ORDER
V.V.S. Rao, J.
1. The petitioner is a Truck driver. He is in private service. He has been residing in Gudivada town of Krishna District eking out his livelihood by working as a lorry driver for the last two years. He has a family depending on him. In this writ petition he has prayed this Court for declaration that the action of the respondents in maintaining history sheet No. 615 in II Town Police Station, Gudivada against the petitioner as illegal and unconstitutional and consequential direction to the respondents to close the history sheet of the petitioner.
2. The facts in this case are not in dispute. A crime was registered against the petitioner Under Section 379 of Indian Penal Code, 1860 (I.P.C. for short) in 1972 and also in 1976. In both the cases, he was convicted and sentenced to simple imprisonment. On conviction a K.D. Sheet (History sheet) No. 615 in II Town Police Station, Gudivada was opened against him. The history sheet was opened by the third respondent under Police Standing Order (hereinafter referred to as PSO) 734 of the A.P. Police Standing Orders. According to the petitioner there are no cases against him since 1977, but the history sheet opened against him is being continued. It is also his case that there are no cases pending against him as on the date of filing of the writ petition and he is not habitual offender. He did not resort to any action, which resulted in breach of the peace in the society. The respondents continued the history sheet though there are no circumstances warranting opening or continuing the history sheet. The requirements of PSO 734 are not at all complied with. The petitioner further submits that as per PSO 735 where retention of history sheet is considered necessary after two years of the opening of the sheet, the order of a Gazetted Police Officer must be taken for the extension of the period in the first instance upto the end of next December, and for further annual extension from January to December of each subsequent year. The petitioner is also aggrieved that there is no valid review by the competent authority to decide as to whether the history sheet opened in 1972 is being continued for the last 27 years, which amounts to violation of right to equality and right to freedom and liberty guaranteed under Articles 14, 19 and 21 of the Constitution of India. Therefore, the petitioner approached this Court for appropriate orders and direction to the respondents to delete the name of the petitioner from the record of the ‘Station crime history’. After receiving notice before admission, the third respondent filed counter-affidavit and also produced the history sheet No. 615 of II Town Police Station, Gudivada.
3. The counter-affidavit filed by the third respondent justifies the continuation of the history sheet No. 615 on the ground that the petitioner is a habitual offender. He was involved in several offences like theft, house-breaking. He was also bound over Under Sections 109 and 110 Code of Criminal Procedure, 1973 (Cr.P.C. for short). Since 1971, the petitioner was involved in 11 crimes and that Cr.No. 60 of 1998 Under Sections 324, 342, 506 read with 34 IPC is pending for trial. It is the case of the respondents that the petitioner was convicted in all the cases. Though the history sheet was opened in 1973, as the petitioner is a habitual offender, the history sheet was not closed. Nonetheless, the history sheet of the petitioner is being reviewed from time to time till December, 1998. The other allegations made by the petitioner are denied by the respondents.
4. In the counter-affidavit, the third respondent has furnished the list of crimes involving the petitioner. An analysis of the same is as follows:
SI.No. Name of the police station Offence Under Section Remarks
1. 272 to 275/71 of Town
P.S. Gudivada. 109 Cr.P.C. Convicted
2. Cr.No. 125/72 to 126/72
Gudivada Town P.S. 380 IPC -do-
3. Cr.No. 323/74 of Gudivada
Police Station 457 IPC -do-
4. Cr.No. 189/74 of Gudivada
Police Station 380 IPC -do-
5. Cr.No. 365 and 1218/74 of
III Town P.S., Vijayawada 457 & 380 IPC -do-
6. Cr.No. 122/76 of P.S. Gudivada 380 IPC -do-
7. Cr.No. 320 to 323/82 of
Gudivada Town P.S. 109 Cr.P.C. -do-
8. Cr.No. 156/88 of Gudivada 110 Cr.P.C. -do-
9. Petty Case Nos. 303 to 306/97 9(1) of A.P.G. Act -do-
10. Petty Case Nos. 416 to 425 9(1) of A.P.G.Act -do
ll. Cr.No. 60/98 of Gudivada P.S. 324, 342, 506
read with 34 IPC Pending
5. I have heard the learned Counsel for the petitioner Sri K.V. Subba Reddy and the learned Government Pleader for Home Sri. Sadasiva Reddy. The matter is being disposed of at the admission stage with the consent of both the Counsel.
6. The learned Counsel for the petitioner reiterated the submissions made in the affidavit accompanying the writ petition. He also submitted that the conditions in PSO 734 which required to be satisfied before opening of history sheet should also exist even when history sheet is renewed or continued after a period of two years. Relying on a recent judgment of this Court, he further submits that the Gazetted Officer while passing order for continuing the history sheet has to record the reasons based on objective satisfaction. The ipsi dixit of the Gazetted Officer to the effect that so as to prevent commission of crime, the history sheet of the petitioner should be continued etc., is not sufficient. In matters involving breach of fundamental rights under Articles 14, 19 and 21 of the Constitution of India especially the right to life and liberty under Article 21 the reasons should be rational and satisfy the Court that the continuation of the history sheet is justified. The action of the authorities should be unarbitrary and fair. The law contemplates opening of history sheet for limited period and maintaining history sheet in perpetuity would grossly violate the fundamental rights of the petitioner to move freely and also his right to privacy which is now recognized as a right flowing from Article 21 of the Constitution of India. The learned Counsel would further submit that maintaining history sheet for a long time would result in police closely watching the movements of the petitioner’s day-to-day life and such continuous surveillance would cause prejudice to the enjoyment of human rights of the petitioner.
7. The learned Government Pleader for Home would submit that as and when the history sheet is being continued, the Officers are recording reasons duly obtaining signatures of the Gazetted Officer. He also submits that if continuation of history sheet after 1988 cannot be justified under PSOs 734 and 735, the same can be justified under P.S.O. 736 because under the said PSO persons once convicted for any offence under IPC who are considered likely to commit crime again and persons not convicted but believed to be addicted to crime have to be treated suspects and history sheets are to be opened against them. The learned Government Pleader for Home would also submit that for continuance of history sheet the conditions of PSO 734 need not be satisfied and once a history sheet is opened after the first conviction the same can be continued subject to the conditions mentioned in PSO 735(2). Adverting to the Judgment relied on by the learned Counsel for the petitioner, he submits that in the case relied on by the learned Counsel for the petitioner this Court was dealing with the case of a person against whom a rowdy sheet is opened under PSO 742 and therefore the said case is distinguishable.
8. In view of the submissions made by the learned Counsel the points that arise for consideration are:
(I) Whether right to privacy is not violated, if the citizen is subjected to life long surveillance by virtue of continuation of history sheet / rowdy sheet in the police station?
(II) Whether violation of the Fundamental right to privacy flowing from Article 21 of the Constitution of India amounts to violation of human rights and what are the other remedies available to the citizen if human rights are violated?
(III) Whether continuous maintenance of History sheets/rowdy sheets perennially does not violate the rights of the citizen under Articles 14, 19 and 21 of the Constitution of India?
(IV) What is the extent and scope of judicial review of history sheet / rowdy sheet on the touchstone of reasonableness, arbitrariness and non-application of mind?
(V) Is there a necessity for the competent Police Officer to record reasons of his own, for extension or retention of the history sheet / rowdy sheet? Or, is it sufficient legal compliance for the police Officer to endorse, the report of the Station House Officer or Circle Officer, as the case may be?
(VI) To what relief?
9. Before examining the points that arise for consideration, it is necessary to notice the law or rules or guidelines that regulate the opening of history sheets by the concerned police station. It is also helpful to notice the decisions of the Supreme Court and this Court dealing with various aspects of police surveillance.
10. Straightaway it may be mentioned that no law made by the Legislature has been brought to the notice of this Court, which directly empowers the police to open history sheets. There are also no rules issued by the Governor of Andhra Pradesh in exercise of powers conferred under relevant provisions of either Code of Criminal Procedure, 1973 and/or the provisions of Andhra Pradesh (Andhra Area) District Police Act, 1859 or Andhra Pradesh (Telangana Area) District Police Act or the Hyderabad City Police Act, 1348-F.
11. The Madras District Police Act (Act 24 of 1859) by Section 9 empowered the Inspector General of Police to frame orders and regulations. These, inter alia, relate to the general governance of the police force and to the collecting and communicating intelligence and information. Such orders and regulations issued by the Inspector General of Police Under Section 9 of the Madras District Police Act, 1859 are intended and shall be deemed to be expedient for preventing abuse or neglect and for rendering the police force efficient in the discharge of its duties. As per Section 6, the police shall have all powers not inconsistent with the provisions of the Police Act which upto passing of the said Act belonged to the police authorities appointed under the said Act.
12. The Inspector General of Police issued number of Standing Orders Under Section 9 of Madras Act and executive orders as Head of Police Force. Similarly, the Government of the day also issued number of orders. All the orders issued by the Inspector General of Police Under Section 9 and orders otherwise than Under Section 9 and also the orders issued by the Government came to be compiled as ‘Police Code’ consisting of Police Standing Orders. These Police Standing Orders mainly were intended to be guidelines for the day-to-day administration and functioning of Police Force.
13. After formation of the State of Andhra Pradesh in 1956, the Madras District Police Act was adopted by Andhra Adaptation Order, 1953. The Act came to be known as AP (Andhra Area) District Police Act, 1859. Therefore, all the Police Standing Orders that were issued till 1954 by the Inspector General of Police of the State of Madras were adopted in toto. The police administration, the investigation of crimes, the procedures for maintaining Law and Order and all other aspects concerning police are mainly governed by these Standing Orders besides the provisions of Cr.P.C. and other relevant police laws.
