D.K.Basu vs State of West Bengal

Justice Kuldip Singh and Justice Dr.A.S.Anand

Reported in (1997) 1 SCC 416, AIR 1997 SC 610

The Executive Chairman of West Bengal Legal Aid Services, a registered non-political organisation, wrote to the Chief Justice of India drawing his attention to certain news items regarding deaths in police custody. The letter noted that efforts are often made to hush up the ‘lock-up’ deaths and thus the crime goes unpunished and ‘flourishes’. The letter stated that it was imperative to examine the issue in depth, formulate modalities for awarding compensation to the victim and/or family members of the victim and to provide for the accountability of the officers concerned. Considering the importance of the issue raised in the letter and the frequent complaints regarding custodial violence and deaths in police lock-ups, the letter was treated as a writ petition and notice was issued first to the State of West Bengal, and by a subsequent order to all the State Governments and to the Law Commission of India. The State of West Bengal denied the allegations and characterised the writ petition as misconceived, misleading and untenable in law. The Court appointed a senior advocate of the Bar as amicus curiae and heard from counsel appearing for the different States.


In issuing directions regarding procedures to be followed in relation to arrest and detention and the awarding of compensation for custodial violence, it was held that:


  1. The constitutional safeguards to protect individuals’ personal liberty against any unjustifiable assault by the state include Arts 21, 22 and 20(3). A number of statutory provisions also seek to protect personal liberty, dignity and the basic human rights of citizens. However, despite such provisions, the growing incidence of torture and deaths in police custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of the criminal justice system. (Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. It thus also includes a guarantee against torture and assault by the state or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases. It provides that no individuals who are arrested shall be detained in custody without being informed of the grounds of arrest and that arrested individuals shall not be denied the right to consult and defend themselves by a legal practitioner of their choice. Article 20(3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself.)
  2. Any form of torture or cruel, inhuman or degrading treatment falls within the ambit of Art 21, whether it occurs during investigation, interrogation or otherwise. The precious right guaranteed by Art 21 cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions on the right as are permitted by law (Nilabati Behera v State of Orissa (1993) 2 SCC 746 (Ind SC) followed).
  3. The Supreme Court has laid down procedural requirements in cases of arrest (Joginder Kumar v State of UP (1994) 4 SCC 260 (Ind SC) followed). However, instances have come to the court’s notice where the police have arrested a person without a warrant in connection with the investigation of an offence, without recording the arrest, and the arrested person has been subjected to torture to extract information from him or her for the purpose of further investigation, recovery of case property or in order to extract a confession. In addition to the statutory and constitutional requirements referred to above, it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability.
  4. During the prosecution of offences of torture and custodial death, the exaggerated adherence to, and insistence upon, establishing proof beyond every reasonable doubt ignores the reality, the fact situation and the peculiar circumstances of a given case and often results in a miscarriage of justice and suspicion of the system for delivering justice (State of MP v Shyamsunder Trivedi (1995) 4 SCC 262 (Ind SC) followed). Parliament’s attention is drawn to the urgent need to amend the rules of evidence regarding prosecution of police officials accused of custodial violence, in particular the recommendations of the Law Commission of India in its 113th Report regarding a shift in the burden of proof, with the introduction of a presumption of custodial violence if there is evidence that the detainee’s injury was caused during the period of detention, and the consideration by the court of all relevant circumstances.
  5. As preventive measures, the following requirements are to be followed in all cases of arrest or detention until legal provisions are enacted:
    (i) police personnel carrying out arrest and interrogation should wear accurate, visible and clear identification and name tags with their designations, the details of which should be recorded in a register;
    (ii) a memo of arrest (including the relevant date and time) shall be prepared by the arresting police officer and shall be attested by at least one witness (either a relative of the arrestee or a respectable local person) and countersigned by the arrestee;
    (iii)one friend or relative of the arrestee (or another person known to him or her who has an interest in his or her welfare) shall be informed, as soon as practicable, of the arrest and detention at the place in question;
    (iv) where the next friend or relative of the arrestee lives outside the district or town in question, he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest;
    (v) the arrestee must be informed of this right as soon as he or she is arrested or detained;
    (vi) an entry must be made in the diary at the place of detention regarding the arrest of the person, including the name of the next friend who has been informed and the names and particulars of the police officers in whose custody the arrestee is detained;
    (vii) on request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee;
    (viii) the arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel;
    (ix) copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records;

    (x) the arrestee may be permitted to meet with his or her lawyer during interrogation, though not throughout the interrogation;
    (xi) a police control room must be established at all district and State headquarters where information regarding the arrest should be received within 12 hours of the arrest and displayed on a conspicuous noticeboard.
    (xii) These requirements are in addition to existing safeguards and do not detract from other directions given by the courts on this matter. They will apply with equal force to the other governmental agencies which have the power to detain and interrogate individuals. They need to be followed strictly; failure to comply shall render the official concerned liable for departmental action and contempt of court proceedings.
  6. The requirements shall be forwarded to the Director General of Police and the Home Secretary of every State, who shall circulate them to every police station to be displayed in a conspicuous place. It would also be useful, in the wider public interest, to disseminate the requirements via radio and television at a national level and to publish and distribute to the general public information pamphlets in local languages explaining the requirements.
  7. Where an infringement of fundamental rights is established, the court cannot merely issue a declaration to that effect; it must proceed further and award compensatory relief, not by way of damages as in a civil action, but by way of compensation under the public law jurisdiction for the wrong done due to a breach of public duty by the state for not protecting the fundamental right to life of the citizen.
  8. Mere punishment of the offender cannot give much solace to the family of the victim and a civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressing the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy for the family members of the deceased victim, who may have been the breadwinner of the family. The state’s vicarious liability for the acts of public servants in infringing such rights is now well-accepted in most jurisdictions (dicta of O’Dalaigh CJ in State (At the Prosecution of Quinn) v Ryan 1965 IR 70, 122 (NI SC), Walsh J in Byrne v Ireland [1972] IR 241, 264 (NI SC), Lord Diplock in Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 (T&T PC) and Hardie Boys J in Simpson v Attorney General (Baigent's case) [1994] NZLR 667 (NZ CA) applied).
  9. In the assessment of compensation, the emphasis has to be on the compensatory rather than the punitive element. Awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the state, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action, such as a civil suit for damages, which is lawfully available to the victim (or the heirs of the deceased victim) with respect to the same subject matter for the tortuous act committed by state functionaries.
  10. The quantum of compensation will depend upon the peculiar facts of each case and no rigid formula can be evolved. The amount of compensation awarded by the court (and paid by the state) to redress the wrong done may, in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil.