CASE ANALYSIS DK BASU VS.

STATE OF WEST BENGAL

Case Profile

Case Name

DK Basu v. State of West Bengal along with Ashok K. Johri v. State of UP.

Court

Before the Supreme Court of India

Decided on

18.12.1996

Bench

Kuldip Singh, A.S.Anand, JJ.

Facts:-

The Case was Filed by DK Basu, The Executive Chairman, Legal Aid Services, West Bengal,
a non- Political organization. He wrote a letter to CHIEF JUSTICE OF INDIA, regarding
certain news items published in the Telegraph Newspaper dated 20, 21 and 22 of July, 1986
and in the Statesman and India express dated 17th August, 1986 for deaths in police lock up
and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest
Litigation” Category. How police becomes over powering and the crime go unpunished, so in
the lieu family members must also be given compensation for such injury caused to them and
rights of the individuals must be protected. Considering the importance of the issues raised in
the letter, it was treated as a Writ Petition and notice was served to the Respondents. While the
Writ Petition was under consideration Mr. Ashok Kumar Johri, wrote a letter to the Chief
Justice drawing his attention again towards a custodial death case of one Mahesh Bihari of
Pilkhana, Aligarh in Police Custody. The same letter was also treated as a Writ Petition and
was tagged along with the Writ Petition filed by Mr. D.K.Basu. Dr. A.M.Singhvi, Senior
Advocate was appointed as Amicus Curiae to assist the Court for this matter. In addition to
this, On 14.08.1987, the Court made the Order issuing notices to all the State Governments and
notice was also issued to the Law Commission of India requesting suitable suggestions within
a period of two months. In response to the notice, affidavits were filed by several states
including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya,
Maharashtra and Manipur.1

Issue:

The Issue in the Present Case pertained to Custodial Torture and Deaths by the Police, also is
the violation of Fundamental Rights guaranteed by the Constitution of India of the individuals
in respect of the prisoners were taken into consideration.

Judgement given by Justice AS Anand : -

Torture is despair and fear and rage and hate. It is a desire to kill and destroy including
yourself."

-Adriana P. Bartow

The Torture Although has not been 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 wit the
darker side of human civilisation 2

The Law Commission of India 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 India Evidence Act." (Section 114-B in the India Evidence Act: - an
accomplice is unworthy of credit unless he is corroborated in material particular.)

Custodial violence, including torture and 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 persons who are supposed to be the
protectors of the citizens. It is committed under the shield of uniform and authority in

1 Darshan Patankar, ‘Dk basu vs State of WB’,( Law Briefs 18 May 2017), <www.lawbriefs.in>, accessed on 25th
April 2020
2 Dk Basu v. State Of West Bengal (1997 (1) Scc 416)
the four walls of a police station or lock-up, the victim being totally helpless. 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 issues are fundamental. 3

In all custodial crimes that is of real concern is not only infliction of body pain but the mental
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.4

"Custodial violence" and abuse of police power is not only peculiar to this country, but it is
widespread. The Universal Declaration of Human Rights in 1948, which marked the
emergency of worldwide trend of protection and guarantee of certain basic human rights, states
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 civilized nation shows its concern and takes steps for its eradication. In England, torture
was once regarded as a normal practice to get 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 though and approach, such inhuman practices were initially
discouraged and eventually almost done away with. 5

Constitutional Provisions and Laws Relating to the detention and rights of

Prisoners highlighted in the Judgement: -

Article 21- Safeguard to Life: -

Article 21 is guaranteed to the citizens as well as the non-citizens of India, valuing their basic
rights and necessities, granting them their, “ Right To Life”. For which it provides, "no person
shall be deprived of his life or personal liberty expect according to procedure established
by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The
expression "life of 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

3 ibid
4 Supra note 2
5 ibid
by the State or its functionaries. Any form of torture of cruel, inhuman or degrading treatment
would fall within the inhibition of Article 21 of the Constitution, whether it occurs during
investigation, interrogation or otherwise. The precious right guaranteed by Article 21 of the
constitution of India cannot be denied to convicts, undertrials or other prisoners in custody,
expect according to procedure established by law. There is a great responsibility on the police
or prison authorities to ensure that the citizen in its custody is not deprived of his right to life.

