Balakrishna, J.:—

Rule nisi.

2. By consent of the learned Counsels appearing for the parties, this Writ Petition is taken up for hearing and disposed of by this order.

3. In this Writ Petition, the petitioner is aggrieved by the inclusion of his name in the list of habitual offenders prepared and maintained by respondent-2 on the recommendation of respondent-3.

4. The facts of the case, in brief, are as follows:

The petitioner, who is an agriculturist, is a resident of Pavagada Town, Tumkur District. According to him, respondent-3, who is a Police Sub-Inspector, wilfully initiated criminal proceedings on one pretext or the other against the petitioner in order to please a person named Hanumantharayappa. With this end in view, respondent-3 foisted two petty cases in C.C No. 146 of 1985 and C.C No. 168 of 1986 before the Munsiff-Magistrate, Pavagada. In both the cases, the petitioner was acquitted on merits. According to the petitioner, one more petty case is pending against him and that also was foisted by the same respondent-3.

5. The order of acquittal has been produced by the petitioner vide Annexure-A in respect of C.C No. 146 of 1985.

6. On the basis of the orders of acquittal, the petitioner sued respondent-3 for malicious prosecution and claimed damages. The said case is pending before the Court. According to the petitioner, actuated by spite on the failure of respondent-3 to have the petitioner convicted, it is stated at the Bar, that respondent-3 recommended inclusion of the name of the petitioner in Rowdy list which is a list said to be prepared by the Police as a list of habitual offenders. It is also alleged by the petitioner that his photo has been displayed in the Police Station at Pavagada as a habitual offender. Consequently, the petitioner is aggrieved.

7. The short point for consideration is whether the inclusion of the petitioner's name in Rowdy list is in accordance with law in the facts and circumstances of this case.

8. It is strongly contended by the Counsel for the petitioner that the action of respondent-3 is illmotivated and calculated to bring the petitioner to disrepute by including his name in the list of habitual offenders which is also known as Rowdy list without any ostensible justification. In short, the contention of the petitioner's Counsel is that the action of respondent-3 is absolutely vindictive and unrelated to factual justification. It is further contended that there is no legal warrant to justify the inclusion of the petitioner's name in the Rowdy list.

9. The learned High Court Government Pleader appearing for respondent-1 and 2 submitted that the photograph of the petitioner has not been displayed in the Police Station, but confirmed the fact that the name of the petitioner has been included in the Rowdy list. When I asked the learned Government Pleader to point out specifically the provision of law under which such a list is expected to be maintained by the Police and the basis for including a person's name in the list as a Rowdy, a search was made in the Police Act and, later on, it was submitted that there is provision for preparation of a Rowdy list in the Police Manual. The relevant provision has been brought to my notice.

10. On page 36 of the Mysore Police Manual Volume II (1965 edition) Chapter XXI is Order No. 1059 issued by the Inspector General of Police purported to be issued under the Mysore Police Act, 1963 and it bears the heading, “Rowdies.” The said order runs as follows:

“1059. The following persons may be classified as rowdies and rowdy sheets (Form No. 100) may be opened for them under the orders of the Superintendent or the Sub-Divisional Police Officer:—

(a) Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace.

(b) Persons bound over under Sections 106 and 107, Criminal Procedure Code.

(c) Persons who have been convicted under Sections 31(1)(u) or twice in two consecutive years under Clauses m, o or p of sub-section 1 of Section 92 of the Mysore Police Act, 1963.

(d) Any person who, in the opinion of the Station House Officer, is desirable to be considered as a ‘Rowdy’.”

From the Manual, it is apparent that it is a compendium of Departmental Orders issued by the Inspector General of Police for the administrative guidance of police officers. Though they are stated to have been issued under Mysore Police Act, 1963, they have no statutory basis and consequently no statutory force and merely acquires the attribute of executive or departmental instructions intended for the guidance of the police officers. Order No. 1059 containing clauses (a) to (d) is no exception. In no sense, the said order could be construed as “a law” which the State is empowered to make under the appropriate Clauses (2) to (6) of Article 19 in order to regulate the fundamental right guaranteed by the sub-clauses of Article 19(1)and obviously not a procedure established by law within the ambit of Article 21.

11. No counter has been filed on behalf of the State. It is not the case of the State that the name of the petitioner has been entered in the rowdy sheet on any of the grounds specified in Order No. 1059. In the absence of statement of objections, it has to be presumed that the averments of the petitioner in the Writ Petition have stood unchallenged. The learned Counsel for the petitioner categorically maintained that the petitioner does not fall into any of the description mentioned in Order No. 1059 and that assuming for the sake of argument that the name of the petitioner has been included in the rowdy sheet under category (d) of the said order, the unguided power given to the Superintendent or the Sub-Divisional Police Officer is capable of arbitrary and malafide exercise of power and is therefore repugnant to Article 21 of the Constitution militating against the fundamental right of personal liberty assured to the citizen and that the power has been misused. The records relating to the petitioner were produced in Court and I am convinced that there is absolutely no material on record to warrant the branding of the petitioner as a rowdy and to justify the entry of his name in the rowdy sheet. Further, no opportunity was given to the petitioner to know the allegations against him to be classified as a rowdy and no opportunity was afforded to the petitioner to explain and defend himself against allegations if any. The petitioner was completely kept in the dark until the Sub-Inspector one day told the petitioner that his name has been included in the rowdy list.

