Case Analysis: D.K. Basu, Ashok K. Johri v State of West Bengal (1997)

Introduction

Popularly known as D.K. Basu case is one of the landmark judgements in history as it laid down the guidelines to be followed while making arrests. Custodial deaths have always taken place in our country and there was once a time when there was no effective mechanism proposed by the legislation to deal with the growing cases of the same in India.

Citation: AIR 1997SC 610

Court: Supreme Court of India

Bench: Kuldip Singh and Dr. A.S. Anand

Appellant: Shri D.K. Basu, Ashok K. Johri

Respondent: State of West Bengal, State of Uttar Pradesh

Facts

1. DK Basu was the Executive Chairman of Legal Aid Services, West Bengal, a non-political organization. On 26/08/1986, he addressed a letter to the Supreme Court of India drawing the courts attention to a piece of news published in the Telegraph Newspaper dated 20, 21 and 22 of July 1986 and in the Statesman and India Express dated 17th August 1986 about deaths in police custody and lockups.
2. In the letter, it was mentioned that such crimes of custodial violence always went unpunished despite the efforts made and urged the courts to look into the matter so that the family members of the victims are given some form of compensation. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation” category.
3. Considering the significance of the issues brought up in the letter, it was treated as a written petition and the defendants were informed.
4. While the writ petition was being considered, Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court by highlighting the death of a man named Mahesh Bihari from Aligarh in police custody. The letter was also treated as a Request for Writing and was included along with D.K. Basu’s Request for Writing.
5. On 14/08/1987 the Court issued an order to all state governments and a notice was also issued to the Law Commission requesting appropriate suggestions and guidelines within two months.
6. In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur.
7. Also, Dr. A.M. Singh, Principal Counsel was appointed as the Amicus Curiae to assist the Court.

Issues

• Alarming growth in custodial violence cases and deaths.
• Need to specify guidelines and follow them while making the arrest of a person.
• Arbitrariness of Policemen in arresting a person wherein many times they justify custodial tortures and killings as a means to extract information or a way of providing justice to the aggrieved parties.
• Who can be held responsible for these killings and tortures?

Contentions of the petitioner

There was concern over the police powers and it was stated that physical and mental agony suffered by a person in a police station or any confinement should be avoided.

It was argued that compensation should be provided to the victims if there has been any violation of their rights mentioned in Article 21 and Article 22 of the constitution.

Regardless of whether it is an actual physical attack, rape, mental torture or whatsoever in the police custody, the extent of the injury is beyond the extent of the law.

The petitioner further contended that in a ‘civilized society’, such heinous crimes should be eliminated.

Contentions of the respondent

Dr. A M Singhvi and the counsel representing different states responded that there was no room for error and “everything was well”.

They presented their respective briefs and provided useful assistance to the Court in examining various facets of the issue and made certain suggestions for formulation of guidelines to minimize, if not prevent, custodial violence and kith and kin of those who die in custody due to torture.

The defendants stated that the writ petition was misconceived, inappropriate and misleading in law, thus denied the allegations raised against them.

In order to defend the fall of the administrative wing, the State of West Bengal made an attempt to convey that there are no deaths in the confinements and even if there were any, then an investigation should be carried out on whoever did it.

Judgement

Referring to the case of Neelabati Bahera v. State of Orissa[2], the Supreme Court reiterated that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of their Fundamental Rights.

The court observed that custodial deaths to be one of the worst crimes in a civilized society and its growing rate was indeed a disturbing factor despite the statutory provisions to safeguard the life and liberty of citizens.

Accordingly, the court gave a rundown of 11 guidelines notwithstanding the Constitutional and statutory provisions which were to be continued in all instances of arrest and detainment. The rules are as per the following:

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 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 also 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 to 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 effecting the arrest and at the police control room it should be displayed on a visible notice board.

The judgement clearly mentions that the failure to comply with these guidelines will not only invite department actions against the officer but also contempt of court proceedings in a High Court which has jurisdiction over the matter.

Conclusion

The case of D.K. Basu, Ashok K. Johri v. State of West Bengal is an absolute gem which reminded the State about its obligation to protect the rights of all the citizens including the persons under arrest and in prisons. Especially in a country like India, there is a huge probability of the administrative wing abusing its power and intervening in the judiciary through DK Basu’s petition is commendable. The law can’t be biased in its methodology and can’t deny basic rights to anyone even if that person is in custody.

Despite these measures, we still hear instances of custodial violence and the failure to comply with the guidelines issued by the court. Many a time, the police department itself tries to bury deep the evidence of custodial torture to prevent the media, common man and judiciary from criticizing and taking action against them. Consequently, the guidelines given under this case should be embraced by the officials and nobody ought to be permitted to take the law into their hands.

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Reference:

https://main.sci.gov.in/judgment/judis/14580.pdf

[1] AIR 1997SC 610

[2] 1993 AIR 1960

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