DK Basu V WB Final
DK Basu V WB Final
DK Basu V WB Final
STATE
OF WEST BENGAL
• Such allegations of Custodial Deaths are flowing in from all across the country,
and little effective state machinery is present to deal with the same.
• Here on, court issued a notice to all state governments ‘to present the situation
in their respective states’, ‘together with the law commissions for suggestions’
with regards to the above concern;
• Law Commission suggested 114-B, to be incorporated into evidence act
• States responded with positive reports on the situation; court affirmed to the contrary,
the presence of custodial violence, torture and lock-up deaths, giving rise to the case
113 T H LAW REPORT
• Approach of the courts had been: ‘to deny the victims of custodial violence,
based on the lack of evidence available to prove such violence’.
• The law commission suggested (Evidence Act, 114-B) a presumption that in
case of a death occurring in police custody, the only necessary evidence would
be to prove that the ‘injury leading to death’ was caused in police custody. The
burden of proof thereafter, also shifted to the police.
• 114B isn’t a part of the Evidence Act, yet.
ISSUE
• No violation of any one of the human rights has been the subject of so many Conventions and
Declarations as 'torture'- all aiming at total banning of it in all forms
• "Torture" has not been defined in the Constitution or in other penal laws. 'Torture' of a human
being by another human being is essentially an instrument to impose the will of the 'strong' over
the 'weak' by suffering. The word torture today has become synonymous with the darker side of
the human civilisation.
• "Custodial violence" and abuse of police power is not only peculiar to this country but it is
widespread; The Universal Declaration of Human Rights in 1948, which marked the emergence
of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in
Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.“
• In England, torture was once regarded as a normal practice to get information regarding the
crime … but with the development of common law and more radical ideas imbibing human
thought and approach, such inhuman practices were initially discouraged and eventually almost
done away with
SIR CYRIL PHILIPS COMMITTEE
REPORT
• In regard to the power of arrest, the Report recommended that the power to
arrest without a warrant must be related to and limited by the object to be
served by the arrest;
• Objects are as follows:
• to prevent the suspect from destroying evidence or;
• interfering with witnesses or;
• warning accomplices who have not yet been arrested or;
• where there is a good reason to suspect the repetition of the offence
• Appearance Notice: “to obtain attendance” … to be finger printed or to
participate in an identification parade.
RECOMMENDATIONS
• “The importance of affirmed rights of every human being need no emphasis and, therefore, to deter
breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental
and the basic human rights of the citizens.”
• Similar idea as Cyril Philips Committee: “Streamlining power of arrest, interrogation and detention”
• Transparency of action and accountability perhaps are two possible safeguards which this Court must
insist upon
• Develop work culture, training and orientation of the police force consistent with basic human values;
forces need to be infused with basic human values and made sensitive to the constitutional ethos
• Regulate other bodies such as CRPF, CISF, CID, ITBP etc.
• 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
• The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be
strictly followed. These would apply with equal force to the other governmental agencies (reference has
been made earlier)
• These requirements are in addition to the constitutional and statutory safeguards and do not detract from
various other directions given by the courts
CUSTODIAL VIOLENCE
• “It is committed by the persons who are supposed to be the protectors of the
citizens.” It is committed under the shield of uniform and authority in the four
walls of a police station or lock-up, the victim being totally helpless.
• Custodial violence, including torture and death in the lock ups, strikes a blow
at the Rule of Law, which demands that the powers of the executive should
not only be derived from law but also that the same should be limited by
law.
• "Custodial torture" is a naked violation of human dignity and degradation
which destroys, to a very large extent, the individual personality.
• In all custodial crimes what is of real concern is not only infliction of body
pain but the mental agony which a person undergoes within the four walls of
police station or lock-up.
RIGHTS VIOLATED AS PER INDIAN
LAW
• Article 21: “Life or Personal Liberty” has been interpreted to include “the right
to live with human dignity”.
• Anand, J: “also include within itself a guarantee against torture and assault by the
State or its functionaries”
• Article 22: protection against arrest and detention in certain cases;
• Declares that no person who is arrested shall be detained in custody without being
informed of the grounds of such arrest
• They shall not be denied the right to consult and defend themselves by a legal
practitioner of their choice.
• Clause 2: Shall be produced before the nearest Magistrate within a period of 24 hours
of such arrest
RIGHTS VIOLATED AS PER INDIAN
LAW
• Inspite of the constitutional and statutory provisions aimed at safeguarding the personal
liberty and life of a citizen, growing incidence of torture and deaths in police custody has
been a disturbing factor.
• The police with a view to secure evidence or confession often resorts to third degree
methods including torture and adopts techniques of screening arrest by either not recording
the arrest or describing the deprivation of liberty merely as a prolonged interrogation.
• Death in custody is not generally shown in the records of the lock-up and every effort is
made by the police to dispose of the body or to make out a case that the arrested person died
after he was released from custody.
