H.L. Anand, J.
(1) These petitions under Article 226 of the Constitution of India by two different citizens challenge the legal validity of orders of surveillance and of opening of history sheets made against them by the Delhi Police pursuant to the provisions of the Punjab Police Rules as applicable to Delhi, and raise important questions as to the nature and extent of right of privacy and as to the justifiability of an order of surveillance, etc.
(2) Petitioner in Civil Writ Petition No. 1378 of 1973 is and was, at the material time, one of the Directors and Vice-Chairman of the 0m Oil and Oil Seeds Exchange Limited, Delhi, and claims to be a, social worker associated with large number of societies devoted to social and religious purposes. Petitioner in Civil Writ Petition No. 1454/73 had also been a Director of Om Oil & Oil Seeds Exchange Limited. The petitioners, as indeed the aforesaid company, have been carrying on business in forward trading in certain commodities. Both the petistioners have been carrying on business in different portions of Coronation Hotel Building where the Exchange has been operating for the last many years. It appears that at some stage the company and some of its Directors and others associated with it, including the two petitioners, came to the adverse notice of the Delhi Administration and the Delhi Police for alleged illegal forward trade dealings in certain commodities which tend to disturb the normal price pattern of such commodities as a sequel to which a number of measures were taken by the Delhi Police against various persons connected with the Company, including the two petitioners. It is alleged that the two petitioners were prosecuted by the Delhi Police for violation of the Forward Contract Regulations Act, 1952, on the charge of illegal forward trading, on certain commodities. The adverse action taken by the Delhi Policy against the petitioners appears to have culminated in the opening of the history sheets of the petitioners and of surveillance of the activities of the petitioners under Rules 23.4 and 23.9 of the Punjab Police Rules, 1934. According to the petitioners, the opening of the history sheet and the surveillance pursuant .to it has taken an oppressive form in that the police not only maintain a watch over their movements but also resort to regular picketing outside the office of the petitioners which prevents normal social and business contacts and interferes with the petitioners' right of privacy and constitutes an unconstitutional infringement of the petitioners' fundamental right of personal freedom guaranteed under Article 19(l)(d) and of personal liberty guaranteed by Article 21 of the Constitution of India. The petitioners further contend that the petitioners are entitled to the history sheets and the surveillance orders being quashed in enforcement of the aforesaid' fundamental right of the petitioners. In the alternative, the petitioner seek the annulment of the impugned actions on the ground that the petitioners have been, made history sheeters and subjected to illegal surveillance without any material whatsoever which may justify such adverse action.
(3) The petitions are opposed and the impugned actions are sought to be justified on the grounds that the right of privacy which the petitioners seek to enforce does not flow either from the fundamental right guaranteed in Article 19(l)(d) or can be said to be an ernnation from or an extension of the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India. The impugned ctions are sought to be justified on merits on the ground that they were based on the antecedents of the petitioners and the satisfaction of the appropriate authorities based on objective material which would justify action under the aforesaid provisions.
(4) Two questions arise for consideration :
(1)Whether the impugned actions constitute an infraction of the fundamental right of the petitioners under Article 19(l)(d) or Article 21 of the Constitution of India? If so, whether the restrictions are beyond those that are constitutionally permissible (2) Whether the impugned actions are within the authority of law or are based on any material with reference to which they may be justified Question No. 1.