14. Whether the Police Standing Orders have statutory force is a question . that had been put in issue before the law Courts number of times. It was finally answered by the Supreme Court in State of Andhra Pradesh v. Venugopal, AIR 1964 SC 337. In the said case, the Police Standing Orders of State of Madras, especially PSO 145 read with Section 53 of Madras District Police Act came up for consideration. The contention before the Supreme Court was that the provisions of the Code of Criminal Procedure for investigation of crime are superseded by the PSO and therefore the investigation by the police has to be in accordance with Police Standing Orders. The said contention was rejected. The Supreme Court held:
“It appears to us that this Standing Order is nothing but administrative Instructions by the Government of Madras and has not the force of law. It is worth noticing in this connection that in the Madras Police Standing Orders as published by the Government of Madras it is mentioned in the prefatory note that the orders marked with asterisk were issued by the Inspector-General of Police Under Section 9 of the Madras District Police Act. The Standing Order 145 is not marked with asterisk and it would be safely held that it was not issued Under Section 9 of the Madras District Police Act. The marginal note against the order as printed shows that it was issued by a Government Order of the Home Department dated: October 2, 1955. It does not appear that this was done under any statutory authority. There can be no doubt that quite apart from the fact that the Government may and often should issue instructions to its officers, including Police Officers, such instructions have not however the authority of law”
15. Therefore, the law is well settled that Police Standing Orders have no force of law. This does not mean that Police Standing Orders cannot be clothed with statutory force. As held by the Supreme Court there may be certain Standing Orders which are issued by the authorities under the Police Act, which have statutory force. Before examining whether the Standing Orders, which fall for consideration in this case, are statutory or non-statutory, a glance at the relevant Standing Orders is called for.
16. Chapter 31 of the A.P. Police Code contains 24 Standing Orders. They deal with the Station Crime history. Standing Orders 733 to 741 and Standing Order 749 deal with History sheets. Standing Order 742 deals with rowdy sheets. Standing Orders 733 to 737 may be noticed:
“S.O. 733. Part V-History Sheets:- Part V consists of History Sheet (Form 87) of persons resident permanently or temporarily in the station limits, who are known or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not, or who are believed to be habitual receivers.
S.O. 734. Automatic opening of History Sheets: (1) History sheets shall be opened automatically at the time of conviction for persons convicted as under and shall be retained for two years after release from jail.
Persons or how convicted Number of times convicted
Persons released from Imprisonment
Under Chapter XII of the Indian
Penal Code.
Professional prisoners.
Indian Penal Code Sections 395 to 402. Once
Indian Penal Code Sections 392 to 394,
if convicted or liable to conviction under
Section 75 of the Indian Penal Code. Twice
House Breaking: Twice
Theft: Twice
Bad livelihood Sections of
Code of Criminal Procedure:
Bound over Under Section 109: Twice
Bound over Under Section 110: Twice
(2) Persons convicted as above will be styled 'known depredators'. However, inmates or ex-inmates of Borstal Institution should not be styled as 'known depredators'.
(3) History sheets should be opened for such of those registered ex-notified tribe members under Order 736, for whom the Superintendent of Police or the Sub-Divisional Officer thinks it advisable to do so on account of their active criminality.
(4) The History Sheet of a known depredator, against whom an order has been passed Under Section 556 of the Code of Criminal Procedure 1973 (Act No. 2 of 1974) shall not be closed until the period during which he is required to report changes of residence has elapsed.
(G.O.Ms.No. 332 Judl. Dated: 20-2-1906 and 497 Law General dated 10-2-1923)
S.O. 735. Discontinuance of History Sheets: (1) History Sheet shall be closed by the definite orders of a Gazetted Officer and shall be filed in the Station. The History Sheets of persons, who have died shall be destroyed by the order of a Gazetted Officer. The Superintendent of Police may order the closure of History Sheet at any time, but a Sub-Divisional Officer may only do so on the expiry of the period named above.
(2) Where the retention of a history sheet is considered necessary after two years of registration, orders of a Gazetted Officer must be taken for the extension of the period in the first instance upto the end of the next December, and for further annual extensions from January to December. (G.O.Ms. No. 3929, Home dt: 5-9-1950)
S.O. 736. Suspects:-(1) The following persons should be classed as suspects and history sheets shall be opened for them under the orders of the Superintendent of Police or Sub-Divisional Officer.
(a) persons once convicted under any section of the Indian Penal Code who are considered likely to commit Crime again; and
(b) persons not convicted but believed to be addicted to crime.
(2) Care should be taken to see that history sheets are opened under this order only for persons who are likely to turn out to be habitual criminals and, therefore required to be closely watched.
S.0.737. Period of retention of History Sheets of suspects: History Sheets of suspects shall be maintained from the date of registration upto the end of December, after which the orders of a Gazetted Officer as to their discontinuance or retention for a further period shall be obtained. (G.O.Ms. No. 3929 Home dt: 5-9-1950).
Here we may as well notice Police Standing Order 742.
“S.O. 742. Rowdies:- (1) The following persons may be classified as rowdies and Rowdy Sheets (Form 88) may be opened for them under the order of the Superintendent of Police or Sub-Divisional Officer:
(a) persons who habitually commit, attempt to commit or abet the commission of, offences involving a breach of the peace;
(b) persons bound over Under Sections 106, 107, 108(c) and 110(1) of the Code of Criminal Procedure, 1973.
(c) persons who have been convicted more than once in two consecutive years Under Section 75 of the Madras City Police Act or Under Section 3, Clause 12, of the Town Nuisances Act;
(d) persons who habitually tease women and girls by passing indecent remarks or otherwise; and
(e) in the case of rowdies residing in an area under one Police Station but are found to be frequently visiting the area under or more other Police Stations their rowdy sheets can be maintained at all such Police Stations.
(G.O.Ms.No. 656, Home (Police-D) Department dt: 8-4-71)
(2) Instructions in Order 735 regarding discontinuance of History sheets shall also apply to Rowdy sheets.”
17. From a reading of these relevant Standing Orders, it is not clear whether they were issued by the Inspector General of Police in the State of Madras Under Section 9 of the Police Act. In the Judgment of the Supreme Court in Venugopal’s case (supra) it was argued that all the orders and rules promulgated by the Inspector General Under Section 9 of District Police Act were shown with asterisk. Therefore, they have to be taken as administrative orders issued either by the Inspector General of Police or by the Government of the day. For example PSOs 734, 735 and 737 were issued by the executive orders by the Government. Therefore, it has to be held that these Police Standing Orders which govern opening, maintaining and discontinuing the History sheet and rowdy sheet are non-statutory administrative instructions.
18. A reading of the Standing Orders leads to the following conclusions:
(a) A police station has to open History sheet automatically at the time of conviction of a person. But the conviction is not for all offences. When a person is convicted once Under Sections 395 to 402 IPC, when a person is convicted twice for house breaking or theft, when a person is bound over twice Under Section 109 of the Code, and bound over once the Police are empowered to open history sheet. Besides these, persons who are convicted for offences relating to coins and Government Stamps and persons convicted twice for the offences like theft and house breaking and professional prisoners are also the persons against whom history sheet can be automatically opened by the police.
(b) History sheets can also be opened even if there is no conviction. But in such case the person should have been known or believed to be addicted to, or aid or abet the commission of crime.
(c) The History Sheet opened shall be continued and maintained only for a period of two years and shall be closed only on definite orders of Gazetted Officer. The Police may however order closure of the History Sheet at any time (PSO 735).
(d) The History Sheet can be continued and maintained for further period of one year till the end of December, but such continuance can be on specific orders of a Gazetted Officer who after considering the case comes to conclusion that it is necessary to continue the History Sheet and extend retention of the History Sheet. Annual extensions for continuation of History Sheet can also be given from January to December, (PSOs. 735 and 737).
(e) The police may also open history sheets for suspects. Suspects are those persons who are convicted under any section of the Indian Penal Code and who are considered likely to commit crime again. Persons who are not convicted but are believed to be addicted to crime are also treated as suspects. In case a History Sheet is opened on the ground that a person is a suspect care should be taken that History Sheets are opened only for persons who are likely to become habitual criminals (PSO 736).
19. Police Standing Order 742 as seen earlier deals with the classification of persons as rowdies and opening and maintaining of rowdy sheets. This Standing Order was issued by the Government of Andhra Pradesh in G.O.Ms.No. 656 Home (Police-D) Department dated: 8-4-1971. The instructions in PSO 735 relating to discontinuance of History Sheets are also made applicable to rowdy sheets by PSO 742(2). It is mentioned that the Police Standing Order 734 dealing with automatic opening of history sheets was issued by G.O.Ms.No. 332 Judicial Department dated 20-2-1906 and modified by G.O.Ms.No. 494 Law (General) Department dated 10-2-1923. Even after advent of the Constitution of India, 1950 neither the Police Act nor the Police Standing Orders have been modified or amended. As the question of Constitutional validity of these Standing Orders is not before me, it is not necessary to further analyse these Standing Orders.
20. Now the effect of opening of a History Sheet (for that matter rowdy sheet) may be examined. If the police as part of collecting intelligence and information maintain history sheets or rowdy sheets against persons convicted of certain offences and do nothing else, there would not have been an occasion for this Court in the immediate past or now to take a serious view of the practices adopted by the police for maintaining the history sheets and rowdy sheets.
21. Chapter 35 of the A.P. Police Code deals with surveillance. Surveillance consists of reporting about the bad characters, foreigners and closely shadowing the convicts. PSO 853 makes it a duty of the Station House Officer to report the movements or change of residence of persons entered in Para-III of the Station Crime History and particularly all those watched under PSO 749. Further, the said PSO in sub-paragraph 3 says that when a person is watched under PSO 749 is likely to travel by the railway, intimation of his movements should also be given to the Railway Police Station. And PSO 749 empowers the police to watch persons against whom History Sheets have been opened. Even PSO 736(2) authorises the police to keep a close watch on the suspects, as defined in PSO 736(1).
22. Therefore, cumulative effect of PSO 736(2), PSO 749 read with PSO 853 is that the persons against whom the history sheet or Rowdy Sheet is opened are subject to police surveillance. As a part of this police surveillance, police often restrict the movements of the History sheeters (persons against whom History sheets/Rowdy sheets are opened). They are called to the police station at all times. They may be detained as and when there is information regarding likely disturbance in the town. These sheeters in some cases are not allowed to move freely in the city or town or leave the town without permission, though PSO 859 says that shadowing should be restricted to only dangerous criminals. Be that as it may, the consequences detailed herein also result when rowdy sheet is opened against a person.
23. Surveillance by the police makes very serious inroads into the life of a person. It even grossly violates the right of persons to privacy. Obtrusive surveillance does not leave a citizen alone. With the subtle methods of telephone tapping, telescope watching, remote controlled audio and vedeo recording gadgets, a citizen subjected to surveillance can never have mental peace and thus his life and liberty at every movement would be restricted. A person with lot of restrictions cannot be expected to lead a dignified life and exercise his right to liberty and other freedoms. A citizen’s life would become miserable. Such a situation is wrose than animal existence, For these reasons can it be said that there is a ‘right’ against surveillance?
