Authored By: M Ramya
Dr. Ambedkar Global Law Institute
CASE TITLE & CITATION:
- Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996
- AIR 1997 SC 610 (All India Reporter, Supreme Court, 1997)
- (1997) 1 SCC 416 (Supreme Court Cases, Volume 1, 1997)
COURT NAME & BENCH:
- The Supreme Court of India.
- Justices:A.S.Anand and Kuldip Singh
- Division Bench (Two-Judge Bench).
DATE OF JUDGEMENT:
In the case of D.K.Basu v. State of West Bengal the judgement was delivered by the Supreme Court of India on December 18, 1996 and a follow up order was laid on judgement on August 1,1997.
PARTIES INVOLVED:
Petitioner :
Shri. D.K.Basu, Executive Chairman of Legal Aid Services and a Non-Political Organization representative. He wrote to the Chief Justice about Custodial Violence.
Co Petitioner:
Ashok k.Johri, He wrote to the Supreme Court regarding a Custodial Death in Aligarh,Uttar Pradesh.
Friend of Court:
Dr.A.M.Singhvi, Senior Advocate appointed by Supreme Court to assist court in this matter.
Respondents:
- The State of West Bengal
- The State of Uttar Pradesh
- All other State Governments and Union Territories of India.
FACTS OF THE CASE:
- Custodial death is the torture, violence ,assault, harrasment, humiliation, rape and death which is exerted against on an individual person or against a group of individual, who is under the police or the judicial custody.
- Based on the data from the National Human Rights Commission (NHRC) And the Ministry of Home Affairs, 4,500 deaths are reported between 2020-2022 and 2,506 deaths were reported in the period of 2023-2024 in police custody.
- D.K.Basu,wrote a letter to the supreme court of india on August 21, 1986 highlighting the news published in the Telegraph Newspaper which discussed the deaths in police custody. He mentioned that several deaths in police custody cases were reported and it is clearly a violation of article 21 of the Indian Constitution(Right to Life and Personal Liberty). He demanded to consider his letter as a writ petition within a Public Interest Litigation.
- Simultaneously, Another letter was received to The Chief Justice of Supreme court of India about the Custodial Death by Ashok K. Johri.
- Considering both the petitions,The Supreme Court of India issued an Order sending notices to all state governments and also requested the Law Commission to provide appropriate suggestions within two months.
- In response to the order issued by the Supreme Court several states including,West Bengal, Odisha, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur,filed affidavits.
- Dr. A.M. Singhvi was appointed as Amicus Curiae(Friends of Police) to assist the Court. The lawyers offered valuable help and guidance throughout the proceedings.
ISSUES RAISED:
- Who will be held responsible for the custodial violence.?
- Is the custodial violence,torture and death is against the Article 21 Right to life and personal liberty.?
- How to control the misuse of power by the Police Department.?
- Who and How to address the alarming increase in Custodial Deaths.?
- Whether the families of the victims of custodial deaths are eligible for compensation.?
- The need for strict rules for police arrest and interrogation to protect the people.?
- Whether the existing laws provide sufficient protection.?
ARGUMENTS OF THE PARTIES:
PETITIONER:
In custodial crimes, the real concern is not just the physical pain but also the mental suffering a person goes through in a police station or lock-up. Whether it is being beaten or sexually assaulted in custody, the trauma a person experiences is often beyond what the law can fully address.
Custodial violence is a serious concern as it was made by the authorities against the people who are supposed to protect them.The family of the victim become helpless as it happens within the police station behind the bars,no information or remedies are provided to the family of the victim.
The petitioner argued that custodial torture and deaths are a violation of Article 21 of the Constitution(Right to Life and Personal Liberty) and it fails the very purpose of the constitution which is to protect the dignity, safety and freedom of the citizens.This inhuman act and the violation cannot be justified.
The police uses the Third Degree Treatment like using illegal force,torture and harsh methods during arrest and interrogation to obtain information or to make the detainee confess.The inhuman act against the detainee is a Ultra-Vires of the police.The petitioner sheds light on the issue that even though the law exists it is not properly enforced which fails to protect people from harassment or abuse in police custody.
The petitioner requested the court to set clear and mandatory rules on the procedure to arrest and interrogate should be proceeded.The rules are essential to prevent police officers from misusing the power and to protect the rights of individuals from Custodial Violation.
