17, Aug 2020 | Sanchita Kadam
Case title: D.K.Basu vs. State of West Bengal
Case No.: Writ Petition (Crl) No. 592 of 1987
Date of judgement: December 18, 1996
Coram: Justices Kuldip Singh and A.S. Anand
‘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 – D.K.Basu vs. State of West Bengal
(December 18, 1996)
The bench comprising Justices Kuldip Singh and AS Anand, said that torture revealed the darker side of human civilization.
At the start of the proceedings, only the State of West Bengal was a party to the case. A letter from the Executive Chairman, Legal Aid Services, West Bengal was converted into a Public Interest litigation (PIL) by the Supreme Court in February 1987. During the course of the proceedings, the court later also received a letter from Ashok Kumar Johri drawing the attention of the Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody. The court thus included this letter in the DK Basu case as it observed that,
“In almost every states there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issues notices to all the State Governments to find out whether they are desire to say anything in the matter.”
Affidavits (responses) were thereafter filed by West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya , Maharashtra, Manipur and Chandigarh as well as the Law Commission of India. The court also appointed Abhishek Manu Singhvi as the amicus curiae in this case.
The court held that preventing breaches of basic and affirmed rights of the people was a sacred duty of the court as courts are custodians and protectors of fundamental and the basic human rights of all citizens.
On custodial violence
While speaking of custodial violence, the court said that it was aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. The court held thus,
“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.
The Court further said that “Custodial torture” is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality and is a calculated assault on human dignity.
“In all custodial crimes that 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. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.”
Continuing in this vein, the court further observed that the “worst violations of human rights take place during the course of investigation, when 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.”
Hence, the court termed custodial violence as “one of the worst crimes in a civilised society governed by the Rule of Law”.
The court expressed its concern over how in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the incidents of torture and custodial deaths were on the rise.
“If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. 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? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic ’No’.”
Comments on impunity
The bench rightly observed, “when the crime goes unpunished, the criminals are encouraged and the society suffers”. According to data released by the National Crimes Record Bureau (NCRB) from time to time, between 2008 and 2016 300 custodial deaths took place accompanied with zero convictions of any police personnel, the same followed in the following years, until 2018 in terms of zero convictions while incidents of custodial deaths go on increasing in number. These figures stand testimony to the fact that the crime of custodial torture and eventual death has gone unpunished over the years and hence it continues till date.
The judgment also stresses on the need to amend the Indian Evidence Act as suggested by the 113th report of the law Commission of India to get rid of this impunity. The report had recommended insertion of presumptive guilt as section 114B in the Indian Evidence Act. This section, that deals with the prosecution of a police officer for an alleged offence, needed to have a sub-section specifying that, if he/she is accused of having caused bodily injury to a person, and there was evidence that the injury was caused during the period while the said person was in the custody of the police, the Court may presume guilt: that the injury was caused by the police officer having the custody of the person during that period. The Commission further recommended that the court, while considering this question of presumption of guilt, should carefully regard all relevant circumstances including details about the period of custody; the statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded.
This amendment, however, still has not managed to attract political will enough to ensure enactmentl. This amendment was tabled before the Raja Sabha, in 2017, as the Indian Evidence (Amendment) Bill but it has not yet been passed by the house.
The bench in DK Basu had opined that transparency of action and accountability were two ways of curbing abuse of police power while also investing in training and orientation of police force consistent with basic human values.
“The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.”
The court also addressed the concern that more and more liberalisation and enforcement of fundamental rights, would lead to difficulties in the detection of crimes committed hardened criminals by soft peddling interrogation. The court also admitted the concern that if too much emphasis is laid upon protection of their fundamental rights and human rights such criminals may go scot-free without exposing any element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. On this aspect, the court held that,
“To deal with such a situation, a balanced approach is needed to meet the ends of justice. This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself.”
Significantly, the court held that “sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India.” Such a claim for compensation for unconstitutional deprivation of fundamental right to life was held as a strict liability of the state.
Punitive measures inadequate to right the wrong
The court opined that a mere declaration of invalidity of act of custodial violence or death does not by itself provide a meaningful remedy and much more needs to be done. The judgment pointed towards certain sections of the Indian Penal Code such as, sections 220 [Commitment for trial or confinement by person having authority who knows that he is acting contrary to law]; 330 [Voluntarily causing hurt to extort confession, or to compel restoration of property] and 331 [Voluntarily causing grievous hurt to extort confession, or to compel restoration of property]. The court observed that these provisions are inadequate to repair the wrong done to the citizen. “Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also,” read the judgement.
On the issue of reparation, the court opined that the compensation must not be “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”.
“The courts have the obligation to satisfy the social aspirations of the citizens because the court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, 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.”
The court observed the similar approach of awarding monetary compensation under public law for infringement of basic human rights has been propagated by courts of law in other countries such as Ireland, Trinidad and Tobago, New Zealand.
“The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer.”
This remedy of compensation was held to be without prejudice to the remedies in civil law for seeking compensation.
Ideal state of affairs
The bench admitted that the welfare of an individual must yield to that of the community but held that the actions of the state must be “right, just and fair”.
“Using any form of torture for extracting any kind of information would neither be ’right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21…. Challenge of terrorism must be met wit innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism would only provide legitimacy to ’terrorism’. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of this human rights expect in the manner permitted by law.”
The bench stressed upon the need for scientific methods of investigation that run in consonance wit the provisions of law.
Is the DK Basu case still relevant?
Almost every other landmark judgment passed by the apex court till date holds significance in its area of relevance. Some precedents set by the Supreme Court have had a considerable impact on rights jurisprudence and have only enriched the basic tenets of democracy and the main holy grail- the Indian Constitution. Similarly, the DK Basu still holds relevance, not only in the obliging of the guidelines set by it but also in the scenarios presented in the judgment. For instance, the court had observed in 1996,
“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.”
This still remains true in this day and age. The case of the Telangana man tortured to death in custody in Vadodara, Gujarat with no trace of his records fits this description perfectly.
“Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints”
In the Vadodara case, the case did not come to light until the family of the victim came to looking for him, moved pillar to post, wrote letters, filed habeas corpus petition and finally the Commissioner took cognizance and a confidential inquiry was launched headed by an ACP.
“Even where a formal prosecution is launched by the victim or his kith and kin, 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 coprisoners who are highly reluctant to appear as prosecution witness due to fear of retaliation by the superior officers of the police.”
In the Vadodara case, the victim’s body has not been found and the police team that is looking for the accused say that the chances of finding the body is very bleak at this stage since over 6 months have passed since the victim went missing. Hence, direct evidence is not available. CCTV footage has also been “managed” as for a few hours on that day, the CCTV was not functional. All written records have been destroyed but there are witnesses who have testified against the accused, but they always run the risk of turning hostile during the trial.
The DK Basu guidelines may be read here:
Are these guidelines binding?
These guidelines, famously known as the DK Basu guidelines were made binding by the court by stating that failure to comply with these would make an official liable for departmental action and also for contempt of court. It was further held that these requirement flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These were to be followed not just by the police department but other law enforcement agencies as well, such as the Enforcement Directorate, Central Bureau of Investigation (CBI), Central Reserve Police Force, CID and so on.
Clearly, the judgment has not lost its relevance even after more than two decades. The guidelines, which were made binding, are being more or less violated and non-compliance of the same does not invite any serious implications. Thus, has begun another vicious circle of infringement of right to life, non-compliance of the guidelines and eventual impunity.
It’s time these guidelines take the form of a legislation or gets inducted in the Code of Criminal Procedure with meaningful implications for violations if the legislature truly intends to safeguard a person’s right to life.
The complete judgment may be read here: