DK Basu Guidelines On Custodial Violence and Its Relevance In Present Times

Profile of the Author: Garv Singh is a 3rd year law student pursuing B.A.LLB from Amity Law School, Delhi, GGSIPU. He has a keen interest in the Indian Criminal Jurisprudence and Constitutional Law.

INTRODUCTION

Shri. DK Basu was The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation, which was responsible for the PIL filed in the Supreme Court in 1997 as a writ towards implanting justice against unfair treatment towards prisoners and accused persons inside police’s custody resulting in brutal torture and custodial deaths. Custodial deaths are the deaths which happens under the custody of police, either by high degree of torture or other physical/emotional/mental trauma inflicted on the detainees.

Only 428 FIRs were filed in 1,022 custodial deaths between 2000-2016, says NCRB data[1] in which most of the prisoners were arrested and weren’t even produced before a magistrate in the due course of time. This makes a complete mockery of sections 55A and 57 of the Code of Criminal Procedure (Cr.P.C.) which places the duty of care of the accused, and the production before a magistrate within 24 hours, to the person who makes the arrest.

Nevertheless, India has observed an array of historical trials and that made our Constitution an embodiment of fairness, justice, and good conscience. One of those most important of all these judgements in the purview of custodial violence that had expanded the spheres of the meaning of fundamental rights was D.K. Basu v. State of West Bengal 1997[2].

DK BASU CASE OVERVIEW

This case established the procedure of arrest and rights of arrested person which includes section 41B, 41C, 41D of CrPC.

In this case, the court laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made on that behalf as a measure to prevent “Custodial Violence”.

The supreme court observed that “ custodial violence is an attack on human dignity directly. Even after a lot of recommendations and policies, there have been a lot of deaths and reports of torture in police custody and they are still growing in numbers”. It also observed that “right to interrogate a culprit and arrestee in interest of the nation must take precedence on the individuals rights to personal liberty”. But the state’s action must be right, just, and fair to do so. Interrogation though essential must be on scientific principals and the 3rd degree methods of torture are totally impermissible.

The supreme court in this case finally came up with certain guidelines in addition to the Constitutional and Statutory Safeguards which makes the police officers more vigilant for the rights of the arrestees and which police must follow without question.

The guidelines are as follows[3]: –

• Police personnel who makes the arrest and handle the interrogation of the arrested person must wear precise, visible, and clear identifications and identification labels with their designations.
• That the police officer making the arrest of the detainee will prepare a memorandum of arrest at the time of the arrest and said memo will be attested by at least one witness who may be a member of the family of the arrested person or a respectable person from the locality from where the arrest is made. It must also be signed by the detainee and must contain the time and date of the arrest.
• A person who has been arrested or detained at a police station or interrogation center or other confinement, shall have the right to have a friend or relative or other person known to him or who has an interest in his well-being will be informed, as soon as possible, that you have been arrested and are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of the arrested.
• Police must notify the detainee’s time, place of detention, and place of custody where the detainee’s next friend or relative lives outside the district or city through the District’s Legal Aid Organization and station. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest.
• The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
• An entry must be made in the Case 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 official in whose custody the arrestee is.
• Upon request, the Arrestee must also be examined at the time of his arrest and major and minor injuries, if present on his body, must be recorded at that time. The “Inspection Memo” must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee.
• The detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
• Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
• The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
• A Police Control Room must be provided at all central district and state offices, where the arresting officer must communicate information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.

The supreme court further reads “that the custodial violence , torture, rape, death in police custody is a matter of deep concern, it infringes the article 21 of the Indian constitution, as well as the basic human rights and strikes a blow at the rule of law”.

There were no specific provisions in the CrPC against custodial violence and hence, therefore the supreme court had laid down these rules and to control the arbitrary powers of the police.

