An  English  Common  Law  maxim asserts  that  "every  man’s house is  his  castle"  and  in Semayne’s  case (1), where this was applied, it  was  stated that  ,the  house of everyone is to him as  his  castle  and fortress  as  well  as for his defence  against  injury  and violence  as for his repose".  We are not unmindful  of  the fact that Semayne’s case was concerned with the law relating to  executions in England, but the passage extracted  has  a validity  quite  apart from the context  of  the  particular decision.    It   embodies  an  abiding   principle-   which transcends mere protection of property rights and expounds a concept  of  "personal liberty" which does not rest  on  any element  of feudalism or on any theory of freedom which  has ceased to be of value. (1)  (1604) 5 Coke 91 : I Sm.  L.C. (13th Edn.) 104,105. 350 In  our view cl. (b) of Regulation 236 is plainly  violative of Art. 21’ and as there is no "law" on which the same could be justified it must be struck down as unconstitutional. Clauses  (c), (d) and (e) may be dealt with  together.   The actions suggested by these clauses are really details of the shadowing 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 enquiry is made of  the suspect   himself   the  question  mooted  was   that   some fundamental  right of his was violated.  The answer must  be in  the  negative  because the suspect has  the  liberty  to answer or not to answer the question for ex concessis  there is no law on the point involving him in any  liability-civil or  criminal-if  he refused to answer  or  remained  silent. Does  then the fact that an enquiry is made as  regards  the movements of the 351 suspect  and  the  facts ascertained  by  such  enquiry  are verified   and   the  true  facts   sifted   constitute   an infringement  of  the  freedom to move?   Having  given  the matter our best consideration we are clearly of the  opinion that  the  freedom  guaranteed by Art. 19  (1)  (d)  is  not infringed  by a watch being kept over the movements  of  the suspect.  Nor do we consider that Art. 21 has any  relevance in  the  context as was sought to be  suggested  by  learned Counsel  for  the petitioner.  As already pointed  out,  the right  of  privacy  is  not a  guaranteed  right  under  our Constitution  and  therefore the attempt  to  ascertain  the movements of an individual which is merely a manner in which

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privacy  is invaded is not an infringement of a  fundamental right guaranteed by Part III. The  result therefore is that the petition succeeds in  part and Regulation 236 (b) which authorises "domiciliary visits" is struck down as unconstitutional.  The petitioner would be entitled  to the issue of a writ of mandamus  directing  the respondent not to continue domiciliary visits.  The rest  of the petition fails and is dismissed.  There will be no order as to costs. Subba  Rao,J.-          We  have  had  the  advantage   ment prepared by our learned Ayyangar, J. We agree with him  that Regulation  236  (b) is unconstitutional, but  we  would  go further   and   hold   that   the   entire   Regulation   is unconstitutional  on the ground that it infringes both  Art. 19 (1) (d) and Art. 21 of the Constitution. This petition raises a question of far-reaching  importance. namely,  a right of a citizen of India to lead a  free  life subject  to social control imposed by valid law.   The  fact that  the  question has been raised at the  instance  of  an alleged  disreputable  character  shall not  be  allowed  to deflect  our perspective.  If the police could do what  they did to the petitioner, they 352 could also do the same to an honest and law-abiding citizen. Let us at the outset clear the ground.  We are not concerned here  with a law imposing 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               give information regarding his destination and               the  period  within  which  he  will   return.               Immediately   the   police  station   of   his               destination is contacted by the police station               of his departure and the former puts him under               surveillance  in  the same way as  the  latter               does." "’It  may be pointed out that the chaukidar of  the  village keeps a record of the presence and 353 absence of the petitioner in a register known as chaukidar’s Crime Record Book." "All   the  entries  in  this  book  are  made  behind   the petitioner’s  back and he is never given any opportunity  of examining or inspecting these records."

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There  are other allegations made about the misuse or  abuse of authority by the chaukidar or the police officials. In  the  counter-affidavit filed by the  respondents  it  is admitted  that the petitioner is under the  surveillance  of the  police,  but  the allegations of abuse  of  powers  are denied.   A  perusal  of  the  affidavit  and  the  counter- affidavit  shows  that the petitioner tries to  inflate  the acts  of interference by the police in his life’  while  the respondents  attempt to deflate it to the minimum.   In  the circumstances  we would accept only such of the  allegations made  by  the  petitioner  in his  affidavit  which  are  in conformity  with  the  act  of  surveillance   described  by Regulation   236  of  Chapter  XX  of  the  U.   P.   Police Regulations.  The said Regulation reads :-               "Without prejudice to the right of Superinten-               dents of Police to put into practice any legal               measures,  such  as shadowing  in  cities,  by               which  they find they can keep in  touch  with               suspects  in particular localities or  special               circumstances,   surveillance  may  for   most               practical purposes be defined as consisting of               one or more of the following measures :-               (a)   Secret   picketing  of  the   house   or               approaches to the houses of suspects;               (b) Domiciliary visits at night;               354               (c)   through periodical inquiries by officers               not  below  the  rank  of  Sub-Inspector  into               repute,  habits,,  associations,  income,  ex-               penses and occupation;               (d)   the   reporting   by   constables    and               chaukidars  of  movements  and  absences  from               home;               (e)   the   verification  of   movements   and               absences by means of inquiry slips;               (f)   the collection and record on a  history-               sheet of all information bearing on conduct."               Regulation  237  provides that  all  "history-               sheet   men"   of  Class  A,   "starred"   and               "unstarred", would be subject to all the  said               measures  of surveillance.  It is common  case               that  the  petitioner is a  Class  A  history-               sheeter and, therefore, lie is subject to  the               entire field of surveillance.               Before we construe the scope of the said Regu-               lation, 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

