No Acts & Articles mentioned in this case
A D.K. BASU
v.
STATE OF WEST BENGAL
DECEMBER
18, 1996
B
[KULDIP
SINGH AND DR. A.S. ANAND, JJ.]
Constitution of India, 1950 : Articles 21, 22 and 32.
Custodial violence-Torture, rape and death in police custody/lock-
C up-Infringes Art. 21 as well as basic human rights and strikes a blow at rule
of law-Torture involved not only physical suffering but also mental agony-It
was naked violation of human dignity and destruction of human per
sonality-{nterrogation must be sustained and scientific-Third-degree
methods
would be
impennissible--Balanced approach needed to meet ends
D of justice so that criminals did not go scot-free-Custodial deaths was one of
the worst crimes in civilised socie~Transparency of action and account
ability were two safe-guards to check abuse of police power-State terrorism
was no answer to terrorism-Victim of custodial violence and in case of his
death in custody, his f amity members entitled to col'l'!pensation under public
law in addition to remedy available under private law for damages for tortious
E act of police personnef-Mandatory 'requirements' issued by Supreme Court
shall be complied with by police personnel while arresting or detaining any
person-These were in addition to constitutional and statutory direc
tions-The requirements would apply with equal force to all governmental
agencies-The requirements must be circulated to all police stations and
F publicised through mass media-Failure to comply with the requirements
would render the official concerned liable for departmental action as well as
contempt of court-Proceedings for contempt of court could be instituted in
High Court ha~ing tenitorial jurisdiction-Penal Code, 1860, Ss. 220, 330 and ·
331.
G Fundamental Rights-Established invasion of-Compensation
for-Held : Compensation could be awarded under public law by Supreme
'
Court and by High Courts in addition to traditional remedies under private
law for tortious acts and pwiishment to wrongdoer under criminal law.
H Public law proceedings-Object of-Held : Different from private law
284
D.K BASU v. STATE 285
proceedings-Award of compensation in public law proceedings, in a given A
case, could be adjusted against damages awarded in a civil suit.
The petitioner filed a petition-public interest-in this Court in the
wake of
news items published in the Telegraph, the Statesman and the
Indian Express regarding deaths in police lock-up
and custody. The
petition stated
that efforts were often made to hush up the lock-up deaths B
and thus the crime went unpunished and
"flourished".
On behalf of the petitioner it was submitted that modalities for
awarding compensation to the victim and/or family members of the victim
for attrocities and death caused in police custody
and to provide for C
accountability of the officers concerned be formulated.
Disposing of the petition, this Court
HELD :
1.1. Custodial violence, including torture and death in the
lock ups, strikes a
blow at the Rule of Law, which demands that the powers D
of the executive should not only be derived from law but also that the same
should
be limited by law. Custodial violence is a matter of concern. It is
aggravated
by the fact that it is committed by persons who are supposed
to
be the protectors of the citizens. It is committed under the shield of
uniform and authority within the four walls of a police station or Jock-up,
E
the victim being
tofally hdpless. The Jlrotection of an individual from
torture and abuse
by the police and other law enforcing officers is a matter
of deep concern in a free society. These petitions raise important issues.
concerning police powers, including whether monetary compensation
should
be awarded for established infringement of the Fundamental
Rights guaranteed
by Articles 21 and 22 of the Constitution of India. The F
issues are fundamental. (295-C-E]
1.2. 'Torture' of a human being by another human being is essentially
an instrument to impose the will of the 'strong' over the 'weak' by suffering.
The word
torture today has become synoymous with the darker side of G
human civilisation.
"Custodial torture" is a naked violation of human dig·
nity and degradation which destroys, to a very large extent, the individual
personality.
It is a calculated assault on human dignity and whenever
human dignity is wounded, civilisation takes a step backward-flag of
humanity must
on each such occasion fly half-mast. In all custodial crimes
what is of real concern
is not only infliction of body pain but the mental H
286 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A agony which a person undergoes within the four walls of police station or
lock-up. Whether it is physical assault or rape in police custody, the extent of
trauma, a person experiences is beyond the purview of
law. [295-F; 296-B-C]
1.3. Custodial death is perhaps one of the worst crimes in civilised
B society governed by the Rule of Law. The rights inherent in Articles 21 and
22(1) of the Constitution require to be jealously and scrupulously
protected. The expression
"life or personal liberty" has been held to include
the right to live with human dignity and thus
it would also include within
itself a guarantee against
torture and assault by the
State or its
functionaries. The precious right guaranteed
by Article 21 of the Constitu-
C tion of India cannot be denied to convicts, undertrials, detenues and other
prisoners in custody, except according to the procedure established
by law
by placing such reasonable restrictions as are permitted by law. It cannot
be said
that a citizen sheds off his fundamental right to life, the moment
a policeman arrests him. Nor can
it be said that the right to life of a citizen
D be put in abeyance on his arrest. Any form of torture or cruel, inhuman or
degrading treatment would fall within the inhibition of Article 21 of the
Constitution, whether
it occurs during investigation, interrogation or
otherwise. If the functicnaries of the Government become law breakers, it
is bound to breed contempt for law and would encourage lawlessness and
every man would have the tendency to become law unto himself thereby
E leading to anarchism. No civilised nation can permit that to happen. This
Court as the custodian
and protector of the fundamental and the basic
human rights of the citizens cannot wish away the problem. The right to
interrogate the detenues, culprits or arrestees in the interest of the nation,
must take precedence over an individual's right to personal liberty. The
F latin maxim salus popule est suprema lex (the safety of the people is the
Supreme
law) and sallus republicae est suprema lex (safety of the
State is
the supreme law) co~exist and are not only important and relevant but lie
at the heart of the doctrine that the welfare of an individual must yield to
that of the community. The action of the State, however, must be "right,
just and fair". Using any form of torture for extracting any kind of infor-
G mation would neither be 'right nor just and fair' and, therefore, would be
impermissible, being offensive to Article
21.
Such a crime-suspect must be
interrogated -indeed subjected to sustained
and scientific interrogation -
determined in accordance with the provisions of law.
He cannot, however,
be
tortured or subjected to third degree methods or eliminated with a view to
H elicit information, extract confession or derive knowledge about his ac-
D.K BASUv. STATE 2B7
.. complices, weapons etc. His Constitutional right cannot be abridged except A
in the manner permitted by law, though in the very nature of things there
would
be qualitative difference in the method of interrogation of such a
person as compared to an ordinary criminal. Challenge of terrorism must
be met with innovative ideas and approach.
State terrorism is no answer
to combat terrorism. State terrorism would only provide legitimacy to B
'terrorism'. That would be bad for the State, community and above all for
the Rule of
Law. The
State must, therefore, ensure that various agencies
deployed
by it for combating terrorism act within the bounds of law and
not become law unto themselves. That the terrorist has violated human
rights of innocent citizens may render him liable for punishment
but it
cannot justify the violation of his human rights except in the manner C
permitted by law. Need, therefore, is to develop scientific methods of
investigation
and train the investigators properly to interrogate to meet
the challenge. [301-F-G;
298-B-C; 302-A-B; 301-G-H; 309-D-F; 310-A-B]
Joginder Kumar v. State, [1994] 4 SCC 260; Neelabati Bahera v. State D
of Orissa, [1993] 2 SCC 746 and State of M.P. v. Shyamsunder Triwedi &
Ors., [1995] 3 Scale 343, relied on.
Miranda v. Arizona, 384 US 436, referred to.
Chambers v. Florida. 309 US 227, cited.
2.1. Police is, no doubt, under a legal duty and has legitimate right
to
arrest a criminal and to interrogate him during the investigation of an
offence but
it must be remembered that the law does nor permit use of
third degree methods
or torture of accused in custody during interrogation
E
and investigation with a view to solve the crime. End cannot justify the F
means. The interrogation and investigation into a crime should be in true
sense purposeful to make the investigation effective.
By torturing a person
and using third degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid.
No society
can permit it. [307-B-D]
G
2.2. It is true that in case of
"too much" emphasis on protection ·of
fundamental and human rights of hardened criminals, such criminals may
go scot-free without exposing any element or iota of criminality with the
result, the crime would go unpunished and in the ultimate analysis the
society would suffer. The concern is genuine and the problem is real. To
H
288 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A deal with such a situation, a balanced approach is needed to meet the ends
of justice. This is all the more so, in
view of'
th~ expectation of the society
that police must deal with the criminals in an efficient and effective
manner and bring to book those
who are involved in the crime. The cure
cannot, however, be worse than the disease itself.
[308-F-G]
B
2.3. To check the abuse of police power, transparency of action and
accountability perhaps are two possible safeguards which this Court must
insist upon. Attention is also required to
be paid to properly develop work
culture, training
and orientation of the police force consistent with basic
human values. Training methodology of the police needs restructuring.
C The force needs to be infused with basic human values and made sensitive
to the constitutional ethos. Efforts
must be made to change the attitude
and approach of the police personnel handling investigation so
that they
do not sacrifice basic human values during interrogation
and do not resort
to questionable forms of interrogation. With a
view to bring in
transparen
cy, the presence of the counsel of the arrestee ?t some point of time during
D ti.e interrogation may deter the police from u~ing third degree methods
during interrogation.
