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This article is written by Kathakali Banerjee. This article gives a detailed analysis of the effect of the DK Basu Judgment. This article further elaborates on the definition of custodial violence, causes of custodial violence, types of custodial violence, background of the case, facts of the case, issues raised, contentions raised by both parties, the rationale behind the judgement and aftermath of the case.

Introduction 

Police officers being a very important part of law enforcement have a duty to enforce laws and prevent crimes along with that. It is also the duty of the police officers to get hold of the law violators and present them before a magistrate for a fair trial. But for ages, we have seen that the policemen have misused the powers conferred upon them. We have seen innumerable custodial violence which has occurred due to the turning of protectors into perpetrators. Throughout the world, third-degree torture by police officers has always been a topic of great concern and debate. In this article, I endeavour to articulate how the Supreme Court of India has tried to curb custodial violence through its guidelines laid down in DK Basu Vs State of West Bengal (1997). It is considered to be a landmark judgement in criminal jurisprudence.

Causes of Custodial Violence 

Even though Section 25 of the Indian Evidence Act 1872 clearly says that confessions made in front of police officers do not hold any evidentiary value in the eyes of the law, police officers exert pressure on the prisoners either to solve cases quickly or for personal bias. Common problems that lead to custodial violence are-

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  • Many police officers are totally unaware of the fact that confessions collected by them in custody do not have any validity in the eyes of law.
  • Many officers are not even properly trained to handle and interrogate the inmates properly. 
  • Certain psychological factors like stress, trauma and unchecked bias lead to this aggressive behaviour by the police officers.
  • Medical negligence and lack of proper medical treatment of ill inmates is another major reason for custodial deaths. Lack of proper administrative functions also makes the environment in which an inmate lives unhealthy. 

Types of Custodial Violence

Custodial violence can be broadly classified into three categories

  • Physical violence includes injuries inflicted on the body of an individual in custody by the police authorities
  • Psychological/Mental violence includes threatening and causing certain acts that would be detrimental to the mental health of the individual. With the passage of time, physical injuries heal to some effect, but these psychological harms make an individual incompetent to live the life of an ordinary person even after they are out of custody.
  • Sexual violence includes rape, sodomy or any kind of sexual assault caused on women by police authorities on an individual while he is in custody.

Background of DK Basu vs. State of West Bengal (1997)

Definition of custodial violence.

Custodial violence is  defined as, any violence including torture, death, or rape by police authorities on inmates while their stay in the judicial or police custody. Violence includes both physical and mental torture, and in many cases we have seen that it has resulted in the death of the individual. 

One of the very basic fundamentals of criminal justice jurisprudence is that a person is assumed to be innocent until he is proven guilty. But in most of the cases we have observed that as soon as a police officer gets hold of an individual on the basis of an FIR or complaint, inhumane harassment is inflicted on the person till the date of the judgement. Most of the time we have seen individuals who are not proven to be guilty at the end and get acquitted have suffered unnecessary harassment. Even though they become free to go back to their normal lives, the mental and physical harm they suffered while being in custody, keeps them haunting forever throughout their lives. Custodial violence is considered one of the worst crimes happening in a civilised society. 

Before the DK Basu case, the police could not be held liable for their misuse of powers in custody. The victims of custodial violence even though they were awarded compensation, there were no specific guidelines for that. In prominent cases like Rudul Shah vs. State of Bihar (1983), the convicted man was illegally detained for a time period more than his prescribed punishment. This case deals with illegal detention and is an important case relating to compensation in cases of unlawful detention. The court granted compensation to the sufferer, and it was held that the illegal detention of an individual amounts to an infringement of fundamental rights enshrined in our Constitution, especially Article 21. Even though the court granted compensation in the matter, they did not follow any proper guidelines for doing the same. 

Another prominent case in this field is Nilabati Behera vs. State of Orissa (1993) which deals with the custodial death of an individual alleged to have committed offence of theft. The judgement given in this case is established as a precedent for holding states liable in cases of custodial deaths. The Apex Court also awarded compensation to the mother of the victim but did not follow any proper guidelines for that. Even while deciding the above-mentioned cases, there were no proper guidelines for the police officers to follow while arresting and treating an individual in prison. A series of custodial deaths and the various decisions given in various judgements caused a lot of dissatisfaction in Indian society. Then came the DK Basu case in 1997, which is considered the most remarkable judgement on custodial violence and death.

