The last leg of the DK Basu judgement: An Analysis A look at the 2015 judgment; what it did for the initial parametres set by the 1996 judgment

25, Aug 2020 | Sanchita Kadam

Case title: D.K.Basu vs. State of West Bengal

Case No.: Crl.M.P. No.15492 of 2014

Date of judgement: July 24, 2015

Coram: Justices TS Thakur and R Bhanumati


This judgment was the last of the orders under the continuing mandamus of the Supreme Court in the monumental DK Basu case. The case has gone down in history as one of the longest running cases of the Supreme Court during which the court has persistently monitored a particular matter, that of torture in custody. Over the years, judges came and went, but the court kept watching. This finally culminated into the final order of 2015 which we have explored here.

As a whole, this judicial order is not heavy on observations laying down principles of law. It majorly deals with some recommendations related to human rights commissions and their role on the issue of custodial torture. In that sense, it is not the perfect ending in a judicial interrogation that first established some definitive guiding principles to tackle and mitigate incidents of frequent (and non-transparent) detentions, custodial torture and the pre-eminence of the right to life and personal liberty of a person who is in the custody of law.

The question remains whether this judgment marked the end of the piercing scrutiny of the court over the states and its police; their regard to human rights of a person in their custody. Only recently, Abhishek Manu Singhvi who was the amicus curiae of the court in the DK Basu case has filed a plea in the apex court seeking re-invocation of the court’s continuous mandamus given the rise of incidents of illegal detention, custodial torture, deaths in custody and extra judicial killings. Ground reality has not changed at all since the landmark judgment of 1996 and hence this pressing need (and expectation from the people) for intervention by the court.

The application

The Court was considering an application filed by amicus curiae Abhishek Manu Singhvi seeking directions for setting up of State Human Rights Commissions in Delhi, Arunachal Pradesh, Mizoram, Meghalaya, Tripura and Nagaland. Responses were filed by the states on the basis of which Singhvi submitted a summary of recommendations. The court thus considered these recommendations for giving quietus to the issues that have engaged the attention of this Court for over 30 years.

The application was made for setting up of State Human Rights Commissions specifically in Delhi, Arunachal Pradesh, Mizoram, Meghalaya, Tripura and Nagaland since even after 2 decades of directions being passed by the court, these had failed to comply. The other ground on which direction was sought was related to filling-up of vacancy of Chairperson and Members in several State Human Rights Commissions.

Whether setting up of SHRCs was directory or mandatory

The court observed that these states did not offer any justification for their non-compliance and instead argued that setting up of state human rights commission was not mandatory under section 21 of the Protections of Human Rights Act as it states that a state government “may constitute a body”.

The court, however, saw no merit in this argument and said that significance of human rights protection and the need for their protection and enforcement is beyond the pale of any debate. The court said that a plain reading of section 21 may give the impression that the setting-up of a State Human Rights Commission rests in the discretion of the State Government but a careful analysis of the Act in toto dispels the same. Thus, holding that though the argument that setting up of state commissions is not mandatory is attractive, it does not stand close scrutiny.

The court held thus,

“Whether or not the word ‘may’ should be construed as mandatory and equivalent to the word ‘shall’ would depend upon the object and the purpose of the enactment under which the said power is conferred as also related provisions made in the enactment.”

The court also cited Manushkhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622] whereby the apex court had held that “the scheme of the statute is determinative of the nature of duty or power conferred upon the authority while determining whether such power is obligatory, mandatory or directory and that even if that duty is not set out clearly and specifically in the stature, it may be implied as correlative to a right”.

On the right to access justice

Further, the court stated that when a state does not set up a human rights commission, it is denying people their (right to) access to justice which has been deemed to be guaranteed under Article 21 [right to life] of the Indian Constitution in Imtiyaz Ahmad v. State of Uttar Pradesh and Ors. [(2012) 2 SCC 688].

The court held thus,

“Human rights violations in the States that are far removed from the NHRC headquarters in Delhi itself makes access to justice for victims from those states an illusion… We need to remember that access to justice so much depends upon the ability of the victim to pursue his or her grievance before the forum competent to grant relief.”