24. The constitutionality of the provisions authorising the police to keep surveillance on citizens for various reasons has come up before the Courts in the past. The legality of the orders passed by the police authorities to open history sheets leading to keeping a watch on the persons have also been challenged before the law Courts.
25. In Kharak Singh v. State of U.P., a Seven-Judge Bench of the Supreme Court considered the constitutional validity of Regulation 236 of the Police Regulations. The Hon’ble Supreme Court upheld Clause (a) and Clauses (c), (d) and (e) of Regulation 236 of U.P. Police Regulations. These regulations permitted the Superintendent of Police to put into practice surveillance measures like secret picketing, thorough periodical enquiries, reporting by constables about the movements of the person, the verification of movements and recording history sheets with all information bearing on the conduct of the person. The Court struck down Regulation 236(b) which authorises ‘Domiciliary visits at night’ as violating Article 21 of the Constitution. In arriving at the conclusion the Supreme Court quoted with approval the following passage of Justice Field in Munn v. Illinois, 94 US 113, 24 LEd 88 (1877) :
” 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 provisions equally prohibits 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 outer world.”
26. The Court then held that an unauthorised intrusion into a person’s home and disturbance caused to him thereby, is as it were the violation of a common law right of a man – an ultimate essential of ordered liberty, if not of the very concept of civilisation.
27. Dealing with other forms of surveillance mentioned in Regulation 236 like secret picketing, periodical enquiries etc., the Supreme Court held that the regulations contained in Chapter XX of the U.P. Police Regulations have no statutory force, but were merely executive or Departmental instructions framed for guidance of the Police Officers. K1 If a challenge is made that the police is infringing any of the freedoms guaranteed to the citizen by enforcing Regulation 236, the citizen would be entitled to relief of mandamus to restrain the State from taking action under the regulations. Therefore, though the provision for ‘domiciliary visits’ is held unconstitutional, the other surveillance practices like picketing and reporting by constables were not declared unconstitutional. The Supreme Court nevertheless held that if a person as a question of fact proves before the Court that while subjecting to other forms of surveillance, the police are infringing the fundamental rights under Article 19(1) and/or Article 21, then a mandamus shall issue to the police to restrain from taking any action under the Police Regulations.
28. Again in Govind v. State of M.P., the Supreme Court considered the constitutional validity of Regulations 855 and 856 of M.P. Police Regulations. These regulations were framed by the Government of M.P. Under Section 46 (2) (c) of the Police Act, 1861. One of the objects of the Act is to prevent commission of offences. Though Regulation 856 permitted domiciliary visits, the Supreme Court upheld the said provision. It was observed that the provision in Regulation 856 for domiciliary visits and other actions by police is intended to prevent the commission of offences. The object of domiciliary visits is to see the person subjected to surveillance is in house and has not gone out for the commission of any offence. Therefore, Regulations 855 and 856 which are statutory in nature were upheld by the Supreme Court. The Supreme Court referred to Kharak Singh’s case ( supra) and two Judgments of the U.S. Supreme Court in Griswold v. State of Connecticut, 381 U.S. 479, 14 Led. 2d 510 (1965) and jane Roe v. Henry Wade, 410 U.S. 113 (1973) and held the surveillance within the limits does not infringe upon the privacy. It was observed:
“The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.”
29. While upholding the impugned provisions, the Supreme Court observed:
“Depending on the character and antecedents of the person subjected to surveillance as also the objects and limitation under which surveillance is made, it cannot be said surveillance by domiciliary vists would, always be unreasonable restriction upon the right of privacy. Assuming that fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. As regulation 856 has the force of law it cannot be said that the fundamental right of the petitioner under Article 21 has been violated by the provisions contained in it: for, what is guaranteed under that Article is that no person shall be deprived of his life or personal liberty except by the procedure established by ‘law’. We think that the procedure is reasonable having regard to the provisions of Regulations 853(c) and 857. Even if we hold that Article 19 (1) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether regulation 856 is a law imposing reasonable restriction in public interest of the freedom of movement falling within Article 19(5); or, even if it be assumed that Article 19(5) does not apply in terms as the right to privacy of movement cannot be absolute a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
For the first time the singular question of validity of retention of history sheet came up before the Supreme Court in Malak Singh v. State of Punjab, . To what extent the citizen’s ‘right’ to be let alone be invaded by the duty of the police to prevent crime. This was a question that came up for consideration in Malak singh’s case7. The case involved the interpretation of Rule 23.4 of the Punjab Police Rules. These rules were promulgated under the Police Act. Two brothers-Malak Singh and Jaswanth Singh-filed writ petition before the High Court of Punjab and Haryana. The prayer in the writ petition is for a direction to the police to remove their names from surveillance register maintained at Police Station ‘A’ ‘Division’, Amrithsar. They alleged that they were businessmen and income tax assessees. On account of their political affiliation to Akali party, the Congress M.L.A. implicated them in some criminal cases. All these cases ended in acquittal or discharge. They were detained under MISA but were released as the Advisory Board refused to confirm the detention. As the Deputy Superintendent of Police is inimically disposed to them; they alleged, their photographs were displayed among the notorious criminals. They are asked to attend the police station whenever a senior Police Officer visits the station. They are asked to associate themselves with various investigations. They alleged that there is no material whatsoever on the basis of which the names of the appellants could be entered in the Surveillance Register. The writ petitions were dismissed by the High Court. By Special Leave they preferred appeals before the Supreme Court. In the Supreme Court it was contended that there were no grounds on the basis of which the police could entertain a reasonable belief that the brothers were habitual offenders or receivers of stolen property. Therefore, there is no justification for including their names in Surveillance Register. As surveillance intrudes into personal liberty, the citizen should be given an opportunity to show cause before his name is included in the Surveillance Register. As no notice is issued, inclusion of name in the Surveillance Register is bad. The apex Court referred to Kharak Singh’s case (supra) and held that it will be necessary to keep discreet surveillance over repeated bad characters, habitual offenders and other potential offenders. Organised crime cannotbe successfully prevented without close watch of suspects. Therefore, permissible surveillance is only to the extent of close watch over the movements of the persons under surveillance and no more. So long as the surveillance is for the purpose of prevention of crime, there cannot be any objection if a person’s name is included in the Surveillance Register. While justifying permissible surveillance, the Supreme Court referred to Article 8 of European Convention of Human Rights which permitted interference by Police Authorities to protect democracy, public safety and for prevention of disorder and crime.
30. In Malak Singh’s case (supra), the Supreme Court cautioned that surveillance which is intrusive and which seriously encroaches on the privacy of a citizen infringing fundamental right under Article 21 and Articlev 19(1)(d) cannot be permitted. Dealing with the question of giving notice, his Lordship Justice O. Chinnappa Reddy speaking for the Bench held that having regard to the very nature of maintaining history sheet in a confidential and discreet manner, the rule of audi alteram partem has no place. Adverting to the question of reasonable belief, the Hon’ble Supreme Court held that police have no licence to enter the names of persons whomsoever they like in the Surveillance Register nor can the surveillance be such as to squeeze the fundamental freedom guaranteed to citizens or to obstruct free exercise and enjoyment of those freedoms. The Supreme Court further held:
“Ordinarily the names of persons with previous criminal record alone are entered in the Surveillance Register. They must be proclaimed offenders previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the Surveillance Register. But, here the entry can only be made by the order of Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the Surveillance Register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable elief.”
Before examining the case law as decided by this Court, it is apposite to note the intention and objectives behind such provisions dealing with surveillance. There cannot be two opinions that police should vigorously enforce the law. It does not however mean that they should rigorously violate the constitutional values and constitutional rights. In enforcing the law they shall not violate the Supreme law of the Nation. The police are charged with responsibility of controlling crime. Control of crime necessarily involve prevention of crime. To prevent crime it is permissible that police should keep a person known to be habitual offender or known to be ‘trouble maker’ under a watch. What is most objectionable to civilized mind is the use of extra legal methods by the police for prevention of crimes. Surveillance of a person in an arbitrary and unreasonable manner and contrary to the provisions of law, is one such extra legal method which cannot be countenanced by the Constitutional Court.
31. Illegal surveillance makes arbitrary and obtrusive intrusions into one’s right to privacy and violates Article 21 of Constitution of India. But keeping a person under unobtrusive watch to prevent crime and to maintain law and order, as authorised by law, is reasonable restriction permissible under the Constitution.
32. In Gurubachan Singh v. Commissioner of Police, and Hari v. Deputy Commissioner of Police, the Supreme Court of India decided the Constitutional validity of Section 27(1) of Bombay Police Act and Section 57 of the said Act. Both the provisions were upheld. In Gurubachan Singh’s case, the Supreme Court held that Section 27(1) of Bombay Police Act was made in the interest of general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and fate of the citizens. Likewise in Hari’s case, the Supreme Court upheld Section 57 of the Bombay Police Act. Both the provisions empowered the Commissioner of Police to direct the person to remove himself outside the State. In Hari’s case9 the Supreme Court while upholding the provisions held that Article 19(2) to (6) permit the State to impose reasonable restrictions on the exercise of the freedoms guaranteed under Article 19(1). These restrictions are in the interest of general public, security of the State, public order, decency or morality which may compendiously be described as ‘social welfare’. Therefore, an order of extermination or order for keeping a person under surveillance is intended for social welfare.
