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“Justice will not be served until those who are unaffected are as outraged as those who are”Benjamin Franklin
Have you ever wondered when a person is arrested what are the conditions in which he/she is kept or how are they treated? Are they really protected by the law? Are they appropriately treated by the police while in custody? Are they even returning to their home? If you have not, then let us discuss this in pertinence to case law.
In India, custodial death or custodial torture has become a growing trend. The year of 2015-2019 has witnessed a large number of such cases in India. Generally, custody means restricting a person’s freedom of movement and preventing them from committing any other crime. But, there has been a phase in this country which has changed the definition of custody to restricting a person’s movement by causing his death in jail. Some ends are hidden under the name of suicide, and the others are kept out of records. Specifically, the year of 2015 saw at least 591 deaths in police custody in which most of the accused were not even presented before the magistrate. Further, in the year 2016, 92 deaths were recorded in police custody most of which were caused before being presented before the Court. Among all this, the astounding, yet dismal part is that the administration is inattentive about these incidents. In a democratic country like India, where fundamental rights are the strength of a citizen and every person has the Right to Life and Personal Liberty, such dreadful acts like custodial deaths are unacceptable. In such cases, where the government or the administration is at ease, they should rather be held vicariously liable for the same. Here we will discuss one such case of DK Basu v. State of West Bengal which has broadened the scope of fundamental rights in India.
Facts Of The Case
Mr. DK Basu, the Executive Chairman of Legal Aid Services in West Bengal, a non-political organisation wrote a letter to the Chief Justice of India on August 26, 1986 drawing his attention to the published news articles regarding deaths and violence in lock-ups and custody that were being repeatedly reported. In this letter, Mr. Basu wrote that there is a need to deeply examine this issue and introduce the concept of ‘custody jurisprudence’. The letter further read that there should be a proper set up regarding the cognizance of such crimes because the crime goes unpunished even after being reported. He also expressed concern over the formulation of rules which provide adequate compensation to the victim or in the absence to the family for the wrong done against them. Mr Basu requested the Chief Justice to treat the letter as a writ petition under the category of Public Interest Litigation.
Considering petitioner’s request, the court considered his letter as a writ petition and issued a notice to the respondents on February 2, 1987.
While this writ petition was under consideration, another vigilant person, Shri Ashok Kumar Johri addressed a letter to the Chief Justice of India on July 29, 1987. He wrote this letter intending to draw the court’s attention towards the death of a man, named Mahesh Bihari of Pilkhana, Aligarh while he was in police custody. This letter was also treated as a petition and the court directed to compile both the petitions together.
The notice sent to the respondents and such serious cognizance of the issue on the part od the authorities created disturbance among the states like Assam, Haryana, Himachal Pradesh, Maharashtra, Manipur, Meghalaya, Orissa, Tamil Nadu, and West Bengal and they started submitting affidavits. Consequently, Dr. A.M. Singhvi was appointed Amicus Curiae of the court.
Issues Of The Case
This case raised severe and urgent issues that need to be looked upon by the Court. The three major issues of this case are mentioned below:
- The growing incidents of Custodial deaths and torture by police.
- Whether the policemen are arbitrary in arresting a person?
- Whether there is any need to make guidelines regarding Arrest?
Arguments By Petitioner
Both the petitions were combined and dealt as a whole, and the petitioners were allowed to contend their points in the court of law. The petitioners argued the following:
- That the treatment provided to the person within the four walls of the police station or confinement place resulting in bodily pain and mental agony should be avoided.
- That the purview of trauma experiences is beyond the scope of law, irrespective of whether a crime is a physical assault or rape in police custody.
- That the powers of police must be restricted and there is an urgent need to put a check on their activities.
- That there should be a rule providing compensation to the people whose fundamental rights as per Article 21 and 22 of the Indian Constitution are infringed.
- That there is a need for civilized nation and steps to eradicate this issue of custodial death.
Arguments By Respondent
The Respondent was allowed to present counter-arguments and reply to the petitioner’s contentions. The respondents provided their contentions as follows:
- That the situation in their respective states was satisfactory and proposed the court to examine various facets of the current issue and also suggested the court to formulate guidelines in order to prevent or reduce custodial violence.
- That the court can also formulate certain guidelines in the interest of the people who have died in police custody due to torture.
- That the State of West Bengal was open for all sort of investigations and questions if any death has taken place in their custody.
- That the State of West Bengal denied all the allegations put against them stating the petition was misconceived, inappropriate and misleading the law.
A division bench gave the judgement on December 18, 1996. The bar issued its decision considering the rule of law as a basis. The court considered the aspects like Right to life and personal liberty under Article 21, Protection of arrest and detention under Article 22 and Article 20 (3) of the Indian Constitution.
On Fundamental Rights
On the aspect of Fundamental Rights, the court stated that it is the State has to provide remedy when a right guaranteed by it has not fulfilled its constitutional obligation. The court considered Article 21 of the Indian Constitution and ruled that Right to Life and Personal Liberty must include Right to Live with Human Dignity as a facet. The Article 21, however, includes the right against torture and assault by State and its service providers.
The other consideration was about Article 22 of the Indian Constitution which provides that each and every individual arrested shall be informed of the grounds of arrest and have a right to defend themselves by consulting a legal practitioner of their choice.