The court also pointed out that north eastern states are mostly inhabited by Adivasis and indigenous peoples and they cannot cannot be deprived of the beneficial provisions of the Act simply because the States are small and the setting-up of commissions in those states would mean financial burden for the exchequer. There is also a provision under the Act for setting up a Commission for two states with a common Chairperson.

On vacant posts of Chairperson and Members

The application had pointed out that human rights commission of Himachal Pradesh, Jammu and Kashmir, Jharkhand, Karnataka, Tamil Nadu had posts of Chairperson or members or in some cases both, vacant. This rendered these commissions dysfunctional and as good as non-existent.

The court agreed with Singhvi’s submission that “the very purpose of setting up of the State Human Rights Commission gets defeated if vacancies that occur from time to time are not promptly filled up and the Commission kept functional at all times”.

The court held thus,

“The power available to the Government to fill up the vacancies wherever they exist is, as noticed earlier, coupled with the duty to fill up such vacancies. The States ought to realise that the Human Rights Commission set up by them are not some kind of idle formality or dispensable ritual… Denial of access to the mechanism conceptualised under the Act by reason of non-filling up of the vacancies directly affects the rights of the citizens and becomes non-functional.”

The court directed the concerned states to fill up their vacancies within 3 months of the order while hoping that it will be spared the unpleasant task of initiating action against the defaulting State in case the needful is not done within the time allotted.

On Human Rights Courts

Another recommendation made by Singhvi was for setting up of Human Rights Court in different districts as per section 30 of the Protection of Human Rights Act. Section 30 of the Act provides that the State Government shall specify with the concurrence of the Chief Justice of the High Court, for each district a Court of Session to be a Human Rights Court so that the offences arising out of violation of human rights are tried and disposed of speedily.

In this matter, however, the court refrained from giving any definite and stringent direction and merely suggested that the states take up the matter with the Chief Justices of High Courts of their respective States and examine the feasibility of specifying Human Rights Court in each district.

CCTV cameras in police stations and prisons

The court, based on the responses filed by the states, observed that many states had already complied with the installation of CCTV cameras, while some were in the process of installing the same. The court considered these actions and efforts to be “heartening” and “commendable” despite that many states were silent and non-committal on this point. The court held that the state governments may consider this recommendation and install CCTV cameras wherever feasible since some police stations may be located in sensitive areas prone to human rights violation and hence needed to be given first priority.

On the matter of installing CCTVs in prisons the court said it saw no reason why the states should not do so.

“CCTV cameras will help go a long way in preventing violation of human rights of those incarcerating in jails. It will also help the authorities in maintaining proper discipline among the inmates and taking corrective measures wherever abuses are noticed.”

All the states were hence, directed to install CCTV cameras within a year of the order, in all their prisons.

Other recommendations

The other recommendation made by Singhvi were:

  • appointment of non-official visitors to prisons and police stations for making random and surprise inspections
  • initiation of proceedings under Section 302/304 IPC in each case where the enquiry establishes culpability in custodial death
  • framing of uniform definition of custodial death
  • mandatory deployment of at least two women constables in each district

The court considered each recommendation without issuing definite and strict directions in that regard and asked state governments to take appropriate action as per the law and to follow due process of law.

The court held that the Protection of Human Rights Act, 1993 symbolises the culmination of a long-drawn struggle and crusade for protection of human rights in the country as much as elsewhere is the world. Throughout the judgment, the bench has briefly referred to the 1996 judgment and reiterated its observations and opinions on custodial torture. On its own, this judgement has little to contribute to jurisprudence dealing with prosecution in and prevention of custodial torture, deaths and illegal encounters.

The complete judgment may be read here:

The recent incidents of custodial deaths in Tamil Nadu, Gujarat and the many unreported incidents of custodial torture, peaceful protesters being beaten up, sexually assaulted in custody, minors being detained in police stations, are all compelling enough for the judiciary to take forth the legacy of the DK Basu case. One can only hope the judiciary finds it so.


Revisiting DK Basu: The most relevant judgment of all time

Monitoring the condition of Indian prisons

NCRB Reports Show Statistics on How Many Breathe Their Last in Custody

Women prisoners recount Jail Horror Stories



Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Go to Top
Nafrat Ka Naqsha 2023