, 3. It is, therefore, appropriate to issue the following requirements to
be followed in all cases of arrest or detention till legal provisions are made
E · in that behalf as preventive measures :
(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear iden
tification and name tags with their designations. The particulars of all
such police personnel
who handle interrogation of the arrestee must be
F recorded in a register.
(2) That 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
G of the arrestee or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and shall contain
the time and date of arrest.
(3) 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
H be entitled to have one friend or relative or other person known to him or
D.K BASUv. SfATE 289
having interest in his welfare being informed, as soon as practicable, that • A
he has been arrested and 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.
(
4) 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 B
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 8 to
12 hours after the
arres~.
(5) The person arrested must be made aware of this right to have C
someone informed of his arrest or detention as soon as h~ is put under
arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the
arrest of the person which shall also disclose the name of
the next friend of the person who has been informed of the
arrest and the p
names and particulars of the police officials in whose custody the arrestee
1
is.
(7) The arrestee should, where he so requests, be also examine!f at
the time of his arrest and major and minor injuries, if any present on
his/her body,
must be recorded at that time. The "Inspection Memo" must E
be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every
48 hours during his detention in custody by a doctor F
on the panel of approved doctors appointed by Director, Health Services
of the concerned State
or Union Territory. Director, Health Services
should prepare such a penal for all Tehsils
and Districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the illaqa Magistrate for his record.. G
(10) The arrestee may be permitted to meet his lawyer during inter·
rogation, though not throughout the interrogation.
(11) A police control room should be provided
at all district and state
headquarters, where information regarding
.the arrest and the place of H
290 SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A custody of the arrestee shall be communicated by the officer causing the arrest,
within
12 hours of effecting the arrest and at the police control room it should
be displayed on a conspicuous notice board.
[310-D-F; 311-A-H; 312-A]
B
4.1. Failure to comply with the requirements hereinabove mentioned
shall
apart from rendering the concerned official liable for departmental
action, also render him liable to
be punished for contempt of court and the
_{Jroceedings for contempt of court may be instituted in High Court of the
country, having territorial jurisdiction over the matter. [312-B]
4.2. The requirements, referred to above flow from Articles 21and22(1)
C of the Constitution and need to be strictly followed. These would apply with
equal force to the other Governmental agencies also like Directorate
of
Revenue Intelligence, Directorate of Enforcement,
Coastal Guard, Central
Reserve Police Force (CRPF), Border Security Force (BSF), the Central In
dustrial Security Force (CISF), the State Armed Police, Intelligence Agencies
like the Intelligence Bureau,
RAW,
Central Bureau of Investigation (CBI),
D CID, Traffic Police, Mounted Police and ITBP. [307-G-H; 308-A-B]
Re Death of Satwinder Singh Grover [1995] Supp. 4 SCC 450, relied
on.
4.3. These requirements
are in addition to the constitutional and
E statutory safeguards and do not detract from various other directions
given
by the courts from time to
time in connection with the safeguarding
of the rights
and dignity of the arrestee.
[312-C-DJ
4.4. The requirements mentioned above shall be forwarded to the
Director General of Police and the Home Secretary of every State/Union
F Territory and it shall be their obligation to circulate the same to every
police station
under their charge and get the same notified at every police
station
at a conspicuous place. It would also be useful and serve larger
interest to broadcast the requirements on the
All India Radio besides being
shown on the National network
of Doordarshan and by publishing and
G distributing pamphlets in the local language containing these requirements
for information of the general public.
Creating awareness about the rights
of the arrestee would be a step in the rights direction to combat the evil of
custodial crime
and bring in transparency and ccountability. [312-D-FJ
5.1.
UBI JUS /BI REMEDIUM -There is no wrong without a remedy.
H The law wills that in every case where a man is wronged and endamaged
..
-
D.K. BASU v. STATE 291
he must have a remedy. A mere declaration of invalidity of an action or A
finding of custodial violence or death in lock-up, does not by itself provide
any meaningful remedy to a person whose fundamental right to life has
been infringed. Much more needs
to be done. There is indeed no express
provision in the Constitution of India for grant of compensation for
violation of a fundamental right
to life, nonetheless, this Court has judi- B
cially evolved a right to compensation in cases of established
unconstitu
tional deprivation of personal liberty or life. (312-G-H; 313-A; H; 314-A]
Rudul Shah v. State of Bihar [1983] 4 SCC 141; Sebastian M. Hongrey
v. Union of India (1984] 3 SCC 339; Bhim Singh v. State of J & K [1984]
Supp. SCC 504; Saheli v. Commissioner of Police, Delhi [1990] 1 SCC 422 C
and Kasturi Lal Ralia Ram Jain v. State of U.P. (1965] 1 S.C.R 375, relied
on.
5.2. The claim in public law for compensation for unconstitutional
deprivation of fundamental right
to life and
liberty, the protection of which D
is guaranteed under the Constitution, is a claim based on strict liability
and is in addition to the claim available in private law for damages for
tortious acts of the public servants. Public law proceedings serve a dif
ferent purpose than the private law proceedings. Award of compensation
for established infringement of the indefeasible rights guaranteed under
Article
21 of the Constitution is a remedy available in public law since the E
purpose of public law is not only to civilise public power but also to assure
the citizens
that they live under a legal system wherein their rights and
interests shall be protected and preserved. Grant of compensation in
proceedings under Article
32 or 226 of the Constitution of India for the
established violation of the fundamental rights guaranteed under Article F
21, is an exercise of the Courts under the public law jurisdiction for
penalising the wrongdoer and fixing the liability for the public wrong
on
the State which failed in the
discharge of its public duty to protect the
fundamental rights of the citizen. (314-H;
315-A-C]
5.3. The old doctrine of only relegating the aggrieved to the remedies G
available in civil law limits the role of the courts too much, as the protector
and custodian of the indefeasible rights of the citizens. The courts have
the obligation to satisfy the social aspirations of the citizens because the
courts and the law are for the people
and expected to respond to their
aspirations. A court of law cannot close its consciousness
and aliveness to H
292 SUPREME COURT REPORTS(1996) SUPP. 10 S.C.R.
A stark realities. Mere punishment of the offender cannot give much solace
to the family of the victim -civil action for damages is a long drawn and
cumbersome judicial process. Monetary compensation for redressal by the
Court finding the infringement of the indefeasible right to life of the citizen
is, therefore, a useful
and at times perhaps the only effective remedy to
B apply balm to the wounds of the family members of the deceased victim,
who may have been the bread winner of the family. [315-D-F]
Nilabti Behera v. State of Orissa [1993) 2 SCC 746, relied on.
The State (At the Prosecution of Quinn) v. Ryan (1965) IR
70; Byrne
C v. Ireland (1972) IR 241; Maharaj v. Attorney General of Trinidad and
Tobago (1978) 2 All E.R. 670 and Simpson v.Attomey General (1994) NZIR
667, referred to.
6. Awarding appropriate punishment for the offence (irrespective· of
compensation~ must be left to the criminal courts in which the offender is
D 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
· .-
E quantum of compensation will, of course, depend upon the peculiar facts
of each case
and no strait jacket formula can be
evo.,ved in that behalf.
The relief to redress the wrong for the
established invasion of the
fun
damental rights of the citizen, under the public law jurisdiction is, thus,
in addition to the traditional remedies
and not in derogation of them. The
amount of compensation as awarded
by the Court and paid by the State
F to redress the wrong done, may in a given case, be adjusted against any
amount which may
be awarded to the claimant by way of damages in a civil
suit.
[320-C-F]
CRIMINAL APPELLATE JURISDICTION: Writ Petition (CrL)
G No. 539 of 1986 Etc.
(Under Article
32 of the Constitution of India.)
V.R. Reddy, Additional
Solicitor General, Dr. N.M. Ghatate, Tapas
Ray, Ms. K. Amareswar~ Dr. A.M. Singhvi, (AC.), Sushil Kr. Jain, Sud
H hanshu Atreya, P.K. Bansal, P. Parmeswarilll, R.P. Srivastava, S.J5.:. Nandy,
-
'
D.K BASUv. STATE [DRANAND,J.] 293
(I.S. Goyal) for Ms. Indu Malhotra, Naresh K. Sharma, Ashok Mathur, A
Sakesh Kumar, Uma Nath Singh, AS. Bhasme, D.N. Mukherjee, Ms.
Hemantika Wahi, Kailash Vasdev, Ms. Alpana Kirpal, Raj Kumar Mehta,
R.S. Suri, G.K. Bansal, AS. Pundir, Dilip Singh, Krishnamurthi Swami,
P.K. Manohar, G. Prabhakar, M. Veerappa, Ms. S. Janani, G. Prakash,
M.T. George, K.V. Venkataraman, K.V. Viswnathan, B.K. Prasad,, B
T.V.S.N. Chari, B.B. Singh, Anip Sachthey, N. Raghuraman, K.R. Nambiar,
Indra Makwana, R. Mohan, Gopal Singh, Ms. Kamini Jaiswal, D.N.
Goburdhan, C.V.S. Rao, R. Sasiprabhu, S.K. Agnihotr~ R.B. Misra for the
appearing parties.
The Judgment of the Court was delivered by c
DR. ANAND. J. The Executive Chairman, Legal Aid Services, West
Bengal, a non-political organisation registered
under the Societies
Registration Act, on 26th August,
1986 addressed a letter to the
Chief
Justice of India drawing his attention to certain news items published in
the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and D
Indian Express dated 17th August, 1986 regarding deaths in police lock-ups
and custody. The Executive Chairman after reproducing the news items
submitted that it was imperative to examine the issue in depth and to
develop "custody jurisprudence" and· formulate modalities for awarding
compensation to the victim and/or family members of the victim for at-
E
trocities and death caused in police custody and to provide for account
ability of the officers concerned.