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             his house or having association with him.  But               the adjective "secret" qualifies               355               the word "picketing and to some extent  limits               its   meaning.   What  does   the   expression               "secret"  mean ?  Secret from whom ?  Does  it               mean  keeping secret from the man  watched  as               well as from the people who go to his house  ?               Though  the expression is not clear,  we  will               assume  that secret-picketing only  means  po-               sting  of the police at the house of a  person               to  watch  his  movements  and  those  of  his               associates  without their knowledge.   But  in               practice, whatever may have been the intention               of the authorities concerned, it is well  nigh               impossible  to  keep it secret.   It  will  be               known   to  everybody  including  the   person               watched.               The next expression is "domiciliary visit"  at               night.   Domiciliary  means  "of  a   dwelling               place".   A  domiciliary visit is a  visit  of               officials  to  search  or  inspect  a  private               house.               Having  ascertained  the meaning of  the  said               three expressions, let us see the operation of               the Regulation and its impact on a person like               the  petitioner  who comes within  its  scope.               Policemen were posted near his house to  watch               his  movements  and those of  his  friends  or               associates  who  went  to  his  house.    They               entered his house in the night and woke him up               to ascertain whether lie was in the house  and               thereby  disturbed  his sleep and  rest.   The               officials not below the rank of  Sub-Inspector               made   inquiries  obviously  from  others   as               regards  his  habits,  associations,   income,               expenses  and the occupation, i.e.,  they  got               information from others as regards his  entire               way   of   life.   The  constables   and   the               chaukidars traced his movements, shadowed  him               and made reports to the superiors.  In  short,               his entire life was made an openbook and every               activity  of  his  was  closely  observed  and               followed.   It  is impossible  to  accept  the               contention  that  this could  have  been  made               without the knowledge of the petitioner or his               friends,   associates   and  others   in   the               locality.   The attempt to dissect the act  of               surveillance into its various ramifications               356               is  not realistic.  Clause (a) to (f) are  the               measures   adopted   for   the   purpose    of               supervision   or  close  observation  of   his               movements   and  are,  therefore,   parts   of               surveillance.  The question is whether such  a               surveillance infringes any of the petitioner’s               fundamental rights.               Learned  Counsel for the  petitioner  contends               that  by  the  said act  of  surveillance  the               petitioner’s fundamental rights under cls. (a)               and  (d)  of  Art.  19 (1)  and  Art.  21  are               infringed.  The said Articles read:-               Art.  21 : No person shall be deprived of  his               life  or personal liberty except according  to               procedure established by law.

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             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 357 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  test laid down in Art. 19 (2) so far as the  attributes covered  by Art. 19 (1) are concerned.  In other words,  the State must satisfy that both the fundamental rights are  not infringed  by showing that there is a law and that  it  does amount  -to a reasonable restriction. within the meaning  of Art.  19 (2) of the Constitution.  But in this case no  such defence  is available, as admittedly there is no  such  law. So   the   petitioner  can  legitimately  plead   that   his fundamental  rights both under Art. 19 (1) (d) and  Art.  21 are infringed by the State. Now  let us consider the scope of Art. 21.   The  expression "life"  used in that Article cannot be confined only to  the taking  away  of  life, i.e., causing  death.   In  Munn  v. Illinois  (1),  Field, J., defined "life" in  the  following words:               "Something  more than mere  animal  existence.               The inhibtion against its deprivation  extends               to all those limbs and faculties by which life               is  enjoyed.  The provision equally  prohibits               the  mutilation of the body by the  amputation               of  an  arm or leg, or the putting out  of  an               eye, or the destruction of any other organ  of               the  body through which the soul  communicates               with the outer world." The expression "’liberty" is given a very wide mea. ning  in America.   It  takes  in all the freedoms.   In  Bolling  v. Sharpe  (2), the Supreme Court of America observed that  the said expression was not confined to mere freedom from bodily restraint  and that liberty under law extended to  the  full range  of conduct which the individual was free  to  pursue. But this absolute right to liberty was regulated to  protect other social interests by the State exercising its powers (1) (1877) 94 U.S. 113. (2) (1954) 347 U.S. 407, 499, 358 such as police power, the power of eminent domain, the power of taxation etc.  The proper exercise of the power which  is called  the due process of law is controlled by the  Supreme Court  of  America.  In India the word  "liberty"  has  been qualifie by the word "Personal", indicating thereby that  it is  confined only to the liberty of the person.   The  other