The relevance of D K Basu judgements in concern with human rights in the current setup

The D K Basu vs State of West Bengal judgment that provide guidelines for controlling police custodial violence lays down a general law which stipulates that convicts in custody should be treated with dignity and must be taken care of in terms of fairness and rule of law but as we all are well aware that this is rarely followed as we observed in recent Tamil Nadu’s custodial death case which only came into limelight amongst 1000’s of such cases that are not even reported. The worst part being that the police authorities while committing these acts justify themselves for the same, finding loopholes in the given judgement and the functioning of the system. Surely the guidelines have been laid out, but the bar of justice says that even if one innocent is punished unfairly without the rule of law being in place, then there is no justice at all. In these current times where this type of violence has increased despite the judgements and rules because of the arrogant, rigid regimes of the defendant authorities, there has to come a law which is more stricter in real applicability and because of which the wrongdoers are not only deterred but for their whole life become strictly aware of the correct guiding philosophy where the end goal is the respect of the dignity of each and every life. Until and unless this aspect of awareness and inner introspection comes in every single person committing the atrocities, things wont change, just by mentioning details on paper.

“If police follow the rules designed to deter torture and mistreatment, deaths in custody could be prevented”. India can only boast of rule of law when those charged with enforcing it are held accountable.”

• Things to emphasis:
  -Article 21 that guarantees Right to Life in the constitution provides protection to all individuals regardless of their act. Applying force to impose damage on life of an individual is a violation of the basic rights provided by the constitution. Some sections in the police force have been engaged in illegal activities and making use of their power to inflict damage on society.
  
• But the real problem is in operationalising the spirit of DK Basu’s judgement . This encompasses

1. Penal measures.
2. Last mile implementation.
3. Ensuring swift, effective departmental strong action plus criminal prosecution.

How to be progressive towards it?

• A 1985 Law Commission report directed enactment of section 114-B into the Evidence Act.
• This gave way for raising a rebuttable presumption of culpability (guilty) against the police if anyone in their custody dies or is found with torture.
• This has still not become law, despite a bill introduced as late as 2017. This should be processed soon.
• More importantly, monitoring and implementation of DK Basu judgement is the need of the hour.
• This should be taken up by independent and balanced civil society individuals at each level, under court supervision.[4] (source: Indian express)

How to show accountability for the abuses?

To ensure accountability for police abuses, Indian law requires a judicial magistrate to conduct an inquiry into every death in police custody. The police are expected to register a First Information Report, and the death is expected to be investigated by a police station or agency other than the one implicated. Every case of custodial death is also supposed to be reported to the National Human Rights Commission. Commission rules call for the autopsy to be filmed and the autopsy report to be prepared according to a model form.

The use of torture and other ill-treatment by police and the failure to provide justice to victims of abuse violate India’s obligations under international human rights law. India has ratified the International Covenant on Civil and Political Rights and signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India has also signed but has yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, which seeks to deter torture and other grave abuses against persons in custody.[5]

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FAQs:

Q. What happens when one cannot afford a lawyer at the time of arrest. What should one do?

Ans. One has the right to free legal aid soon after the arrest. The Indian Supreme Court has said that every person arrested has the right to free legal aid from the time of arrest. It is the duty of the police to immediately inform the nearest legal aid committee about an arrested person seeking legal aid

Q. How long can police keep an arrestee in the custody?

Ans. Until 24 hours and then they must get permission from a magistrate. Police should produce the person under arrest before the appropriate court within 24 hours of the arrest. The police cannot keep a person in custody after 24 hours without the permission of a magistrate.

[1] https://www.newindianexpress.com/nation/2018/apr/15/only-428-firs-were-filed-in-1022-custodial-deaths-between-2000-2016-says-ncrb-data-1801728.html

[2] D.K. Basu v. West Bengal State, (1997) 1 SCC 416.

[3] http://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/

[4] Source: Indian Express editorial.

[5] Human Rights watch, India: Killings in Police Custody, https://www.hrw.org/news/2016/12/19/india-killings-police-custody-go-unpunished