D.K. BASU V. STATE OF WEST BENGAL
Author: Mr. Badal Khurana, JIMS School of Law
Court Before the Supreme Court of India
Decided on 18.12.1996
Bench Kuldip Singh and A.S.Anand JJ
In this case, the main parties were Shri DK Basu and the State of West Bengal. This case revolved around the increasing toll of custodial torture and deaths in the lock-ups. It is one of the landmark judgments wherein the Apex Court of India laid down some propositions regarding the arrest of a person.
The issues which were raised are:
- Are the actions undertaken by policemen arbitrary?
- Is there any need to specify some guidelines to make an arrest?
DK Basu, who was the Executive Chairman of the Legal Aid Services cell, West Bengal. He addressed a letter to the Chief Justice of India requesting him to draw his attention to certain news articles published concerning the deaths in police lock-ups and custody.
He requested the authorities to treat it as a Writ Petition within the “Public Interest Litigation” Category. Considering the relevancy of the issues raised in the letter, it was treated as a Writ Petition and notice was served to the Respondent which was the State of West Bengal.
While the letter was under consideration, one Mr. Ashok Kumar Johri addressed another letter to the Chief Justice drawing his concern to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. It also got treated as a writ petition and was listed along with the petition of D.K.Basu.
The Court made an order by 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 reply to the notice, various states like West Bengal, Orissa, Himachal Pradesh, Haryana, Assam, Meghalaya, Maharashtra, Tamil Nadu, and Manipur filed their affidavits. To assist the court on such a trivial matter, Dr. A.M.Singhvi, who was one of the most senior advocates then, was appointed as Amicus Curiae.
- CONTENTIONS OF PETITIONER
The petitioner contended that the infliction of body pain and mental agony which a person undergoes within the four walls of a police station or lock-up should be prevented. Be it physical assault or rape in police custody, the extent 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 takes steps have to be taken for its eradication.
- CONTENTIONS OF RESPONDENT
The counsel appearing for different states and Dr. A.M.Singhvi, presented the case and contented that “everything was well” 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 kith and kin of those who die in custody on account of torture.
To defend this major fall out of the administrative wing, the State of West Bengal made an attempt to convey that there we no deaths in lock-ups and even if there were any, then an inquiry must be going on whosoever has done it.
The court observed that the main objective behind some statutory and constitutional provisions is to protect people from any sort of torture, assault, and cruelty. The basic human rights or right to liberty and dignity must not be taken away from any person either they are detenus, prisoners, convicts or anyone who is under trial. So, the court felt that the basic rights enshrined under Article 21 and Article 22 must be protected and the law can’t deny these rights to the people who are in the custody. The court also questioned the credibility of the administration of the criminal system.
The bench consisting of KULDIP SINGH and A.S.ANAND JJ felt it extremely important to bring transparency in the structure so the court decided to implement effective machinery for recording and notification of all the detention and arrest cases. The court issued some guidelines/propositions to safeguard the detenus and prisoners. The guidelines are as follows:
- The arrested person has a right to meet his lawyer.
- The arrestee has a right to be medically examined every 48 hours.
- The arrestee has to be produced before the magistrate within 24 hours.
- An arresting person has to inform the relatives of the arrestee.
- A memo must be made at the time of the arrest.
- The memo, along with other relevant documents, must be sent to the magistrate.
- A police control room must be set up in all the districts and information about the prisoners and detenus has to be communicated to all the districts.
- Entry must be made regarding the arrest in the diary.
- The arresting officer has to carry a badge which clearly indicates his name and designation while making an arrest.
- Place and time of arrest has to be notified to any friend or relative of the arrestee by the arresting officer.
- The arrestee has to be made aware of his right to have someone notified regarding the arrest and the procedure on his behalf.
- CASE REFERRED
NilabhatiBehera v. State of Orissa
- PERSONAL COMMENTS
In my opinion, before this case, the administration of the criminal system existing in a country like India needed an effective mechanism. This case evolved as a landmark case as the guidelines issued by the bench aimed to protect the people in custody. It is an obligation of the state to protect the citizens, either they are accused of an offence or a normal innocent person.
The law can’t be prejudicial in its approach and can’t deny basic rights like the right to liberty, dignity to someone who is in the police custody.
Moreover, the torturous and cruel approach of police in dealing with arrestees required a strong change. The Apex Court had to meddle in such a situation and the decisions taken by the bench were absolutely appropriate and just.