Bench: Justices Kuldip Singh and A.S. Anand
Citation: Writ Petition (Crl) No. 592 of 1987
Date decided: 18th December 1996
Court: Supreme Court of India
“It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it’s is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen o life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law.”
-Hon’ble Supreme Court in Neelabati Bahera v. State of Orissa[i]
There is nobody who might not have come across the word “Kala Pani” at least once in their lives. For those who haven’t, it was a popular prison in India during the British era; popular because of the purpose it served. Indian prisoners who were convicted of political crimes were exiled to this jail situated thousands of kilometers away from mainland India. The name itself was enough to send shudders down the spine of any prisoner. Apart from the depressing solitary confinement in rat-hole cells, the inmates were exposed to extreme torture, medical tests, forced labour and execution. Many leaders including Mahatma Gandhi and Rabindranath Tagore intervened but then again, we were bound in shackles of colonialism.
Years later when the Constitution of independent India was enacted, every individual was vested with certain fundamental rights irrespective of any prejudice or bias. Citizens were relieved. Democracy prevailed. But that’s not it.
We are talking about the right to life and personal liberty enshrined under article 21; which is absolute but for any ‘procedure established by the law’ to curtail it.
This phrase has sparked off the petition in question. The procedure might provide for arresting a person convicted of a crime, but does it justify third-degree torture and killing an inmate for the purpose of investigation or otherwise?
D.K. Basu case has been a landmark judgment in this regard.
Background of the case
Letter addressed to Hon’ble CJI
Mr. DK Basu, who was the then Executive Chairman of Legal Aid Services, West Bengal[ii], addressed a letter vide 26th August, 1986 to the Chief Justice of India-PN Bhagvati.
Through this letter, he wished to draw his attention to news published in the dailies Telegraph dated 20, 21 and 22 of July, 1986 and the Statesman and Indian Express dated 17th August, 1986 regarding deaths in police lock-ups and custody. On his earnest belief that victim compensation scheme should be developed for atrocities and death caused in police custody and to provide for accountability of the efforts made to hush up custodial deaths, he requested the letter along with the news clippings to be treated as a PIL.
SUO MOTU COGNIZANCE
Acknowledging the importance of the issue, the letter was treated as a writ petition and a notice was issued to the respondents.
COUNTER FILED BY THE STATE
All the said allegations were denied by the State of West Bengal and the writ petition was characterized as misconceived, misleading and untenable.
CLUBBING OF CASES
While the writ petition was under consideration, a letter addressed by Shri Ashok Kumar Johri on the custodial death of one Mahesh Bihari of Pilkhana, Aligarh was received. The letter was also treated as a writ petition and was directed to be listed along with the present writ petition.
The court adjudicated upon three core issues-
- Is there a growth in the incidents of custodial torture and deaths by the police?
- Is there any arbitrariness exercised by the policemen while making arrests?
- Should some guidelines be prescribed in order to make an arrest?
Examining the various definitions of torture in human rights instruments, the court concluded that custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of the law, which demands that the powers of the executive should not only be derived from law but also the same should be limited by the law. Custodial torture is a naked violation of human dignity and degradation which destroys an individual’s personality to a great extent.
It also interpreted Article 21 holding that it includes the right to live with human dignity as well the guarantee against torture and assault by the state or its functionaries. This right cannot be denied to detenues, convicts, undertrials, and other prisoners except by imposing reasonable restrictions in accordance with the procedure established by law. Further, it cannot, in any way, be said that a citizen ‘sheds off’ his fundamental right to life the moment a policeman arrests him nor it can be said that the right to life of a citizen can be put in abeyance on his arrest. Their constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Employing third-degree measures by the police within the closed walls of a prison to interrogate a criminal cannot be permitted.
The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex(safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the company. The court also asserted on maintaining a balanced approach so that in the way of protecting fundamental and human rights, hardened criminals do not go scot-free.
The court also realised the need of revamping the work culture, training and orientation of the police force to realise the importance of basic human values. Efforts must be made to change the attitude and approach of the police personnel handling investigations. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third-degree methods.
It was also held that the failure to comply with the prescribed guidelines shall not only render the concerned official liable for departmental action, but also for contempt of court. The requirements were held to be equally applicable to other governmental agencies like Coastal Guard, CRPF, IB, RAW, ITBP, CBI, CID, BSF, Revenue Intelligence, Directorate of Enforcement, State Armed Police, CISF, Traffic Police and Mounted Police.
This court had taken the view that the defense of sovereign immunity is not available to the state for the tortious acts of the public servants and for the established violation of the rights guaranteed by article 21; as observed in Nilabati Behra[iii].
The case of State of Madhya Pradesh v. Shyamsunder Trivedi[iv] was specifically quoted wherein Justice Anand had noted-
“The exaggerated adherance to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the gorund realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. Tortures in police custody receive encouragement because of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them if a prisoner dies in the lock-up because of lack of evidence to directly implicate them with torture.”
With respect to the right to compensation, the court accepted that in most of the jurisdictions including that of Ireland, monetary or pecuniary compensation is an appropriate, effective and sometimes the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. It was observed that in the assessment of compensation, the emphasis has to be on the compensatory and not on the punitive element. The responsibility of prescribing the punishment should be left to the criminal courts in which the offender is prosecuted, which the State is bound to do by virtue of law.
- The order
The highlight of the order was the eleven guidelines provided by the apex court to be complied with in all cases of arrest and detention. These are-
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
- That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or his detained.
- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
- The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody, a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director of Health Services should prepare such a panel for all tehsils and districts as well.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and the police control room it should be displayed on a conspicuous notice board.
The requirements were directed to be forwarded to the DGP and the Home Secretary of every state/UT, who shall be obligated to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. Apart from this, the requirements were to be broadcasted on All India Radio besides being shown on national television and distributed in the form of pamphlets in local language for awareness of the general public.
Case analysis and conclusion
The judgment has indeed established itself as a watchdog for custodial deaths and police cruelty, which often happens under the cover of procedural formalities and the criminal background of the convicts. In a country where it takes decades of legal battles to win a death sentence against an alleged rapist or murderer, the absolute immunity granted to police personnel in inflicting harm to the prisoners is thought-provoking.
The status quo is still worrisome. Despite the crystal clear guidelines laid down by the apex court in this regard, a recent report by National Campaign against Torture- an NGO working against custodial torture divulged shocking statistics – 1,731 people died in custody in 2019, mostly from vulnerable communities, Dalits and Muslims. Out of this, 1,606 people died in judicial custody and 125 people in police custody.
More unfortunate is the fact that custodial violence and deaths have evolved each year in terms of brutality. The cold-blooded deaths of two shopkeepers from Tamil Nadu- P. Jeyaraj and his son Fenix had shocked the whole nation. They were arrested for allegedly violating the lockdown rules of the state by keeping their store open past the allowed hours. Two days hence, they died under police custody and it has been alleged that they were subjected to hours of torture and were bashed so brutally that they received severe injuries on the back, thighs and genitals. “Enough to rip apart the flesh,” Fenix’s sister claimed.It has also been claimed that the father-son duo were sexually assaulted and batons were inserted in their private areas.
In situations like these, resorting to the Judiciary is the only resort left for a citizen and it is expected that it performs its role as the custodian of fundamental rights well.
[i] 1993 (2) SCC 746
[ii] A non-political organisation registered under the Societies Registration Act.
[iii] Supra note 1.
[iv] Appeal (Crl.) 217 of 1993.