It was also stated in the letter that efforts
are often made to hush
up the matter of lock-up deaths and thus the crime
goes unpunished and "flourishes".
It was requested that the letter alongwith
the news items
be treated as a writ petition under "public interest litigation"
category.
F
Considering the importance of the issue raised in the letter and being
concerned by frequent complaints regarding custodial violence and deaths
in police lock up, the letter was treated
as a writ petition and notice was
issued on 9.2.1987 to the respondents.
G
In response to the notice, the
State of West Bengal filed a counter.
It was maintained that the police was not hushing up any matter of lock-up
death and that whereever police personnel were found to the responsible
for such death, action was being initiated against them. The respondents
characterised the writ petition as misconceived, misleading and untenable
H
294 SUPREMECOURTREPORTS[l996] SUPP.10 S.C.R.
A in law.
B
c
.D
'
While the writ petition was under consideration a letter addressed
by Shri Ashok Kumar Johri on 29.7.87 to Hon'ble Chief Justice of India
'drawing the attention of this Court
to the death of one Mahesh Bihari of
Pilkhana, Aligarh in police custody
was received. That letter was also
treated as a writ petition and
was directed to be listed alongwith the writ
petition filed by
Shri D.K. Basu. On 14.8.1987 this Court made the follow
ing
order:
"In almost every states there are allegations and these allegations
are now increasing in frequency of deaths in custody described
generally by newspapers
as lock-up deaths. At present there does
not appear to be any machinery
to effectively deal with such
allegations.
Since this is an all India question concerning all States,
it is desirable to issue notices to all the State Governments to find
out whether they are desire to say anything in the matter. Let
notices issue to
all the
State Governments. Let notice also issue to
the Law Commission of India with a request that suitable sugges
tions may be made in the matter. Notice be made returnable in
two months from today."
E In response
to the notice, affidavits have been filed on behalf of the
States of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya
Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur.
Affidavits have also been filed
on behalf of Union Territory of Chandigarh
and the Law Commission of India.
F
" During the course of hearing of the writ petitions, the Court felt
necessity of having assistance from the Bar and Dr.
AM.
Singhvi, senior
advocate
was requested to assist the Court as amicus curiae.
Learned counsel appearing for different
States and Dr. Singhvi, as a
friend of the court, presented the case ably and though the effort on the
G part of the
States initially was to show that "everything was well" within
their respective States, learned counsel for the parties, as was expected of
them in
view of the importance of the issue involved, rose above their
respective briefs and rendered useful assistance
to this Court in examining
various facets of the issue and made certain suggestions for formulation of
H guidelines by this Court to
miniml.se, if not prevent, custodial violence and
•
D.K BASU v. STATE [DR. ANAND, J.] 295
for award of compensation to the victims of custodial violence and the kith A
and kin of those who die in custody on account of torture.
The Law Commission of India also in response to the notice issued
by this Court forwarded a copy of the 113th Report regarding
"Injuries in
police custody and suggested incorporation of Section
114-B in the Indian
Evidence
Act." B
The importance of affirmed rights of every human being need no
emphasis and, therefore, to deter breaches thereof becomes a sacred duty
of the Court,
as the custodian and protector of the fundamental and the
basic human rights of the citizens. Custodial violence, including torture and
C
death in the lock ups, strikes a blow at the Rule of Law, which demands
that the powers of the executive should not only
be derived from law but
also that the same should be limited by law. Custodial violence is a matter
of concern.
It is aggravated by the fact that it is committed by the persons
who are supposed to be the protectors of the citizens.
It is committed under
the shield of uniform and authority in the four walls of a police station or
D
locK-up, the victim being totally helpless. The protection of an individual
from torture and abuse by the police and other
law enforcing officers is a
matter of deep concern in a free society. These petitions raise important
issues concerning police powers, including whether monetary
compensa
tion should be awarded for established infringement of the Fundamental E
Rights guaranteed by Articles 21 and 22 of the Constitution of India. The
issues are fundamental.
"Torture" has not been defined in the Constitution or in other penal
laws. 'Torture' of a human being by another human being
is essentially an
instrument to impose the
will of the 'strong' over the 'weak' by suffering. F
The word torture today has become synonymous with the darker side of the
human civilisation. "Torture is a wound in the soul so painful that sometimes you can
almost touch it, but it is also such intangible that there
is no way G
to heal it. Torture is anguish squeezing in your chest, cold as ice
and heavy as a stone paralyzing
as sleep and dark as the abyss.
Torture
is despair and fear and rage and hate. It is a desire to kill
and destroy including yourself.
-Adriana
P. Bartow H
296 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A No violation of any one of the human rights has been the subject of
so many
Conv_entions and Declarations as 'torture' -all aiming at total
banning of it in all forms, but inspite of the commitments made to eliminate
torture, the fact remains that torture
is more widespread now than-ever
before.
"Custodial torture" is a naked violation of human dignity and
B degradation which destroys, to a very large extent, the individual per
sonality. It is a calculated assault on human dignity and whenever human
dignity
is wounded, civilisation takes a step backward -flag of humanity
must on each such occasion
fly half-mast.
In all custodial crimes what
is of real concern is not only infliction
C of body pain but the mental agony which a person undergoes within the
four
walls of police station or lock-up. Whether it is a physical assault or
rape in police custody, the extent of trauma, a person experiences is beyond
the purview of law.
D
"Custodial violence" and abuse of police power is not only peculiar
to this country but it is widespread.
It has been the concern of international
community because the problem
is universal and the challenge is almost
global. The Universal Declaration of Human Rights in
1948, which
rnarked
the emergence of a worldwide trend of pro~ection and guarantee of certain
basic human rights, stipulates in Article 5 that "No one shall be subjected
E to torture or to cruel, inhuman or degrading treatment or punishment."
Despite the pious declaration, the crime continues unabated, though every
civilised nation shows its concern and takes steps for its eradication.
In England, torture
was once regarded as a normal practice to get
. p information regarding the crime, the accomplices and the case property or
to extract confessions, but with the development of common
law and more
radical ideas imbibing human thought and approach, such inhuman
prac
tices were initially discouraged and eventually almost done away with,
certain aberrations here and there notwithstanding. The police powers of
arrest, detention and interrogation in England were examined in depth
by
G
Sir Cyril Philips Committee · 'Report of a Royal Commission on Criminal
Procedure' (Command · Papers 8092 of 1981). The report of the Royal
Commission
is, instructive. In regard to the power of arrest, the Report
recommended that the power
to arrest without a warrant must be related
to and limited by the object to be served
by the arrest, namely, to prevent
H the suspect from destroying evidence or interfering with witnesses or
I
'·
_,
•'
•
D.K BASU v. SfATE [DR ANAND, J.) 297
warning accomplices who have not yet been arrested or where there is a A
good reason to suspect the repetition of the offence and not to every case
irrespective of the object sought
to be achieved.
The Royal Commission suggested certain restrictions on the power
of arrest on the basis of the
'necessity principle'. The Royal Commission
sfild: B
" ..... we recommend that detention upon arrest for an offence
should continue only on one or more for the following criteria :
(a) the person's ~willingness to identify himself so that a s~o11s C
may be served upon him;
(b) the need to prevent the continuation or repetition of that
offence;
(
c) the need to protect the arrested person
himself or other D
persons or property;
(
d) the need to secure of preserve evidence of or relating to that
offence or to obtain such evidence from the suspect by questioning
him· and · ,
E
( e) the likelihooii of the' person ffilling to appear at court to answer
any charge made agfilnst him."
The Royal Cominission also suggested :
"To help to reduce the use of arrest we would also propose the F
introduction here of a scheme that is used in Ontario enabling a
police officer to issue what
is called an appearance notice. That
procedure can be used
to obtain attendance at the police station
without resorting to arrest provided a power to arrest exists, for
example to be finger printed or to participate in an identification
G
parade. It could also be extended to attendance for interview at a
time convenient both to the suspect and to the police officer
investigating the case
.....
"
The power of arrest, interrogation and detention has now been
streamlined in England on the basis of the suggestions made by the Royal H
•
298 SUPREME COURT REPORTS(1996) SUPP.10 S.C.R.
A Commission and incorporated in Police and Criminal Evidence Act, 1984
and the incidence of custodial violence has been minimised there to a very
great extent.
Fundamental rights occupy a place of pride in the Indian Constitu-
B tion. Article 21 provides "no person shall be deprived of his life or personal
liberty except according to procedure established by
law".
Personal liberty,
thus,
is a sacred and cherished right under the Constitution. The expression
"life or personal liberty" has been held to include the right to live with
human dignity and thus it would also include within itself a guarantee
against torture and assault by the
State or its functionaries. Article 22
C guarantees protection against arrest and detention in certain cases and
declares that no person who
is arrested shall be detained in custody without
being informed of the grounds of such arrest and he shall not be denied
the right to consult and defend himself by a legal practitioner of his choice.