33. This Court had many occasions to deal with cases of PSO 742 which deals with opening of rowdy sheets. In Shaik Mahaboob Ali v. Commissioner of Police, 1990 (1) ALT 15 (NRC) this Court held that unless there is adequate material as regards commission of offence or attempt to commit an offence opening of rowdy sheet against a person and continuing the same is illegal. In Hussain Hassan Somali v. Commissioner of Police, 1990 (2) ALT 24 (NRC) his Lordship Justice Y. Bhaskar Rao (as his Lordship then was) held that opening of rowdy sheet against a person without any material, as to his activities that are likely to disturb public order, would violate Article 21 of the Constitution of India. In Patti Eswara Reddy v. Superintendent of Police, dealing with the case of a person bound over Under Sections 106 and 107 of the Code, this Court held that it is reasonable to maintain rowdy sheet for a period of two years after expiry of bound over period. But maintaining the record for 15 years was held to be arbitrary and unreasonable and this Court directed the authorities to close the rowdy sheet against the petitioner. Again in Ejaz v. Government of Andhra Pradesh, this Court had an occasion to deal with a case arising under PSO 742. While observing that mere suspicion or apprehension would not be a criteria for opening rowdy sheet against a person, this Court held as follows:
“The fundamental right to personal liberty cannot be allowed to be infringed under the guise of surveillance and monitoring the movements of persons against whom a rowdy sheet is opened. Surveillance of such persons whose names are entered in the rowdy sheet, for reasons unconnected with the prevention of crime and beyond cannot be countenanced. After all the whole purpose of classifying the persons as rowdies and entering their names in the rowdy sheet is the prevention of crime and no other purpose. Otherwise the order of classification will be bad and void. Surveillance and monitoring of movement of persons whose names are entered in rowdy sheets should therefore be proportionate and commensurate to the reasonable apprehension or suspicion entertained by the concerned Police Officer and only with a view to prevent commission of a crime which may result in breach of peace. Any excessive action on the part of the police would not be ultra vires the Standing Order No. 742 but also would only be violative of right to equality and right to freedom guaranteed by Articles 14, 19 and 21 of the Constitution of India. Any unauthorised physical restraint or coercion of any sort would be violative of the fundamental right to freedom and personal liberty guaranteed by the Constitution of India. That the right to personal liberty in substance means a persons’s right not to be subject to imprisonment, arrest or other physical coercion.”
34. In Puttagunta Pasi @ Penta Pasi v. Commissioner of Police, a Division Bench of this Court again had an occasion to consider whether opening of a rowdy sheet under PSO 742 is proper and legal. Analysing cases decided by this Court, the Division Bench held that opening of the rowdy sheets in a routine manner against persons who are not habitual offenders is not permissible and went on to lay down that;
“……………it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner. Dubbing a person as an habitual offender and to open a rowdy sheet is not sufficient. On the other hand, due care and caution shall be taken by the Police before characterising a person as a rowdy. The important element that has to be seen in the acts of an offender is whether the acts so committed by a person will have a tendency to disturb public peace and tranqulity.”
35. In Mohd. Quadeer v. Commissioner of Police, a learned single Judge considered the scope of judicial review in the context of rowdy sheet opened under PSO 742. Relying on the Judgments of the Supreme Court in Govind’s case (supra) and Malak Singh’s case (7 supra) this Court held that though it is not necessary to supply the ‘grounds of belief’ to the persons whose names are entered in Surveillance Register, the police authorities have to satisfy that there are grounds to entertain such reasonable belief.
36. With this background the points that arise for consideration may now be considered.
37. In re (joints I & III: Life and liberty are guaranteed under Article 21 of the Constitution. A person cannot be deprived of his life except in accordance with a rational, reasonable and unarbitrary law. The liberty of the person cannot be taken away except in accordance with law which should be reasonable and unarbitrary. ‘Life’ appearing in Article 21 has been held to be a life with human dignity-a life where all the human faculties, perceptions and sensitivities are given fullest scope of expression and to develop. To avoid burdening this Judgment with precedents, the case law need not be excerpted. Suffice to remind that “Personal Liberty” guaranteed under Article 21 is liberty of thought, liberty of expression, liberty of belief and faith and liberty of worship. This is clear by reading the Preamble of the Constitution. The Supreme Court in different contexts interpreted Article 21 as guaranteeing various penumbral rights which are necessary for enjoyment of life. These include right to go abroad, right against solitary confinement, right against bar fetters, right to legal aid, right to speedy trial, right against hand-cuffing, right against delayed execution, right against public hanging, right to doctor’s assistance and right to shelter (see Unni Krishnan’s case ).
38. Right to privacy is not expressly guaranteed. However, the Supreme Court in Kharak Singh’s case (supra) held that right to privacy is a guaranteed right under the Constitution of India. In Rajagopal v. State of Tamil Nadu, and in P.U.C.L. v. Union of India, the Supreme Court reiterated the law that right to privacy is part of the right to ‘life’ and ‘personal liberty’ enshrined under Article 21 of the Constitution. In these decisions, the Supreme Court placed reliance on the International Treaties to which India is signatory and came to a conclusion that Article 21 read with relevant Article in the International Treaty/Covenant would lead to a conclusion that right to privacy is part of Article 21.
39. What is the effect of International Law on the Municipal Law? Whether International Law is enforceable by the Municipal Courts even in the absence of corresponding Municipal Law incorporating International Treaty Law? In International Law one school of thought is that both International Law and Municipal Law form part of one legal order. Therefore, both of them are binding on the States as well as individuals. This is called monoism. The other school of thought is that in opposition to monoism, International Law and Municipal Law are two distinct legal orders and unless municipal law provides by incorporating International Treaty Law, no International Law principles can be enforced. However, in the field of interpretation of laws. it is well settled that while interpreting any municipal law concerning the rights of the citizens, in case of ambiguity, the interpretation which is in conformity with the International Law shall be adopted. This principle was adopted by the Supreme Court in a number of decided cases: A.D.M. Jabalpur v. Shukla, Jolly George Varghese v. The Bank of Chochin Rajagopal’s case, P.U.C.L. v. Union of India , hereinafter called Telephone Tapping case20 and D.K. Basu v. State of West Benga, .
40. It would be appropriate to refer to two of the above Judgments. In both the Judgments while accepting the theory of “Dualism” in International Law, the Supreme Court held that there is proper justification to interpret a provision in the Municipal Law in tune with the International Law Covenants conferring rights on the individuals.
41. In Jolly George’s case (supra) the Supreme Court relied on Article 11 of International Covenant on Civil and Political Rights for interpreting Section 51 of the Code of Civil Procedure, 1908. Article 11 of the International Covenant prohibited imprisonment of a person for non-fulfilment of contractual obligation. Is it fair procedure on the touchstone of Article 21 to deprive personal liberty for non-fulfilment of contractual obligation? Adverting to this question, the Supreme Court referred to and approved the following passage from the Judgment of Kerala High Court in Xeviar v. Canara Bank, 1969 Ker. L.T. 927:
“The remedy for breaches of International Law in general is not to be found in the law Courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated, but individual citizen cannot complain about their breach in the municipal Courts even if the country concerned has adopted the covenants and ratified the operational protocol. The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to best inform judicial institutions and inspire legislative action within Member State. But apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of Judicial authority.”
In Telephone tapping case (supra) the Supreme Court held that Rules of Customary International Law which are not contrary to Municipal Law shall be deemed to be incorporated in domestic law. Referring to Article 17 of the International Covenant on Civil and Political rights which provides for right against obtrusive interference with private life, the Court held that the said Article of the International Covenant does not go contrary to any part of our Law and that Article 21 of the Constitution has to be interpreted in conformity with the International Law. It was held:
“The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the each case. But the right to hold a telephone conversation in privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy.’ Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-Tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
42. Therefore it shall have to be taken as well-settled by a catena of Judgments of the Supreme Court that International Covenants and Treaties like Universal Declaration of Human Rights, 1948, International Covenants on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1966 to which the India is signatory have to be read into various articles in Part II of the Constitution of India guaranteeing fundamental rights. The objection of the State that specific Covenant in the International Treaties are not made applicable to Indian Legal system because of the negative endorsement made by India at the time of signing the Treaty, was rejected by the Supreme Court in D.K. Basil’s case (supra) when it was held that the reservations of India have now lost relevance in view of the law laid down by the Supreme Court in number of cases.
43. The Hon’ble Supreme Court from Kharak Singh’s case (supra) to Telephone Tapping case (supra) recognised right to privacy as a penumbral right to life and liberty guaranteed under Article 21 of the Constitution of India. In Govind’s case (supra) it is held that when breach of right to privacy is alleged the same has to be examined with care. The right can be denied only when important countervailing interest is shown to be superior. Even in Telephone Tapping case (20 supra) the Supreme Court held that whether the right to privacy has been infringed in a given case would depend on the facts of the said case. What is the context (sic. concept) of right to privacy? It is useful to extract the following passage from the Judgment of Rajagopal’s case (supra):
“The right to privacy as an independent and distinctive concept originated in the field to Tort Law, under which a new cause of action for damages resulting from unlawful (invasion) of privacy was recognised. This right has two aspects which are but two faces of the same coin: (1) the General law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life-story is written- whether laudatory or otherwise-and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status.”
44. Therefore, right to privacy though not an enumerated fundamental right, is constitutionally recognised enforceable right flowing from Article 21 of the Constitution. Invasion of this right gives cause of action for tortious liability besides right to enforce through Constitutional Courts. In this context the principle laid down by the Supreme Court in Kharak Singh’s case (supra), Govind’s case (supra) and Malak Singh’s case (supra) with reference to police surveillance and violation of right to privacy may be noticed.
45. In Kliarak Singh’s case (supra) the Supreme Court held that unless specifically authorized by law, it is constitutionally impermissible to invade the privacy of an individual violating Article 21 of the Constitution. The Supreme Court held as follows:
“The position therefore is that if the action of the police which is the arm of executive State is found to be infringed 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.”
46. The above statement of law of the Supreme Court followed a finding that Regulation 236 of the U.P. Police Regulations are non-statutory executive instructions framed for the guidance of the police. Therefore, if the action of the respondents herein is proved to result in obtrusive surveillance, the same is liable to be restrained by mandamus.
47. In Govind’s case (supra) the Supreme Court held that Regulations 855 and 856 of M.P. Police Regulations issued under Police Act, 1861 are statutory in nature and therefore the procedure of unobtrusive surveillance under the two regulations cannot be said to violate the right to privacy under Article 21 of the Constitution. Referring to Kharak Singh’s case (supra) and two cases decided by U.S. Supreme Court in Griswold v. State of Connecticut (supra) and Jane Roe v. Henry Wada (supra), the Hon’ble Supreme Court cautioned as follows:
“When there are two interpretations, one wide and unconstitutional, the other narrower but within constitutional bounds, this Court will read down the overflowing expressions to make them valid. So read, the two regulations are more restricted than Counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show ‘a determination, to lead to life of crime’-crime in this context being confined to such as involve public peace or security only if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperils safety of society can (not) be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.”