Facts of DK Basu vs. State of West Bengal (1997)

The matter of custodial violence was brought before the court by Dr D.K. Basu, executive chairman of the Legal Aid Services of West Bengal to the Chief Justice of India through a letter. On 26th August 1986, Mr Basu posted this letter based on news of custodial violence given in a newspaper. He sent a letter to the then Chief Justice of India, Justice Ranganath Mishra after several deaths in 1986 and recommended that the Court should develop “custody jurisprudence” and formulate modes for awarding compensation. The CJI considered it as a matter of grave concern and treated it as a writ petition invoking the Court’s original jurisdiction under Article 131 of the Constitution of India. 

Another letter was followed from the Aligarh province detailing a death in police custody. The letter mentioned sending notices to all state governments and law commissions for suggestions. The Supreme Court considered both the letters addressed to it and appointed Mr Abhishek Manu Singhvi as the amicus curiae for assisting the court in addressing this issue of custodial violence. The Apex Court also took notice of the widespread allegations relating to custodial violence arising from different states, finally giving very important suggestions and guidelines.

Issues of the case

  • Whether custodial violence and death violate the right to life and personal liberty mentioned under Article 21 of our Constitution?
  • Is there a need for well-framed rules and guidelines to be followed by police officers while arresting?
  • Do prisoners have a right to life even while they are behind bars and does custodial death and violence constitute a violation of Article 21?
  • Can police officers be made liable for causing custodial violence?
  • On what basis compensation will be awarded to the victims?

Contentions raised by the petitioner

  • Excessive use of physical power by police officers on detainees to get confessions should be prevented. Use of third degree methods should be curbed.
  • Violence including rape and physical assault causes severe mental trauma to the detainees which extend beyond what the law tries to address. Causing violence leads to misutilisation of the powers conferred upon the police authorities.

Contentions raised by the respondent

  • Counsel representing different states asserted that everything relating to the concerned issue was already well established within their respective states. 
  • The state argued that there is no need for legal counsel at the time of arresting an individual.
  • The state emphasised that they were already framing steps to control the problem of custodial violence. 
  • The responsibility of the police officers in case of custodial violence was discussed. The state contended that action was initiated against the police who misused their power.

Argument raised in DK Basu vs. State of West Bengal (1997)

Presented by petitioners

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 21 of 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. 

The petitioners highlighted the pathetic scenario of ill treatment that goes behind the bars.

Presented by respondents

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.

Judgement in DK Basu vs. State of West Bengal (1997)

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.

The following was observed by the Apex Court

  • Custodial violence including rape, torture and death in police custody infringes Article 21 of The Constitution of India as well as basic human rights.
  • Article 22(1) gives the right of the arrested persons to be informed about their grounds of arrest and the right to be defended by a legal practitioner of his choice. The court held that it also violated the fundamental right enshrined under Article 22(1) of The Indian Constitution.
  • Interrogation though essential must be conducted on scientific and humane principles: third-degree methods are totally impermissible.
  • Transparency and accountability in the police actions, while they are arresting an individual, should be there to check the abuse of police power.
  • Regarding compensation in cases of custodial violence by public servants, the State will also be vicariously liable for their act. The arrested persons also do have their rights which the police authorities must respect. 
  • Proper training including the way of arresting an individual and the treatment of that individual in custody should be given to the police officers before carrying out their arrest duties.

The guidelines given by the Apex Court in cases of arrest and detention

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  1. The police officer who arrests a person should bear proper name tags and designations so that they can be easily identified. The particulars of the officers who will interrogate must be recorded in a register.
  2. An arrest memo should be prepared by the police officer carrying out the arrest. The memo shall also be attested by at least one witness including either a family member or a respectable person of the society from where the arrest is made.
  3. The person arrested will have the right to inform any of his close friends or relatives about his arrest as early as possible.
  4. Every detail regarding the arrest like the time, place of arrest and venue of custody of the arrestee must be notified by the police. Where the next friend or relative of the arrestee lives outside the district or town, they should also be informed within a period of 8 to 12 hours after the arrest through the legal aid organisation in the district and the police station of the area concerned telegraphically.
  5. An entry must be made in the diary at the place of detention regarding the arrest of the person as well as the particulars of the friend or relative who has the information about the arrest. The police officers under whose custody the arrestee is shall also be mentioned.
  6. On request, examination can be conducted on the arrestee and every detail regarding any major or minor injury on the body of the arrestee shall be recorded. The inspection memo must be signed by both the arrestee and the police officer affecting the arrest and its copy must be provided to the arrestee.
  7. Within 48 hours of detention, a medical examination should be performed on the arrestee by a trained doctor. The medical examination can also be performed by a doctor appointed by the Director of Health Services of the concerned state.
  8.  The arrestee may be permitted to meet his lawyer during interrogation though not throughout the interrogation.
  9. A police control room should be set up at all districts and state headquarters so as to collect information regarding the arrest and place of custody of the arrestee. The information shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest and it should be displayed conspicuously on the notice board of the police control room.