Clause
{2) of Article 22 directs that the person arrested and detained in
D custody shall be produced before the nearest Magistrate within a period
of
24 hours of such arrest, excluding the time necessary for the journey
from the place of arrest to the court of the Magistrate. Article
20(3) of the
Constitution
lays down that a person
accused of an offence shall not be
compelled to be a witness against himself. These are some of the constitu
tional safeguards provided to a person with a
view to protect his personal
E liberty against any unjustified assault by the
State. In tune with the con
stitutional guarantee a number of statutory provisions also seek to protect
personal liberty, dignity and basic human rights of the citizens. Chapter V
of Criminal Procedure Code, 1973 deals with the powers of arrest of a
person and the safeguards which are required to be followed
by the police
F to protect the interest of the arrested person.
Section 41, Cr.P.C. confers
powers on
any police officer to arrest a person under the circumstances
specified therein without any order or a warrant of arrest from a
Magistrate.
Section 46 provides the method and manner of arrest. Under
this Section no formality is necessary while arresting a person. Under
Section 49, the police is not permitted to use more restraint than is
G necessary to prevent the escape of the person. Section 50 enjoins every
police officer arresting any person without warrant to communicate to him
the full particulars of the offence for which he
is arrested and the grounds
for such arrest. The police officer
is further enjoined to inform the person
arrested that he
is entitled to be released on bail and he may arrange for
H sureties in the event of
his arrest for a non-bailable offence.
Section 56
D.I<. BASU v. SfATE [DR. ANAND, J.] 299
contains a mandatory provision requiring this police officer making an A
arrest without warrant to produce the arrested person before a Magistrate
without unnecessary delay and Section 57 echoes Clause (2) of Article 22
of the Constitution of India. There are some other provisions also like
Sections
53, 54 and 167 which are aimed at affording procedural safeguards
to a person arrested
by the police. Whenever a person dies in custody of B
the police,
Sectioii 176 requires the Magistrate to hold an enquiry into the
cause of death.
However, inspite of the constitutional and statutory provisions· aimed
at safeguarding the personal liberty and life of a citizen, growing incidence
of torture and deaths in police custody has been a disturbing
i factor. C
Experience shows that worst violations of human rights take place during
the course of investigation, when the police with a
view to secure evidence
or confession often resorts to third degree methods including torture and
adopts techniques of screening arrest by either not recording the arrest or
describing the deprivation
of liberty merely as a prolonged interrogation. D
A reading of the morning newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in custody of police or other
governmental agencies
is indeed depressing. The increasing incidence of
torture and death in custody has assumed such alarming proportions that
it
is affecting the creditibility of the Rule of Law and the administration of
criminal justice system. The community rightly feels perturbed. Society's E
cry for justice becomes louder.
The Third Report of the National
Police Commission in India ex
pressed its deep concern with custodial violence and lock-up deaths. It
appreciated the demoralising effect which custodial torture was creating F
on the society as a whole.
It made some very useful suggestions. It sug
gested:
'' .... An arrest during the investigation of a cognizable case may
be considered justified in one or other of the following cir-
cumstances
:-
(i) The case involves
a grave offence like murder, dacoity, robbery,
rape etc., and it
is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror
G
stricken victims. H
300
A
B
c
SUPREME COU~T REPORTS[l996] SUPP.10 S.C.R.
(ii) The. accused is likely to abscond and evade and the processes
of
law.
(iii) The accused is given to violent behaviour and is likely to
commit further offences unless
his
moveinents'are brought under
restraint.
(iv) The accused is a habitual offender and unless kept in custody
he
is likely to commit similar offences
aiain. It would be desirable
to insist through· departmental instructions that a police officer
making an arrest should also tecord in the case
diary the reasons
for making
the arrest, thereby clarifying his conformity to the
specified guidelines
.....
"
The recommendations of the Police Commission (supra) reflect the con
stitutional concomitants of the fundamental right to personal liberty and
freedom. These recommendations, however, have not acquired any
D statutory status so far.
. '
E
F
This Court in loginder Kumar v. State, [1994] 4 SCC 260, (to which
one of
us, namely, Anand, J. was a party) considered the dynamics of
misuse of police power of arrest and opined :
''No arrest can be made because it
is lawful for the police officer
to do
so. The existence of the power of arrest is one thing. The
justification
for the exercise of it is quite another .... No arrest
should be made without a reasonable satisfaction reached after
some investigation about the genuineness and bonafides of a com
plaint and a reasonable belief both as to the person's complicity
and even so as to the need to effect arrest. Denying a person his
liberty is a serious matter."
Jogi,nder Kumar's case (supra) involved arrest of a practising lawyer
who had been called to the police station in connection with a case under
G inquiry on 7.1.94. On not receiving any satisfactory account of his
whereabouts the family members of the detained lawyer preferred a
petitioner in the nature of
habeas corpus before this Court on 11.1.94 and
in compliance with the notice the lawyer
was produced on 14.1.94 before
this Court. The police
version was that during 7.1.94 and 14.1.94 the lawyer
H
was not in detention at all but was only assisting the police to detect some
D.K. BASU v. STATE [DR ANAND, J.] 301
cases. The detenue asserted otherwise. This Court was not satisfied with A
the police version. It was noticed that though as that day the relief in habeas
corpus petition could not be granted but the questions whether there had
been any need to detain the lawyer for 5 days and if at all he was not in
detention then
why was this Court not informed, were important questions
which required an answer. Besides
if there was detention for 5 days, for B
what reason was he detained. The Court, therefore, directed the District
Judge, Ghaziabad to make a detailed enquiry and submit his report within
4 weeks. The Court vioced its concern regarding complaints of violations
of human rights during and after arrest.
It said :
"The horizon of human rights is expanding. At the same time, the C
crime rate is also increasing.
Of late, this Court has been receiving
complaints about violations of human rights because of indis
criminate arrests. How are
we to strike a balance between the two?
D
A realistic approach should be made in this direction. The law
of arrest is one of balancing individual rights, liberties and
privileges.
On the one hand, and individual duties, obligations and
responsibilities on the others of weighing and balancing the rights,
liberties, and privileges of the single individual and those of in-
E
dividuals collectively; of simply
dt::ciding what is wanted and where
· to put the weight and the emphasis of deciding which comes fust
-the criminal or society, the law violator or the abider."
This Court then set down certain procedural "requirements" in cases of
arrest.
F
Custodial death is perhaps one of the worst crimes in a civilised
society governed
by the Rule of Law. The rights inherent in Articles 21 and
22(1) of the Constitution
require to be jealously and scrupulously
protected. We cannot wish
away the problem. Any form of torture or cruel, G
inhuman or degrading treatment would fall within the inhibition of Article
21 of the Constitution, whether it occurs during investigation, interrogation
or otherwise.
If the functionaries of the Government become law breakers,
it
is bound to breed contempt for law and would encourage lawlessness
and every man would ·have the tendency to become law unto himself
thereby leading to anarchism.
No civilised nation can permit that to hap- H
302 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A pen. Does a citizen shed off his fundamental right to life, the moment a
policeman arrests him? Can the right to life of a citizen be
put in abeyance
on
his· arrest? These questions touch the spinal cord of human rights
jurisprudence. The answer, indeed, has to
be an emphatic 'No'. The
precious right guaranteed by Article 21 of the Constitution of India cannot
B be denied to convicts, undertrials, detenues and other prisoners in custody,
except according to the procedure established by law by placing such
reasonable restrictions as
are permitted by law.
In Neelabati Bahera v.
State of Orissa, [1993] 2 SCC 746, (to which
Anand,
J. was a party) this Court pointed out that prisoners and detenues
C are not denuded of their fundamental rights under Article 21 and it is only
such restrictions
as are permitted by law, which can be imposed on the
enjoyment of the fundamental rights
of the arrestees and detenues. It was
observed:
D
E
F
G
"It is axiomatic that convicts, prisoners or undertrials are not
denuded of their fundamental rights under Article
21 and it is only
such restrictions, as are permitted by law, which can
be imposed
on the enjoyment
of the fundamental right by such persons. It is
an obligation of the
State to ensure that there i~ no infringement
of the indefeasible rights of a citizen to life, except in accordance
with law, while the citizen
is in its custody. The precious right
guaranteed by Article
21 of the Constitution of India cannot be
denied to convicts, undertrials or other prisoners in custody, except
according to procedure established by law. There
is a great
respon
sibility on the police or prison authorities to ensure that the citizen
in its custody is not deprived
of his right to life. His liberty is in
the very nature of things circumscribed by the very fact of his
confinement and therefore his interest in the limited liberty left to
him is rather precious. The duty of care on the part of the
State
is strict and admits of no exceptions. The wrongdoer is accountable
and the State is responsible if the person in custody of the police
is deprived of his life except according to the procedure established
by law.
Instances have come to our notice where the police has arrested a
person without warrant in connection with the investigation of an offence,
H without recording the arrest, and the arrested person has been subjected
D.K BASU v. STATE [DR ANAND, J.] 303
to torture to extract information from him for the purpose of further A
investigation or fo~ recovery of case property or for extracting confession
etc. The torture and injury caused on the body of the arrestee has some
times resulted into his death. Death in custody
is not generally shown in
the records of the lock-up and every effort
is made by the police to dispose
of the body or to make out a case that the arrested person died after he
B
was released from custody. Any complaint against such torture or death is
generally not given any attention by the police officers because of ties of
brotherhood.