48. In Malak Singh’s case (7 supra)the Punjab Police Regulations came up for consideration. The Hon’ble Supreme Court held that obtrusive surveillance violates Article 21 of the Constitution of India. So far as the surveillance is un-obtrusive the same is held to be in public interest and necessary for discharge of the duties by the police under relevant Police Act. Dealing with this aspect, the Court gave the reasons thus:
“Prevention of crime is one of the prime purposes of the constitution of a police force…………………Section 23 of the Police Act prescribes it as the duty of police Officers ‘to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and Public nuisance.” In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders. Organised crime cannot be successfully fought without close watch of suspects. But surveillance may be obtrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1)(d). That cannot be permitted. This is recognised by the Punjab Police. Rules themselves. Rule 23.7, which prescribes the mode of surveillance permits the close watch over the movements of the persons under surveillance but without any illegal interference. Permissible surveillance and no more. So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7. We do not think a person whose name is included in the Surveillance Register can have a genuine cause for complaint.”
49. Therefore, in the context of police surveillance against history sheeters and rowdy sheeters, the following principles vis-a-vis right to privacy under Article 21 of the Constitution would emerge:
(i)If the surveillance is not obtrusive, the same does not violate the right to privacy under Article 21 of the Constitution of India. The same does not either in material or palpable form affect the right of the suspect to move freely nor can it be held to deprive the history sheeter / rowdy sheeter of his personal liberty.
(ii) In testing whether fundamental right of free movement or personal liberty is infringed or not, it is to be remembered that infringment should be direct as well as tangible. If surveillance hurts personal sensitivities, the same is not a violation, for the constitution makers never intended to protect mere personal sensitiveness.
(iii) If police surveillance is in accordance with executive/departmental guidelines and not authorised by statute or rules having statutory force, it is for the State to prove that surveillance does not in anyway infringe the fundamental right of the person and that the authorities have followed the guidelines scrupulously in ordering surveillance,
(iv) If the action of the police is found to infringe the freedoms guaranteed to the history sheeter / rowdy sheeter and violates his right to privacy, in that, the surveillance is excessively obtrusive and intrusive, it may seriously encroach on the privacy of a citizen as to infringe the fundamental right to privacy and personal liberty under Article 21 as well as the freedom of movement guaranteed under Article 19(l)(d) of the Constitution of India and the same is impermissible,
(v) Even where there is statutory sanction for surveillance against history sheeter/rowdy sheeter principle (iv) is equally applicable, if the surveillance is obtrusive.
(vi) In either case-whether police regulations are statutory or where they have no statutory force-there should be sufficient material to induce the opinion that the history sheeters/rowdy sheeters show a determination to lead a life of crime which involves public peace or security only. Mere convictions in criminal cases where nothing imperils the safety of the society cannot be regarded as warrange surveillance under the relevant regulations, however broadly and in whatever language the regulation might have been couched,
(vii) In either case-whether the regulation is statutory or non-statutory-domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security, and there can be no routine follow-up at the end of a conviction or release from prison in every case.
(viii) The above principles that emerge from various binding precedents are only general principles. As seen from various decided cases of this Court, opening of history sheet or rowdy sheet can be justified only when it is proved before the Court by the State that based on the relevant material the competent police officer has applied mind with due care and considered all aspects in the light of the law and then ordered opening of history sheet or rowdy sheet or ordered continuation or retention of the history sheet. In the beginning of this Judgment, all the relevant decisions of this Court have been referred to and those principles may also have to be kept in mind.
50. Therefore, on points I and III that arise for consideration, it should be held that maintenance of history sheet/rowdy sheet for a long time violates not only right to privacy under Article 21 and also other fundamental rights under Articles 14 and 19 of the Constitution of India. The points No. I and III are decided in favour of the petitioner.
51. In re Point No. II: “Human Rights” have not been defined in an objective manner. The Universal Declaration of Human Rights in 1948 enumerated at least 27 such broad rights which are necessary for establishment of social and international order in which the rights and freedoms can be realised. In the Indian context, Part III of the Constitution and Part IV of the Constitution contain quite a number of rights which may be termed as human rights. Some of these entrenched rights may be akin to the rights enumerated in other International Treaties and Charters. Be that as it may, the human rights in Indian context are those rights which help achieve to realise social justice. The Hon’ble the Chief Justice of India, Dr. A.S. Anand, delivering the inaugural address in National Seminar on Human Rights conducted by Department of Law, University of Bombay said: (Human Rights and Law: National & Global Perspectives, Published by Snow White Publishers 1997):
The Constitution of India is a store-house of social justice but the concept of social justice is flexible, dynamic and relative. Its form varies from place to place and from time to time. Social justice is a generous concept which assures to every member of the society a fair deal. Any remedial injury, inadequacy or disability suffered be a member, for which he is not directly responsible falls within the liberal connotation of social justice. Thus, socialjustice is the basis of the progressive stability of society and the right to life and liberty as explained and expanded under Article 21 of the Constitution of India, is a part of social justice. Social justice to be meaningful and purposeful must be rooted in the acceptance of human dignity of every man. Social order would violently fail unless full regard is given to human dignity and the failure of social order would……The future of the democracy would be at peril. Therefore let all human beings unite and walk hand-in-hand to preserve Human dignity.
52. Therefore, every penumbral right to life and liberty is human right. In a recent Judgment in A.P. Polution Control Board v. Prof. M.V. Naidu, (1992) 2 SCC 718 the Supreme Court dealing with a case in the field of environmental law vis-a-vis Article 21 of the Constitution has observed as follows:
“Environmental concerns arising in this Court under Article 32 or under Article 136 or under Article 226 in the High Court are in our view, equally important as human rights concerns. In fact, both are to be traced to Article 21, which deals with fundamental right to life and liberty. While environmental aspects concern ‘life’, human rights aspects concern ‘liberty'”
53. Therefore the right to privacy under Article 21 of the Constitution is a Human right essential for human dignity without which social justice cannot be achieved.
54. As far back as in 1948 Frankfurter, J. in Wolf v. Colorado, (1948) 338 US 25 observed as follows:
“The security of one’s privacy against arbitrary intrusion 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 State 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 People.”
55. The above view of Frankfurter, J. was quoted with approval by the Hon’ble Supreme Court in Kharak Singh’s case (supra). Therefore, there cannot be any doubt that right to privacy is a human right. The question needs to be examined in the light of the ‘Protection of Human Rights Act, 1993 (Central Act No. 10 of 1994) (hereinafter called as Human Rights Act). The Statement of Objects and Reasons appended to the Bill on Human Rights Act is apposite and it is as follows:
“India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations on the 16th December, 1966. The human rights embodied in the aforesaid Covenants stand substantially protected by the Constitution. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures and system of administration of justice; with a view to bringing about greater accountability and transparency in them and divising efficient and effective methods of dealing with the situation……”
56. The Human Rights Act by Clause (f) of Section 2 defines the International Covenants as meaning the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on 16th December, 1966. The terms “Human Rights” is defined in Clause (d) of Section 2. “Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.
57. As already noticed, while interpreting Article 21 as including the right to privacy the Hon’ble Supreme Court in Telephone Tapping case (supra) relied on Article 17 of the International Covenant on Civil and Political Rights and Article 12 of the Universal Declaration of Human Rights, 1948. Article 17 of ICCPR says that no one shall be subjected to arbitrary or unlawful interference with his privacy and family etc., and Article 12 of the Universal Declaration says that no one shall be subjected to arbitrary interference with personal privacy, family and home and everyone has right to protection of law against such interference. Therefore, either the first part of the definition or Human Rights or the second part thereof leaves no doubt that right to privacy under Article 21 of the Constitution is a human right. It may also be mentioned that right to privacy is an enforceable right and therefore being a part of International Covenant, the right to privacy is a Human right.
58. The submission of the learned Counsel for the petitioner that arbitrary surveillance due to unreasonable action of the police in opening and retaining history sheet of the petitioner violates human right to privacy and will cause prejudice to the enjoyment of human rights of the petitioner, is answered accordingly.
59. The other aspect of the second point for consideration is as to what are the remedies of the citizen if human rights, especially the human right to privacy under Article 21 is violated. Is it sufficient to afford Constitutional remedy of issuing a mandamus to release and relieve the petitioner from the constant watch of the police? Is it necessary to afford a remedy of compensation in public law? Or, treating the invasion of the right to privacy of the petitioner as serious, whether the Court should recognise it as a right of the citizen to sue the police in such a case for damages for invading privacy? These are some of the questions which are to be adverted to.
60. The right to privacy in the field of Public Law has borrowed from private law especially in common law, which recognises the right of every person to protect his intellectual worth. In the celebrated Article of ‘Right to Privacy’ by Charless Waren and Luis. D. Bradeis [(1890) 4 Harvard Law Review 193], the learned authors suggest that as “solitude and privacy have become more essential to the individual” due to intensity and complexity of life, the laws should find new remedies to be granted for the enforcement of the right. According to the authors the application of existing principle to a new state of facts is not judicial legislation.
61. In Govind’s case (supra), Mathew, J referred to the above said celebrated Article “Right to Privacy” and came to the conclusion that law should provide a criminal and private law remedy to protect man’s ‘inviolate personality’ against intrusive behaviour. Indeed, the remedy under Article 226 or 32 of the Constitution to declare, protect and enforce the right to privacy is only one of the many remedies available to a citizen. The same has been recognised in Kharak Singh’s case (2 supra) that a trespass involves act of police official walking into the premises of citizen, knocking at the door and disturbing the petitioner. This might give rise to claims in tort and for breach of petitioner’s rights, damages might be claimed from the tortfeasor. The same would also give a cause of action for filing a petition under Article 32 or 226 of the Constitution and for other remedies in Tort and Criminal Law. On this aspect, the Supreme Court observed:
“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 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 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 the law of the land that this Court under Article 226 of the Constitution has got ample powers to award monetary compensation if fundamental rights of life and liberty are violated. We may briefly refer to two recent judgments of the Supreme Court in Nilabati Behara, and D.K. Basu’s case (supra).
62. In Nilabati’s case, the Supreme Court treated a letter written by the petitioner as a writ petition. She claimed compensation in connection with death of her son in police custody. The Supreme Court directed the District Judge, Sunder garh in Orissa to hold enquiry and submit a report. In the report, the District Judge opined that the petitioner’s son died in police custody on account of multiple injuries inflicted on him. The report was accepted by the Supreme Court and compensation was awarded in a sum of Rs. 1,50,000/- to the petitioner for the death of her son in police custody. In this context the Supreme Court laid down the legal principle on which the liability of the State arises for payment of compensation for violation of fundamental right to life and liberty. It was held that the remedy for award of compensation under Article 32 by the Supreme Court or under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights. Referring to cases decided by the Supreme Court and a case of Privy Council in Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All E.R. 670 the Supreme Court quoted with approval the statement of law from the speech of Lord Diplock:
“The claim is not a claim in private law for damages for the tort of false imprisonment under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone…….”