RESPONDENT:
The States argued that The Bharathiya Nyaya Sanhita(BNS),2013, which replaced the Indian Penal Code, 1860, and The Bharathiya Nagarik Suraksha Sanhita(BNSS),2014, which replaced The Code of Criminal Procedure, 1973 . There are sufficient laws to prevent Custodial Violation and misuse of power. These laws make it a criminal offence to harm or unlawfully detain a person, and officers guilty of misconduct can be prosecuted under the existing legal framework.
The parties argued that some of the actions taken in custody were standard procedures used by the police to prevent crimes. They claimed that the law should not restrict police powers, as these powers are necessary for effective law enforcement. They also said that the actions of officers should be considered valid.
The respondents argued that if the Court were to lay down detailed rules on arrest and detention, it would amount to the judiciary stepping into the role of the legislature. They maintained that making such laws is the responsibility of Parliament.According to them, judicial intervention in this area would disturb the balance between the different branches of government and go beyond the proper limits of the Court’s authority.
Interfering with police powers and laying down various rules and procedures could make the process hard and investigation becomes more difficult. This slows down the investigation and delays the process of the officers to act quickly and effectively and this also affects the effective enforcement of law and ability of the police to prevent crimes.
The states also explained that the police often work under difficult conditions. Many officers do not receive enough training, and police departments often lack proper staff, equipment, and other resources. Also there is constant pressure to solve cases quickly. These challenges can sometimes affect how officers act during investigation and handle people in custody,But despite the situation this inhuman behaviour is not justified.
In Neelabati Behera v. State of Orissa [1993 (2) SCC 746], the Supreme Court made it clear that prisoners and detainees do not lose their fundamental rights under Article 21. The Court held that only those restrictions that are allowed by law can be placed on the rights of arrested persons and detainees, and their basic right to life and personal liberty will still be respected.
JUDGEMENT/FINAL DECISION:
The judgement of the bench consists of two parts. The first part is that the Supreme Court formed a set of 11 guiding principles to modify the procedural system that is currently followed and the second part is about the issue of compensation for victims of serious custodial violation.being behind bars alone does not deny the fundamental right guaranteed by the Constitution of India. Violation of rights through Custodial torture are entitled for compensation for the trauma suffered.
- Police officers making an arrest or questioning someone must wear clear name tags, and their details should be recorded in a register.
- A written arrest memo must be made at the time of arrest. It should include the date and time, be signed by at least one witness (a family member or a respected local person), and also signed by the person arrested.
- The arrested person has the right to inform a relative, friend, or well-wisher about the arrest and where they are being held, as soon as possible. This is not needed if the person informed has already signed the arrest memo.
- If the relative or friend lives outside the district, the police must send the arrest details within 8–12 hours through the District Legal Aid Authority and the local police station.
- The arrested person must be told about their right to have someone informed immediately after arrest.
- A record must be made at the place of detention, noting the arrest, the person informed, and the names of the police officers in charge.
- The arrested person can ask for a medical check-up at the time of arrest. Any injuries must be recorded in an Inspection Memo, signed by both the arrested person and the officer. A copy must be given to the arrested person.
- During detention, the person must be examined by a qualified doctor every 48 hours. The doctor should be from a panel approved by the State Health Department.
- Copies of all important documents, including the arrest memo, must be sent to the Area Magistrate for records.
- The arrested person has the right to meet a lawyer during questioning, though not for the entire interrogation.
- Every state and district must have a police control room. The arresting officer must inform it about the arrest and custody within 12 hours, and this information must be displayed publicly.
LEGAL REASONING/RATIO DECIDENDI:
The Supreme Court states that torture, abuse, or death in police custody violates Article 21, which guarantees the right to life, personal liberty, and human dignity. The Court said that although the laws against such abuse exist, they are not enough in practice.Under Article 32, the Court can protect fundamental rights and step in when laws are not working. To stop custodial abuse, the Court laid down mandatory rules for arrest and detention.The Court also stressed that victims should get compensation, and police officers must be held accountable for misconduct.
CONCLUSION:
The D.K. Basu vs. State of West Bengal case is a landmark judgment that transformed Indian criminal and constitutional law. By recognizing custodial rights as fundamental and forming clear and enforceable guidelines, the Supreme Court took a major step in protecting human rights. The case continues to impact legal reforms in India.