The court mentioned forwarding the required guidelines to the Director General of Police and the Home Secretary of every State/Union Territory, and it shall be their duty to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. Broadcasting of the guidelines through All India Radio National Network of Doordarshan was suggested by the court so that the guidelines could reach the maximum number of people. Distribution of pamphlets in the local language was another method suggested by the Apex Court to spread awareness. 

The court also mentioned that if any officer does not follow the guidelines, then he will be liable for contempt of court. These conclusions tried to ensure accountability and transparency in police actions.

Effectiveness of DK Basu guidelines

If we properly study the number of custodial deaths, we will see a good decrease in the number of cases. But still, the graph keeps on fluctuating every year. 2019-20 saw a decrease in custodial violence and deaths as compared to the statistics of 2018-19. Again the graph showed an increase in the rate of violence and deaths in 2021-22. The guidelines do have brought changes in the scenario but proper implementation of certain guidelines is still required to eradicate this practice. Though awareness has been circulated to a great extent, but still traces of unawareness are quite profound at the grassroots level, especially in rural areas. Many cases even go unreported due to lack of proper enforcement. Resource plays an important role in the implementation of the guidelines, India being a poverty-stricken country is always scarce with money. These resource constraints lead to limited staffing and inadequate training facilities for the authorities.

Recent cases like Jayaraj and Bennicks Case (2020) have shown alleged police brutality on these two individuals while they were in custody for violating COVID-19 lockdown restrictions. These points out the loopholes which are present in the guidelines and are required to be overcome. DK Basu case guidelines have been effective to some extent in protecting the rights of the individuals in custody but still, there’s room for improvement.

Contribution of the 113th Law Commission Report

The 113th Law Commission’s Report focuses on the injuries suffered by individuals while in custody. This was presented after the observation of the Apex Court in State of UP vs Ram Sagar Yadav (1985)The law commission responded to the notice sent by the Apex Court by proposing the suggestions given by the 113th Law Commission Report. The incorporation of section 114B was suggested but unfortunately, it was not included in The Indian Evidence Act. With the introduction of the concept of presumptive liability for police authorities causing violence, the report had made the scope of future development impacting significantly the guidelines enunciated in the DK Basu case. Even the Apex Court has acknowledged the influence of the Law Commission’s recommendations on the guidelines.

Compensation for the families of the victims

Though the Supreme Court has stated that every state would be liable for any kind of violence in custody and adequate compensation is to be provided to them, the amount and procedure for compensation varies from state to state. Various judicial directives and legal mechanisms have been framed to deal with the compensation to be granted to the victim or his family members in case of violence in custody. The amount of compensation depends on the type and amount of injury suffered, the nature and extent of torture inflicted and other related factors. The compensation will also be based on the amount of funds required for the treatment of the injuries and rehabilitation of the victim. Other factors like the financial background of the victim will also be considered while compensating a victim of custodial violence. So the compensation varies from case to case and there is no straight jacket formulae to calculate the amount of compensation.

It’s a well-established fact that in most jurisdictions the pecuniary compensation is regarded as the best form of compensation. The State is held vicariously liable for the wrong acts committed by the public servants. We can say that the concept of strict liability is applicable here to which the defence of sovereign immunity is not available. The victim gets the right to revive the compensation from the state itself, but that shall be indemnified by the wrongdoer later.

Aftermath of DK Basu vs. State of West Bengal (1997)

The Supreme Court has laid down guidelines in a detailed manner to be followed by the Central and State Investigating security agencies in all cases of arrest and detention. While the guidelines were intended to ensure the protection of the rights of the detainees, their implementation varied across the different states over time. An Anti torture bill was discussed in 2010 in parliament but was unfortunately not passed, but the guidelines established in DK Basu vs. State of West Bengal have been integrated into the Criminal Procedure Code 1973, through the Code of Criminal Procedure (Amendment) Act 2008, effective from November 1, 2010. This amendment brought changes like allowing video conferencing technology to record evidence of witnesses and speedy trials including the establishment of special courts. We have seen changes in the pattern of arrest by the police officers and the procedure to be followed by them after arrest. These guidelines have increased awareness among law enforcement agencies. Various training programs have been initiated to educate police officers about the guidelines and ensure compliance with them. After the DK Basu case, police could be held liable for inflicting any kind of harm on the prisoners. Prisoners too have their right to life and it should be protected under Article 21 of the Constitution. 