The following passage from the Judgment of the Supreme Court in Nilabati’s case is worth quoting:
“It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to the remedy in private law for damages for tort’ resulting from the contravention of fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.”
The question of awarding compensation in a proceeding under public law by a Constitutional Court was again considered by the Supreme Court in D.K. Baku’s case (supra). The letter addressed by the Executive Chairman of Legal Services, West Bengal was treated as a writ petition. The addressor prayed the Hon’ble Supreme Court to formulate guidelines for awarding compensation to the victims or family members of the victim for atrocities and death caused in the police custody. Dealing with punitive measures in the event of custodial violence or lock-up death, the Supreme Court pointed out that Sections 220, 330 and 331 IPC seek to punish violation of right to life. A mere declaration of invalidity of action of custodial violence is not sufficient. The State must proceed further and give compensatory relief by way of damages as in civil action by way of compensation under the Public Law jurisdiction for the wrong done due to breach of public duty by the State by not protecting the fundamental rights of the citizen. After referring to all the cases on this branch of Public Law, the Court ruled thus:
“……it is now a well accepted proposition in most of the jurisdictions that monetary or pecuniary compensation is an appropriate and indeed an effective and some times perhaps the only suitable remedy for redressal of the established infringement of the public servants and the State is vicariously liable for their acts. The claim of the citizen which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element the objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental riehts of the citizen, under the public law jurisdiction is. thus, in addition to the traditional remedies and not in derogation of them.”
63. Thus when a Human Right is violated, a citizen has remedies in public law as well as in the field of private law. The public law remedies include Writ of Habeas Corpus and other writ in the nature of Writ of Mandamus, certiorari and prohibition besides the remedies like declaration and injunction in a Court of judicial review under Article 226 of the Constitution of India. This Court has a Constitutional duty to give public law remedies to the citizen who is subjected to illegal surveillance. As held by the Supreme Court, the public law remedy also includes the award of compensation. Therefore, in appropriate cases subject to proper pleadings and proof, this Court has got power to award compensation to the petitioner who is subjected to unconstitutional surveillance resulting in violation of rights under Article 21 of the Constitution of India.
64. In the field of private law, action lies-as observed by the Hon’ble Supreme Court in Kharak Singh’s case (supra)-both in the field of Civil law as well as in Criminal law. When a person is subjected to surveillance and the police interfere with the domestic privacy either during the day or during night, the authorities would be committing an act of trespass. Trespass is defined in Section 441 of Indian Penal Code, 1860 as entering into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remain there with intent thereby to intimidate, insult or annoy any such person or with intent to committ an offence. Under Section 447 IPC whoever commits criminal trespass as defined in Section 441 is liable for punishment which may extend to three months imprisonment or with fine which may extend to Rs.500/-. Trespass is also a tort and an action lies for damages by way of a suit.
65. Therefore, if a person complains that his right to privacy under Article 21 of the Constitution is violated by criminal trespass committed by the police as part of unconstitutional surveillance the person has the following remedies:
(1) By way of a proceeding under Article 226 or 32 of the Constitution of India for judicial review of the police action and for appropriate relief;
(2) To initiate criminal action against the officers responsible for criminal trespass subject to other provisions of Code of Criminal Procedure, 1973;
(3) To seek damages in tort by filing a civil suit and
(4) To also seek appropriate compensation in a public law jurisdiction from the Court of judicial review under Article 226 or 32 of the Constitution which is in addition to the traditional remedies.
66. An inevitable question of far-reaching importance as indicated hereinafter arises before this Court in the context of remedies for violation of human rights. Protection of Human Rights Act, as already noticed, defines human right as rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants enforceable by Courts in India. Right to privacy under Article 21 of the Constitution is a human right as has been noticed supra as being penumbral right under Article 21 of the Constitution read with Article 17 of the International Covenant on Civil and Political Rights, 1966. Under Section 30 of the Human Rights Act, the State Government with the concurrence of the Chief Justice of the High Court is empowered to specify for each district a Court of Session to be a Human Rights Court to try the offences arising out of violation of human rights.
67. In the State of Andhra Pradesh G.O.Ms.No. 46 Home (General-C) Department dt: 1-2-1996 was issued specifying the Courts of Chief Judicial Magistrates-cum-Additional District and Sessions Judges in all the Districts to be Human Rights Courts for providing speedy trial of offences arising out of violation of Human Rights. In the cities of Hyderabad, Visakhapatnam and Vijayawada, the Courts of Metropolitan Magistrates are the Human Rights Courts. Therefore, as and when a citizen has a grievance that his human rights are violated due to obtrusive surveillance resulting in violation of right to privacy under Article 21, such a citizen can approach the Human Rights Court complaining of an offence against the Police Officers. On such complaint being made, the Human Rights Courts shall have to entertain the complaint taking cognizance of the offence and try in accordance with law subject to other provisions of Code of Criminal Procedure. In appropriate cases, the Human Rights Court is also competent under the provisions of Code of Criminal Procedure to award compensation to the victims of the offences against human rights (see Section 357 Cr.P.C.)
68. Therefore, Point No. II is answered holding that right to privacy flowing from Article 21 of the Constitution is a human right and any violation thereof gives a right to the citizen to seek appropriate constitutional remedy in this Court in the field of public law as well as remedy available in private law as well as tort law.
69. In re Point No. IV and Point No. V: Police Standing Order 733 says that history sheet can be opened against a person, who is believed to be addicted to or to aid and abet the commission of crime, if there is a reasonable belief, whether the person is convicted or not is insignificant. PSO 734 authorises police to automatically open a history sheet for persons who are convicted for the offences mentioned therein. However, after a period of two years, the history sheet has to be closed on specific orders of a Gazetted Officer or at any time as ordered by the Superintendent of Police after two years. PSO 735(2) casts an obligation on the Gazetted Officer to ‘consider’ and pass orders giving directions for retention of history sheet for another one year. Therefore, the ‘consideration’ by the Gazetted Officer for opening history sheet or retention of history sheet is for the purpose of arriving at ‘reasonable belief.
70. The words ‘consider’ and ‘reasonable belief have come up for judicial interpretation in different contexts. It is settled law that the words ‘consider’ and ‘reasonable belief imply that there shall have to be due application of mind. Logically, it means and implies the recording of reasons for the decision after due consideration. To support this view, reference may be made to the ‘Barium Chemicals Ltd., v. A.J. Rane, R.P. Bhatt v. Union of India, and Ram Chandra v. Union of India, .
71. In the Barium Chemicals Ltd., case26 the Supreme Court held that the words ‘considers necessary’ postulate that the authority has thought over the matter deliberately and with due care and it has been found necessary as a result of such thinking to pass an order and therefore it is manifest that due application of mind is necessary for making the order. If the order shows that there has been no careful thinking or proper application of mind, the essential requisite for making the order would be held to be non-existent.
72. In R.P. Bhatt’s case27 the Supreme Court was dealing with the question of effect of words ‘consider’ in Rule 27(2) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965. In paragraph 4 of the Judgment, the Supreme Court held as follows:
“The word ‘consider’ in Rule 27(2) implies ‘due application of mind’. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc., the penalty, or may remit back the case to the authority which imposed the same.”
73. This question was again considered in Ram chander’s case28. This case was dealt with the effect of words ‘shall consider’ appearing in Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules. After referring to the law on the subject, the Hon’ble Supreme Court held thus:
“The word ‘consider’ has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision.”
74. Therefore, the law is well settled that when a rule or a provision requires the authority to ‘consider’ to arrive at a reasonable belief, there shall be due application of mind which only means recording of reasons for its decision.
74-A. Arbitrariness and equality are sworn enemies. That was so held in E.P. Royappa v. State of Tamil Nadu, . Any action which is arbitrary violates the principle of equality in Article 14 as well as other provisions of the Constitution. What is arbitrariness? In answer to this, I need to refer to three Judgments of the Supreme Court. The law laid down in these three Judgments is relevant for our purpose and in the context of this case.
75. In S.G. Jaisinghani v. Union of India, the Hon’ble Supreme Court indicated the test of arbitrariness in the following words:
“In a system governed by rule of law, discretion, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rule and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such decision is the antithesis of a decision taken in accordance with rule of law.”
76. In Shrilekha Vidyarthi v. State of U.P., it was held that non-arbitrariness is fair play in action. In case of arbitrariness the defect of irrationality is obvious and an act unfounded by reason is arbitrary. The Supreme Court referred to Dwarkadas Marfatia v. Board of Trustees where, it was held that every action of the State or an instrumentality of the State must be informed by reason and action uninformed by reason may be questioned as arbitrary in a proceedings under Article 226 or Article 32 of the Constitution. Further, referring to Mahabir Auto Stores v. Indian Oil Corporation, it was held that the power of judicial review is limited to grounds of illegality, irrationality and procedural impropriety. Dealing with the meaning of arbitrariness the Hon’ble Supreme Court held:
“The meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, whether an impugned act is arbitrary or not is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason is arbitrary.”
77. In Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, the Supreme Court considered the scope of Section 29 of the State Financial Corporations Act, 1951. The said provision empowers the Financial Corporation to seize a ‘defaulter industrial unit’ and sell the same. Holding that Section 29 of the State Financial Corporations Act confers wide power to ensure prompt payment by arming it with effective measure to realise the arrears, the Supreme Court held as follows:
“But the simplicity of the language is not an index to enormous power stored in it. From notice to pay the arrears, it extends to taking over management and even possession with a right to transfer it by sale. Every wide power, the exercise of which has far-reaching repercussions has inherent limitation in it. It should be exercised to effectuate the purpose of the Act. In legislations enacted for general benefit and common good the responsibility is far graver. It demands purposeful approach. The exercise of discretion should be objective. Test of reasonableness is more strict. The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bonafide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad even without proof, of motive of dishonesty, if the authority is found to have acted contrary to reason.”
It is therefore well settled that if an action is taken without reasons, the same is unfair. What is unreasonable and unfair is arbitrary and such arbitrary exercise of power amounts to exercising power mala fide.
