WRIT PETITION (CRL) NO. 592 OF 1987
Respondent: State of West Bengal
Petitioner: Shri D.K. Basu
“Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”
Adriana P. Bartow
In almost every state 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. Shri D.K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P is a landmark case of custodial deaths and rights of accused in India. It laid down some important guidelines.
In this case, The Executive Chairman of 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 India express dated 17th August, 1986 regarding deaths in police lock-ups and custody.
The letter was treated as a writ petition when it was filed before the Supreme Court of India. Shri Ashok Kumar Johri addressed the letter to the Chief Justice of India by highlighting the death of a person named Mahesh Bihari ofPilkhana, Aligarh in Police Custody.
In this case, petitioners also raised concern over the police powers and that compensation should be given to people if there is any infringement of their rights mentioned in the article 21 and 22 of the Constitution. The defendant i.e. the State of West Bengal said that the writ petition was misconceived, inappropriate and misleading in law and thus denied the allegations which were put against them.
Article 21 protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22 No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Are policemen arbitrary in arresting a person?
Are there any prescribed guidelines while making an arrest?
ARGUMENTS ADVANCED FROM THE SIDE OF PETITIONER
The petitioner argued that bodily pain and mental agony suffered by a person 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 petitioner further contended that there is a need for a civilized nation and some major steps should be taken for its eradication.
ARGUMENTS ADVANCED FROM THE SIDE OF RESPONDENT
The counsel appearing for different states and Dr. A.M. Singhvi, presented the case and contented that “everything was final” within their respective states, presented above their respective beliefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to reduce, if not prevent, custodial violence and relatives of those who die in custody on account of torture.
Relying on Nilabatibehera vs. State of Orrisa (1993),the court stated that any form of torture or cruel, inhuman or degrading treatments falls within the ambit of article 21, whether it occurs during investigation, interrogation or otherwise. The rights guaranteed by article 21 cannot be denied to under trials, convicts, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions on the right as are permitted by law.
GUIDELINES PRESCRIBED BY THE COURT
- The arrested person has the right to meet his lawyer.
- He has the right to medical examination for every 48 hours.
- The arresting person has to inform the relatives regarding his arrest.
- He has to be produced before the magistrate within 24 hours.
- The arresting officer shall prepare the memo and has to be attested by at least one witness.
- An entry must be made regarding his arrest in the diary.
- A police control room should be set up in all the districts and in all the state headquarters and the information regarding the person’s arrest has to be communicated to all the Districts.
- All the documents including the memo of the arrest has to be sent to the magistrate.
- The arresting officer shall have the clear identification of his name, designation.
- The time, place, arrest, and the place of custody have to be notified to the interested person or the friend or the relative.
- The person arrested has to be made aware of his right to have someone notified on his behalf.
- Those are some of the set guidelines that are to be followed by every arresting person during an arrest.
- a) The case dealt with the scope of Article 21 of the Constitution of India in a case of custodial death – The various forms of torture, cruel, inhuman or degrading treatment would fall within the inhibition of Article, irrespective of the stage of the case at the time of occurrence – The Supreme Court directed to follow the requirements in all the cases of arrest or detention till the legal provisions were made for preventive measures
- b) The case debated on whether the arrested person could seek compensation from the state as he was tortured during custody – It was held that the quantum of the compensation would depend on peculiar facts of each case – However the punishment under the Penal Code was inadequate for the same
- c) The case debated that the attention of the parliament be invited to the need of amendment of statutory provisions in view of the sharp rise in the custodial violence and for the amendment of the relevant provisions of the law to protect the interest of the persons accused of economic offences, offences under the Essential Commodities Act, the Excise and Customs Act and the Foreign Exchange Regulation Act
- d) The case dealt with the requirement of the protection of the fundamental rights and human rights of the criminals vis-à-vis duties of the police in view of the incidents of custodial violence – It was held that the balanced approach was necessary for meeting the ends of justice
Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality. Nothing significant has changed from the date this case was decided (18 December, 1996,) as a recent case of Custodial death’ of a father and son in Sathankulam town in Tamil Nadu’s Thoothukudi district is a wrongful abuse of authority by the law enforcement machinery. In this context, the DK Basu judgments since 1987 gain significance and need a revisit.
Author(s) Name: Nandini Shivhare