CASE TITLE & CITATION:
- Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996
- AIR 1997 SC 610 (All India Reporter, Supreme Court, 1997)
- (1997) 1 SCC 416 (Supreme Court Cases, Volume 1, 1997)
COURT NAME & BENCH:
- The Supreme Court of India.
- Justices:A.S.Anand and Kuldip Singh
- Division Bench (Two-Judge Bench).
DATE OF JUDGEMENT:
In the case of D.K.Basu v. State of West Bengal the judgement was delivered by the Supreme Court of India on December 18, 1996 and a follow up order was laid on judgement on August 1,1997.
PARTIES INVOLVED:
Petitioner :
Shri. D.K.Basu, Executive Chairman of Legal Aid Services and a Non-Political Organization representative. He wrote to the Chief Justice about Custodial Violence.
Co Petitioner:
Ashok k.Johri, He wrote to the Supreme Court regarding a Custodial Death in Aligarh,Uttar Pradesh.
Friend of Court:
Dr.A.M.Singhvi, Senior Advocate appointed by Supreme Court to assist court in this matter.
Respondents:
- The State of West Bengal
- The State of Uttar Pradesh
- All other State Governments and Union Territories of India.
FACTS OF THE CASE:
- Custodial death is the torture, violence ,assault, harrasment, humiliation, rape and death which is exerted against on an individual person or against a group of individual, who is under the police or the judicial custody.
- Based on the data from the National Human Rights Commission (NHRC) And the Ministry of Home Affairs, 4,500 deaths are reported between 2020-2022 and 2,506 deaths were reported in the period of 2023-2024 in police custody.
- D.K.Basu,wrote a letter to the supreme court of india on August 21, 1986 highlighting the news published in the Telegraph Newspaper which discussed the deaths in police custody. He mentioned that several deaths in police custody cases were reported and it is clearly a violation of article 21 of the Indian Constitution(Right to Life and Personal Liberty). He demanded to consider his letter as a writ petition within a Public Interest Litigation.
- Simultaneously, Another letter was received to The Chief Justice of Supreme court of India about the Custodial Death by Ashok K. Johri.
- Considering both the petitions,The Supreme Court of India issued an Order sending notices to all state governments and also requested the Law Commission to provide appropriate suggestions within two months.
- In response to the order issued by the Supreme Court several states including,West Bengal, Odisha, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur,filed affidavits.
- Dr. A.M. Singhvi was appointed as Amicus Curiae(Friends of Police) to assist the Court. The lawyers offered valuable help and guidance throughout the proceedings.
ISSUES RAISED:
- Who will be held responsible for the custodial violence.?
- Is the custodial violence,torture and death is against the Article 21 Right to life and personal liberty.?
- How to control the misuse of power by the Police Department.?
- Who and How to address the alarming increase in Custodial Deaths.?
- Whether the families of the victims of custodial deaths are eligible for compensation.?
- The need for strict rules for police arrest and interrogation to protect the people.?
- Whether the existing laws provide sufficient protection.?
ARGUMENTS OF THE PARTIES:
PETITIONER:
In custodial crimes, the real concern is not just the physical pain but also the mental suffering a person goes through in a police station or lock-up. Whether it is being beaten or sexually assaulted in custody, the trauma a person experiences is often beyond what the law can fully address.
Custodial violence is a serious concern as it was made by the authorities against the people who are supposed to protect them.The family of the victim become helpless as it happens within the police station behind the bars,no information or remedies are provided to the family of the victim.
The petitioner argued that custodial torture and deaths are a violation of Article 21 of the Constitution(Right to Life and Personal Liberty) and it fails the very purpose of the constitution which is to protect the dignity, safety and freedom of the citizens.This inhuman act and the violation cannot be justified.
The police uses the Third Degree Treatment like using illegal force,torture and harsh methods during arrest and interrogation to obtain information or to make the detainee confess.The inhuman act against the detainee is a Ultra-Vires of the police.The petitioner sheds light on the issue that even though the law exists it is not properly enforced which fails to protect people from harassment or abuse in police custody.
The petitioner requested the court to set clear and mandatory rules on the procedure to arrest and interrogate should be proceeded.The rules are essential to prevent police officers from misusing the power and to protect the rights of individuals from Custodial Violation.