78. The Police Officer empowered to extend retention of the history sheet or rowdy sheet has to record reasons which are rational by exercising sound discretion and consider the relevant facts mentioned in PSOs 733, 734, 735 and 742. Automatic endorsement to retain the history sheet would be ex facie illegal and unconstitutional.
79. It is noticed that due application of mind means proper reasons for arriving at a decision. As held by the Supreme Court in Union of India v. M.L. Capoor, the reasons are the links between the material on which certain conclusions are based and actual conclusions. They disclose how the mind is applied on the subject matter for the decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only this way can opinions or decisions recorded be shown to be manifestly just and reasonable’.
80. In this connection it is also necessary to refer to the following dictum of the Supreme Court in Union of India v. E.G. Nambudiri,
“No order of an administrative authority communications decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the Court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a Court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation-It is always open to an administrative authority to produce evidence aliunde before the Court to justify its action.”
The question whether a governmental functionary is required to record reasons was considered by a Constitutional Bench of the Supreme Court in S.N. Mukherjee v. Union of India, . While holding that the absence of reasons for a decision is unfair and fairness being part of natural justice the Court ruled that a decision not supported by reasons would be in violation of principles of natural justice. After referring to the important case law in other Jurisdictions of the world, the Supreme Court held that unless the requirement of recording reasons has been dispensed with expressly or by necessary implication an administrative authority exercising judicial or quasi-judicial functions is required to record reasons for its decision. It is further held that the requirement to record reasons can be regarded as one of the principles of natural justice which governs the exercise of power by administrative authority.
81. Therefore, when a police authority empowered to pass orders ‘consider’ and comes to a ‘reasonable belief that a person is likely to be addicted, is likely to commit or abet the commission of offence, by necessary implication he is under constitutional obligation to record reasons. Recording of reasons should not, be equated with communicating reasons. Except in a few specified contexts, in all events and in all situations reasons need not be communicated to the aggrieved person. In this context it is helpful to refer to the following statement of law from De Smith’s ‘Judicial Review of Administrative Action’ (‘Judicial Review of Administrative Action’. Ed by the Rt. Hon The Lord Woolf and Jeffrey Jowell: 5th Edition, Sweet & Maxwell 1995).
“Where an applicant seeks to impugn a decision of an administrative authority other than by claiming non-compliance with a duty to give reasons-for example by challenging the legality or rationality of the decision-a failure by that authority to offer any answer to the allegations may justify the inference that its reasons were bad in law or that it had exercised its powers unlawfully”
82. Points IV and V are answered accordingly.
83. Before Point No. VI is taken up for consideration, I may sum up the conclusions on the various issues involved in this case.
(1) Nature and scope of opening of history sheet/rowdy sheet:
(1.1) The Police Standing Orders, though were originally issued by the Inspector General of Police by the State of Madras Under Section 9 of the Madras Police Act, which are adopted subsequently by the State of Andhra Pradesh, have no force of law. But such of the Police Standing Orders which are issued in exercise of any statutory power either by the Government or by other authorities and duly notified, can be clothed with statutory power.
(1.2) Whether the Police Standing Orders statutory or non-statutory, it is permissible for the police to implement Police Standing Orders only with a view to prevent Crime in the society and for nothing else.
(1.3) A reading of the relevant Police Standing Orders authorising the police to record and maintain crime history of the station including opening of history sheets and rowdy sheets would show that they are administrative instructions.
(1.4) A police officer may open History Sheet automatically at the time of conviction of a person. But the conviction is not for all offences. When a person is convicted once Under Section 395 to 402 IPC, when a person is convicted twice Under Section 392 to 394 IPC, when a person is convicted twice for house breaking of theft, when a person is boundover twice Under Section 109 of the Code, and bound over once Under Section 110 of the Code, the police are empowered to open history sheet. Besides these, persons who are convicted for offences relating to coins and Government Stamps and persons convicted twice for the offences like theft and house breaking and professional prisoners are also the persons against whom history sheets can be opened by the police.
(1.5) History sheets can also be opened even if there is no conviction. But in such a case, the person should have been known or believed to be addicted to or aid or abet the commission of crime.
(1.6) The History Sheet opened shall be continued and maintained only for a period of two years and shall be closed only on definite orders of Gazetted Officer. The Superintendent of Police may however order closure of the History Sheet at anytime. (PSO 735).
(1.7) The History Sheet can be continued and maintained for a further period of one year or till the end of December, but such continuance can be on specific orders of a Gazetted Officer who after considering the case comes to the conclusion that it is necessary to continue the History sheet and extend retention of the History Sheet. Annual extensions for continuation of History Sheet can also be given from January to December (PSOs 735 and 737).
(1.8) The police may also open history sheets for suspects. Suspects are those persons who are convicted under any section of the Indian Penal Code and who are considered likely to commit crime again. Persons who are not convicted but are believed to be addicted to crime are also treated as suspects. In case a History sheet is opened on the ground that a person is a suspect, care should be taken that History sheets are opened only for persons who are likely to become habitual criminals, (PSO 736).
(1.9) The history sheet/rowdy sheet against a person may be opened under specific orders of the Sub-Divisional Police Officer if the person is a habitual offender who involves or likely to involve in offences that would cause breach of peace;.
(1.10) The opening of a history sheet/rowdy sheet against a person under the relevant Police Standing Order Permits the Police to keep a watch and resort to surveillance under PSO 853 read with PSO 749. The scope and extent of surveillance is only limited to watch the movements of history sheeter/rowdy sheeter as can be gathered from PSO 736(2). The history sheeter / rowdy sheeter cannot be asked to be available at the concerned police station nor such a person can be detained. To put it simply, there can only be unobtrusive, and non-invasive surveillance over the movements of the history sheeter/rowdy sheeter.
(1.11) Obtrusive surveillance makes serious inroads into the life and liberty of the history sheeter/rowdy sheeter and would also take away the dignity of the person. Such offending surveillance is liable to be declared as unconstitutional.
(2) Fundamental Right to life and liberty/right to privacy and Articles 14, 19 and 21:
(2.1) Right to’privacy is violated when history sheeter/rowdy sheeter is subjected to obtrusive and invasive surveillance. Right to privacy under Article 21 is an enforceable fundamental right under Constitution of India.
(2.2) When the persons are subjected to surveillance by virtue of administrative-instructions, and if the challenge is made that police are infringing the rights and freedoms guaranteed to the person, the person would be entitled to relief of mandamus to restrain police from taking action under the regulations. In any event domiciliary visits are impermissible under A.P. Police Standing Orders.
(2.3) As a consequence of history sheet or rowdy sheet if a person is summoned by force or otherwise to visit the police station and made to sit in the police station and if a history sheeter is compelled or conditioned to take permission of the police to leave the place of residence only because a crime record is maintained against such person, the same would amount to obtrusive surveillance offending Articles 14, 19 and 21 of the Constitution of India.
(2.4) If the surveillance is not obtrusive, the same does not violate the right to privacy under Article 21 of the Constitution of India. The same does not, either in material or palpable form, affect the right of the suspect to move freely nor can it be held to deprive the history sheeter/rowdy sheeter of his personal liberty.
(2.5) In test whether fundamental right of free movement or personal liberty is infringed or not, it is to be remembered that infringement should be direct as well as tangible. If surveillance hurts personal sensitivities, the same is not a violation, for the Constitution makers never intended to protect mere personal sensitiveness.
(2.6) If police surveillance is in accordance with executive/departmental guidelines and not authorised by statute or rules having statutory force, it is for the State to prove that the surveillance does not in any way infringe the fundamental rights of the person and the authorities have followed the guidelines scrupulously in ordering surveillance.
(2.7) If the action of the police is found to infringe the freedoms guaranteed to the history sheeter/rowdy sheeter and violate his right to privacy, in that, the surveillance is excessively obtrusive and invasive, it may seriously encroach on the privacy of a citizen as to infringe the fundamental right to privacy and personal liberty under Article 19(1)(d) of the Constitution of India and the same is impermissible.
(2.8) Even where there is statutory sanction for surveillance against history sheeter/rowdy sheeter, principle in 2.4. and 2.5. are equally applicable if the surveillance is obtrusive.
(2.9) In either case-whether police regulations are statutory or whether they have no statutory force-there should be sufficient material to induce the opinion that the history sheeter/rowdy sheeter showed a determination to lead a life of crime which involves public peace or security only. Mere convictions in criminal cases where nothing imperils the safety of the society cannot be regarded as warranting surveillance under the relevant regulations, however broadly and in whatever language the regulations might have been couched.
(2.10) In either case-whether the regulation is statutory or non-statutory-picketing by the police should be reduced to the clearest cases of danger to community security and there can be no routine follow-up at the end of a conviction or release from prison in every case.
(2.11) Police surveillance cannot be ordered or to be given effect in a routine manner at the whim of a police officer.
(2.12) That a person is convicted twice or thrice, that there are cases pending against the person under various penal laws like Excise and Prohibition Act and Gaming Act etc., would not be sufficient ground to open rowdy sheet/ history sheet though in a given case such-a situation may lead to a presumption in favour of the police that the police have taken action in the right direction. This conclusion has to be read along with and in conjunction with the other conclusions arrived at in this Judgment.
(3) Human Rights and Police Surveillance:
(3.1) Right to privacy which is penumbral right to life and liberty under Article 21 of the Constitution of India is also recognised under Universal Declaration of Human Rights, 1948 and International Covenant on Civil and Political Rights, 1966.
(3.2) Any action of the police other than just keeping a watch on the movements of a suspect or a person likely to cause breach of peace, would violate the right to privacy as well as other rights guaranteed under the Constitution and various Statutes. But there cannot be any objection for anybody if the police watch or keep surveillance on the movements of a person in a discreet manner for the purpose of prevention of crime without restraint as to the enjoyment of the fundamental rights by the history sheeter/rowdy sheeter.
(3.3) When the right to privacy is violated by unnecessary, invasive and obtrusive surveillance, a person shall have cause of action for action in public law as well as private law, that is to say, cause of action for civil action as well as criminal action and also in the field of tort law. This conclusion may be read along with the conclusions in 3.4. to 3.7.
(3.4) Action maybe taken by a citizen by way of a proceeding under Article 226 or 32 of the Constitution of India for judicial review of the police action and for appropriate relief.
(3.5) A person may initiate criminal action against the officers responsible for criminal trespass subject to other provisions of Code of Criminal Procedure, 1974.
