Author: Esha Jain, student at school of law, DAVV, Indore
1.Abstract–
The Indian criminal justice system has long been marred by inhumane torture and fatalities occurring in police custody. Often these have been justified by the maxim “the end justifies the means”. Even constitutional protections and judicial reforms have not been able to abate this trend of custodial violence. But this was significantly altered by the landmark judgment of D.K. Basu v. State of West Bengal in 1997. The Supreme Court highlighted the seriousness of custodial abuse and emphasized the judiciary’s role in addressing human rights violations. The judgment did not only condemn such atrocities but also established comprehensive guidelines for law enforcement to protect the rights and dignity of people in custody, which significantly changed the legal landscape in India.
2.Introduction
Custodial violence is the direct attack on human dignity and is an assault on the fundamental right to life as enshrined in Article 21 and 22 of the Constitution of India. The phrase “life or personal liberty” has been understood to include the right to live with honor. As such, this construction also encompasses protection against torture and violence by the State or its functionaries. These two Latin principles, salus popule est suprema lex-the safety of the people is the highest law and salus republicae est suprema lex-the safety of the State is the highest law must coexist. They are not only important and applicable but also fundamental to the notion that individual well-being must take a back seat to that of the community. The use of 3rd degree methods before the trial in police custody to torture the victim blows a strike on the rule of law and since the torture not only impact physically but also psychologically on the victim, it is considered one of the worst crime through an abuse of power.
Increase in the cases of disappearance, torture and death in police custody, however the Indian judiciary stepped in and took the serious note of this violation of human rights. the supreme court in the landmark judgment of d.k basu vs state of west bengal laid down certain guidelines to be followed by the police while arresting or detaining any person, to prevent such custodial violence.
Case Title- D.K. Basu vs State of West Bengal
Case No- Writ Petition (Criminal) No. 539 of 1986
Date of the Judgement- 18th December 1996
A bench of two judges – Justice Kuldip Singh and Justice A.S. Anand.
Matter at- the Supreme Court of India
Appellant- D.K. Basu, Ashok K. Johri
Respondent- States including West Bengal and Uttar Pradesh
3.Background of the case-
The case arose in a time when custodial violence and deaths were increasing in India. People arrested by the police were being subjected to brutality, torture, and gross violations of their basic human rights.
Initiation: On August 26, 1986, D.K. Basu, the Executive Chairman of Legal Aid Services in West Bengal, sends a letter to the Supreme Court of India regarding the reported deaths in police custody as mentioned in the media. He requests that this letter be treated as a Public Interest Litigation (PIL).
Response: The Supreme Court issued notices to all state governments and the Law Commission seeking suggestions on the measures to prevent custodial violence. Several states filed affidavits detailing instances of custodial violence and deaths.
4.Timeline to borrowed from the D.K Basu vs State of west bengal case-
1986:
26 August: D.K. Basu, Executive Chairman Legal Aid Services, West Bengal writes a letter to the Supreme Court of India about the reported deaths in police custody in the media. He pleads that this letter be considered a Public Interest Litigation (PIL).
1987:
August 14: The Supreme Court has issued notices to all state governments and the Law Commission, soliciting recommendations on how to prevent custodial violence.
Response by States: A number of states, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur, file affidavits.
Appointment of Amicus Curiae: Dr. A.M. Singhvi has been designated as Amicus Curiae to provide assistance to the court.
1996:
December 18: The Supreme Court pronounces its judgement, enunciating safeguards that would prevent custodial torture and deaths.
5.Issues raised-
1. Did custodial violence and deaths infringe on the fundamental rights enshrined in Articles 21 (Right to Life and Personal Liberty) and 22 (Protection against Arbitrary Arrest) of the Indian Constitution?
2. whether force use by the police officer is appropriate for interogation?
3 Are the mechanisms required to hold police officers and law enforcement agencies accountable for acts of custodial violence and torture?
4. Whether any obligation of state will be constituting in custodial violence?
5. what will be the framework for the compensation and on what grounds it will be provided?
6.Arguments to be noted from the side of the plaintiff-
Bodily Pain and Mental Agony: The petitioner averred that bodily pain and mental agony to which the individuals in police custody were subjected should be avoided. These incidents included physical violence, sexual assault, and various other forms of torture.
Need for a Civilized Nation: The petitioner laid down the need for India to be a civilized nation and called for steps to eradicate custodial violence.
Violation of Fundamental Rights: The petitioner argued that custodial violence and death violated fundamental rights under Articles 21 Right to Life and Personal Liberty and 22 Protection against Arbitrary Arrest in the Indian Constitution.
7.Arguments to be noted from the defendant side-
State’s Response: The counsel for different states, such as West Bengal, pleaded that everything was all right in their respective states. They presented their beliefs and provided useful assistance to the Court in examining various facets of the problem.
the actions taken by the police officer was in compilance with the existing legal framework unless proven otherwise.