(5) Chapter 23 of the Punjab Police Rules, 1934, issued under Sections 7 and 12 of the Police Act, 1861, deals with prevention of offences. Rule 23.4(1) provides for Surveillance Register No. X. This Register has to be in two parts. In Part I of the Register are to be entered the names of persons who are proclaimed offenders, released convicts and certain other categories of persons with which we are not concerned. In Part Ii of the Register may be entered at the discretion of the Superintendent names of '(a) persons who have been convicted twice, or more than twice, of offences mentioned in Rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not' and certain other categories with which we are not concerned. According to Rule 23.5(2) ordinarily before the name of any person is entered in Part Ii of the Surveillance Register, the history sheet shall be opened for such person. It further provides that if from the entries in the history sheet, the Superintendent is of the opinion that such person should be subjected to surveillance he shall enter his name in Part Ii of the Surveillance register, provided that the names of persons who have never been convicted or placed oa security for good behavior shall not be entered until the Superintendent has recorded definite reasons for doing so. Rule 23.6 provides that when the name of a person has been entered in the Surveillance Register, a confidential notice shall be issued to the headman of the village in which the surveille resides. Rule 23.7 sets out the mode of surveillance and is in the following terms :
'23.7.(1) Police surveillance shall 'comprise such close watch over the movements of the person under surveillance, by police officers, village headmen and village watchmen, as may be practicable without any illegal interference. (2) Care shall be taken not to have under surveillance in any police station more person than the police station staff can reasonably be expected to watch efficiently.'
Rule 23.8 deals with the preparation of history sheets. Rule 23.9 regulates the opening of such sheets. Sub-rules (1) & (2) are as follows:
'23.9(1) A history sheet, if one does not already exist, shall be opened in Form 23.9 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history sheet may be opened by, or under the written orders of, a police officer not below the rank of inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons.'
Rule 23.16 provides that when a person who is under surveillance leaves his home or residence, the village headman is required to send immediate information to the officer in charge of the police station regarding the departure and alleged destination of such a person.
(6) Article 19(l)(d) guarantees to all citizens the right to move freely throughout the territory of India. Article 19(5) provides that the provisions of Article 19(l)(d) shall not 'affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Sche- duled Tribe'. Article 21 enjoins that 'No person shall be deprived of his life or personal liberty except according to procedure established bylaw'.
(7) What is the nature of an order of surveillance What is its legal incidence and to what extent such an order interferes with the right of a citizen to move freely throughout the territory of India, his life or personal liberty are the questions that must, thereforee, be determined.
(8) The provisions contained in Rules 23.4 and the Rules that follow, which have been referred to above, could be conveniently divided into two parts. First part consists of an entry of the name of a person in the surveillance register and the opening of a history sheet of such a person. The second part deals with the action that may follow pursuant to such an entry or the opening of the history sheet. According to the relevant rules, an entry is made in the surveillance register, inter alia, where the person concerned is 'reasonably believed to bs a habitual offender'. Similarly, a history sheet in respect of a person may be opened if he 'is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons'. The consequential actions consist of a notice in respect of the entry in the surveillance register of the headman of the village concerned under Rule 23.6 a close watch over the movement of the persons under survoillance as provided in Rule 23.7 which may extend to a supervision over his movements, but short of 'any illegal interference' and an intimation of his departure if he leaves his home or residence as provided in Rule 23.16. While the first part appears to involve a belief by the appropriate authority that the person is either a habitual offender or is habitually addicted to crime or an aider or abettor in crime and would, thereforee, tend to affect his reputation even though such record may be considered confidential, the action that may follow on these does not stop at that, but extends to the actual shadowing of the person concerned by a close watch over his movements within the area and outside it, but in a manner which would not constitute 'any illegal interference'. The Rules, however, do not define what is the permissible area of interference and when would the interference cease to be legally permissible.
(9) In short, the order of surveillance and the opening of the history sheet do not cause any physical restraint on the movement of a person even though as a result of it he is virtually condemned in the official records as an undesirable person and, unless the surveillance is carried out in such a discrete manner that neither he nor others connected with him are aware of it, it is capable of causing him mental agony and anguish and may, thereforee, affect his right of privacy and interfere with the freedom of the mind, as distinct from any physical restraint on the body.
(10) If that be the nature of the order of surveillance and the opening of history sheets and their legal consequences, would these by themselves attract either the fundamental right to move freely throughout the territory of India, as guaranteed by Article 19(l)(d) of the Constitution of India, or constitute an interference with the fundamental right to life or personal liberty, as guaranteed by Article 21 of the Constitution of India The answer to these questions would depend on the true meaning of the expressions 'right to move freely' and 'life or personal liberty' and the true content of these rights under the scheme of our Constitution.