No first information report at the instance of the victim or
his kith and
kin is generally entertained and even the higher police officers
turn a blind
eye to such complaints. Even where a formal prosecution is
launched by the victim or his kith and kin, no direct evidence is available C
to substantiate the charge of torture or causing hurt resulting into death,
as the police fock-up where generally torture or injury is caused is away
from the public gaze and the witnesses are either police men or co
prisoners
who are highly reluctant to appear as prosecution witnesses
due·
to fear of retaliation by the superior officers of the police. It is often seen D
that when a complaint is made against torture, death or injury, in police
custody, it
is difficult to secure evidence against the policemen responsible
for resorting to third degree methods since they are incharge
of police
station records which they do not find difficult
to manipulate. Consequent-
ly, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 3 Scale, 343 E
is an apt case illustrative of the observations made by us above. In that
case, Nathu Banjara was tortured at p9lice station, Rampura during the
interrogation. As a result of extensive injuries caused to him he died in
police custody at the police station. The defence set up by the respondent
police officials at the trial
was that Nathu had been released from police F
custody at about
10.30 p.m. after interrogation on 13.10.1986 itself vide
entry Ex. P/22A in the Roznamcha and that at about 7.00 a.m. on
14.10.1981, a death report Ex. P/9 was recorded at the police station.
Rampura, at the instance of Ramesh respondent No.
6, to the effect that
he had found
"one unknown person" near a tree by the side of the tank
riggling with pain in his chest and that
as soon as respondent No. 6 reached G.
~
near him, the said person died. The further case set up by SI Trivedi,
respondent
No. 1, incharge of the police station was that after making a
Roznamcha entry at
7.00 a.m. about his departure from the police ~tation
he (respondent No. 1 -Shyamsunder Trivedi) and Constable Ra]aram
H
304 SUPREMECOURTREPORTSfl996) SUPP. lOS.C.R.
A respondent proceeded to the spot where the dead body was stated to be
lying for conducting investigation under Section 174 Cr.P.C. He summoned
Ramesh Chandra and Goverdhan respondents to the spot and in their
presence prepared a panchnama
Ex.
P/27 of the dead body recording the
opinion therein to the effect that no definite cause of death
was known.
B
The First Additional Sessions Judge acquitted all the respondents of . all the charges holding that there was no direct evidence to connect the
respondents with the crime. The State of Madhya Pradesh went up in
appeal against the order of acquittal and the High Court maintained the
acquittal of respondents 2 to 7 but set aside the acquittal of respondent
C No. 1, Shyamsunder Trivedi for offences under
Section 218, 201 and 342
IPC. His acquittal for the offences under Section 302/149 and 147 IPC was,
however, maintained. The State filed an appeal in this Court by special
leave. This Court found that the following circumstances
had been estab
lished by the prosecution beyond every reasonable doubt and coupled with
the direct evidence of
PWs 1, 3, 4, 8 and 18 those circumstances were
D consistent only with the hypotheses of the guilt of the respondents and were
inconsistent with their innocence :
E
F
G
H
(a) that
th,e deceased had been brought alive to the police station
and
was last seen alive there
oil 13.1();81;
(b) that the dead body of the deceased was taken out of the police
station on 14.10.81 at about 2 p.m. for being removed to the
hospital;
(
c) that
SI Trivedi respondent No. 1, Ram Naresh Shukla, Respon
dent No.
3, Rajaram, respondent No. 4 and Ganiuddin respondent
No. 5 were present at the police station and had all joined hands
to dispose of the dead body of Nathu -Banjara;
( d) that
SI Trivedi, respondent No. 1 created false evidence ~d
fabricated false clues in the shape of documentary evidence with
a
view to screen the offence and for that matter, the offender;
(e)
SI Trivedi respondent in connivance with some of his subor
dinates, respondents herein had taken steps to cremate the dead
body
in hot haste
des~ribing the deceased as a 'lavaris' though the
identity of the deceased, when they had interrogated for a sufficient
D.K. BASU v. SfATE [DR. ANAND, J.] 305
.
long time was well known to them. A
and opined that :
"The observations of the High Court that the presen~e and par
ticipation of these respondents in the crime
is doubtful are not
borne out from the evidence on the record and appear to be an
B
umealistic over simplification of the tell tale circumstances estab
lished by the
prosecution.'.! , ·
One of us (namely, Anand. J.) speaking for the Court went on to
observe:
c
The trial court and the High
C(,lurt, if we may say so with respect,
exhibited a total lack of sensitivity and a 'could not careless'
attitude in appreciating the evidence on the record and there
by
condoning the barbarous third degree methods which are still
being used, at some police stations, despite being illegal. The
D
exaggerated adherence to and insistence upon the establishment
of proof beyond every reasonable doubt, by the prosecution,
ig
noring the ground realities, the fact situations and the peculiar
circumstances of a given case, as in the present case, often results
in miscarriage of justice and makes the justice delivery system a
E
suspect. In the ultimate analysis the
·society suffers and a criminal
gets encouraged. Tortures in police custody, which of late are on
the increase, receive encouragement by this type of an umealistic
approach of the Courts because it reinforces the belief in the mind
of the police that no harm would come to them, if an old prisoner
dies in the lock-up, because there would hardly
be. any evidence F
available to the prosecution to directly implicate
th01D. with the
torture. The Courts, must not loose sight of the fact that death in
police custody
is perhaps one of the worst kind of crime in a
civilised society, governed by the rule of law and poses a serious
threat to an orderly civilised society."
G
This Court then suggested :
The Courts are also required to have a change in their outlook
and
atti~ude, particularly in cases involving custodial crimes and
they should exhibit more sensitivity and adopt a rc.alistic rather H
306
A
SUPREME COURT REPORTS[1996) SUPP. 10 S.C.R.
than a narrow technical approach, while dealing with the cases of
custodial crime so that
as far as possible within their powers, the
guilty should not escape so that the victim of the crime has the
satisfaction that ultimately the Majesty of Law has prevailed."
The
State appeal was allowed and the acquittal of respondents 1, 3,
B 4 and 5 was set aside. The respondents were convicted for various offences
including the offence under Section 304 Part 11/34 IPC and sentenced to
various terms of imprisonment and fine ranging from Rs. 20,000 to Rs.
50,000. The fine was directed to be paid to the heirs of Nathu Banjara by
way-0f compensation. It was further directed :
c
D
E
"The Trial Court shall ensure, in case the fine is deposited by the
accused respondents, that the payment of the same is made to the
heirs of deceased Nathu Banjara, and the Court shall take all such
precautions as are necessary to see that the money
is not allowed
to fall into wrong hands and is utilised for the benefit of the
members of the family of the deceased Nathu Banjara, and
if found
practical by deposit in Nationalised Bank or post office on such
terms as the Trial. Court may in consultation with the heirs for the
deceased cons.ider
fit and proper."
It needs no emphasis to say that when the crime goes unpunished,
the criminals are encouraged and the society suffers. The victim of crime
or his kith and
kin become frustrated and contempt for law develops. It
was considering these aspects that the Law Commission in its 113th Report
recommended the insertion of
Section 1148 in the Indian Evidence Act.
F The Law Commission recommend in its 113th Report that in prosecution
of a police officer for an alleged offence of having caused bodily injury to
a person, if there
was evidence that the injury was caused during the period
when the person
was in the custody of the police, the Court may presume
that the injury was caused by the police officer having the custody of that
person during that period. The Commission further recommended that the
G Court, while considering the question of presumption, should have regard
to all relevant circumstances including the period of custody, statement
made by the victim, medical evidence and the evidence which the
Magistrate
may have recorded. Change of burden of proof was, thus,
advocated. In
Shyam Sunder T1ivedi's case (supra) this Court also ex-
H pressed the hope that the Government and the legislature would give
DX BASVv. STATE [DR.ANAND,J.) 307
serious thought to the recommendation of the law Commission. Unfor-A
tunately, the suggested amendment, has not been incorporated in the
statute
so far. The need of amendment requires no emphasis -sharp rise
in custodial violence, torture and death in custody, justifies the urgency for
the amendment and
we invite Parliament's attention to it.
Police is, no doubt, under a legal duty and has legitimate right to
arrest a criminals and
to interrogate him during the investigation of an
offence but it must be remembered that the law does nor permit use of
third degree methods or torture of accused in custody during interrogation
B
and investigation with a view to solve the crime. End cannot justify the
means. The interrogation and investigation into a crime should be in true
C
sense purposeful to make the investigation effective. By torturing a person
and using third degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid.
No society
can permit it.
D
How do we check the abuse of police power? Transparency of action
and accountability perhaps are
two possible safeguards which this Court
must insist upon. Attention
is also required to be paid to properly develop
work culture, training and orientation of the police force consistent with
basic human values. Training methodology of the police needs restructur-
ing. The force needs to be infused with basic human values and made E
sensitive to the constitutional ethos. Efforts must be made to change the
attitude and approach of the police personnel handling investigations so
that they do not sacrifice basic human values during interrogation and do
not resort to questionable forms of interrogation. With a
view to bring in
transparency, the presence. of the counsel of the arrestee at some point of
p
time during the interrogation may deter the police from using third degree
methods during interrogation.