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aspects  of  the  liberty have been provided  for  in  other Articles  of  the  Constitution.  The  concept  of  personal liberty  has been succinctly explained by Dicey in his  book on   Constitutional  Law,  9th  edn.   The  learned   author describes the ambit of that right at pp. 207-208 thus:               "The   right   not   to   be   subjected    to               imprisonment,   arrest   or   other   physical               coercion in any manner 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 (1), 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 (1)  [1950] S.C.R.88. 359 fear  channelling  one’s  actions  through  anticipated  and expected  groves.  So also the creation of conditions  which necessarily  engender inhibitions and fear complexes can  be described  as  physical restraints.  Further, the  right  to personal  liberty takes in not only a right to be free  from restrictions  placed  on his movements, but also  free  from encroachments   on  his  private  life.   It  is  true   our Constitution  does not expressly declare a right to  privacy as  a fundamental right, but the said right is an  essential ingredient  of personal liberty.  Every  democratic  country sanctifies  domestic life; it is expected to give him  rest, physical happiness, peace of mind and security.  In the last resort,  a person’s house, where lie lives with his  family, is his "castle" : it is his rampart against encroachment  on his  personal  liberty.  The pregnant words of  that  famous Judge, Frankfurter J., in Wolf v. Colorado (1), pointing out the  importance  of the security of  one’s  privacy  against arbitrary  intrusion  by  the police,  could  have  no  less application  to  an Indian home as to an American  one.   If physical  restraints  on  a person’s  movements  affect  his personal liberty, physical encroachments on his private life would affect it in a larger degree.  Indeed, nothing is more deleterious to a man’s physical happiness and health than  a calculated   interference  with  his  privacy.   We   would, therefore,  define the right of personal liberty in Art.  21 as a right of an individual to be free from restrictions  or encroachments  on his person, whether those restrictions  or encroachments  are  directly imposed or  indirectly  brought about  by  calculated measures.  If so understood,  all  the acts of surveillance under,Regulation 236 infringe the fund- amental  right  of  the  petitioner under  Art.  21  of  the Constitution. This  leads US Lo the second question, namely,  whether  the

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petitioner’s fundamental right under Art. 19 (1) (d) is also infringed.   What  is the content of  the  said  fundamental right?  It is argued for the (1)  (1949) 338 U.S. 25. 360 State  that it means only that a person can move  physically from  one  point  to another without  any  restraint.’  This argument  ignores the adverb "freely" in cl. (d).   If  that adverb is not in the clause, there may be some justification for this COntention; but the adverb "freely" gives a  larger content  to  the  freedom  Mere  movement  unobstructed   by physical  restrictions cannot in itself be the object  of  a person’s  travel.  A person travels ordinarily in  quest  of some  objective.   He  goes  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, its  combination  with the freedom of speech and expression leads to the conclusion we have arrived at.  The act of surveillance is certainly  a restriction  on  the said freedom.  It cannot  be  suggested that  the said freedom is also bereft of its  subjective  or psychological content, but will sustain only the mechanics 361 of  speech  and expression.  An illustration will  make  our point clear.  A visitor, whether. a wife, son or friend,  is allowed  to be received by a prisoner in the presence  of  a guard.  The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom?  It is  impossible  for  him to express his  real  and  intimate thoughts to the visitor as fully as he would like.  But  the restrictions on the said freedom are supported by valid law. To  extend the analogy to the present case is to  treat  the man under surveillance as a prisoner within the confines  of our  country and the authorities enforcing  surveillance  as guards.,   without  any  law  of   reasonable   restrictions sustaining  or protecting their action.  So  understood,  it must be held that the petitioner’s freedom under Art. 19 (1) (a) of the Constitution is also infringed. It is not necessary in this case to express our view whether some  of  the  other freedoms enshrined in Art.  19  of  the Constitution are also infringed by the said Regulation. In  the  result,  we  would issue  an  order  directing  the respondents  not to take any measure against the  petitioner under  Regulation  236  of Chapter XX of the  U.  P.  Police Regulations.  The respondents will pay the costs of the  petitioner.

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By  COURT : In accordance with the opinion of  the  majority this Writ Petition is partly allowed and Regulation 236  (b) which  authorises  "domiciliary visits" is  struck  down  as unconstitutional.   The Petitioner would be entitled to  the issue of a writ of mandamus directing the respondent not  to continue domiciliary visits.  The rest of the petition fails and is dismissed.  There will be no order as to costs. 362