A project on the topic-

‘D.K. BASU VERSUS STATE OF WEST BENGAL (1997 1 SCC 416)’

In the subject of International Human Rights, as per the curriculum of B.A. LLB
(Hons.), Semester 9.

Submitted to- Mr. Agampreet Singh

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 INDEX

S.No Particulars Page no.

1. General Introduction 3

2. Facts of the case 5

3. Issues framed by the Hon’ble Court. 6

4. Arguments put forth by the parties. 6

5. Judgement by the Hon’ble Supreme Court. 7

6. Present situation- improvement or deterioration? 11

7. Bibliography 13

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GENERAL INTRODUCTION-

‘Injustice anywhere is a threat to justice everywhere’1.

In India, the fundamental rights of the citizens occupy a place of pride in the India Constitution.
As protectors of the people and guardians of Justice, the Courts have played a huge role in
ensuring that justice is served. To keep up with the times and ensure that the Rule of Law is
upheld, the courts, specifically the Hon’ble Supreme Court and the High Courts, have not only
laid down law which serves as precedent but have also interpreted the existing laws in a way that
are a testament to the fact that our Judicial System is truly the watchdog of our fundamental
rights. One such way has been the interpretation of Article 21. Article 21 provides that no person
shall be deprived of his life or personal liberty expect according to procedure established by law.
On the other hand, a person’s right to move and live freely can be restricted or limited by
arresting him, taking him into custody, by using measures like preventive detention, to name a
few.

Custody means restricting a person’s freedom of movement. The object behind custody is to
prevent the person so taken from committing acts namely further commission of an offense,
tampering evidence, threatening the witnesses. The prima facie object of custody is to facilitate
smooth functioning of the process of investigation and trial. In India, a person’s fundamental
right to move can be restricted legally by the way of either a judicial custody or police custody.

Under Article 21, the expression “life or personal liberty” has been held to include the right to
live with human dignity. Further, it includes the right of a person to move and live freely to be
restricted or limited only by procedure established by law and additionally, it also includes
within its ambit a guarantee against torture and assault by the State or its functionaries. Article
22 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 they shall not be denied the right to consult and defend themselves by a legal practitioner of
their choice. Clause (2) of Article 22 directs that the person arrested and detained in custody
shall be produced before the nearest Magistrate within a period of 24 hours of such arrest,
1
Martin Luther King.

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excluding the time necessary for the journey from the place of arrest to the court of the
Magistrate. Similarly, 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
constitutional safeguards provided to a person with a view to protect his personal liberty against
and unjustified assault by the State.

Nevertheless, India has observed an array of historical trials and that made our Constitution an
embodiment of fairness, justice, and good conscience. One of those most important of all these
judgements in the purview of custodial violence that had expanded the spheres of the meaning of
fundamental rights was D.K. Basu vs. State of West Bengal2. The Hon’ble Supreme Court laid
down guidelines which are to be followed mandatorily during arrest and detention of a person.
This case was decided on 18th December 1996, by a division bench constituted by Hon’ble
Justice Kuldip Singh and Hon’ble Justice Dr. A.S. Anand respectively.

FACTS OF THE CASE-

On 26th August 1986, DK Basu, the Executive Chairman of Legal Aid Services, a non-political
organisation registered under the Societies Registration Act, in West Bengal, 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 India express dated 17 th August 1986
regarding deaths in police custody. After reproducing the new items, the Executive Chairman
submitted that it was imperative to examine the issue in depth, to develop “custody
jurisprudence” and formulate modalities for awarding compensation to the victim and/or family
members of the victim for atrocities and deaths caused in police custody. It was requested that
the letter, along with the new items be treated as a writ petition under the category of public
interest litigation.

Considering the importance of the issues raised in the letter, being concerned by frequent
complaints regarding custodial violence and deaths in police custody, the letter was treated as a

2
1997 1 SCC 416.

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writ petition and on 09.02.1987, notice was issued to the respondents, which included the State
of West Bengal and Uttar Pradesh.

While the writ petition was under consideration, another letter, addressed by Ashok Kumar Johri
was received by the then Chief Justice of India on 29.07.1987, drawing the attention of the
Hon’ble Apex Court to another custodial death of one Mahesh Bihari of Pilkhana, Aligarh, while
he was in police custody. This letter was also treated as a writ petition and was directed to be
listed along-with the writ petition filed by D.K. Basu. The Hon’ble Supreme Court also issued
notices to all State Governments and the Law Commission of India. In response to the notice,
affidavits were filed on behalf of various State governments and the Law Commission of India.