(11) According to Friedmann(1)
'INterms of a democratic ideal of justice liberty means certain rights of personal freedom which must be secure from interference by Government. They include legal protection from arbitrary arrest, freedom of opinion and association of contract, labour and many others. Briefly, they may be subsumed under the two broad categories of the freedom of the person and the freedom of the mind'.
In the case of Govind V. State of Madhya Pradesh(2), Mathew, J., who spoke for the Court, quoted a passage from an article entitled 'the right to privacy' by Charles Warren and Louis D. Brandeis enunciating what appeared to the authors to be the new frontier of man's 'inviolate personality'. This is what they said :
'ONCEa civilization has made a distinction between the 'outer' and the 'inner' man, between the life of the soul and the life of the body, between the spiritual and the material, between the sacred and the profane, between the realm of God and the realm of Caesar, between Church and State, between rights inherent and inalienable and rights that are in the power of government to give and take away, between public and private, between society and solitude, it becomes impossible to avoid the idea of privacy by whatever name it may be called the idea of a private space in which man may become and remain himself.'
(12) If the concept of freedom of the mind be both rational and scientific, could the concept of personal liberty or right to move freely by legitimately confined to physical constraints and the psychological conditioning of the mind be considered outside their scope? In the case of Kharak Singh V. State of U.P. & others (3), the Supreme Court was faced with this challenging question. An order of surveillance made under Regulation 236 of the U.P. Police Regulations was challenged as constituting an infraction of the fundamental right under Article 19(l)(d) to move freely throughout the territory of India and of personal liberty in Article 21 of the Constitution of India- It was held by majority that in dealing with the 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 further held that the freedom guaranteed by Article 19(l)(d) had not been violated by a watch being kept over the movements of the suspect. It was observed that the right of privacy was not a guaranteed right under our Constitution and, thereforee, the attempt to inhibit the movement of an individual was not an infringement of a fundamental right guaranteed by Part III. Part of the Regulation, which authorised domiciliary visits was, however, struck down as constituting an infraction of the fundamental right of personal liberty on the ground that personal liberty could' be deprived only according to procedure established by law and the Regulation in question did not constitute law, in that it had no statutory foundation. Subba Rao, J., speaking for himself and Shah, J. in his dissenting opinion, sought to extend the frontier of personal liberty beyond physical constraints on the body or the mere right of locomotion. Relying on some of the American decisions, it was held that the expression personal liberty was wide enough to take in a right to be free from restrictions placed on the movement of a person, but the expression coercion in the modern age could not be construed in a narrow sense and must extend to psychological restraints as 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 action through anticipated and expected grooves. It was further observed that the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints, and that the right to personal liberty takes in not only right to be free from the restrictions placed on the movements, but also free from encroachments on a person's private life. The right to privacy was, thereforee, considered an essential ingredient of personal liberty. Right of personal liberty guaranteed by Article 21 of the Constitution of India was, thereforee, defined as a right of an individual to be free from restrictions or encroachments on his person, whether these restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. It was further held that if a man was 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 ?' Subba Rao, J. asked, and observed that the whole country was in that case 'his jail' and held that the freedom of movement in clause (d), thereforee, 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 choice without any apprehension subject, of course, to the law of social control. It was further observed that a person under the shadow of surveillance was certainly deprived of his freedom. He could move physically, no doubt, but he could not do so 'freely', for, all his activities are watched and noted.
(13) The question agai came up for consideration before the Supreme Court in the case of Govind v. State of Madhya Pradesh (supra) in the context of Regulations 855 and 856 of the M.P. Police Regulations framed under section 46(2)(e) of the Police Act. contention was raised on behalf of the State that inasmuch as the aforesaid Regulations did not have the force of law, the provision regarding domiciliary visits in the Regulations must be declared bad following the decision of the Supreme Court in the case of Kharak Singh v. The State of U.P. (supra) in which the regulation providing for domiciliary visits was held to be unconstitutional on the ground that it abridges the fundamental rights in Article 21 because it did not have the force of law. The contention was, however, repelled on the ground that the aforesaid Regulations had the force of law, having been framed under Section 46(2)(e) of the Act. The Court next considered the question if the provisions of the aforesaid Regulations offend any of the fundamental rights of the petitioners in that case and posed the question if the right to privacy itself was a fundamental right and that that right was violated by Regulation 856 which provides for domiciliary visits and other incursions into it. Mathew, J. who spoke for the Court observed :
'THEquestion whether right to privacy is itself a fundamental right flowing from the other fundamental rights guaranteed to a citizen under Part Iii is not easy of solution.'