Some of the major challenges faced by a police officer were also mentioned, including work pressure and poor resources and training.
However, the supreme court dismissed these arguments and held that the safeguards are necessary to uphold the rule of law and are not an impediment to the investigation procedures. The court further held that Human rights are inherent and inalienable attributes of every individual and their protection is the primary duty of the State.
Assistance in Formulating Guidelines: Defence counsels, amongst whom was Dr. A.M. Singhvi, helped the Court draft guidelines for curbing, if not preventing, custodial violence and deaths the refrain in the power of police will result in obstracle in the process of proper investigation.
8.Authentic proofs molded the judgement –
The proof primarily consisted of:
Affidavits and Submissions: Presented by the various states and the Law Commission about incidents of custodial violence and deaths.
Expert Testimonies: Presented by Dr. A.M. Singhvi and other legal experts to help the Court evolve guidelines.
Public Interest Litigation (PIL): The case was dealt with as a PIL where public interest in preventing custodial violence was highlighted.
9.Legal provisions at stake-
Following are the legal provisions and article that were addressed in the case of D.K Basu Vs State of West Bengal and others-
I.Constitutional Provisions:
•Article 21 – Right to Life and Personal Liberty:
Under this article, protection has been given to life and personal liberty. It mentions that no person shall be deprived of these rights except according to the procedure established by law. Custodial violence and deaths were taken as violations of this very basic right.
•Article 22 – Protection Against Arbitrary Arrest and Detention:
Article 22 safeguards individuals from being arrested or detained without just cause. It ensures that a person is entitled to be made aware of the reasons for their arrest, the right to seek advice and representation from a lawyer, and individuals have the right to be presented before a magistrate within 24 hours of their arrest.
II.Legal Provisions:
•Indian Penal Code (IPC):
Section 330 and 331: Voluntarily causing hurt or grievous hurt to extort confession or information. Such sections apply to the case of custodial torture.
Section 220 deals with the confinement of a person with a corrupt or malicious intent by a public servant.
•Indian Evidence Act, 1872
Section 25: This section provides that confession made before a police officer cannot be used against the accused, thereby addressing the issue of forced confessions during custody.
Section 27: This section states that only that part of the confession which leads to the discovery of a fact can be admitted as evidence, thereby limiting the use of confessions obtained through torture.
•Code of Criminal Procedure (CrPC):
Section 57: It provides that a person arrested should be presented before a magistrate within 24 hours.
Section 41A to 41D: These sections describe the procedural safeguards that are to be followed while arresting a person, like providing notice of appearance instead of arrest.
10.Judgement of the D. K Basu case-
•The Supreme Court noted that custodial violence and deaths constituted a serious breach of fundamental rights and that there was an urgent need to curb such practices.
•The Court underscored the relevance of protecting citizens’ rights under detention as well as upholding the accountability feature of law enforcing agencies.
•It was also stressed the application of scientific methods and humane techniques for interrogation, rather than resorting to physical abuse and torture. the 3rd degree methods were condemned as a violation of human dignity and the right to life and personal liberty guaranteed under article 21 of the constitution.
•The arrest procedure should be transparent and include a medical examination immediately.
•Further, the court directed the publication of guidelines to be followed by the police personnel during arrests, detentions, and interrogations in order to check the menace of custodial violence.
11. 11 Guidelines issued by supreme court to implanted all over the India-
The supreme court issued the following 11 guidelines mandatorily to be followed by police officers in all arrest and detention cases till the legal framework is setup as preventive measures-
i.) The police officer, who will arrest the person, should be having an accurate and clearly visible identity with name tag and their designations. the details of interrogating officers must also be recorded in the official register.
ii.) There has to be a memo written by the police officer doing the arrest at the point of apprehension, to be signed by at least one witness, either the family member or a person of respect in the area. The memo must then be signed by the detainee and the time and date of the arrest.
iii.) The family member of the arrestee should be immediately informed of the arrest, the place of custody, and the time of arrest.
iv) The time, place of arrest, and venue of custody must be notified by the police within 8-12 hours to the nearest District Legal Services Authority.
v). The awareness of informing someone of his arrest should not be denied to the arrestee.
vi). An entry must be made in the diary and diary number identifying the person who was informed about the arrest as well as the name & amp particulars of the ranking officer under whom custody the arrestee is held.
vii) The examination of arrestee should be carried out for any kind of (major or minor) injuries and record its findings. The arrestee should be provided with a copy of the inspection memo, which must include the signatures of both the arrestee and the police officer overseeing the case.
viii) The medical examination of the arrestee in every 48 hours during his detention in police custody by a doctor on the panel of approved doctors appointed by the director or in-charge of the district health services.
ix) There must be a submission of the copies of all the documents related to the arrest including arrest memo to the local magistrate for his record.
x) The arrestee should be allowed to meet his lawyer during the interrogation.
xi) The information of the arrest of the person, within 12 hours of the arrest been affected must be disclosed to the police control room at all the state and district headquarters and should be displaced at prominent notice board of the control room.
