D.K. BASU vs. STATE OF WEST BENGAL

CASE CITATIONS 

NAME OF THE CASE : D.K. BASU vs. STATE OF WEST BENGAL

DATE : 18 DECEMBER , 1996

COURT : SUPREME COURT

AUTHOR : KULDIP SINGH

BENCH: KULDIP SINGH; A.S. 

NATURE OF CASE : WRIT PETITION of PIL under Article 32

CITATION : (1997) 1SCC 416; AIR 1997 SC 610 

INTRODUCTION D.K. BASU vs. STATE OF WEST BENGAL is a landmark case under which the Supreme Court established the guidelines for principle of arrest and prevention of custodialtorture and deaths . The most terrible crime that may take place in a legal and civil society is the death of an innocent person while under police custody. It must always, without exception, be protected as a prime and foremost right under Article 21and Article 22 of the Indian Constitution. Article 21applies to both acts of torture performed during an inquiry or resusal to comply with the law system, no matter what the situation may be. The lack of punishment for acts of commission and omission committed by government entities makes the rule of law seem to have no value and continues to cultivate an environment that promotes lawlessness and disorder. At the point of an arrest, you cannot violate someone’s right to live at all, as that is a primary right provided to everyone by Article 21of the Constitution of India. The right to life and liberty, as defined by Article 21of the Constitution of India, is basic in nature and must therefore not be taken from anyone while in custody; this includes individuals held in custody awaiting trial, individuals currently awaiting trial, and all others who are at all held in custody, unless they are done so in accordance with procedures outlined by law. 

Why it isa landmark case ? 

The D.K. Basu vs State of West Bengalcase (1997) is a significant ruling by the Supreme Court of India because it has directed the police to develop and enforce guidelines for the prevention of custodial torture. It also established that individuals arrested have constitutional rights that cannot be taken away under Article 21of the Constitution (the Right to Life and Personal Liberty). This is important because it:

1) Established Criteria that Must be Followed by Police at the Time of an Arrest: The court required that police officers wear identification nametags, maintain a signed arrest memo, and inform a relative of the person being arrested.

2) Established Two Provisions that Protect Your Fundamental Rights: The court found that custodial violence violates Articles 21(Right to Life and Personal Liberty) and 22 (Prohibition Against Arrest), and established the right to receive medical examinations at least every 48 hours, and the right to contact and meet with a lawyer during interrogation. 

3) Established that the Courts Have Authority Over Police Accountability and Compensation for Victims’ Families: Courts have the power to impose penalties against police officers who have committed custodial torture and to award compensation for victims’ families. 

FACTS OF THE CASE

1. The matter of custodial violence was brought before the court by the D.K. BASU executive chairman of Legal Aid Service of West Bengalto the chief justice of India through a letter .

2. On 26th August ,1986 Mr. BASU posted a letter based on news of custodial violence given in newspaper . He send a letter to chief justice of India ‘RANGANATH MISHRA after several deaths in 1986 and recommened that the court should develop custodial jurisprudence and formulate modes for awarding compensation .

3. The CJIconsider this matter of grave concern and treated as a writ petition invoking the court’s original jurisdiction under Article 131of the constitution of India .

4. Another letter from Aligrah province detailing a death in a police custody . The letter mention sending notice to all the state government and law commissions for suggestions and were also asked to give detailed reports regarding custodial deaths and the preventitive measures to be taken . It was taken as a separate writ petition but the court decide to hear both the matter together because they raise a common concerns of custodial violence.

5. The Supreme Court consider both the letters addressed to it and appointed 

Mr. Abhishek Manu Singhvi as the amicus curie for assisting the court in addressing the issue of custodialviolence .

6. The Supreme Court took the Suo Moto cognizance of this matter as it was consider as a writ petition under Article 32 .

7. The petitions alleged that custodialviolence and deaths are direct violation of fundamental rights guaranteed under Article 21and 22 of the constitution .

8. The petitioners sought judicial intervention for laying down clear procedural safeguards to be followed by the police during arrest and interrogation .

9. The case also raised about constitutional questions about the accountability  of law enforcement authorities and the protection of human dignity . 

LEGAL ISSUE INVOLVE

1. Whether there is need for well framed rules and guideline for police while arresting a person ?

2. Whether custodial violence and death violates the fundamental right of 

right to life and personal liberty under Article 21of the Indian constitution ?

3. Whether does the prisoners have right to life if they are behind the bars 

and custodial deaths and violation constitutes to violation of Article 21 ?

