D.K. Basu v. State of West Bengal

In one line

A person in police custody keeps every fundamental right they had outside it, and because the existing safeguards were being ignored, the Supreme Court laid down eleven requirements to be followed in every arrest until Parliament legislated.

In the wording a student can write in an exam: in this case, reported at AIR 1997 SC 610, the Supreme Court held that custodial death and torture strike at the rule of law and violate articles 21 and 22(1) of the Constitution, that a citizen does not shed his fundamental rights at the door of a police station, and, exercising its power under article 32, issued eleven requirements to be followed in all cases of arrest or detention as preventive measures until legal provisions were made in that behalf, non-compliance rendering the official liable to departmental action and to punishment for contempt of court.

The facts

Facts. D.K. Basu v. State of West Bengal, AIR 1997 SC 610. The Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation, wrote a letter to the Chief Justice of India enclosing newspaper reports of deaths in police lock-ups and in custody. He asked that the letter be treated as a writ petition under the public interest litigation category, that the law of custodial deaths be examined, and that compensation be awarded to the families of victims.

The letter was treated as a writ petition. While it was pending, a second letter was received from Ashok K. Johri about the death of one Mahesh Bihari of Pilkhana, Aligarh, in police custody, and it was heard along with the first.

Two features of the facts are worth noticing because they explain the shape of the decision. No individual claim was decided. The Court was not asked to determine whether a particular officer had killed a particular detainee; it was asked to look at custodial violence as a class of wrong. And the proceeding took its form from a letter, which is the epistolary jurisdiction: a communication addressed to the Court, treated as a petition, in a matter where the person affected cannot easily move it themselves.

The questions before the Court

Three, and they are worth separating.

Whether custodial violence violates the fundamental rights, and if so which.

Whether the existing statutory and constitutional safeguards were sufficient, given that custodial deaths continued despite them.

What the Court could do about it, given that laying down rules of police procedure looks like the work of the legislature.

What the Court held: the ratio

Held. Custodial violence, including torture and death in the lock-up, strikes a blow at the rule of law. The Court treated it not as a series of individual wrongs but as an attack on the legal order, because it is committed by those whose duty is to enforce the law, under colour of authority, and in a place where the victim is entirely in their power.