12. The oral submission of the learned Counsel for the State that the petitioner, in the opinion of the Superintendent of Police on the recommendation of respondent-3 (Sub-Inspector of Police), was a rowdy does not merit acceptance. There is no material on record to show the existance of criteria, application of mind and formation of opinion to brand the petitioner as a rowdy. That Clause (d) of Order 1059 creates wide scope for arbitrary exercise of power in dealing with the dignity and integrity of the individual leaves hardly any scope for doubt. The notoriety of rowdy in the history sheet of the Police Manual makes dismal reading of an antiquarian, archaic and outdated practice under Clause (d) of Order 1059 unleashed by the Inspector General of Police under the shadow of the Mysore Police Act, 1963. It appears to me that it is high time to take a second look at the relevant Order in the Police Manual and bring it in line with Rule of Law and Human Rights.

13. Even assuming that there is a provision which empowers the Police Officer to maintain a rowdy list and to include the names of the alleged rowdies in such a list, elementary principles of natural justice demand that an opportunity should be given to the person concerned to explain or defend against such an allegation or proposed action before the name is actually included in the list. Inclusion of a name in such a list tends to expose a respectable citizen to public ridicule and will also affect his personal liberty. The effect of the inclusion is that, at any time, such a person could be dragged into the Police Station on suspected incidents and his position would always be vulnerable to police action. The petitioner has a clean record so far, free from conviction for any offence.

14. Precious rights of the individual are involved. The dignity of the individual deserves protection under the Rule of Law. It is the force of law which has to be enforced and not the force of misconceived law.

15. It is not farfetched to presume in the circumstances of the case that respondent-3, who is the Sub-Inspector of Police, having failed in two petty cases to damn the petitioner has deliberately included the name of the petitioner in the Rowdy list. Taking on overall view of the circumstances of the case, I am of the opinion that the conduct of respondent-3 in including the name of the petitioner in the Rowdy list is wholly unjustified and unreasonable.

16. I regard this questionable practice of branding a citizen as a depredator or a rowdy and entering his name in a register of infamy by the police without an enquiry and in the absence of conviction for any criminal offence as an act which calls for serious consideration bearing in mind the legal implications and consequences resulting therefrom. The practice may have a long standing and remained unchallenged to this day but that would not by itself lend legitimacy to it unless it has legal recognition.

This practice which is a ghost of the past still continues to stand in the path of justice clanking its medieval chains frightening and terrorising the common man, usurping the dignity of the individual, dehumanising him and destroying his honour and reputation in society throwing the doors open to degrading treatment at the hands of the custodians of law. The practice is violative of the spirit of man and fits into the description of an act of social regression. State terrorism and even police lawlessness.

Freedom from indignity is a necessary concomitant of personal liberty which is guaranteed under Article 21 of the Constitution of India. The right is akin to the human right enshrined in the Charter of the Universal Declaration of Human Rights. The relevant Articles are reproduced below:

“Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home, correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

“Article 5: No one shall be subjected to torture or to crue inhuman or degrading treatment or punishment.”

Article 21 of the Constitution of India provides:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

It is a well established principle that “due process of law” envisages a process of law which proceeds upon enquiry and renders judgment only after trial. It also, contemplates a process of law which hears before it condemns and presupposes the existence of an ascertainable standard of guilt.

According to Blackstone,

“Personal security consisted in a person's legal and uninterrupted enjoyment of his life; his limb, his body, his health and his reputation.”

Blackstone ascribes three absolute rights in English law namely, rights of personal security, personal liberty and property.

“The guarantee of due process of law is so all-inclusive that all constitutional guarantees could be abolished and there still would be sufficient protection to personal liberty….Due process of law applies to personal liberty, to social control, to procedure, to jurisdiction and to substantive law…No better scheme could have been involved to permit the Supreme Court to strike the proper balance between personal liberty and social control.”

This is a passage from Willis on “Constitutional Law” pages 642-643.

The least that could be said about the cursed practice of branding a man as a depredator and entering his name in the rowdy sheet is that it is not only repugnant to Article 21 of the Constitution but also to the Universal Declaration of Human Rights, violating the dignity of the individual which the preamble to the Constitution of India assures. The ignoble practice is not only medieval but also capable of unimaginable mischief to the respectable and the innocent, which arbitrariness alone could generate by indiscriminate use of unregulated power at the hands of the police.

The truism that when the rights of an individual are chipped away, the freedom of all erodes is little realised. I consider that it is the duty of the Court to uphold the Rule of law and pave the way for the advent of a new administrative culture wherein every tendency, towards regression in social order, institutionalisation of administrative deviance and police lawlessness is checked and controlled to protect the personal liberty of the citizen.

In the context, it is relevant to recall the words of Walter Lippmann:

“The deepest issue of our time is whether civilised people can maintain and develop a free society or whether they are to fall back into the ancient order of things, when the whole of men's existence, their conscience, their science, their labour, their arts and their integrity as individuals were at the disposal of the State.”

If individual liberty is to be preserved, there should be limitations on the powers of the State, more so on the powers of the police in particular.

17. For the reasons stated above, I make the following:

The Writ Petition is allowed. The respondents are hereby directed to delete the name of the petitioner from the rowdy sheet list of habitual offenders maintained by them forthwith on receipt of this order.

Respondent-3 is directed to pay costs of Rs. 500/- to the petitioner.