D.K Basu versus State of West Bengal
AIR 1997 SC 610
(1997) (1) SCC 416
1999 Cri Law J. 7431
This case was decided by Justice Kuldip Singmand Justice (Dr.)A.S. Anand of the Supreme-Court and various on 18th forms December, 1996. The case dealt with custodial deaths and various forms of custodial torture, and cruel, inhuman and degrading treatment of prisoners and other persons being questioned by the police.
Shri D.K Basu, the Executive Chairman of Legal Aid services, wrote a letter to the Chief Justice of India; drawing his attention to certain news reports appearing in The Indian Express and The Telegraph, regarding deaths in police custody and lock-ups. It was submitted that it was imperative to develop “custody jurisprudence”, and to formulate guidelines for awarding compensation to the victim, and in case of his death, to his family members. The court was requested to treat his letter, along with the published news items, as public interest litigation.
Considering the importance of custodial deaths, notice issued to the State of West Bengal, which filed its counter (that is its written submissions or reply). It was stated therein that the police was not hushing up any matter of deaths in lock-ups and that wherever police personnel were responsible for custodial deaths action was being taken against them. It was argued that the Writ Petition was thus misconceived, misleading and untenable in law
While this Petition was pending, another letter was received by the Chief Justice from Shri Ashok-Kumar-Johri, drawing the attention of the Court to the death of Mahesh Bihari of Aligarh in police custody. This letter was also treated as a Writ Petition and heard along with Shri Basu’s Petition.
The Court expressed its alarm at the frequency of deaths in police custody (“lock-up deaths”) reported by newspapers. It, therefore, issued notices to all the State Governments. Notice was issued to the Law Commission of India, requesting it to make suggestions in the matter. The Court also appointed a Senior Advocate, Dr. A. M. Singhvi, to assist the Court as amicus curiae.
Initially, the State Governments took a stand that “everything was well” within their respective States, but ultimately assisted the Supreme Court in examining various aspects of the issue and made useful suggestions for formulation of guidelines by the Court:
- to minimize, if not prevent, custodial violence, that is, torture in lock-ups; and
- for the award of compensation to the victims of custodial violence and to the kith and kin of those who die in custody on account of such torture.
The Law Commission also submitted to the Court, a copy of its 113th Report regarding injuries in police custody and suggested incorporation of a new Section (Section 114-B) in the Indian Evidence Act.
After commenting on the fact that the word “torture” has not been defined by any Indian statute, the Supreme Court remarked that ‘torture” is, today, synonymous with the darker side of human civilization. It observed that custodial torture is a naked violation Of human dignity which destroys the individual. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backwards. What is of real concern in such cases is not only the infliction of bodily pain but also the mental agony which a person undergoes within the four walls of the lockup or police station.
The Court observed that if the functionaries of the law themselves become law-breakers, it is bound to breed contempt for the law and encourage lawlessness. Every man would tend to become a law unto himself and this would lead to anarchism. The police are, no doubt, under a duty to arrest a criminal and interrogate him; but the law does not allow the use of third degree methods to torture the accused while in police custody with a view to solving the crime. As observed by the Supreme Court, “The end cannot justify the means. No society can permit it.”
In India, Article 21 of the Constitution of India protects life and personal liberty by providing that “no person shall be deprived of his life or person liberty except according to the procedure established by law”. The Court observed that the expression “life or personal liberty” includes the right to live with human dignity, and thus it would also include within itself, a guarantee against torture and assault by the State. Article 22 of the Constitution guarantees protection against arrest and detention in certain cases, laying down the procedural requirements as well as the rights of the person-arrested. Detailed provisions are contained in the Criminal Procedure Code regarding powers of arrest and the safeguards which are required to be followed by the police to protect the interests of the arrested person. However, in spite of all these provisions, morning newspapers carry, almost every day, reports of dehumanising torture, assault, rape and deaths in police custody, and in the words of the Supreme Court, “Society’s cry for justice becomes louder.”
Eleven guidelines laid down by the Supreme Court
Before laying down the guidelines as preventive measures in this regard, the Supreme Court made extensive references to the Universal Declaration of Human Rights, the Report of the Royal Commission on Criminal Procedure (in England), the Third Report of the National Police Commission (in India), the International Covenant on Civil and Political Rights and several Indian and foreign cases.
The Court then formulated the following eleven guidelines to be followed in all cases of arrest and detention, until legal provisions are made on that behalf. The Court further directed that failure to comply with these requirements would render the concerned officer liable for departmental action and such a person would also be contempt of court.
- The police personnel carrying out the arrest the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations al such police personnel who handle interrogation of the arrestee must be recorded in a register
- The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or respectable person of the locality from where the arrest is made. Such memo shall also be countersigned b the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him, informed, as soon as practicable, that he has been arrested and he is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town, through the Legal Aid Organisation in the district and the Police Station of the area concerned, telegraphically within a period of 12 hours after the arrest.
- The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
- An entry must be made in the Diary at the place of detention regarding the arrest of the person, which shall also the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, also be examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that limo. The “Inspection Memo” must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.
- The arrestee hours should be subjected to medical examination every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory. Health Services of the concerned State or Union Territory.
- Copies of all the documents including the memo of arrest referred to above should be sent to the Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- 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 should be communicated by the officer causing the arrest, within 12 hours of effecting the arrest, and such information should be displayed on a conspicuous notice board in the Police Control Room.
Grant of compensation to victims of custodial torture
In every case where a man is wronged, he must have a corresponding remedy. Ubi jus ibi remedium. When a fundamental right of a person is infringed by the State, a mere declaration of the invalidity of an action or a finding of custodial violence or death would not be a meaningful remedy. In the words of the Court, “To repair the wrong done and give judicial redress for the legal injury is a compulsion of judicial conscience.” In such cases, the mere punishment of the wrong-doer cannot give much solace to the victim or his family members. Driving him to file a civil suit for damages would also be a long-drawn and cumbersome judicial process. Therefore, monetary compensation would be useful, and perhaps, the only effective remedy “to apply balm to the wounds of the family members of the deceased victim, who may have been the bread-winner of the family”. The Supreme Court, therefore, examined the provisions of the International Covenant on Civil and Political Rights, 1966, as well as the observations in several Indian and English cases. Thereafter, it came to the conclusion that monetary or pecuniary compensation would be the appropriate, effective, and in some cases, the only suitable remedy for the infringement of a citizen’s fundamental right to life by a public servant. The State is vicariously liable for the acts of its servants and after meeting its monetary liability to the victim, it is entitled to be indemnified by the wrong-doer. In such cases, the claim of the citizen is based on the principle of strict liability and the defence of sovereign immunity is not available to the State. The citizen is thus entitled to compensation from the State.
Lastly, the Court observed that the quantum of the compensation would depend on the peculiar facts of each case, and no strait-jacket formula can be evolved for this purpose. However, in assessing such compensation, the emphasis should be on the compensatory, and not the punitive element.
Author: Akshada Sarpande,
MIT School of law, student of FY BBA LLB