During the course of hearing of the writ petitions, the Court felt the necessity of having
assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested to assist the Court
as amicus curiae. The counsel appearing for different States and Dr. Singhvi presented the case
and though the effort on the part of the States initially was to show that “everything was well”
within their respective States, learned counsel for the parties rendered useful assistance to the
Hon’ble Court in examining various facets of the issue and made certain suggestions for
formulation of guidelines by the Apex court to minimise, if not prevent, custodial violence and
kith and kin of those who die in custody on account of torture. The Law Commission of India, in
response to the notice issued by the Hon’ble Apex Court, forwarded a copy of the 113 th Report
regarding injuries in police custody and suggested incorporation of Section 114-B in the India
Evidence Act. The Law Commission recommended in its 113 th Report that in prosecution of a
police officer for an alleged offense 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 the person during that period. The Commission further recommended that the 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. Change of
burden of proof was, thus, advocated.

ISSUES FRAMED BY THE HON’BLE SUPREME COURT-

The Hon’ble Supreme Court framed the following issues in the present case-

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 1. Whether there is an increase in the cases of custodial death and violence?
2. Whether there is a need for guidelines for arrest and custody of a detenu?
3. Whether the police officers be held liable for custodial death and violence?
4. Whether custodial death and violence amounts to violation of Article 21 of the detenu?

ARGUMENTS BY THE PETITIONERS-

The petitioners argued that bodily pain and mental agony suffered by prisoners within the four
walls of a police station or confinement should be avoided. Whether it is physical assault or rape
in police custody, the scope of trauma experiences is beyond the purview of the law. The
petitioners further contended that some major steps should be taken for its eradication.

ARGUMENTS BY THE RESPONDENTS-

In response to the initial notice issued by the Hon’ble Apex Court, the State of West Bengal filed
a reply wherein it was maintained that the police were not ignoring the matter of custodial deaths
and that where-ever police personnel were found to be responsible for such death, action was
being taken against them.

The counsel appearing for different states and Dr. A.M. Singhvi, presented the case and initially
it was contented that “everything was fine” within their respective states. However, they
presented their respective beliefs and rendered useful assistance to the Hon’ble Supreme Court in
examining various facets of the issue and made certain suggestions for formulation of guidelines
by the Apex court to reduce, if not prevent, custodial violence and relatives of those who die in
custody on account of torture.

JUDGEMENT BY THE HON’BLE COURT-

Keeping in view the gravity of the issue involved in the present case, the Hon’ble Court observed
the importance of affirmed rights of every human being and, therefore, to deter breaches thereof
was 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 death in the lock ups,

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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 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 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, the Hon’ble Court stated, 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 Hon’ble Court further observed that “torture” was not defined in 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. The word torture today has become
synonymous with it the darker side of human civilisation. 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 1984, which marked the emergency of worldwide
trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that no one
shall be subjected 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.

Furthermore, the Hon’ble Apex Court emphasised that 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 required to be scrupulously protected. Any form of torture or
cruel, inhuman or degrading treatment would fall within the ambit 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 happen. The
precious right guaranteed by Article 21 of the Constitution of India cannot be denied to

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convicted 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.

The Hon’ble Court relied on the judgment of Neelabati Behra vs. State of Orissa 3, 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 established by law.

The Court also mentioned the case of Joginder Kumar vs. State of Uttar Pradesh4 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.

GUIDELINES ISSUED:

The Apex Court further laid down the following guidelines and said that arrest and detention will
be subject to the following guidelines. The violation of these guidelines would attract not only
the departmental action but also the contempt of court proceedings in a High Court having the
jurisdiction over the matter. The guidelines are as follows:

1) The police officer who arrests and handles the interrogation of the arrestee must wear
accurate, visible and clear identification and name tags with their designations. The details of all
such police personnel who handle interrogation must be recorded in a register.

2) The police officer carrying out the arrest must prepare a memo of arrest at the time of arrest
and it shall be attested by at least 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 is made. It shall also be
countersigned by the arrested person and shall contain the time and date of arrest.

3) A person who has been arrested 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

3
1993 (2) SCC, 746.
4
1994 (4) SCC, 260.

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person known to him or having an interest in his welfare be informed, as soon as possible, about
his arrest and detention in a 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 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 arrest.

5) The person arrested must be made aware of his right to have someone informed of his arrest or
detention as soon he is put under arrest or is detained.