RESPONDENT:
The States argued that The Bharathiya Nyaya Sanhita(BNS),2013, which replaced the Indian Penal Code, 1860, and The Bharathiya Nagarik Suraksha Sanhita(BNSS),2014, which replaced The Code of Criminal Procedure, 1973 . There are sufficient laws to prevent Custodial Violation and misuse of power. These laws make it a criminal offence to harm or unlawfully detain a person, and officers guilty of misconduct can be prosecuted under the existing legal framework.
The parties argued that some of the actions taken in custody were standard procedures used by the police to prevent crimes. They claimed that the law should not restrict police powers, as these powers are necessary for effective law enforcement. They also said that the actions of officers should be considered valid.
The respondents argued that if the Court were to lay down detailed rules on arrest and detention, it would amount to the judiciary stepping into the role of the legislature. They maintained that making such laws is the responsibility of Parliament.According to them, judicial intervention in this area would disturb the balance between the different branches of government and go beyond the proper limits of the Court’s authority.
Interfering with police powers and laying down various rules and procedures could make the process hard and investigation becomes more difficult. This slows down the investigation and delays the process of the officers to act quickly and effectively and this also affects the effective enforcement of law and ability of the police to prevent crimes.
The states also explained that the police often work under difficult conditions. Many officers do not receive enough training, and police departments often lack proper staff, equipment, and other resources. Also there is constant pressure to solve cases quickly. These challenges can sometimes affect how officers act during investigation and handle people in custody,But despite the situation this inhuman behaviour is not justified.
In Neelabati Behera v. State of Orissa [1993 (2) SCC 746], the Supreme Court made it clear that prisoners and detainees do not lose their fundamental rights under Article 21. The Court held that only those restrictions that are allowed by law can be placed on the rights of arrested persons and detainees, and their basic right to life and personal liberty will still be respected.
JUDGEMENT/FINAL DECISION:
The judgement of the bench consists of two parts. The first part is that the Supreme Court formed a set of 11 guiding principles to modify the procedural system that is currently followed and the second part is about the issue of compensation for victims of serious custodial violation.being behind bars alone does not deny the fundamental right guaranteed by the Constitution of India. Violation of rights through Custodial torture are entitled for compensation for the trauma suffered.
- Police officers making an arrest or questioning someone must wear clear name tags, and their details should be recorded in a register.
- A written arrest memo must be made at the time of arrest. It should include the date and time, be signed by at least one witness (a family member or a respected local person), and also signed by the person arrested.
- The arrested person has the right to inform a relative, friend, or well-wisher about the arrest and where they are being held, as soon as possible. This is not needed if the person informed has already signed the arrest memo.
- If the relative or friend lives outside the district, the police must send the arrest details within 8–12 hours through the District Legal Aid Authority and the local police station.
- The arrested person must be told about their right to have someone informed immediately after arrest.
- A record must be made at the place of detention, noting the arrest, the person informed, and the names of the police officers in charge.
- The arrested person can ask for a medical check-up at the time of arrest. Any injuries must be recorded in an Inspection Memo, signed by both the arrested person and the officer. A copy must be given to the arrested person.
- During detention, the person must be examined by a qualified doctor every 48 hours. The doctor should be from a panel approved by the State Health Department.
- Copies of all important documents, including the arrest memo, must be sent to the Area Magistrate for records.
- The arrested person has the right to meet a lawyer during questioning, though not for the entire interrogation.
- Every state and district must have a police control room. The arresting officer must inform it about the arrest and custody within 12 hours, and this information must be displayed publicly.
LEGAL REASONING/RATIO DECIDENDI:
The Supreme Court states that torture, abuse, or death in police custody violates Article 21, which guarantees the right to life, personal liberty, and human dignity. The Court said that although the laws against such abuse exist, they are not enough in practice.Under Article 32, the Court can protect fundamental rights and step in when laws are not working. To stop custodial abuse, the Court laid down mandatory rules for arrest and detention.The Court also stressed that victims should get compensation, and police officers must be held accountable for misconduct.
CONCLUSION:
The D.K. Basu vs. State of West Bengal case is a landmark judgment that transformed Indian criminal and constitutional law. By recognizing custodial rights as fundamental and forming clear and enforceable guidelines, the Supreme Court took a major step in protecting human rights. The case continues to impact legal reforms in India.