Justice AS Anand while writing the judgement in addition to Article 21 highlighted various
other provisions of law which safeguards the rights of individual and prevents over powering
rule of the Police, also which is of a great importance in understanding the Rights of the
Prisoners.

• 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 the 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 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 constitutional
safeguard provided to a person with a view to protect his personal liberty against and
unjustified assault by the State, In tune with the constitutional guarantee a number
statutory provisions also seek to project 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 safeguard which are required to be followed by the police 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 necessary
to permitted to use more restraint than is 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 sureties in the
event of his arrest for a non-bailable offence.
• Section 56 contains a mandatory provision requiring the police officer making an 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 Section 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 the police, Section 176 requires the Magistrate to hold and enquiry into the
cause of death.6
Despite such laws in existence the crime in prisons wouldn’t stop. And referring and
quoting the above in judgment Justice A. S. Anand Further states, 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.7

Justice Anand takes the refer. of the case Joginder Kumar Vs. State8 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. ...No. arrest should be made without a reasonable satisfaction
reached after some investigation about the genuineness and bonafides of a complaint and a
reasonable belief both as to the person's complicity and even so as to the need to effect arrest.
Denying person his liberty is a serious matter."

6 Supra note 2
7 ibid
8
Joginder Kumar v. State, [1994 (4) SCC, 260]
This case involved a lawyer who was been kept under police custody for a week, and his family
members were not been informed for that cause. The reason which police gave was that, that
the lawyer was not in detention at all but was only assisting the police to detect some cases.
The court didn’t got satisfied by the statement and the order was against the administration.
Also In Neelabati Bahera Vs. State of Orissa9, (to which Anand, J. was a party) Court pointed
out that prisoners and detenues 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.

Taking in consideration all the provisions of law, the rights of an individual and to protect the
people from atrocities of the authority and safeguard their interest, the bench came up with 11
guidelines to be followed before any detention: - (D.K. Basu Case)

“We therefore, consider it appropriate to issue the following requirements 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 identification 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 a such memo 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 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 having interest in his welfare being informed, as soon as practicable,
that 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 lives outside the district or town through the

9
Neelabati Bahera v. State of Orissa, [1993 (2) SCC, 746]
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 this 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 diary at the place of detention regarding the arrest of the
person which shall also disclose the name of he next friend of the person who has been
informed of the arrest an the names and particulars of the police officials in whose custody the
arrestee 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 its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned Stare 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 Magistrate for his record.

(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 arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the
concerned official liable for departmental action, also render his 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. The requirements, referred
to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed.
These would apply with equal force to the other governmental agencies also to which a
reference has been made earlier.

These requirements are 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 rights and dignity of the arrestee. 10

Through this, The Bench issuing the guidelines also included in the judgment the
Compensation for the family of the victim to whom such grievance is caused and holds that the
State will be vicariously liable for the acts of the Public Servants. In the assessment of
compensation, the emphasis has to be on the compensatory and not on punitive element.

Rights of Prisoners- An International Perspective: -

International Human Rights Laws: -

International human rights laws protect people from racial discrimination, from torture and
from enforced disappearances. They also recognise the rights of specific groups of people,
including women, children, and people with disability, indigenous peoples and migrant
workers. Some of these treaties are complemented by optional protocols that deal with specific
issues or allow people to make complaints.11

UN Charter: -

The charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations conference on international organization, and came into force
on October 24 1945.

Basic Principles for The Treatment of Prisoners was adopted and proclaimed by General
Assembly resolution 45/111 of 14 December 1990. The principles are as follows:

➢ Prisoners shall be treated with inherent dignity and valued as human beings.
➢ No discrimination on the grounds of race ,sex, colour, language, religion, political,
national, social origin, property, birth, or other status.