Severe issues like control of  police brutality and abuse of powers and the need for enhanced safeguards to control this was the main concern in this case. The Apex Court also directed that these guidelines shall be widely circulated amongst the concerned authorities. The court also held that in case of any kind of disobedience on the part to follow the guidelines will attract punishment for contempt of court. 

Analysis of the judgement

After analysing the scenario before and after the pronouncement of the guidelines and their implementation in the Indian scenario, a few positive effects, as well as drawbacks of the judgement, can be framed.

Positive Effects of the Judgement

  • India being a Common Law Country gives a lot of importance to precedents. A landmark judgement on this severe crime was very much required to control the abuse of powers by the police officers. The guidelines provided give a detailed answer as to the conduct of the police authorities while dealing with undertrial prisoners. Besides that the guidelines have also highlighted the rights of the individuals behind bars.
  • The judgement raised awareness about the torture made by policemen in custody among the law enforcement agencies as well as the public at large.
  • Earlier many cases of custodial violence were not reported, but after the pronouncement of the guidelines, the conduct of the police officers is properly scrutinised and any misbehaviour on their part is recorded and reported.

Drawbacks of the Judgement

  • Loopholes in the Legal framework like delays in the procedure of investigation have resulted in ineffective implementation of the guidelines pronounced in the judgement. Due to this delay in the legal framework, many perpetrators have escaped punishment.
  • The lack of literacy and resources in our country has caused insufficient awareness among the public and proper training facilities among the police authorities. Many times we have observed that a police officer is unaware of the method of treatment of prisoners similarly individuals behind bars are not aware of their rights. Many times it is also observed that neither a victim nor his family members are aware of their right to compensation for the damage suffered.
  • We all know that law and society are interlinked with each other. So law should also be dynamic with the changing needs of the society. The guidelines in this judgement were laid down a long time back so its update with the change in society is very much required. With the evolution of the norms of society there is a need to review and update the guidelines given. But no such updates have been observed.

Conclusion

Third degree torture by the officers could be controlled to some extent after the pronouncement of these guidelines. This judgement made it clear that failure to comply with the guidelines should, apart from rendering the official concerned liable for departmental action, also render him liable to contempt of the court and the proceedings for contempt may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

Even though we have observed a reduction in custodial deaths and violence, this problem has not been entirely eradicated as some of the guidelines are more of theoretical regulations. We have seen instances of how police torture detainees only to show their power. Famous bollywood movies like “Gangajal” and “Jai Bhim” have portrayed police brutality and custodial deaths. Police officers in rural areas should be trained about these guidelines more properly. People residing in rural areas are not so aware of their rights so officers there get a chance to overpower them. Illiteracy is always a curse on society. Besides the officers, the detainees should be also aware of their rights while they are detained. Knowing of the individual rights properly and proper implementation of the guidelines given in DK Basu would definitely help us to overcome this problem.

Frequently Asked Questions (FAQs)

What is the importance of the DK Basu Case?

The DK Basu judgement is considered to be a landmark judgement in the field of criminal jurisprudence as it  has addressed grave matters like custodial violence, the rights of the arrested persons and the conduct of police officers. These three main points are discussed below.

  • Custodial Violence: This judgement has served as a deterrent against the violence inflicted by police officers on individuals in custody. Laying down obligations on the police authorities through these guidelines has helped to curb custodial violence to some extent.
  • Rights of the arrested persons: The guidelines pronounced in this judgement gave light on the fact that arrested persons do have their fundamental right to live mentioned under Article 21 of The Indian Constitution, so it’s the duty of the authorities in charge to protect the inmate’s fundamental rights. Besides that the guidelines also stipulated that the individual has a right to know the grounds of his arrest and the other information relating to his arrest. This judgement has tried to ensure the right to life, dignity and personal liberty of the arrested persons.
  • Conduct of police officers: This judgement through its guidelines has tried to establish procedural safeguards to prevent arbitrary and abusive powers by the police authorities. 

What are the consequences for the non-compliance of the DK Basu Judgement?

The court held that non-compliance with the guidelines laid down by this case would initiate: 

  • Departmental actions against the alleged police officer and he would also be held liable for contempt of court. This can lead to legal proceedings ultimately resulting in the conviction of the alleged police officer.
  • Disobedience of the guidelines by the authorities can attract reputational damage to the entire law enforcement agency. Police authorities are there for the public, any misconduct on their part can undermine the public trust in the police personnel.
  • The individual victim who suffered the violence or any of his family members can file a suit for compensation for the damages caused. The amount of damages varies from case to case depending on a number of factors like the amount of pain and suffering caused, the effect on the loss of livelihood of the victim, the psychological impact on the victim and various other relevant factors.

References


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