Author: Parnika N Abhilash from Asian Law College
Abstract
Custodial violence encompasses any act of violence perpetrated against individuals in custody, including inmates or prisoners. Such actions represent a significant violation of their fundamental rights by law enforcement officials. It is imperative for police officers to acknowledge the humanity of all individuals in their care and to refrain from inflicting physical or any harm solely based on their custodial status.
Regrettably, there are instances where officers may resort to violent tactics in an attempt to obtain confessions or carry out investigations. However, they must uphold the dignity of these individuals and avoid any form of harassment or mistreatment. There should be clear guidelines for police officers regarding the treatment of all individuals in custody. Custodial violence refers to the physical, mental, and sexual abuse that inmates may suffer while in custody. While inmates have committed crimes and are subject to punishment, law enforcement officials must adhere to established legal protocols. Currently, there are no specific guidelines for the treatment of inmates.
Use of Legal Jargon
The case of D.K. Basu v. State of West Bengal (AIR 1997 SC 610) is among the most important rulings handed down by the Supreme Court of India regarding human rights and criminal justice.. It deals extensively with the issue of custodial violence and lays down preventive guidelines for arrest and detention.
1. Writ Jurisdiction under Article 32
The ruling starts with a reference to Article 32, granting individuals the right to seek the Supreme Court’s intervention for the protection of fundamental rights.. The term “writ petition” refers to a formal written request to a court for a specific legal remedy. Here, it reflects the public law mechanism through which systemic human rights issues can be addressed. The Court’s jurisdiction under Article 32 is a foundational element of constitutional law, and its use in this case allowed for broad-based remedial action beyond individual grievances.
2. Fundamental Rights – Articles 21 and 22
A substantial part of the judgment revolves around the interpretation of Article 21, which guarantees the right to life and personal liberty. The terms “custodial torture” and “custodial death” were used frequently to denote specific types of human rights violations occurring within police or judicial custody. The Court expanded the meaning of Article 21 by using the term “dignity of an individual”. It argued that torture or inhumane treatment in custody falls within the scope of violation of the right to life.
3. Public Law vs. Private Law Remedies
One of the most significant uses of legal jargon in this case is the distinction between public law and private law remedies. The Court noted that while victims of custodial abuse could pursue civil suits (private law remedy) or criminal prosecution against erring officials, such remedies are often ineffective or delayed.
4. Role of Judicial Activism and Binding Guidelines
The Court, recognizing the legislative vacuum in regulating arrest procedures, resorted to judicial activism. Without specific legislation, the Court exercised its constitutional powers to lay down enforceable guidelines under Article 141 (which makes Supreme Court decisions binding law).
5. Legal Maxims and Doctrines
The judgment also employed several legal maxims and doctrines, enhancing its legal rigor.
For instance
• “If a person holds a legal right, there must be a way to assert or safeguard that right.” This statement highlights the principle that every legal entitlement should have a corresponding way to be upheld or defended. This principle was used to justify the award of compensation.
• Doctrine of Constitutionalism – Referring to the idea that the powers of the state must be limited and regulated by the Constitution.
• Rule of Law – The Court emphasized that even state officials are not above the law and must be held accountable for constitutional violations.
Proof of Custodial Violence: Legal and Practical Challenges
One of the significant contributions of the D.K. Basu judgment was the Court’s recognition of the challenges involved in proving custodial violence. Some of these are:
1. Lack of Independent Witnesses: Most custodial violence occurs behind closed doors, away from public view. There are usually no independent witnesses, making it difficult to contradict the official version of events.
2. Manipulation of Police Records: Police officers may falsify arrest memos, custody registers, or medical records to cover up abuse.
3. Fear and Intimidation: Victims and their families may be too scared to report the crime or pursue legal remedies due to fear of retaliation by law enforcement officers.
4. Delayed Medical Examination: Injuries inflicted in custody can be concealed or explained away if the detainee is not examined by a competent, independent medical practitioner promptly.
5. Lack of Documentation: In many instances, proper arrest procedures are not followed, and no arrest memos or inspection reports are maintained, which makes it impossible to track the events during detention.
In this context, the Supreme Court acknowledged that procedural reforms were necessary to ensure both accountability and transparency in the arrest and detention process.
Court’s Approach in D.K. Basu Case
The petitioner, D.K. Basu, a social activist and Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India highlighting increasing instances of custodial deaths. The letter was treated as a Public Interest Litigation (PIL) under Article 32 of the Constitution.
The Court observed that custodial violence not only violates the rights guaranteed under Article 21 (Right to Life and Personal Liberty) but also tarnishes the image of the criminal justice system. The judgment laid down several preventive guidelines, which have come to be known as the “D.K. Basu Guidelines.”
Court’s Guidelines in D.K. Basu v. State of West Bengal
In order to tackle the problem of custodial violence and safeguard the rights of those who are arrested, the Supreme Court established 11 compulsory guidelines. These were declared binding under Article 141 of the Constitution and were to be followed until appropriate legislation was enacted.
1. Identification of Police Personnel
Every police officer participating in the arrest must display clear and accurate identification tags that include their names and job titles. This measure ensures personal accountability of the arresting officers.
2. Preparation of Arrest Memo
An arrest memo must be prepared at the time of arrest and must include:
• The date and time of arrest
• Verification from at least one witness, either a family member or a respected individual from the community.
• Signature of the arrestee
This document serves as an official record of the arrest and helps prevent secret or unlawful detentions.
3. Right to Inform a Friend or Relative
The arrested person has the right to inform a relative or friend about the arrest and place of detention immediately. This communication ensures external monitoring of the custodial process.