Apart from the police, there are several other governmental
authorities also like Directorate of Revenue Intelligence, Directorate of
G
Enforcement, Coastal Guard, Central Reserve
Police Force (CRPF), Bor-
der Security Force (BSF), The Central Industrial Security Force (CISF),
the State Armed Police, Intelligence Agencies like the Intelligence Bureau,
R.A.W., Central Bureau of Investigation (CBI), CID, Traffic Police,
Mounted Police and ITBP, which have the power to detain a person and
to interrogate
him in connection with the investigation of economic offen- H
308 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A ces, offences under the Essential Commodities Act, Excise and Customs
Act, Foreign Exchange Regulation Act etc. There are instances of torture
and death.jn custody of these authorities
as well. In Re Death of Sawinder
Singh Grover, [1995]
Supp 4 SCC 45g, (to which Kuldip Singh, J.) was a
parfy) this Court took suo moto nolice of the death of Sawinder Singh
.B
Grover during his custody with the Directorate of Enforcement. After
getting an enquiry conducted
by the Additional District Judge, which
disclosed a prima facie case for investigation and prosecution, this Court
directed the CBI to lodge a FIR and initiate criminal proceedings against
all persons named in the
repo1't of the Additional District Judge and
proceed against them. The Union of India/Directorate of Enforcement was
C also directed to pay a sum of Rs. 2 lacs to the widow of the deceaseCl by
way of ex gratia payment at the interim stage. Amendment of the relevant
provisions of law to protect the interest of arrested person in such cases
too
is a genuine need.
D There is one other aspect also which needs our consideration. We
are conscious of the fact that the police in India have to perform a difficult aqd delicate task, particularly in view of the deteriorating law and order
situation, communal riots, political turmoil, student unrest, terrorist ac
tivities? and among others the increasing number of underworld and
ar~ed
gangs and criminals. Many hard core criminals like extremists, the ter-
E rorists, drug peddlers,"' smugglers who have organised gangs, have taken
strong roots
in the society. lt is
being said in certain quarters that with
more and more liberalisation and enforcement of fundamental rights, it
would lead to difficulties in the detection of crimes committed
by such
categories of hardened criminals
by soft peddling interrogation. It is felt in
F
those 'quarters that if we
fay too much of emphasis on protection of their
fundamental rights and human rights, such criminals may go scot-free
without exposing
any element or iota of criminality with the result, the
crime would
go unpunished and in the ultimate analysis the society would
suffer. The concern
is genuine and the problem is real. To deal with such
a situation, balanced approach
is needed to meet the ends of justice. This
G is all the more so, in view of the expectation of the society that police must
deal with the criminals in an efficient and effective manner and bring to
book those
who are involved in the crime. The cure cannot, however, be
worse than the disease itself.
H The response of the American Supreme Court to such an issue in
D.K BASU v. STATE [DR ANAND, J.] 309
Miranda v. Arizona, 384 US 436, is instructive. The Court said : A
"A recurrent argument, made in these cases is that society's need
for interrogation out-weights the privilege. This argument is not
unfamiliar
to this
Court. See e.g., Chambers v. Florida, 309 US
227, 240=41, 84 Led 716, 724, 60 S-Ct 472 (1940). The whole B
thrust of our foregoing discussion demonstrates that the Constitu-
tion has prescribed the rights of the individual when confronted with
the power of Gov~nment when it provided in the Fifth Amend
ment that an individual cannot be compelled to be a witness against
himself.
That right cannot be abridged."
(Emphasis ours)
There can be no gain
~aying that freedom of an ~dividual must yield
to the security of the State. The right of preventive detention of individuals
c
in the interest of security of the State in various situations prescribed under D
different statues has been upheld by the Courts. The right to interrogate
the detenues, culprits or arrestees in the interest of the nation, must take
precedence over an individual's right to personal liberty. The latin maxim
salus populi est suprema lex (the safety of the people is the supreme law)
and salus republicae est suprema lex) (safety of the
State is the supreme
law) co-exist and are not only important and relevant but lie at the heart
E
of the doctrine that the welfare of an individual must yield to that of the
community. The action of the
State, ltbwever, must be "right, just and fair".
Using any form Of torture for extracting any kind of information would
neither be 'right nor just nor fair' and, therefore, would be impermissible,
being offensive to Article
21.
Such a crime-suspect must be interrogated - F
indeed subjected to sustained and scientific interrogation -determined in
accordance with provisions of law.
He cannot, however, be tortured or
subjected to third degree methods or eliminated with
a view to elicit infor
mation, extract confession or derive knowledge about
his accomplices,
weapons etc. His Constitutional right cannot be abridged except in the
G
manner permitted by law, though in the very nature of things there would
be qualitative difference in the method of interrogation of such a person
as compared to an ordinary criminal.
Challenge of terrorism must be met
with innovative ideas and approach. State terrorism is no answer to combat
terrorism. State terrorism would only provide legitimacy to 'terrorism'.
That would be bad for the State, the community and above all for the Rule H
310 SUPREME COURT REPORTS[1996] SUPP .10 S.C.R.
A of law. The State must, therefore, ensure that various agencies deployed by
it for combating terrorism act within the bounds of law and not become
law unto themselves. That the terrorist has violated human rights of in
nocent citizens may render him liable for punishment but it cannot justify
the violation of his human rights except in the manner permitted by
law.
B Need, therefore, is to develop scientific methods of investigation and train
the investigators properly to interrogate to meet the challenge.
In addition to the statutory and constitutional requirements to which
we have made a reference, we are of the view that it would be useful and
effective to structure appropriate machinery for contemporaneous record-
C ing and notification of all cases of arrest and detention to bring in
transparency and accountability.
It is desirable that the officer arresting a
person should prepare a memo of his arrest at the time of arrest in the
presence of at least one witness
who may be a member of the family of the
arrestee or a respectable person of the locality from where the arrest
is
made. The date and time of arrest shall be recorded in the memo which
D must also be counter signed by the arrestee.
E
F
We, therefore, consider it appropriate to issue the following
require
ments to be followed in all cases of arrest or detention till legal provisions
are made in that behalf as
preventive measures :
(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
iden
tification and name tags with their designations. The particulars of all such
police personnel who handle interrogation
of the arrestee must be
recorded in a register.
(2) That 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 atleast one witness, who may be either a member of the family
of the arrestee or a respectable person of the locality from where the arrest
G is made. It shall also be counter signed by the arrestee and shall contain
the time and date of arrest.
(3) 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 or
H having interest in
his welfare being informed, as soon as practicable, that
.-"
D.K BASU v. STATE [DR ANAND, J.] 311
he has been arrested and is being detained at the particular place, unless A
the attesting witness of the memo of arrest
is himself such a friend or a
relative of the arrestee.
(
4) 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
Organisa-B
tion in the District and the police station of the area concerned telegraphi
cally within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention
as soon as he is put under C
arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose 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
D
IS.
(7) The arrestee should, where he so requests, be also examined at
the time of his arrest and major and minor injuries,
if any present on his/her
body, must be recorded at that time. The
"Inspection Memo" must be
signed both by the arrestee and the police officer effecting the arrest and E
its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every
48 hours during his detention in custody by a doctor
on the panel of approved doctors appointed
by Director, Health Services F
of the concerned State or
Union Territory. Director, Health Services
should prepare such a penal for all Tehsils and Districts
as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the illaqa
Magistrate for his record.
G
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the 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 H
312 SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A arrest, within 12 hours of effecting the arrest and at the police control room
it should
be displayed on a conspicuous notice board.
Failµre to comply with the requirements l!ereinabove mentioned
shall apart . from rendering the concerned official liable for departmental
action, also render him liable to be punished for contempt of court and the
· B proceedings for contempt of court may be instituted in any High Court of
the country, having territorial jurisdiction over the matter.
The requirements, referred to above
flow from Articles 21and22(1)
of
the Constitution and need to be strictly followed. These would apply
C with equal force to the other governmental agencies , also to which a
reference has been made earlier.
These requirements drd in addition to the constitutional and
statutory safeguards and do not detract from various other directions given
by the courts from time· to time in connection with the safeguarding of the
D rights and digfiity of the arrestee.
The
requirements mentioned above shall be
lQrwarded to the Direc
tor General of Police and the Home Secretary of every State/Union Ter
ritory and it shall be their obligation to circulate the same to every police
E station under their charge and get the same notified at every police station
at a conspicuous place.
It would also be useful and serve larger interest to
broadcast the
requirements on the All India Radio besides being shown on
the National network of Doordarshan and
by publishing
~d distributing
pamphlets in the local language containing these requirements for infor
mation of the g~neral public. Creating awareness about the rights of the
F arrestee would in our opinion be a step in the right direction to combat
the
evil of custodial crime and bring in transparency and accountability. It
is hoped that these requirements would help to curb, if not totally
eliminate, the use
of questionable methods during interrogation and inves
tigation leading to custodial commission of crimes.
G
PUNITIVE MEASURES
UBI JUS !BI REMEDIUM - There is no wrong without a remedy. The law
wills that in every case where a man is wronged and endamaged he must
have a remedy. A mere declaration of invalidity of an action or finding of
H custodial violence or death in lock-up, does not by itself provide any
-
'
D.K. BASUv. SfAIB[DRANAND,J.) 313
meaningful remedy to a person whose fundamental right to life has been A
infringed. Much more needs to be done.
