D. K. BASU VS.

STATE OF WEST BENGAL

COURT: Supreme Court Of India

Citation of the Judgement: AIR 1997 SC 610; (1997) 1 SCC 416; 1997 SCC (Cri) 92

FACTS:

In this case, Mr. D.K. Basu, the executive Chairman of Legal Aid Services, which is a non-
political organisation, wrote a letter to the Chief Justice of India, to raise concern over the
matter of recent deaths and violence which were being reported in the police custody and
lockups. The letter substantively reproduced and brought attention to various reports in
newspapers such as The Telegraph, The Indian Express and The Statesmen which reported
instances of custodial deaths in the country. The letter was treated as a writ petition when it
was filed before the Supreme Court of India. In this case, petitioners also rose concern over
the police powers and that compensation should be given to people if there is any
infringement of their rights mentioned in the article 21 and 22 of the Constitution.

After being treated as a writ petition, the supreme court issued notice to the respondents,
State of West Bengal. However, the respondents primarily disregarded the contents of the
claims by the petitioners as misleading and untenable in law. However, through another
letter-writ petition by one Ashok Kumar Johri, the court issued notices to all the states and
the Law commission to provide an opportunity for them to place their counters claims on
the issue before the court. Further, interestingly, the court adjudged this as a matter of
national importance by issuing such notices.

ISSUE:

The court considered various issues relating the rights of arrestees/detenus and further,
discussed them in consonance with the incidents of custodial deaths. The issue had gained
momentum due to the court taking cognizance of the rising custodial deaths in the country
and various claims that had come before the court at previous instances regarding such
incidents occurring under the garb of “executive functions”. However, the court did not
frame any issue formally but its discussion can be titled under:

“The Issue in the Present Case pertained to Custodial Torture and Deaths by
the Police and how the criminal justice system deals with such facets of its
functioning.”

LAW APPLICABLE:

The law applicable comes from various sources like the Cr. P. C and the Constitution of India.
For instance, the court has ventured into the certain rights of the accused/arrestee/detenu
by tracing them through the Provision under the Cr.P.C like Sections 46, 49, 50, 53, 54, 56,
57, 167 and 176. Some of these provisions also relate to powers to conduct an inquiry by
the Magistrate in the event of a death of a person in custody, or any other type of
detention. The provisions of the Constitution are largely referred to lay down the
Constitutional scheme which protects the rights of the detained persons under Articles 20
and 22 and the broader right to life and liberty under Article 21 available to every person.

The judgement also referred to various international conventions like the ICCPR
(International Covenant on Civil and Political Rights) and the UDHR (Universal Declaration of
Human Rights) which Indian may or may not have ratified. Nevertheless, the court has
referred to them as sources of law for the purpose of its reasoning.

ORDER:

The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory
Safeguards which were to be followed in all cases of arrest and detention. The guidelines
are as follows: –

1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should have clear identification and name togs with their designations.
2. The police personnel carrying out the arrest shall make a memo at the time of the
arrest.
3. The person who has been arrested shall be entitled to have a friend, relative or any
other person known to him that he has been arrested or detained at the particular
place.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police and where the friend or relative of the arrestee lives outside town through
the legal Aid Organisation in the District and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
5. The arrested person must be aware of his right to inform someone of his arrest.
6. An the entry should be made in the place of detention and name of the person in
custody, his friend who has been informed and details of police officials must be
attached within it.
7. The arrestee should be examined at the time of arrest and any injuries on his body
must be recorded. The inspection memo must be signed both by the arrestee and
police officer concerned and a copy must be provided to the arrestee.
8. The arrestee should be subjected to medical examination every 48 hours during his
detention by a trained doctor .
9. Copies of all the documents including the memo of arrest should be sent to
Magistrate for his record.
10. The arrestee must be permitted to meet his lawyer during the interrogation but not
throughout the whole interrogation.
11. A police control room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee shall
be communicated by the officer causing the arrest, within 12 hours of effecting the
arrest and should be displayed on the notice board of police control room.
The court further adjudged that a non-adherence of these requirements would trigger a
departmental inquiry and also proceedings related to Contempt of Court.
ANALYSIS:

The court while dealing with the issue of human rights in respect of the numerous instances
of custodial deaths or lock-up deaths has primary placed its discussions on two key points:
the powers of the police machinery in the country and the awarding of compensation for
infringement of fundamental rights under the constitutional scheme.