Failure to comply with the above guidelines shall make the concerned police official liable for departmental action and contempt of court, proceedings of which may be initiated by the high court with the concerned jurisdiction.
12. 113th Law commission report-
The report focused on the injuries suffered by individuals in police custody and recommended measures to address custodial violence. One of the key recommendations was that if there was evidence that injury occurred during the period of police custody, in a prosecution of a police officer any bodily injury to a person, the court may assume that the injury was caused by the police officer. The recommendation thus aimed at making sure that accountability prevailed and that a legal reason existed for holding police officers responsible for custodial violence.
13.Compensation in Question-
The Supreme Court addressed the issue of compensation for victims of custodial violence. The Court recognized the need for compensation to be provided to the families of victims who suffered atrocities in police custody. This was seen as a crucial step in ensuring accountability and providing redressal for the harm caused.
14. Overwhelming challenges of the case-
a)Lack of Awareness: Most police officers are not fully aware of the guidelines or the legal implications of custodial violence. This lack of awareness can lead to non-compliance and continued instances of abuse.
b) Inadequate Training: Police officers often lack proper training on how to handle and interrogate detainees without resorting to violence. This can result in the misuse of power and custodial torture.
c) Delayed Implementation: Even though the guidelines are available, their complete implementation has not taken place in all states and union territories. This is a significant obstruction to the effectiveness of measures aimed at preventing custodial violence.
d) Corruption and Misconduct: Corruption among police officials would undermine the proper implementation of the guidelines. Misconduct and complicity with criminals would help them suppress the evidence and provide protection to perpetrators.
e) Judicial Backlog: The Indian judiciary suffers from a significant backlog of cases, which can delay prosecution in custodial violence cases. This can deter the victims from coming forward to seek justice.
f) Inconsistent Implementation: The implementation of guidelines varies from one state and region to another. There are places where the guidelines are strictly implemented, and there are places where no infrastructure and resources are present for effective implementation of guidelines.
g) Fear of Reprisal: The victims and witnesses of custodial violence may fear that law enforcement agencies will retaliate against them, which makes them reluctant to report such incidents or seek legal redress.
15. Addressing the Challenges
To overcome these issues, the following are required:
•Comprehensive Training Programs: There should be periodic and mandatory training for police officers in human rights, legal procedures, and non-violent interrogation techniques.
•Awareness Campaigns: Public awareness campaigns to educate citizens about their rights and the guidelines set by the Supreme Court.
•Strengthening Accountability: The need for strong monitoring and accountability mechanisms to ensure that the guidelines are followed.
•Judicial Reforms: Simplifying the judicial process so that cases involving custodial violence are speeded up and delivered without delay.
16. Conclusion
In response to the challenges, it is crucial to create scientific investigative methods and train investigators appropriately so that they can successfully conduct interrogations. Thirdly, it is important to note that third-degree tactics or torture are forbidden by law in handling detainees during the interrogation and investigation process intended to solve crimes. Amongst those, two possible measures by which this Court should underscore include preventing the misuse of police authority through promoting transparency in actions and ensuring accountability. There is also a need to focus on building up a work culture, imparting training, and orienting the police force to fundamental human values. Police officer training needs significant redesigning. The force should be inducted with core human values and made more aware of constitutional principles. Initiatives must be undertaken to modify the mindset and methods of police personnel engaged in investigations so that they do not compromise fundamental human values during interrogations or resort to dubious interrogation techniques.
FAQS
Q1: What is the significance of the D.K. Basu vs. State of West Bengal case?
A1: The case is significant because it established guidelines to prevent custodial torture and deaths, ensuring the protection of human rights and the dignity of individuals in police custody.
Q2: What was the cause for the D.K. Basu case to be filed?
A2: The case was filed by D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, as a result of rising incidents of custodial torture and deaths that were reported in the media.
Q3: How has the D.K. Basu case affected the Indian legal system?
A3: As a result of the case, the guidelines have been incorporated into the Criminal Procedure Code (Amendment) Act, 2008. This has made them legal and ensured better protection for people who are in custody.
Q4: What will happen if the D.K. Basu guidelines are not adhered to?
A4: Non-compliance will lead to disciplinary action against police officers, including suspension, dismissal, and judicial action for custodial torture or death.
Q5: How effective have the D.K. Basu guidelines been in reducing custodial violence?
A5: Although the guidelines have seen a reduction in custodial violence, their consistent enforcement remains a challenge. Custodial deaths and torture continue to be reported, pointing out that the issue requires continued vigilance and improvement.