Some punitive provisions are contained in the Indian Penal Code
which seek to punish violation of right to life. Section 220 provides for
punishment
to an officer or authority who detains or keeps a person in B
confinement with a corrupt or malicious motive. Sections
330 and 331
provide for punishment of those who inflict injury or grievous hurt or a
person to extort confession or information in regard
to commission of an
offence. Illustrations (a) and (b) to
Section 330 make a police officer guilty
of torturing a person in order to induce him to confess the commission of
a crime or
to induce him to point out places where stolen property is C
deposited.
Section 330, therefore, directly makes torture during interroga-
tion and investigation pun,ishable under the Indian Penal Code. These
statutory provisions, are however, inadequate to repair the wrong done to
the citizens. Prosecution of the offender
is an obligation of the
State in case
of every crime but the victim of crime needs to be compensated monetarily
also. The Court, where the infringement of the fundamental right is estab-
D
lished, therefore, cannot stop by giving a mere declaration. It must proceed
further and
give compensatory relief, not by way of damages as in a civil
action but
by way of compensation under the pubic law jurisdiction for the
wrong done, due
fo breach of public duty by the State of not protecting
the fundamental right to life of the citizen. To repair the wrong done and
E
give judicial redress for legal injury is a compulsion of judicial conscience.
Article 9(5) of the International Covenant on
Civil and Political
Rights,
1966 (ICCPR) provides that
"anyone who has been the victim of
unlawful arrest or detention shall have enforceable right to compensation".
Of course, the Government of India at the time of its ratification (of F
ICCPR) in 1979 had made a specific reservation to the effect that the
Indian Legal system does not recognise a right to compensation for victims
of unlawful arrest or detention and thus did not become a party to the
Covenant. That reservation, however, has now lost its relevance in
view of
the law laid down
by this Court in a number of cases awarding compensa- G
tion for the infringement of the fundamental right to life of a citizen.
{See
with advantage Ruda/ Shah v. State of Bihar, (1983] 4 SCC, 141; Sebastian
M. Hongrey v. Union of India, (1984) 3 SCC 339 and (1984] 3 SCC 82; Bhim
Singh v. State of J & K, (1984) (Supp) SCC 504 and (1985) 4 SCC 677 and
Saheli v. Conunissioner of Police, Delhi, (1990) 1 SCC, 422. There is indeed
no express provision in the Constitution of India for grant of compensation
H
314
•
SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R .
A for violation of a fundamental right to life, nonetheless, this Court has
judicially evolved a right to compensation in cases of established uncon
stitutional deprivation of personal liberty or life. (See : Neelabati Bahera v.
State, (Supra)]
Till about
two decades ago the liability of the Government for
B tortious act of its public servants was generally limited and the person
affected could enforce his right in tort by filing a
civil suit and there again
the defence of sovereign immunity
was allowed to have its play. For the
violation of the fundamental right to life or the basic human rights, how
ever, this Court has taken the
view that the defence of sovereign immunity
C is
not available to the State for the tortious acts of the public servants and
.for the established violation of the rights guranteed by Article 21 of the
Constitution of India. In
Nilabati Behera v. State, (supra) the decision of
this Court in
Kasturi Lal Ralia Ram
Jain v. State of U.P., (1965] 1 SCR, 375,
wherein the plea of sovereign immunity had been upheld in a case of
vicarious liability of the State for the tort committed by its employees was
D explained thus :
E
F
G
"In this context, it is sufficient to say that the decision of this Court
in
Kasturilal upholding the
State's plea of sovereign immunity for
tortious acts of its servants
is confined to the sphere of liability in
tort, which
is distinct from the
State's liability for contravention of
fundamental rights to which the doctrine of sovereign immunity
has no application in the constitutional scheme, and is no defence
to the constitutional remedy under Articles 32 and
226 of the
Constitution which enables award of compensation for contraven
tion of fundamental rights, when the
only practicable mode of
enforcement of the fundamental rights can be the award of com
pensation. The decisions of this Court in Rudul
Sah and others in
that line relate to award of compensation for contravention of
fundamental rights, in the constitutional remedy under Articles
3.2
and 226 of the Constitution.
On the other hand, Kasturilal related
to the value of goods seized and not returned to the owner due to
the fault of Government Servants, the claim being of damages for
the tort of conversion under the ordinary process, and not a claim
for compensation for violation of fundamental rights. Kasturilal
is,
therefore, inapplicable in this context and distinguishable."
The claim in public
law for compensation for unconstitutional
H deprivation of fundamental right to life and liberty, the protection of which
D.K. BASU v. STATE [DR. ANAND, J.] 315
is guaranteed under the Constitution, is a claim based on strict liability and A
is in addition to the claim available in private law for damages for tortious
acts of the public servants. Public law pr9ceedings serve a different pur-
' pose than the private law proceedings. Award of compensation for estab
lished infringement of the indefeasible rights guaranteed under Article
21
of the Constitution is a remedy available in public law since the purpose
of public law
is not only to civilise public power but also to assure the
. B
citizens that they live under .a legal system wherein their rights and interests
shall be protected and preserved. Grant of compensation· in proceedings
under Article
21 and 226 of the Constitution of India for the established
violation of the fundamental rights guaranteed under Article 21, is an
exercise of the Courts under 'the public law jurisdiction for penalising the
C
wrong doer and fixing the liability for the public wrong on the
State which
failed in the discharge of its public duty to protect the fundamental rights
of the citizen. , · ·
The old doctrine of only relegating the aggrieved to the remedies
available in
civil law limits the role of the courts too much, as the protector D
and custodian of the indefeasible rights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens because the courts
and the law are for the people and expected to
~espond to their aspirations.
A Court of law cannot close its consciousness and aliveness to stark
realities. Mere punishment of the offender cannot give much solace to the
family of the victim -
civil action for damages is a long drawn and cumber- E
some judicial process. Monetary compensation for redressal by the Court
finding the infringement of the indefeasible right to life of the citizen is,
therefore, a useful and at times 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.
,
F
In Nilabati Bahera's caSe (supra), it was held :
" Adverting to the grant of relief to the heirs of a victim of custodial
death for the infraction or invasion of his rights guaranteed under
G
Article 21 of Constitution of India, it is not always enough to
relegate him to the ordinary remedy of a
civil suit to claim damages
for the tortious act of the
State as that remedy in private law indeed
is available to the aggrieved party. The citizen complaining of the
infringement of the indefeasible right under Article
21 of the
Constitution cannot be told that for the established violation of the
H
A
B
c
D
E
316 SUPREME COURT REPORTS[1996) SUPP.10 S.C.R.
fundamental right to
life, he cannot get any relief under the public
law
by the courts exercising writ jurisdiction. The primary source
of the public law proceedings stems from the prerogative writs
and the courts have, therefore, to evolve new tools to
give relief in
public law by moulding it according to the situation with a view to
preserve and protect the Rule of
Law, while concluding his first
Hamlyn Lecture in
1949 under the title "Freedom under the Law"
Lord Denning in his own style warned :
"No one can suppose that the executive Will never be guilty of the
sins that are common to all of
us. You may be sure that'they will
sometimes do things which they ought not to do ': and will not do
things that they ought to do. But if and when wrongs are thereby
suffered by any of
us what is the remedy?
Our procedure for
securing our personal freedom is efficient, our procedure for
preventing the abuse of power
is not. Just as the pick and shovel
is no longer suitable for the winning of coal, so also the procedure
of mandamus, certiorari, and actions on the case are not suitable
for the winning of freedom in the new age. They must
be replaced
by new and up-to date machinery, by declarations, injunctions and
actions for negligence
...
ThiS is not the task of parliament... The
courts must do this. Of all the great tasks that lie ahead thiS is the
greatest. Properly exercised the new powers of the executive lead
to the welfare state; but abused they lead to a totalitarian state.
None such must ever
be allowed in this country."
A similar approach of redressing the wrong by award of
monetary
compensation against the State for its failure to protect the fundamental
F rights of the citizen has been adopted by the Courts of Ireland, which has
a written constitution, guaranteeing fundamental rights, but which also like
the Indian Constitution contains no provision of remedy for the infringe
ment of those rights. That has, however, not prevented the Courts in
Ireland from developing remedies, including the award of damages, not
G only against individuals guilty of infringement, but against the
State itself.
The informative and educative observations of O'Dalaigh 0 in The
State (At the Prosecution of Quinn) v. Ryan, (1965) IR 70 122, deserve
special notice. The Learned Chief Justice said :
H
"It was not the intention of the Constitution in guaranteeing the
DK BASU v. STATE [DR. ANAND, J.] 317
fundamental rights of the citizen that these rights should be set at A
nought or circumvented. The intention was that rights of substance
were being assured to the individual and that the Courts were the
custodians of those rights. As a necessary corollary,
it fallows that
no one can with impunity set these rights at bought or circumvent
them, and that the Court's powers in this regard are as ample as the
defence of the Constitution
requires."
(Emphasis supplied)
•
In Byme v. Ireland, (1972) IR 241, Walsh, J. opined at p 264:
B
"In several parts in the Constitution duties to make certain C
provisions for the benefit of the citizens are imposed on the State
in terms w.hich bestow rights upon the citize:ns and, unless some
1
contrary provision appears in the Constitution, the Constitution
must be deemed to have created a remedy for the enforcement of
these rights. It fallows that, where the right is one guaranteed by the D
State, it is against the State that the remedy must be sought if there
has been a failure to discharge the constitutional obligation imposed".
