CITATION- AIR 1997 SC 610
CASE TYPE- Writ petition
QUORUM- Justice Kuldip Singh and Justice Dr. A.S. Anand
JURISDICTION- Supreme Court of India (original jurisdiction)
JUDGMENT DATE- 18th December 1996
INTRODUCTION:
The Indian legal system believes in the concept of ‘innocent until proven guilty’ but what happens if an individual doesn’t even get a chance to prove his innocence, rather the person faces violence during the interrogation of the crime. Moreover, what if such violence leads to death in the custody of the officials. Custodial violence and custodial death remains one of the most aggravated issues the society is facing today. Custodial violence refers to infliction of physical, mental or sexual abuse in custody of law enforcing agencies or police specially during interrogation. Similarly custodial death refers to the death of an individual in custody due to infliction of excessive physical abuse or negligence or denial of medical assistance. It indefinitely violates the principle of ‘audi alteram partem’.
This case primarily deals with rights of the arrested individual and safeguards regarding custodial violence. It enlisted guidelines curbing the power of custodial authorities during custody and increased their accountability.
FACTS OF THE CASE:
On 26th August 1986, The Executive Chairman, Legal Aid Services, West Bengal, Dr. D.K. Basu wrote a letter to the Hon’ble Chief Justice of India directing his attention towards the increasing issue of custodial violence and custodial death. Seeing the severity of the issue, the Supreme Court of India treated the letter as writ petition. On 09.02.1987 notice was issued to the defendants. During the same time period another letter was addressed to Hon’ble Chief Justice of India by Shri Ashok Kumar Johri, drawing his attention towards the custodial death of Mahesh Bihari of Pilkhana, Aligarh which was directed to be listed along with the writ petition. On 14.08.1987 all the states were issued notices for finding out their say in the matter , along with directing the Law Commission of India to make suitable suggestions regarding the matter. Affidavits were filed on behalf of several states. Feeling the need of assistance, Dr. A.M. Sanghvi was appointed as amicus curiae.
LEGAL ISSUES:
- Whether custodial violence and custodial death violate fundamental rights?
- Whether there is a need for formulation of guidelines for police and other such law enforcing agencies regarding the treatment arrestee or detenues?
- Whether the police and the state are liable for custodial violence?
ARGUMENTS OF THE PETITIONER:
It was argued by the petitioner that custodial violence was direct violation of Article 21[1] of the Constitution of India. The accused even if arrested has the fundamental right to live with dignity and should be protected from physical or mental torture. Even though there are constitutional and statutory provisions such as Article 22, 20(3)[2] and Section 41, 46, 49, 50, 56, 57(2), 53, 54, 167 and 176[3] The Code of Criminal Procedure,1973 they are often ignored by the authorities during arrests and interrogation. Custodial violence is a fatal blow to the Rule of Law as it requires that the power of the executive is not only to be derived from but also be limited by law. It leaves the objective of human rights in shambles.
ARGUMENTS OF THE RESPONDENT:
The respondents argued that their systems were already adequate and that no further guidelines were needed. If the police personnels were found to be responsible for custodial violence or death then actions were being taken against them and no matter was being hushed. It was argued that the actions of the police were in accordance with the law until proven otherwise. Any more restrictions in the methods would cause difficulty in enforcement of law.
JUDGMENT:
The Hon’ble Court held that custodial violence and death were violation of Articles 21, 20(3) and 22[4] of The Constitution of India. It laid down eleven guidelines till proper provisions were not formed. The guidelines were:
“(1) 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.
(2) 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 be either 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.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center orother lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in 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.
(4) 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.
(5) 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 is detained.
(6) 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.
(7) 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.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) 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 at the police control room it should be displayed on a conspicuous notice board.”[5]
Failure in compliance to these guidelines would result in departmental actions and contempt of court and its proceedings.
RATIO DECDENDI:
The court gave the judgment based on the fact that on arrest a person still has his fundamental rights and only reasonable restrictions could be imposed on them and custodial violence was exact antithesis of this hence the authorities should refrain from it. It held the state vicariously for the actions of the officials. It also provided for monetary compensation to the victims.
ANALYSIS:
The judgment highlighted one of the most significant issues in human rights. It helped in inculcating better measures for protection of individuals in custody. It formed the basis of further developments in the issue of custodial violence and death. Installation and active use of CCTV cameras in police stations were mandated by the supreme court in the judgment of Paramvir Singh Saini vs. Baljit Singh (2020)[6].
It has been quite a few years since guidelines in this case were formed but we still hear news of custodial violence and death everyday. Although the number has dropped significantly but still we can see misuse of the powers during interrogation and custody. The problems lie at the grassroot level. There needs to be better implementation of these guidelines. More compassionate approach is required since the accused is not yet proven guilty and might be innocent.
Few of my suggestions to curb this problem are:
- The authorities should change their method of interrogation rather than inflicting pain. They should incorporate better techniques in compliance with ethics and morality.
- There should be a separate branch for investigation of custodial violence and death.
- Proper laws should be formulated in this regard encompassing all the leftover loopholes.
CONCLUSION:
At last I would like to conclude by stating that the authorities need a balanced approach so that criminals committing grave crimes don’t take the benefit of this compassionate approach at the same time the innocents are not harmed. The police should be seen as protectors and harbinger of justice and peace instead of something to be feared and that everyone is intimidated to approach even in need.
Author: Bhavna
2nd Year Undergraduate Law Student
Faculty of Law, University of Allahabad
References
[1] The Constitution of India, art 21.
[2] The Constitution of India, arts 20(3) and 22 (n 1)
[3] Code of Criminal Procedure 1973, ss 41, 46, 49, 50, 53, 54, 56, 57(2), 167 and 176
[4] ibid
[5] D.K. Basu v. State of West Bengal (1997) 1 SCC 416
[6] Paramvir Singh Saini v Baljit Singh (2021) 1 SCC 184