The Court then proceeded to consider some of the American decisions, the European Convention on Human Rights and certain other writings, and expressed the view that the right to privacy, in any event, will necessarily have to go through a process of case-by-case development and it could not, thereforee, be said that the right to privacy could be considered as an emanation from the other fundamental rights and be treated as a fundamental right. It was further observed that even assuming 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 be characterized as a fundamental right, such a right was not absolute. The Court then expressed the view that the drastic inroads directly into the privacy and indirectly into the fundamental rights of a citizen will be made if Regulations 855 and 856 were to be read widely and that it was, thereforee, necessary to interpret the Regulations in barmoney with the Constitution so as to canalise the powers vested in the police by the Regulations. It was further held that even if the right to privacy was itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest, and that 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. On merits it was held that the Regulation empowered surveillance only of persons against whom reasonable materials exist to induce the opinion that they show 'a determination to lead a life of crime' crime in this context being confined to such as involve public peace or security only if they are dangerous security risks and mere convictions in criminal cases where nothing gravely imperils safety of society can be regarded as warranting surveillance under this Regulation. The court uttered a word of 'caution' and said domiciliary visits 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. It was further observed that in truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging 'perilously near unconstitutionality'.
(14) The surveillance orders and the other impugned actions taken in the present case and those that may legitimately be taken under the relevant Rules referred to above admittedly do not place any physical restraint on the petitioners and are confined to entry of the names in certain registers and authorise the shadowing of the petitioners by a close watch over their movements, but in a manner which would not constitute 'any illegal interference'. There is no provision which may authorise the police to make domiciliary visits or to knock at the house of the petitioners at night or to violate its sanctity. The relevant Rules, in fact, do not authorise any measures which may constitute an 'illegal interference'. It is true that the expression 'interference' has not been defined and the permissible areas of interference have not been demarcated by the Rules, but that consideration would be relevant only if the Court was concerned with an assault to the constitutionality of the Rules, a contention which has not been raised. It is also not in dispute that the Punjab Police Rules have a statutory genesis. Applying the test laid down in the case of Kharak Singh (supra), it cannot be said that the impugned orders and actions constitute an infringement of any of the two fundamental rights that have been invoked, and that being so, the further question whether the restrictions are beyond the constitutionally permissible limits would not arise. The first question must, thereforee, be answered against the petitioners.
(15) The question that, thereforee, arises is whether the impugned actions and orders could be said to be without the authority of law or be said to be based on any material with reference to which they may be justified.
(16) As has been pointed out above, the Rules have a statutory genesis and, thereforee, in that sense the impugned actions and orders, if otherwise justified with reference to the terms of the Rules or the material, have the authority of law. It is, however, not possible to justify the orders and actions impugned in the present case even on the asumpion that there is some material on which they may purport to be based, in view of the test laid down by Mathew, J. in the case of Govind (supra)- As was pointed out by Mathew, J. such actions could be justified only against persons who show a determination to lead a life of crime, the expression 'Crime' in the context being confined to such as involved public peace or security only and if they are dangerous security risks. As was pointed out by the learned Judge, mere convictions in criminal cases where nothing gravely imperils safety of society could be regarded as warranting surveillance, and that orders like picketing by the police should be reduced to the clearest cases of danger to community's security and not routine follow up at the end of a conviction or release from prison or at the whim of a police officer. The case of the petitioners would clearly fall outside the aforesaid test and the impugned actions must, thereforee, fail irrespective of the material that may have been available to the police.