4. Notification to Family or Friends
If the arrested person is unable to inform anyone, the police must inform a relative or friend of the person about the arrest and place of detention as soon as possible.
5. Information to Be Recorded in Diary Register
The name of the arrested person, time and place of arrest, and the names of the officers handling the arrest must be recorded in the official diary register at the police station.
6. Medical Examination
The individual being arrested is required to receive a medical evaluation at the moment of arrest and every 48 hours while in custody, conducted by a government physician. Any physical injuries must be recorded.
7. Copies of Documents to Magistrate
All documents, including the arrest memo and medical reports, must be submitted to the Judicial Magistrate during the arrestee’s first appearance in court.
8. Right to Consult a Lawyer
The arrestee must be allowed to consult a lawyer during interrogation, although the lawyer may not be allowed to remain present throughout the interrogation.
9. Inspection Memo
A detailed Inspection Memo of the arrestee’s body must be prepared, noting any injuries or marks, and must be signed by both the arrestee and the police officer.
10. Notification to Legal Aid Organizations or NHRC
Arrests should be reported to legal aid organizations or the National Human Rights Commission (NHRC) to ensure independent monitoring and accountability.
11. Display of Rights in Police Stations
All police stations must display a board listing the rights of arrestees, including these guidelines, in both English and the regional language.
Significance of the Guidelines
These recommendations sought to establish a harmony between the authority of the police and the rights of individuals.. Their implementation made it harder for custodial torture to go undetected or unchallenged. Key outcomes include:
• Documentation: Arrest memos and medical reports create a paper trail that can serve as evidence in cases of alleged custodial violence.
• External Oversight: By involving relatives, legal aid bodies, and the judiciary, the guidelines reduce police discretion.
• Constitutional Remedy: The judgment reaffirmed that compensation for custodial violence is a constitutional remedy under public law, and not just a matter of private civil suits or criminal prosecution.
Case Laws
1.Nilabati Behera v. State of Orissa (1993)
Citation: AIR 1993 SC 1960
This case involved the custodial death of a young man, Suman Behera, who was last seen in police custody and was later found dead near a railway track.
Legal Principle:
The Supreme Court held the State liable and granted compensation of ₹1.5 lakh to the mother. The judgment affirmed that constitutional courts can award compensation in cases of fundamental rights violations under public law, separate from criminal or civil remedies. This ruling laid the groundwork for monetary compensation as a public law remedy for custodial deaths.
2. Joginder Kumar v. State of U.P. (1994)
Citation: (1994) 4 SCC 260
This case arose when a young advocate was taken into custody without being informed of the reasons or having access to his family.
Legal Principle:
The Court ruled that the power to arrest must not be exercised arbitrarily. Justification for arrest must be recorded, and the arrested individual must be informed of their right to contact a relative or friend. This judgment complements D.K. Basu by underscoring transparency and accountability during the arrest process.
3. Mehmood Nayyar Azam v. State of Chhattisgarh (2012)
Citation: (2012) 8 SCC 1
The petitioner, a businessman, was illegally detained and brutally tortured in custody by police officers in Chhattisgarh.
Legal Principle:
The Court held that torture, even short of death, is a violation of human dignity and personal liberty. It reiterated that the right to dignity is part of Article 21 and awarded ₹5 lakh compensation, emphasizing the deterrent role of public law remedies.
4. Arnesh Kumar v. State of Bihar (2014)
Citation: (2014) 8 SCC 273
While this case primarily addressed the misuse of Section 498A of the IPC, it has strong implications for the prevention of custodial abuse.
Legal Principle:
The Court directed that arrests should be made only when necessary, and compliance with Sections 41 and 41A CrPC is mandatory. Magistrates were also advised to scrutinize the necessity of arrest. The ruling is instrumental in preventing arbitrary arrests, which often lead to custodial violence.
Conclusion
The D.K. Basu v. State of West Bengal case stands as a milestone in Indian constitutional jurisprudence, especially in the realm of human rights, criminal justice, and police accountability. The Supreme Court, through this landmark judgment, acknowledged the pervasive issue of custodial violence and torture in India and emphasized that personal liberty is non-negotiable, even during arrest or detention.
By laying down 11 enforceable guidelines, the Court attempted to bridge the gap between constitutional ideals and ground realities. These safeguards aim to ensure transparency in police procedures and uphold the dignity of individuals in custody, effectively strengthening Article 21 (Right to Life and Personal Liberty) and Article 22 (Protection against Arbitrary Arrest) of the Constitution.
Importantly, the Court recognized the State’s liability for custodial abuse and opened the door for monetary compensation as a public law remedy, setting a precedent for future cases of constitutional torts.
In essence, D.K. Basu is not just a judicial response to police excesses but a constitutional affirmation of human dignity, accountability, and the rule of law. While its implementation remains a challenge, the judgment continues to be a cornerstone for legal reforms and human rights protections in India’s criminal justice system.
FAQS
1. What impact did the case have on Indian criminal law and procedure?
Answer:
It significantly reformed arrest procedures, introduced transparency and accountability in police actions, and created a legal framework for preventing custodial torture.
2. What are the key constitutional rights involved in this case?
Answer:
• Article 21 – Right to Life and Individual Freedom
• Article 22 – Safeguarding against unlawful arrest and detention
• Article 32 – Right to constitutional remedies (under which the PIL was filed)
3. Are the D.K. Basu guidelines legally binding?
Answer:
Yes. The Supreme Court declared these guidelines legally enforceable under Article 141 of the Constitution until appropriate legislation is enacted.