6) An entry must be made in the case diary at the place of detention regarding the arrest which
shall also disclose the name of his next friend who has been informed of the arrest and the names
and details of the police officials in whose custody the arrestee is.

7) On request, the arrestee should be examined at the time of his arrest and any 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 and a copy must be given to the
arrestee.

8) The arrestee should be subjected to a 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 the
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 above, should be sent to
the Magistrate for his record.

10) The arrestee may be allowed to meet his attorney during interrogation, although 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 who was in charge of the arrest, within 12 hours of affecting the arrest and at the
police control room it should be displayed on a visible notice board.

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The Hon’ble Supreme Court further held that failure to comply with these guidelines shall, apart
from rendering the concerned official liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for contempt of court may be instituted in
any High Court of the country, having territorial jurisdiction over the matter.

These requirements, the Court observed, flowed from Articles 21 and 22 (1) of the Constitution
and needed to be strictly followed. These would apply with equal force to the other governmental
agencies also. These requirements, however, were in addition to the constitutional and statutory
safeguards and did 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.

Further, in regard to the issue of compensation, the Hon’ble Court held that there was no straight
jacket formula to determine the amount of compensation and that it would depend on the
particular facts and circumstances of the case at hand. The aggrieved party (victim/their family)
can seek both civil and criminal remedies, as available under law. The civil damages shall be in
addition to the criminal prosecution against the perpetrator, the Hon’ble Court added.

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PRESENT SITUATION: IMPROVEMENT OR DETERIORATION?

Almost every landmark judgment passed by the Hon’ble Apex Court till date holds significance
in its area of relevance. Some precedents set by the Supreme Court have had a considerable
impact on jurisprudence and have only enriched the basic tenets of democracy and the main holy
grail- the Indian Constitution. Similarly, the DK Basu case still holds relevance, not only in the
obliging of the guidelines set by it but also in the scenarios presented in the judgment. For
instance, the court had observed in 1996,

“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
was released from custody.”

This still remains true in this day and age. In addition to this, the number of deaths in police
custody witnessed a nearly 60% increase over the last three years and 75% over the last two
years across the country, data provided by the Ministry of Home Affairs (MHA) in the Rajya
Sabha has revealed. The data revealed that the number of such cases rose by a whopping 10
times in Maharashtra, three times in Kerala and Bihar, and two times in Gujarat, Uttar Pradesh
and Karnataka. The data further revealed that overall, across India while the number of such
custodial deaths had declined over three successive years from 146 in 2017-18 to 136 in 2018-
19, then to 112 in 2019-20 and further to 100 in 2020-21, they had recorded a sharp rise to
175 in 2021-225.

Only 428 FIRs were filed in 1,022 custodial deaths between 2000-2016, says NCRB data 6, in
which most of the prisoners were arrested and were not even produced before a magistrate in the
due course of time. This makes a complete mockery of sections 55A and section 57 of Cr.P.C.,
which places a duty of care and the production before a magistrate within 24 hours, to the person

5
https://thewire.in/rights/india-custodial-deaths-data-rajya-sabha-2023.
6
https://www.newindianexpress.com/nation/2018/apr/15/only-428-firs-were-filed-in-1022-custodial-deaths-
between-2000-2016-says-ncrb-data-1801728.html

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who makes the arrest. The increasing incidents of torture and death in custody have assumed
such alarming proportions that it is affecting the creditability of the Rule of Law and the
administration of criminal justice system.

The guidelines issued in the DK Basu 7 case, which were made binding, are being more or less
violated and non-compliance of the same does not invite any serious implications. Thus, has
begun another vicious circle of infringement of right to life, non-compliance of the guidelines
and eventual impunity. It is high time that these guidelines take the form of a legislation or get
admitted into the Code of Criminal Procedure with strict and meaningful implications for
violations if the legislature truly intends to safeguard a person’s right to life and personal liberty,
including those of convicted undertrials, detenues and other prisoners in custody.

7
DK Basu vs. State of West Bengal, 1997 1 SCC 416.

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BIBLIOGRAPHY-

 https://indiankanoon.org
 https://districts.ecourts.gov.in/sites/default/files/circular16092015.pdf
 https://thewire.in/rights/india-custodial-deaths-data-rajya-sabha-2023
 https://www.newindianexpress.com/nation/2018/apr/15/only-428-firs-were-filed-in-1022-
custodial-deaths-between-2000-2016-says-ncrb-data-1801728.html

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