4. Whether the police officers can held liable for custodialviolence ?

5. Whether on what basis compensation will be awarded to the victims ? 

ARGUMENTS BY PETITIONER

The petitioners argued that there was a need to have proper guidelines to stop the violence in custody as it violated human rights. They also argued that the right to life and personal liberty enshrined under Article 21of the Constitution of India. The prisoners even though arrested and are behind the bars have the fundamental right to live. It was also argued that the state should perform its duty to protect the rights of all individuals including those who are arrested and detained. If the state fails to perform its duty , it should be made vicariously liable for the wrongful acts of the police authorities. Petitioner also highlighted the ill treatment they had face in custody .

ARGUMENTS BY RESPONDENT

The respondents on the other hand argued that there is necessity of these custodial procedures and it is necessary for proper enforcement of law and to prevent crimes. Imposing restrictions on the powers of the police authorities will cause hindrance on their part to properly implement the laws. It was also claimed that the conduct of the officers were presumed to be in accordance with the law until and unless proven otherwise. The various challenges faced by the law enforcement authorities like inadequate training, limited resources, pressure to solve a case within limited time were highlighted.The respondents tried to justify their actions and practices in custody by emphasising the need for a number of procedures for law enforcement purposes. 

RAITO DECIDENDI

In cases where the government has promised to uphold certain rights, any legal proceedings that occur after the government has failed to meet its constitutional obligations must be directed against the government itself. The Right to Life and to Personal Liberty are protected by Article 21. As a result, a person is guaranteed the Right to be free from Torture and Assault through these protections and rights. The Right to Protection Against Arrest and Detention, as well as how to manage your Right to Protection, is guaranteed to you under Article 22. When a person is arrested, that person must know the reasons why they were arrested, and a person in custody has the right to seek attorney assistance. Any person accused of a crime has a Right not to be compelled to give testimony that would incriminate them under Article 20(3) 

JUDGEMENT

The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh was composed of two parts: establishing procedural safeguards and elaborating a system of compensation for victims of police abuse. The judgement emphasized the global effort against torture. It was also upheld that detainees have their fundamental rights protected, only legally permissible restrictions can be imposed on the enjoyment. A number of important guidelines were laid to be followed by the police officers while arresting someone. UJThe Honourable Apex Court observed that custodialviolence i.e. rape, torture & death in the custody of a police officer violates Articles 21of the Constitution of India & infringe on or deny basic human rights as well. You are required to comply with all applicable laws before being issued an arrest warrant by the police. Based upon its constitutionalauthority, the Apex Court held that the requirement in Article 22(1) for an arrested person to be informed of the reasons for the arrest & given the right to be represented by an attorney of his choice also violated the requirement in Article 22(1) as enunciated in our laws. Iwould suggest that it is essential for the police officers to have scientific & humane principles when conducting an interrogation. Third-degree methods are no longer an acceptable means of interrogation. There must be transparency & accountability in actions of police when arresting individuals so that abuse of the police power does not occur. With respect to compensation in connection with custodialviolence inflicted upon individuals by public servants while acting within the scope of their employment, the State shall be vicariously liable for their actions. Every individual who has been arrested has certain rights & these rights must be respected by the police. Finally, police must receive proper training on how to arrest individuals & on treating individuals that they arrest while they have them in custody before they undertake their duties involving arrests. 

The Apex Court’sguidelines on arrests andcustodial detentions: Criminal litigation: – To prevent “cop-without-a-name” incidents, police officers making arrests must wear appropriate insignia that identify them by name and rank. Before an officer can interrogate a detained person, all of the identifying information about the interrogating officers (such as their rank, name and badge number) must be recorded in a register. – The arresting officer is required to create an arrest memorandum to document the details of an individual’s arrest. The arrest memorandum must also be countersigned by at least one witness from the local area who is able to confirm that they witnessed the arrest occur. Acceptable witnesses may include family members of the arrested individual, or someone known within their community. 

– An arrested individual has a right to notify a family member, relative or close friend as soon as possible after being arrested. 

– As soon as practicable, police officers must notify the arrested individual of the time and place the arrest occurred, as well as the location of their detention. If the next friend of the arrested individuallives outside the jurisdiction in which the arrest occurred, the next friend must be notified of the arrest within 8 to 12 hours after the arrest via a legal aid organization in the district where the arrest was made, or by a local police department via facsimile or telegraph. – The police will maintain a log of all relevant details about the arresting officer, date and time, location of arrest, current location of arrestee, and date and hour that the arrested person arrived at the detention facility. 

CITATIONS 

INDIAN KANOON.COM INTERNATIONAL JOURNAL FOR LEGAL RESEARCHAND ANALYSIS ijra.com