(Emphasis supplied)
In Maharaj v. Attomey General of Trinidad and Tobago, (1978) 2 All E
E.R. 670, The Privy Council while interpreting Section 6 of the Constitution
of Trinidad and Tobago held that though not expressly provided therein,
it permitted an order for monetary compensation,
by way of 'redress' for
contravention of the basic human rights and fundamental freedoms. Lord.
Diplock speaking for the majority said : "It was argued on behalf of the Attorney General that Section 6(2)
does not permit of an order for monetary compensation despite
F
the fact that this kind of redress was ordered inlaundou v.Attomey General of Guvana. Reliance was placed on the reference in the
sub-section to 'enforcing, or securing the enforcement
of, any of G
the provisions of the said foregoing sections' as the purpose for
which orders etc. could
be made. An order for payment of
com
pensation, it was submitted, did not amount to the enforcement of ,
the rights that had been contravened. In their Lordships' view an
order for payment of compensation when a right protected under
Section 1 'has been' contravened is clearly a form of 'redress' which H
A
B
c
D
318
D
SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
a person
is
entitled to claim under Section 6(1) and may well be
the only practicable form of redress, as by now it is in the instant
case. The jurisdiction to make such an order
is conferred on the
High Conrt by para (a) of Sedion 6(2),
viz. jurisdiction 'to hear
and determine any application made by any person in pursuance
of sub-section (1) of this section'. The very wise powers to make
orders, issue writs and
give directions are ancillary to this."
Lord Diplock then went on
fo observe (at page 6SO) :
"Finally, their Lordships would
say something about the measure
of monetary compensation recoverable under Section
16 where the
contravention of the claimant's constitutional rights consists of
deprivation
of liberty otherwise than by due process of law. 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 df reputation. It is a claim in
public law for compensation for deprivation of liberty alone."
In Simpson v. Attorney General, [Baigent's case] (1994) NZLR. 667) · the Court of Appeal in New Zealand dealt with the issue in a very elaborate
manner by reference to a catena of authorities from different jurisdictions.
It considered the applicability of the doctrine of vicarious liability for torts,
E like unlawful
search, committed by the police officials which violate the
New Zealand Bill of Rights Act,
1990. While dealing with the enforcement
of rights and freedoms as guaranteed by the Bill of Rights for which no
specific remedy
was provided. Hardie Boys, J. observed :
F
G
H
"The New Zealand Bill of Rights Act, unless it is to be no more
than an empty statement,
is a commitment by the Crown that those
who in the three branches of the government exercise its functions, · powers and duties will observe the rights that the Bill affirms. It
is I consider implicit in that commitment indeed essential to its
worth, that the Courts are not only to observe the Bill in the
discharge of their own duties but are able to grant appropriate and
effective remedies where rights have been infringed. I see no
reason to think that this should depend on the terms of a written
constitution.
Enjoyment of the basic human rights are the entitlement
of
every citizen, and their. ·otection the obligation of every civilised
state. They are inherent in and essential to the structure of society.
They do not depend on the legal or constitutional form in which
D.K BASUv. STAIB [DRANAND,J.) 319
they are declared. The reasoning that has led the Privy Council· A
and the Courts of Ireland and India to the conclusions reached in
the cases to which I have referred,(and they are but a sample) is
in my opinion equally valid to the New Zealand Bill of Rights Act
if it
is to have life and meaning."
_(Emphasis supplied) B
The Court of Appeal relied upon the judgments of the Irish Courts
the
Privy Council and referred to the law laid down in Nilabati Behera v.
State, (supra) thus :
"Another valuable authority comes from India, where the constitu-
tion empowers the Supreme Court to enforce rights guaranteed
under
it. In Nilabati Bahera v.
State of Orissa, (1993) Crl. LT 2899,
c
the Supreme Court awarded damages against the State to the
mother of a young man beaten to death in police custody. The
Court held that its power of enforcement imposed a duty to "forge
D
new tools", of which compensation was an appropriate one where
that
was the only mode of redress available. This was not a remedy
in tort, but one in public
law based on strict liability for the
·contravention of fundamental rights to which the principle
· of
sovereign immunity does not apply. These observations of Anand,
E
J. at p. 2912 may be noted.
The old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the courts too much
as
protector and guarantor of the
indefeasible rights of the citizens.
The courts have the obligation to satisfy the social aspirations of
F
the citizens because the courts and the law are for the people and
expected to respond to their aspirations. The purpose of public
law
is not only to civilize public power
but also to assure the citizen
that they live under a legal system which aims
to protect their
interests and preserve their rights."
G
Each of the five members of the Court of Appeal in Simpson's case
(supra) delivered a separate judgment but there
was unanimity of opinion
regarding the grant of pecuniary compensation to the victim, for the
contravention of his rights guaranteed under the Bill of Right Act, not
withstanding the absence of an express provision
in that behalf in the Bill H
320 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A of Rights Act.
B
Thus, to sum up, 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 sometimes perhaps the only suitable remedy
for redressal of the
established
infringement of the fundamental right to life
of a citizen
by the public servants and the
State is vicariously liable for their
acts. The claim of the citizen
is based on the principle of strict liability to
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
C punitive element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender,
as awarding appropriate punish
ment 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 juris-
D diction 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 m that behalf. The relief to redress the wrong
E for the established invasion of the fundamental rights of the citizen, under
the public law jurisdiction
is, thus, in addition to the traditional remedies
and not
in derrogation of them. The amount of compensation as awarded
by the Court and paid by the
State to redress the wrong done, may in a
given case, be adjusted against any amount which may be awarded to the
F
claimant by way of damages in a civil suit.
•
Before parting with this judgment we wish to place on record our
appreciation for the learned counsel appearing for the States in general
and Dr.
AM. Singhvi, learned senior counsel who assisted the Court
amicus curiae in particular for the valuable assistance rendered by them.
G v.s.s.
Petition disposed of.
The landmark Supreme Court ruling in D.K. Basu v. State of West Bengal (1996) stands as a critical pillar in the fight against Custodial Violence and the protection of Fundamental Rights in India. This seminal judgment, available for in-depth study on CaseOn, addressed the alarming rise of deaths and torture in police custody, establishing procedural safeguards that have reshaped the dynamics of arrest and detention across the nation. It affirmed that the precious right to life and dignity under Article 21 of the Constitution is not forfeited upon arrest, holding the state accountable for the actions of its law enforcement agencies.
The case did not originate from a single aggrieved individual but as a Public Interest Litigation (PIL). Mr. D.K. Basu, the Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India, highlighting several news articles published in The Telegraph, The Statesman, and Indian Express that reported on deaths occurring in police lock-ups and custody. The letter argued that such incidents were often hushed up, allowing the perpetrators to go unpunished and the crime to "flourish." Mr. Basu urged the Supreme Court to examine the issue, develop a form of "custody jurisprudence," and establish clear guidelines for awarding compensation to victims or their families, while also ensuring the accountability of the officers involved. Given the gravity and nationwide importance of the issue, the Supreme Court treated the letter as a writ petition.
The Supreme Court was confronted with fundamental questions that struck at the heart of constitutional democracy and individual liberty:
The Court's entire analysis was anchored in the fundamental rights enshrined in the Constitution of India:
The Supreme Court delivered a powerful and humane analysis, acknowledging the stark reality of custodial violence. The judges observed that torture was not only a physical assault but also inflicted deep mental agony, representing a "naked violation of human dignity." The Court rejected the notion that the fight against crime could justify the use of unlawful methods, stating that the "cure cannot be worse than the disease itself."
The Court reasoned that while police have a legitimate right to arrest and interrogate suspects to maintain law and order, these powers must be exercised within the strict confines of the law. It declared that any form of torture or cruel, inhuman, or degrading treatment is an outright violation of Article 21. Balancing the needs of the state with individual liberty, the Court held that while criminals must be dealt with effectively, the methods used must be "right, just, and fair."
Recognizing the inadequacy of traditional remedies, the Court asserted its power under public law to award monetary compensation. It distinguished this from damages in a civil suit, classifying it as a constitutional remedy based on strict liability for the State's failure to protect a citizen's fundamental rights. The defense of sovereign immunity, the Court clarified, was not applicable in cases of fundamental rights violations.
For legal professionals aiming to dissect such intricate judicial reasoning, tools like CaseOn.in's 2-minute audio briefs provide invaluable assistance, offering concise summaries that help in quickly analyzing the core arguments and outcomes of landmark rulings like D.K. Basu.
To provide a practical, preventive framework, the Supreme Court issued a set of 11 mandatory requirements to be followed by all government agencies during the arrest and detention of any person. These are famously known as the "D.K. Basu Guidelines":
The Court further directed that failure to comply with these guidelines would render the official liable for departmental action and contempt of court.
This judgment is an essential read for lawyers and law students for several reasons:
In D.K. Basu v. State of West Bengal, the Supreme Court of India responded to a public interest litigation concerning the widespread problem of custodial violence and death. The Court held that custodial torture is a blatant violation of fundamental rights, particularly the right to life and dignity under Article 21. It ruled that these rights are inviolable and cannot be suspended even during arrest or detention. To curb the abuse of power, the Court issued 11 mandatory guidelines for police and other arresting agencies to follow, establishing clear procedures for arrest, documentation, and the rights of the detainee. Furthermore, it affirmed the principle of state liability, establishing that the state is responsible for the wrongful acts of its employees and that constitutional courts can award monetary compensation as a public law remedy for the infringement of fundamental rights.
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