10Supra note 2
11Jayaram Swathy, ‘Rights of Prisoners’, (Legal Service India ), <www.legalserviceindia.com>, accessed on 25th
April 2020.
 ➢ Respect the religious beliefs and cultural precepts of the group to which the prisoners
belong.
➢ The responsibility of the prisons for the custody of the prisoners and for the protection
of the society against crime and its fundamental responsibilities for promoting the well-
being and development of all members of the society.
➢ All prisoners shall retain the human rights and fundamental freedoms set out in UDHR,
ICESCR, ICCPR and the optional protocol as well as such other rights as are set out in
other United Nations covenants.
➢ Right of the prisoners to take part in cultural activities and education aimed at the full
development of the human personality.
➢ Abolition of solitary confinement as a punishment, or to the restriction of its use, should
be undertaken or encouraged.
➢ Prisoners to undertake meaningful remunerated employment which will facilitate their
reintegration into the country’s labour market and permit them to contribute to their
own financial support and to that of their families.
➢ Access to health services without discrimination on the grounds of their legal situation.
➢ With the participation and help of the community and social institutions and with regard
to the interest of victims, favourable conditions shall be created for the reintegration of
the ex-prisoner into society.
➢ The above principles shall be applied impartially 12

International Bill of Rights:

Universal Declaration of Human Rights:

In 1948 a movement was started in the United Nations in the form of Universal
Declaration of Human Rights which was adopted in the General Assembly of the United
Nations. This organic document is also called as Human Rights Declaration. This
important document provides some basic principles of administration of justice. Among
the provisions in the document are follows:
➢ No one should be subjected to torture or to cruel, inhuman or degrading
treatment or punishment13.
➢ Everyone has the right to life, liberty and security of person.

12 UDHR, 1948, Article 1

13 ibid
 ➢ No one shall be subjected to arbitrary arrest, detention or exile.
➢ Every one charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.
➢ Everyone has the right to life, liberty and security of person.
➢ No one shall be subjected to arbitrary arrest, detention or exile.
➢ Every one charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence. 14

➢ Article 3 of the UDHR states that everyone has the right to life, liberty and
security of the person. Right to life is one of the basic human rights and is
available to both prisoners and freemen.

The International Covenants on Civil And Political Rights, 1966:

➢ No one shall be subjected to cruel, inhuman or degrading treatment or

punishments.
➢ Everyone has the right to liberty and security of person. No one shall be subject
to arbitrary arrest or detention.
➢ All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person 15.
➢ No one shall be imprisoned merely on a ground of inability to fulfil a contractual
obligation.
➢ Article 7 of ICCPR allows no limitations of rights against cruel inhuman
treatment and no justification even during public emergencies may warrant such
rights.

UN Core Conventions And Specific Instruments:16

Standard Minimum Rules For The Treatment of Prisoners:

14 Supra note 12
15 ICCPR, 1966, Article 10
16 Supra note 13
 Amnesty International in 1955 formulated certain standard rules for the
treatment of prisoners. Some important relevant rules are as follow:
➢ Principle of equality should prevail; there shall be no discrimination on grounds
of race, sex, colour, religion. Political or other opinion, national or social origin,
property, birth or other status among prisoners.
➢ Men and women shall so far as possible be detained in separate institution;
➢ Complete separation between civil prisoners and persons imprisoned by reason
of criminal offence; young prisoners should be kept separate from the adult
prisoners.
➢ All sorts of cruel inhuman degrading punishments shall be completely
prohibited.
➢ Availability of at least one qualified Medical officer with the knowledge of
psychiatry.
➢ Convention Against Torture And Other Cruel, Inhuman Or Degrading
Treatment Or Punishment:
➢ State party has to take effective legislative, judicial and other measures to
prevent acts of torture.
➢ No state party shall expel, return or extradite a person who is in danger of being
subjected to torture.
➢ State party should ensure that all acts of torture are offences under its criminal
law.