DK Basu v State of West Bengal – Case Analysis

Introduction

When a perpetrator of crime is caught, the foremost thing that the legal justice system demands is that such a person be kept in the custody of the police, so that he can be brought to trial. This is a common way to address criminals worldwide, but it needs to be kept in mind that a criminal is also a human being. Indeed, some rights of a person who has committed an offence are taken away, but even then, the Constitution of India does not allow the reduction of a person from his humanity. This means that one of the most important rights in our Constitution, the Right to Life and Liberty, enshrined under Article 21, cannot be taken away, that too without the person receiving justice.

The atrocities committed on people who are caught by the police are nothing new, even though this behaviour is absolutely wrong, but the administration does not pay heed to it. However, if a person loses his life because of such atrocities, it raises a lot of concerns. The duty of police is to prevent the offender from committing any further acts, not to torture him on the account of the crime he committed. When police take up the role of the justice system that too in an unauthorised manner, the mechanism of justice breaks down. When a person dies in the custody of the police, it is referred to as a custodial death. And, they have been on the rise in India.

However, many attempts have been made in order to realise the situation of custodial deaths and to bring an end to them. One such instance was the Supreme Court Case of DK Basu v State of West Bengal [1].

Facts of DK Basu v State of West Bengal Case

Keeping in view the staggering rise of custodial deaths in India, a letter was presented to the then Chief Justice of India, by Mr. Dilip Kumar Basu, who was the executive chairman of a non-political organisation, Legal Aid Services, in West Bengal. The letter, dated August 26^th, 1986, referred to certain articles in a newspaper, namely the Telegraph Newspaper, mentioning custodial deaths. Mr. Basu requested that the letter be considered as a writ petition under Public Interest Litigation.

While the letter was being reviewed, another person stepped into the frame with a letter, Mr. Ashok Kumar Johri, who reiterated the matter by stating in his letter the death of one Mahesh Bihari, from Pilkhana, Aligarh, Uttar Pradesh, as being a custodial death. This letter, along with the letter from Mr. Basu, was treated as a writ petition by the Supreme Court of India. The Court issued notices to all state governments regarding the same, as well as to the Law Commission of India requesting the formulation of appropriate measures to address the situation, within a period of two months.

Subsequently, the Supreme Court received several affidavits by the state governments of Himachal Pradesh, West Bengal, Assam, Orissa, Haryana, Tamil Nadu and Meghalaya. The Supreme Court also appointed Dr. A. M. Singhvi, who was the principal counsel on behalf of the state governments, as the amicus curiae to the court.

Arguments Presented in DK Basu v State of West Bengal Case

The issues raised in the writ petition revolved around the problem of custodial deaths and their increasing number, while simultaneously pinpointing that there was a need for specific guidelines to regulate police arrests and prevent arbitrary measures of the police. The arguments put forward by the side of the petitioner asserted that the mental agony and the torture that an arrested individual goes through in police custody is beyond imagination and that the same should be avoided at all costs. The respondents, on the other hand, contended that as per the respective states, the situation was “fine”. However, at that time, there were no guidelines that regulated custodial deaths, and therefore, the Apex Court, relying on certain judgements, ruled in favour of the petitioners.

Judgment of DK Basu Case

The Supreme Court relied on the judgment of Neelabati Behra v. State of Orissa[2], wherein it was held that torture of any form, or cruel and inhumane behaviour towards arrested persons deprived them of their Fundamental Rights, especially Article 21, which is against the law of the country. A restriction on Fundamental Rights could only be imposed on the citizens in accordance with the provisions of the law. The same view was also observed in the case of Sunil Batra v. Delhi Administration[3].

The Supreme Court also mentioned the case of Joginder Kumar v. State of Uttar Pradesh[4], and held that even though procedural requirements regarding arrests of criminals had already been laid down, it was found that police officers were making arrests without warrants. Simply because a police officer is allowed under law to arrest a person does not imply that he can arrest a person without reason, i.e. arrests should not be the routine.

The Apex court, in its judgement, issued the following guidelines that govern arrest and custody procedures required by the police to follow:

1) When the police are making an arrest, the details of all the police personnel involved in the arrest must be clear and accurate. Their name tags must bear correct and their particulars should be recorded in a register.

2) The police officer in charge of the arrest must prepare a memo of the arrest at the time, which shall be signed by at least one witness. This witness can either be a family member of the arrested person or could be a respected member of the locality from where the person is arrested. The memo will also contain the signature of the arrested as well as the date and time of the arrest.

3) When a person is arrested and put in custody by the police, he has a right to inform either his family member, or his friend or anyone known to him, of the arrest and of the place where he is put in custody.

4) The detained person is to be made aware of the abovementioned right as soon as he is arrested.

5) If the family member, or friend, or the person known to the arrested lives outside the district or town, then the time and date as well as the place of custody of the arrested person must be made known to such person through Legal Aid Organisation of the district. The same should also be done by the concerned police station within 8 to 12 hours of the arrest.

6) The details of the arrest as well as of the arrested person must be entered in a diary at the place of arrest. The entry must also contain the details of the police officer under whose custody the detained person has been placed.

7) If the detained person requests, then he shall be examined of any injuries or marks on his body and the same must be recorded. This examination, called the “Inspection Memo”, must be signed by the arrested person along with the police officer in charge of the arrest, and a copy must be handed over to the detained person.

8) While in custody, the detainee shall be medically examined every 48 hours by a trained doctor, from a panel of doctors approved by the Director of Health Services of the concerned state. The Director is required to prepare a panel of approved doctors for tehsils and districts.

9) The copies of all the documents should be sent to the Magistrate of the area for his record.

10) During interrogation, the arrested person is allowed to meet his lawyer, provided that such meeting does not last throughout the interrogation.

11) Every district and state headquarters of police must have a police control room, and the details of the person arrested should be communicated by the police officer in charge of the arrest within 12 hours of the same. The said details must be pinned on a notice board in the control room.

Overview of DK Basu v State of West Bengal Case

A person cannot be deprived of his life and personal liberty without the accordance of law. The right to life means something more than mere animal existence, and a person being deprived of the same violates the principle of rule of law. When a person is subjected to arbitrary procedures, it takes away the essence of Article 14 of the Constitution, which rests on the principle of equality, as opposed to arbitrariness.[5] Adopting measures of third-degree torture by the police in order to extract confessions from accused persons is clearly violative of Article 20(3) of the Constitution.[6]

The state of Uttar Pradesh has the highest number of custodial deaths in India. The police in India treat the arrested persons as second-class citizens, and often attempt to take the law into their own hands. As per reports published by the National Crime Records Bureau of India, more than 50% of people who died while in custody were not even produced before a magistrate. When people die without even having access to justice, it questions the principles of the entire system of governance of the country.

At present, custodial deaths have been reduced due to the stringent measures adopted by the government as well as the sound judgements delivered by the judiciary. However, still a large number of cases go unaccounted and every once in a while, a case of police brutality comes before us. There is still a long way to go, but conformity with the principles of the Constitution can definitely provide a swifter recourse to the issue of custodial deaths in India.

Frequently Asked Questions (FAQs)

[1] AIR 1997 SC 610.

[2] AIR 1993 SC 1960.

[3] 1980 AIR 1579.

[4] 1994 Cr. L. J. 1981.

[5] A. D. M., Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207.

[6] Khatri v. State of Bihar, 1981 SCR (2) 408.