D.K. Basu v. State of West Bengal
Supreme Court of India · 18 December 1996 · 2 judges
Treating letters on custodial deaths as writ petitions, the Court laid down eleven requirements to be followed in every arrest or detention and held that the State is liable to pay public law compensation for custodial violation of Article 21.
Facts
In August 1986 the Executive Chairman of Legal Aid Services, West Bengal, wrote to the Chief Justice of India about newspaper reports of deaths in police lock-ups and custody, asking the Court to develop custody jurisprudence and modalities for compensation. The letter was treated as a writ petition. In 1987 a letter from Ashok Kumar Johri about the death of Mahesh Bihari in police custody at Aligarh was also treated as a writ petition and heard with it. Notice was issued to all State Governments and the Law Commission of India; several States and the Law Commission filed responses, and Dr. A.M. Singhvi assisted as amicus curiae.
Questions before the Court
- What safeguards should govern arrest and detention to prevent custodial violence and deaths in custody?
- Can the Court award monetary compensation in public law for established infringement of Articles 21 and 22 by the police, and is sovereign immunity a defence?
What the Court held
- Custodial torture and death strike at the rule of law. Any form of torture or cruel, inhuman or degrading treatment, whether during investigation, interrogation or otherwise, falls within the prohibition of Article 21; even a suspected terrorist cannot be tortured to extract information.
- Till legal provisions are made, eleven requirements must be followed in all arrests and detentions, including identification tags on police, an attested and countersigned memo of arrest, informing a friend or relative, medical examination every 48 hours, copies to the Magistrate, meeting a lawyer during interrogation and a police control room.
- The requirements flow from Articles 21 and 22(1), apply also to other governmental agencies, and are in addition to existing safeguards. Failure to comply makes the official liable to departmental action and to punishment for contempt, which may be brought in any High Court with territorial jurisdiction.
- Monetary compensation in public law is an appropriate and sometimes the only remedy for established infringement of the right to life by public servants. The claim rests on strict liability, sovereign immunity is no defence, the State may be indemnified by the wrongdoer, and the award is without prejudice to a civil suit for damages.
Why it matters
The judgment sets out the requirements to be followed in every case of arrest or detention, enforceable through departmental action and contempt, and directs that they be circulated and displayed at police stations and publicised. It also states the principles for awarding compensation in proceedings under Articles 32 and 226 for custodial violations of Article 21, following Nilabati Behera, with the emphasis on compensation and not on punishing the offender.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise.”
“We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures : (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations.”
“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.”
“Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps 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.”
Provisions interpreted
Related judgments
- Follows Nilabati Behera v. State of Orissa (1993)“this Court has judicially evolved a right o compensation in cases of established unconstitutional deprivation of person liberty or life. [See : Nilabati Bahara Vs. State (Supra)]” (page 17)
Case and bench
- Parties
- Shri D.K. Basu, Ashok K. Johri v. State of West Bengal, State of U.P.
- Case
- Writ Petition (Crl.) (number of the lead petition not printed in the file) with Writ Petition (Crl.) No. 592 of 1987
- Decided
- 18 December 1996
- Bench
- Kuldip Singh, A.S. Anand
- Opinions
- Judgment delivered by Dr. A.S. Anand, J. for the Bench; no separate opinion appears in the text.
Questions on this case
6 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
Under the requirements laid down in D.K. Basu v. State of West Bengal (judgment of 18 December 1996), an arrestee is to be medically examined by a trained doctor during detention in custody every:
- A. 48 hours
- B. 24 hours
- C. 7 days
- D. 72 hours
Show the answer
A. 48 hours
Requirement (8) in D.K. Basu states that the arrestee should be subjected to medical examination by a trained doctor every 48 hours during detention, by a doctor on the panel of approved doctors. Other requirements include a memo of arrest attested by at least one witness and informing a friend or relative of the arrest.