(3.6) A citizen may sue the police seeking damages in tort by filing a civil suit for trespass as well as for unlawful detention.
(3.7) A citizen may also seek appropriate compensation in public law jurisdiction from the Court of judicial review under Article 226 or 32 of the Constitution which is in addition to other remedies.
(3.8) The Human Rights Courts constituted Under Section 30 of the Protection of Human Rights Act, 1993 is competent to entertain any complaint or take cognizance of any case complaining violation of right to privacy due to obtrusive surveillance and give appropriate relief both under criminal law as well as civil law. Human Rights Court is also competent to award compensation Under Section 357 Cr.P.C.
(4) Scope of Tudicial Review of Police Action vis-a-vis History Sheet/ Rowdy Sheet:
(4.1) A mere conviction or convictions cannot be thumb rule for opening history sheet or rowdy sheet though history sheet can be opened even without conviction for the limited purpose of watching a person discreetly.
(4.2) At the time of opening a history sheet or rowdy sheet a competent officer has to apply mind taking into consideration the social background, the proceedings in the criminal trial if a person is convicted and all other relevant material before passing orders for opening history sheet or rowdy sheet.
(4.3) A history sheet/rowdy sheet is retained for the period of two years only unless it is ordered to be closed by the Superintendent of Police earlier than two years. During the initial period of two years, the history sheeter or rowdy sheeter is entitled to request the concerned police officer to close the history sheet or rowdy sheet which has to be considered by the police officer in an objective manner.
(4.4) While passing orders for retention of history sheet for another year more, the competent Sub-Divisional Police Officer has to take into consideration the various factors, to wit, surveillance reports, the crime history with reference to the breach of peace of society during the preceding year, the social and political background of the person etc. If there is a preponderance of opinion among the surveillance officers that the person did not come up for any adverse notice and leading a blemishless family life it is a strong circumstance to order for closure of the history sheet or rowdy sheet.
(4.5) When an order is passed by the competent police officer for retention of the history sheet by simply endorsing on the report/letter of the S.H.O. a single line order, that by itself cannot be a ground to continue the rowdy sheet.
(4.6) Any order passed by the Sub-Divisional Police Officer shall have to be supported by reasons. The reasons need not be communicated but to be recorded.
(4.7) The orders for opening or retention of history sheet/rowdy sheet are passed under the administrative instructions/guidelines. If such an order is challenged, the competent authority has to place the reasons before the Court which justify retention of history sheet/rowdy sheet. Further, it is always better for the Police Officer to record his own reasons for retention/opening of the history sheet/rowdy sheet.
(4.8) In the event as mentioned in conclusion 4.7. it is always open to the Court of judicial review to direct the Sub-Divisional Police Officer to reconsider his decision and pass appropriate orders. But whatever be the events in the guise of opening/retention of history sheet a person’s liberty, right to privacy and other freedoms under Article 19 of the Constitution of India cannot be infringed under any circumstances.
(4.9) It is to be remembered that any order of the competent police officer which is not supported by reasons is itself unreasonable and arbitrary and can be termed as mala fide in the sense that it is contrary to the purpose for which the Police Officer is authorised under relevant Police Standing Orders. Hence if the Court comes to the conclusion that the order of the Sub-Divisional Police Officer is contrary to the purpose for which surveillance is authorised, the action shall be set at naught forthwith on the principle that what is unreasonable and unfair is arbitrary and such arbitrary exercise of power amounts to exercising, the power mala fide.
84. The principles of law emanating from the conclusions mentioned above are not exhaustive and there may be different situations warranting application of different principles of law.
85. In re Point No. VI: The learned Government Pleader for Home contends that as the petitioner has involved in number of offences including Cr.No. 60 of 1998 Under Sections 324, 342 and 506 IPC there is ample justification for retention of the rowdy sheet. Refuting the same, the learned Counsel for the petitioner contended that after 1988 the petitioner did not involve in any crime much less in a crime which attracts Police Standing Order 734 and therefore the pendency of petty case Nos. 303 to 306 of 1997 Under Section 9(1) of A.P. Gaming Act or pendency of Cr.No. 60 of 1998 do not justify the retention of rowdy sheet. The learned Counsel for the petitioner also contends that the petitioner is eking out livelihood as a respectable citizen as a lorry driver. The owners of the lorry often asked him to go to far off places, like Assam, in which event, the petitioner is paid handsome amount. If on account of the retention of the history sheet, the petitioner is asked by the police to be present in the police station, the petitioner would be deprived of his job. The petitioner’s Counsel also submits that on a number of occasions, the petitioner could not go as driver to far off places because the police asked the petitioner to be present in the police station.
86. The legal issues involved in this case have been examined in detail with reference to the cases decided by the Hon’ble Supreme Court. The conclusions arrived at are already extracted above. The question whether police should be permitted to retain the history sheet of the petitioner is to be examined with reference to the legal police (sic. position) as noticed by this Court above.
87. The police officer who opened the rowdy sheet on 22-4-1973 recorded that the petitioner (he is referred in the history sheet as B.C. (bandicoot) may be a person who carries out activities during night in police parlance) came from a poor family and as he has no proper control by his parents he is addicted to bad habits and became thief for want of money. This Court entertained a doubt that the petitioner was a minor when the history sheet was opened in which event opening of rowdy sheet itself is contrary to Police Standing Orders. As no arguments are addressed on this point, it is felt to leave it there. Be that as it may, from 1973 onwards every year the Sub-Inspector of Police respondent No. 3 approached the concerned Deputy Superintendent of Police (Sub-Divisional Police Officer) through the concerned Circle Officer. The Sub-Divisional Police Officer passed one line order to retain the rowdy sheet upto , December of the current year. For some time in 1978-79 the petitioner was not in Gudivada, he was working as Driver of a Cine Artist. Till 1988 the Sub-Divisional Police Officer either said “retain” till end of December or simply passed orders in mono-syllables for retention of the rowdy sheet. Till 1988 there are many entries recorded by the surveillance police officials either the Constables or Sub-Inspectors to the effect that the petitioner has not come up for adverse notice. All the entries show that he is working as driver either at Gudivada or some other place and that there are no bad or adverse reports from his employers. For the year 1988 the Sub-Divisional Police Officer passed orders on 6-1-1988 to retain the history sheet till 31-12-1988.
88. I have gone through the history sheet containing 73 sheets which is in two parts. Part-I contains the endorsements/reports of the surveillance officers. At some places we also find one sentence orders or mono-syllables orders of the Sub-Divisional Police Officer to the effect that the history sheet may be retained till December of the current year. The latest endorsement is found on the reverse of sheet No. 47 of the history sheet. On this page the entries are as follows:
“Submitted: This KD is young and active. There is necessity to watch his movements. Hence, I request my kind officer orders may be issued to retain H.S. one more year.
Sd/-.
SI of Police, dt: 31-12-1998
Forwarded to SDPO/Gudivada.
Orders may be issued to retain the sheet.
Sd/-
C.I. of Police, Gudivada.
Sheet may be retained upto 31-12-1999.
Sd/-.
SDPO, Gudivada, 16-1-1999.”
89. There are number of reports of the Police Officials during each year, as mentioned earlier, that there were no complaints against the petitioner and that he is either eking out his livelihood by working as driver or by giving loans for interest to others. What is more important is that though the writ petition is filed before this Court on 26th August, 1998, the same was not brought to the notice of the Sub-Divisional Police Officer by the Sub-Inspector of Police who has filed counter-affidavit before this Court on 14-9-1999.
90. Part II of the history sheet produced before me contains various letters and recorded statements of persons. These letters and statements are either issued by the petitioner or by 3rd parties. Whenever the petitioner wrote, he sought for permission to leave Gudivada on his trips as driver of a vehicle or some other work. This leads to an inference that the long pendency of the history sheet has virtually curtailed the liberty of the petitioner. He is deprived of his rights under Article 19(1)(d) and Article 19(1)(g) of the Constitution. Even though he is working as driver and going out on his trips, he was forced rather conditioned by quirk of fate to seek permission of the police officials. The surveillance under these circumstances cannot be said to be unobtrusive.
91. Relying on various judgments of the Supreme Court I have to hold that the obtrusive surveillance on the petitioner violated right to life and liberty under Article 21 of the Constitution of India. This criticism can only be met by the police by producing valid reasons before this Court. In my considered opinion the competent Gazetted Police Officer has not at all applied mind while passing orders from 1-1-1989 onwards. The pendency of petty cases under the Gaming Act cannot be the ground for retention of the history sheet. Even on this it is to be noticed that with regard to petty case Nos. 303 to 306 of 1997 Under Section 9(1) of Gaming Act and petty case Nos. 416 to 425 of 1977 for the same offence, fine was imposed in summary trial cases. The offences against a person under Gaming Act, if any, do not furnish any ground for opening a history sheet. Therefore, it has to be held that the fundamental rights of the petitioner to the life and liberty have been grossly violated by the respondents. The spirit of relevant Police Standing Orders have not been kept in view. There is considerable force in the submission of the learned Counsel for the petitioner that retention of the history sheet against the petitioner after 1988 is arbitrary and violates the human rights of the petitioner.
92. As held by the Supreme Court in Malak Singh’s case (supra) opening and retention of rowdy sheet or history sheet the consequence of which is obtrusive surveillance, would give a remedy to the citizen, the petitioner herein, to seek for the protection of this Court. In such factual context this Court is bound to protect the right to life and liberty of the petitioner who once committed an offence because of his social backwardness and economic backwardness. While coming to the conclusion that there is necessity for the retention of the history sheet, the concerned Gazetted Police Officer has not considered all the relevant aspects before recording ‘reasonable belief that a person is likely to commit crime. The various orders passed from time to time and the one passed on 16-1-1999 is not in conformity with the law laid down by the Supreme Court as noticed by this Court above. As already noticed, there are no cases after 1988 requiring the police to open/retain the history sheet. Therefore, the writ petition has to be allowed.
93. For the foregoing reasons, the writ petition is allowed. A mandamus shall issue to the respondents herein and to their subordinates to close the history sheet No. 615 of the petitioner opened on 22-4-1973 and there shall be no surveillance on the petitioner. The petitioner is also at liberty to avail such other remedies as are available to him under law as pointed out by this Court above. The petitioner will be entitled for costs which shall be set at Rs. 1,000/-.