Taking the first issue into consideration, the court has first ventured into defining what
torture is and in the absence of any legislative enactment doing this, has done it on its own.
In doing this, it describes the evil nature of the act and the requirement of its removal under
the modern rule of law structure. Further, it refers to the UDHR and certain reports
investigating the Sir Cyril Philips Committee — “Report of a Royal Commission on Criminal
Procedure” (Command Papers 8092 of 1981). The reference to UDHR sets the basic
framework on through which the court stems its contribution to the Human Rights’
Jurisprudence and the British Report gives an instance where the dire situation of regulating
custodial violence has been highlighted and dealt with in a fellow common law country.

The court then lays down the constitutional scheme of protection against “Unjustified
Assault” and holds that the weight of Article 21 is such that it definitely gives a guarantee
against “torture”. After this and the further laying down of the procedural safeguards under
the current statutory framework. The court then turns to the fact of the matter and explains
of most of these cases occur in the process of investigation of the crime by the police
machinery and therefore there appears a certain need of formulation of some guidelines to
avoid such dire consequences in a free society. It explains how the presence of such stories
repeatedly in the newspapers and their mere presence causes a certain apprehension in the
society. The court has primarily done this to show how in the process of saving the society
from the evil of crimes, the system has led to another evil of custodial violence to persist
and thrive itself in the very fabric of the system. It further refers to various reports like the
Third Police Commission Report to further state this. The court also refers to the case of
Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 : 1994 SCC (Cri) 1172] to show how even a
report by the District Judge was made on the same issue as a consequence of this case.
However, the court has an ulterior motive in referring to the various guidelines made by
these reports and that is to show how these guidelines were never given the statutory
consent and legitimacy even when the parliament’s attention has been called on such issue
at various instances. This is done to justify why the court has essentially performed a
legislative function by giving a set of “requirements” to be followed in the process of arrest.
The court then lays out the primary difficulties in such cases of custodial violence by
underlining the intricacies of State of M.P. v. Shyamsunder Trivedi [(1995) 4 SCC 262 : 1995
SCC (Cri) 715 : (1995) 3 Scale 343] which illustrates the crux of the problem herein. This case
primarily shows how prosecution in such cases becomes difficult due to various problems
like unwillingness of policemen to become prosecution witnesses and the possibility of
manipulation of police records. The court highlights how though the functions of the police
are very unique and require certain actions that may infringe the liberty of the person but
the court opines that in any case the “Ends do not justify the means”. Further, it shows how
State terrorism cannot be used to combat terrorism and the answer lies in a balanced
approach between the interests of the individual liberty and the security of the society. This
balanced approach is based on two principles: transparency and accountability which are
reflected in the requirements drafted by the court.

The other venture the court went into was under the principle of “Ubi jus, ibi remedium”.
The court set out to establish the giving of compensation for the infringement of
fundamental rights. The court very carefully justifies the establishment of such
compensation through the reference of various foreign jurisdictions like Ireland, New
Zealand and also judgement of the Privy Council and provisions of certain conventions like
Article 9 of the ICCPR. The court however, has cleverly placed this doctrine as innate to the
Public Law, while differentiating this from the domain of “compensation” and “damages”
under the law of torts wherein the doctrine of “sovereign immunity” applies. The court
primarily does away with this established doctrine by placing the compensation under the
purview of public law and distinctly separating it from the purview of private law. The court
in doing this has established a new doctrine wherein compensation is liable to be awarded
for certain “established” infringements of fundamental rights. The court has justified by
showing the need of developing certain “new tools” for the protection of freedom in the
modern age and further, has expanded the scope of criminal courts and by extension the
Criminal justice System’s new prerogative of determining such compensations for State
actions.

CONCLUSION:

In conclusion, the court has discussed two very important facets of human rights’
jurisprudence and has ventured into taking a new step in the field of judicial legislation by
essentially drafting a code of procedure of arrest by making these factors not just
guidelines, but rather requirements under law to be followed, a non-adherence of which
triggers judicial proceedings. Further, this not only disregards the entire legislative process
in such areas but expand the nature and functioning of the Criminal Justice System. It takes
inspiration from foreign common law jurisdictions and invests in itself a power of drafting
such provisions in order to protect the justice system. One of the primary examples of this is
how the court has essentially ratified a provision of the ICCPR with blatant disregard of the
government’s rejection to ratify the same. However, the procedural provisions herein
drafted effectively reflect the principles of “transparency and accountability” and therefore
the venture of the court stands successful in attaining its purpose.