(17) What is, however, worse is the total absence of material which could possibly justify the drastic orders and actions. It was not disputed that neither of the petitioners was ever 'tried for the offence of indulging in illegal forward trading and convicted by any court of law. It is, however, alleged that certain cases were registered against the petitioners on the basis of information received of the petitioners' complicity in such illegal trading. It was, however, not disputed that the investigation did not fructify in those cases and the cases were filed as untraced. An attempt was made to justify the impugned orders and actions on the basis of a report of the police officer to the effect that a number of reports had been received in which illegal forward trading in certain commodities had been attributed to the petitioners. The original report of the police officer was shown to us and it did refer to certain information and reports said to have been received by the police and the fact that on the basis of this material the police officer was satisfied that it was a fit ca,se in which orders of surveillance should be made against the petitioners. The respondents were, however, unable to produce either the information or the reports which purported to form the basis of the report of the police officer or of his belief. The report of the police officer by itself would not constitute reasonable material which could form a basis of belief as envisaged by the Rule or which may justify the conclusion that an order of surveillance and the opening of the history sheet should be made. Where an order adverse to a citizen could be made on the basis of reasonable belief of a State functionary, it is open to this Court to examine the order to satisfy itself that the reasonable belief of the functionary was based on some material which is germane' and relevant to the question even though the Court could not be concerned with the sufficiency of it. The impugned orders could not, thereforee, be said to be justified either with reference to the narrow construction that must be placed on the relevant Rules or with reference to the material on the basis of which they purport to have been made.
(18) In the result the petitions succeed. The impugned orders are set aside. The names of the petitioners would be removed from the surveillance register and the history sheets of the petitioners would be closed. The petitioners would also have their costs. Counsel's fee is assessed at Rs. 500.
(19) Before parting with this case, we consider it appropriate to draw attention of the authorities concerned to two aspects of the matter, with which we are concerned, which would appear to us to deserve consideration. In the first instance, we are of the view that there is need for a second look at the scope and content of the fundamental rights to move freely in the territory of India and of personal liberty so as to extend their frontiers and bring within their campass the well recognised right of privacy. The recognition by the international community of the importance of the right of privacy as an extension of the fundamental right of personal liberty, the strong views expressed by Subba Rao, speaking for himself and Shah, J. in the case of Kharak Singh (supra), for whom we have great regards, and a praiseworthy attempt by Mathew, J. in the case of Govind (supra) to re-define the frontiers of personal liberty, would appear to us to streamline such a need. If, to use the words of that famous poet of liberty, 'Stone walls do not a prison make. Nor iron bars a case', and the mind and the spirit which are free are not affected by physical constraints on the body, it is equally true that where the mind and the spirit are under pressure and subject to constraints, mere freedom of the body to un- restricted locomotion would at best be an illusory freedom- It appears to us that whether the mind and the spirit the part of the body or have their existence outside it, the claim of the mind and the spirit to freedom could no more be denied. If the mind and the spirit are part of the body, there can be no freedom from physical constraints if the mind and the spirit are under pressure. If they be outside it, mere absence of physical constraints would not ensure their freedom if it is otherwise imperilled. Either way, the claim of the mind and the spirit to freedom could not be denied. It appears to us that recent political events in India would, to a large extent, reinforce the need for a review of this part of the constitutional and legal provisions so that what could not be achieved by means of judicial interpretation on account of limitation of language, could perhaps be achieved by legislative process. Secondly, it appears to us and the Supreme Court had already called attention to this aspect, that some of the police regulations ill accord with the essence of the personal freedoms and also verge perilously near unconstitutionality. We are not unaware of the move to review the working of the Police Administration, inter alia, with a view to refurbish its image. If the equipment and wherewithals with which the police is to discharge its duties is to remain the same, there appears very little scope for its image to undergo any real change. It is almost anachronistic that the police force may be functioning after three decades of independence under the Rules and Regulations some of which were framed by an alien administration as early as in the year 1934. There is, thereforee, a strong case for a comprehensive review of the police Rules & Regulations being undertaken along with the course of review of the working of the Police Administration in India.