• No direct evidence is available to substantiate the charge of torture or causing hurt
resulting into death, as the police lock-up where generally torture or injury is caused is
away from the public gaze and the witnesses are either police men or co-prisoners who
are highly reluctant to appear as prosecution witnesses due to fear of retaliation by the
superior officers of the police.
JOGINDER SHARMA V STATE
Does a citizen shed off his fundamental right to life, the moment a policeman
arrests him? Can the right to life of a citizen be put in abeyance on his
arrest?
The answer, indeed, has to be an emphatic 'No’.
The precious right guaranteed by Article 21 of the Constitution of India cannot be
denied to convicts, under trials , detenues and other prisoners in custody, except
according to the procedure established by law.
EXCEPTION: HARDENED CRIMINALS
• With more liberalisation and such enforcement of fundamental rights, it would lead to
difficulties in the detection of crimes committed by categories of hardened criminals
(Terrorists, Drug Peddlers etc.) by soft peddling interrogation.
• The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must
take precedence over an individual's right to personal liberty.
• The cure cannot, however, be worse than the disease itself
• The action of the State, however, must be "right, just and fair“; such a crime suspect must
be interrogated-indeed subjected to sustained and scientific interrogation - determined in
accordance with provisions of law.
• “State terrorism is no answer to combat terrorism”
• That the terrorist has violated human rights of innocent citizens may render him liable for
punishment but it cannot justify the violation of his human rights except in the manner
permitted by law.
COMPENSATION FOR BREACH OF
FUNDAMENTAL RIGHTS
• Article 9(5) of the International Covenant on Civil and Political Rights, 1966
(ICCPR) provides that "anyone who has been the victim of unlawful arrest or
detention shall have enforceable right to compensation“
• “Of course, The Government of India at the time of its ratification (of ICCPR)
in 1979 had made a specific reservation to the effect that the Indian Legal
system does not recognise a right to compensation for victims of unlawful
arrest or detention and thus did not become a party to the Covenant.”
• Such compensation is 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
breach of public duty by the State of not protecting the fundamental right to life
of the citizen.
DEFENCE OF SOVEREIGN IMMUNITY
• The only practicable mode of enforcement of the fundamental rights can be the
award of compensation
• In the case of Rudul Sah and others in that line relate to award of compensation
for contravention of fundamental rights, in the constitutional remedy under
Articles 32 and 226 of the Constitution
• The claim in public law for compensation for unconstitutional deprivation of
fundamental right to life and liberty, the protection of which is guaranteed
under the Constitution, is a claim based on strict liability
• Such claim, is in addition to the claim available in private law for damages for
tortious acts of the public servants
COMPENSATION FOR BREACH OF
FUNDAMENTAL RIGHTS
• Compensation is due because “the purpose of public law is not only to civilise
public power but also to assure the citizens that they live under a legal system
wherein their rights and interests shall be protected and preserved”.
• Providing compensation is by way of exercise of the Courts under the public law
jurisdiction for not only ‘penalising the wrong doer’ but also, ‘fixing the liability for
the public wrong on the State’ which failed in the discharge of its public duty to
protect the fundamental rights
• Limiting compensation to civil law, is limiting the role of the courts to a large
extent, as the protector and custodian of the indefeasible rights of the citizens.
• Courts have the obligation to satisfy the social aspirations of the citizens because the
courts and the law are for the people and expected to respond to their aspirations.
COMPENSATION FOR BREACH OF
FUNDAMENTAL RIGHTS
• Mere punishment of the offender cannot give much solace to the family of the
victim.
• Monetary compensation as redressal against the infringement of the indefeasible
right to life of the citizen is ‘a useful and at times perhaps the only effective
remedy to apply balm to the wounds of the family members of the deceased
victim, who may have been the bread winner of the family’.
• Such citizens cannot be denied relief under the public law by the courts exercising
writ jurisdiction.
• The primary source of the public law proceedings stems from the prerogative writs
and the courts have, therefore, to evolve new tools to give relief in public law
CONCLUSION
1. The police should have proper identification of themselves while carrying out the arrest as listed
under S.41B of the Crpc and the details should also be registered.
2. The memo will be created and signed by the relative, police and the accused person.
3. The information about the arrest, place for detention etc. will all be informed to the relative of the
accused known to him.
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.
The person arrested should ben informed about his right to have someone
informed.
Entry in the register will be made about the arrest, details of the place,
informed relative and also the details of the police officials.
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 arrested person should be subjected to medical examination by trained
doctor every 48 hours during his detention in custody by a doctor on the panel
of approved doctors appointed by Director, Health Services of the concerned
Stare or Union Territory. Director, Health Services should prepare such a penal
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 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
at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from
rendering the concerned official liable for departmental action, also render his liable to
be punished for contempt of court and the proceedings for contempt of court may be
instituted in any High Court of the country, having territorial jurisdiction over the
matter.