The last consideration of fundamental rights was about Article 20 (3) of the Constitution. No person who is accused of an offence shall be compelled to be a witness against oneself.
On Custodial Deaths
The court opined that crimes like torture and deaths in lock-up are a question on the rule of law. The court further regarded crimes like custodial violence as the worst crimes in any civilised society. Despite such a numerous constitution and many other statutory provisions safeguarding the personal liberty and the life of citizens, it is shameful that incidents of torture and deaths are growing in police custody.
The court relied on the judgement of Nilabati Behera v. State of Orrisa. It stated that any form of torture, inhuman or degrading behaviour, or cruelty comes within the purview of Article 21. The fact that it occurred during any investigation, interrogation or other means is not the concern of the court. Further, Article 21 cannot be denied to any person detained in custody, except through such reasonable restrictions on such right as per the procedure established by law.
Another important precedent used in this case is of Joginder Kumar v. State of UP. The court observed that the procedural requirements laid down in this case were not fulfilled as the police had arrested a person without a warrant in connection with an investigation and the arrested person has been exposed to torture for extracting some information.
Here comes the essential part of this judgement which is a list of 11 guidelines that were issued by the court apart from the constitutional and statutory provisions which are to be followed in all the cases on arrest and detention. These 11 guidelines are enlisted below:
- The Police cadre executing arrest of the accused and carrying out interrogation should not proceed without bearing accurate, visible and clear identifications and uniform indicating their designation. The details of the police handling any interrogation of the accused must be recorded in a register.
- The police officer shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who will be a family member of the arrestee or any respectable person from the locality of arrest.
- A person who has been arrested or detained at a police station or any other confinement centre shall have the right to inform either a friend or a relative or any person know to him or any person having interest in his well-being, as soon as possible that one is arrested and has been detained in a particular place, unless the witness attesting the arrest memo is oneself a friend or relative of the arrested person.
- In case, a relative or a friend lives outside the district or town of arrest, the police must inform such relative or friend about the time and place of detention and venue of custody of the arrestee, through a telegraph through Legal Aid Organisation in the district within a period of 8 to 12 hours of arrest.
- The authorities are under a duty to make the arrestee aware of his right to inform any friend or relative of his arrest or detention as soon as it is executed.
- A case diary, exhibiting the name of the friend who has been informed about the arrest and the names and other particulars of the police officials possessing custody of the arrestee shall be prepared at the place of detention.
- On the request of the arrestee, an examination should be done at the time of arrest, recording the minor and major injuries. Such inspection memo shall be signed by the arrestee as well as the police officer and its copy shall be provided to the arrestee.
- The detainee shall be subjected to a medical examination by a trained doctor, every 48 hours while in custody. Such doctors shall be appointed by the Director of Health Services of the concerned State or Union Territory.
- The copies of all the documents attested while making the arrest shall be sent to the Magistrate for the purpose of his record.
- The arrestee has a right to meet his lawyer during the interrogation, though not throughout the procedure.
- The information regarding the arrest and the place of custody shall be communicated by the officer conducting such arrest to a police control room at all central district and state offices within 12 hours of arrest and shall manifest the same on a notice board.
Analysis Of The Judgement
“Justice consists not in being neutral between Right and Wrong, but in finding out the Right and upholding it, wherever found against the Wrong.”Theodore Roosevelt
This case was a landmark judgement that has protected the rights of many detainees. The Supreme Court has taken this matter of growing custodial violence, and deaths into consideration. It is quite appreciable on the part of court that it recognized the need of new guidelines apart from the already existing provisions under the Code of Criminal Procedure, Indian Penal Code, and Constitution of India and has further upheld the fundamental rights.
In my opinion, the court has taken appropriate measures to avoid crimes like custodial violence and the guidelines issued by the court have protected the people in custody thereafter. Thus, the ruling of the court is very justified and appropriate and has auspiciously protected the concept of rule of law.
Is this case still relevant?
Every landmark judgement pronounced by the higher courts is indeed relevant at all times. Precedents have been one of the most significant sources of law in our country. Similarly, this case of DK Basu v. State of West Bengal is still relevant and holds a considerable impact not only in terms of the 11 guidelines but also in other factual scenarios. Some of the recent cases of custodial violence cases like the Vadodra case and the Tripura case have significantly taken the reference of this instant judgement and this depicts that this landmark judgement has not lost its relevance even after two decades.
Even after so many landmark judgements, guidelines, and provisions has the situation of custodial violence really improved or changed? Are these rules really applicable and important for the people promoting such acts? Recent reports of 2020 have shown that almost 3-4 persons die every day in police custody. In 2019, 1,731 people died in custody and the shocking part is most of them were from vulnerable communities like Dalits or Muslims and also included pregnant women. Such torture and violence are increasing and the people doing this are adopting new methods of torture. Our country’s police authorities have forgotten an essential maxim of the legal system that says ‘Innocent until Proven Guilty’. Looking at DK Basu’s case pronounced in the year 1997 and the recent statistics of 2020, I wonder if this phase of 23 years has seen any improvement or are we still living in the year 1997.
 Shri D.K. Basu, Ashok K. Johri vs State Of West Bengal, AIR 1997 SC 610.
 Public Interest Litigation, https://www.drishtiias.com/to-the-points/Paper2/public-interest-litigation.
 1993 AIR SCC 196.
 The Constitution of India, 1950.
 1994 (4) SCC 260.