D.K. Basu v. State of West Bengal

The Executive Chairman of a legal aid society wrote a letter to the Chief Justice of India about newspaper reports of deaths in police lock-ups. The Court treated the letter as a public interest litigation (a case brought to protect the public interest, not just the petitioner's own right), issued notice to every State, and heard the matter for over a decade. It ends by laying down eleven mandatory requirements for every arrest and detention in India. It also holds that the State must pay compensation, in its public-law jurisdiction, for established custodial violence (torture, assault or death of a person held by the police or another State agency).

Quick Revision

Read the full judgment: cdnbbsr.s3waas.gov.in

Parties

D.K. Basu — petitioner (first writ petition); Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act. His 26 August 1986 letter to the Chief Justice of India was treated as a writ petition.

Ashok Kumar Johri — petitioner (second, connected writ petition); wrote to the Chief Justice of India on 29.7.87 about the death of one Mahesh Bihari of Pilkhana, Aligarh, in police custody.

State of West Bengal — principal respondent; filed a counter-affidavit denying that it hushed up lock-up deaths.

Other States and a Union Territory — respondents on notice; the judgment records affidavits filed on behalf of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, Manipur and the Union Territory of Chandigarh.

Law Commission of India — responded to the Court's notice and forwarded its 113th Report on injuries in police custody.

Dr. A.M. Singhvi, senior advocate — appointed amicus curiae (a lawyer asked to assist the Court as a friend of the court, not for a party) to assist the Court.

Procedural History

The judgment has no numbered paragraphs. Events are given in the order the judgment states them, with the judge's opinion (Dr. Anand, J.) as the only opinion.

1. 26 August 1986. D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, wrote to the Chief Justice of India. He drew attention to news items in the Telegraph (20, 21 and 22 July 1986) and in the Statesman and Indian Express (17 August 1986) about deaths in police lock-ups and custody (Anand, J.).
2. He asked the Court to develop "custody jurisprudence" and formulate modalities for compensation and officer accountability. He asked that the letter, with the news items, be treated as a writ petition under the "public interest litigation" category (Anand, J.).
3. Considering the importance of the issue and frequent complaints of custodial violence, the Court treated the letter as a writ petition and issued notice to the respondents on 9 February 1987 (Anand, J.).
4. The State of West Bengal filed a counter-affidavit. It denied hushing up any lock-up death and said action was taken wherever police personnel were found responsible. It called the writ petition misconceived, misleading and untenable in law (Anand, J.).
5. 29.7.87. While the first petition was pending, Ashok Kumar Johri wrote to the Chief Justice of India about the death of one Mahesh Bihari of Pilkhana, Aligarh, in police custody. This letter too was treated as a writ petition and listed with D.K. Basu's petition (Anand, J.).
6. 14 August 1987. The Court noted that allegations of lock-up deaths were increasing in almost every State and that there was no effective machinery to deal with them. It ordered notice to all State Governments to find out if they wished to say anything, and notice to the Law Commission of India for suitable suggestions, returnable in two months (Anand, J.).
7. Affidavits were filed on behalf of the States of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur, and of the Union Territory of Chandigarh and the Law Commission of India (Anand, J.).
8. During the hearing the Court felt it needed the Bar's assistance, and Dr. A.M. Singhvi, senior advocate, was requested to assist as amicus curiae. Counsel for the States and Dr. Singhvi went beyond their briefs and made suggestions for guidelines and compensation (Anand, J.).
9. The Law Commission of India forwarded its 113th Report on injuries in police custody, and suggested inserting Section 114-B in the Indian Evidence Act (Anand, J.).
10. 18 December 1996. Dr. Anand, J. delivered the judgment of the Court, laying down eleven requirements for arrest and detention and public-law compensation principles, and disposed of the petitions (Anand, J.).

Facts

1. Newspapers — the Telegraph (20, 21 and 22 July 1986) and the Statesman and Indian Express (17 August 1986) — carried reports of deaths in police lock-ups and custody across India (Anand, J.).
2. The reports said that lock-up deaths were often hushed up, so that the crime flourished unpunished (Anand, J.).
3. D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, wrote to the Chief Justice of India on 26 August 1986 (Anand, J.).
4. He asked the Court to develop custody jurisprudence and formulate modalities for compensating victims or families and for holding officers accountable (Anand, J.).
5. The State of West Bengal, in its counter, denied hushing up any lock-up death and said action was taken wherever police personnel were found responsible (Anand, J.).
6. On 29 July 1987 Ashok Kumar Johri wrote to the Chief Justice of India about the death of one Mahesh Bihari of Pilkhana, Aligarh, in police custody (Anand, J.).
7. The Court found that, at the time, there was no effective machinery anywhere in India to deal with such allegations of custodial death (Anand, J.).
8. Ten States and one Union Territory, and the Law Commission of India, responded to the Court's notice with affidavits and a report (Anand, J.).

Issues Raised

1. Should monetary compensation be awarded for an established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution, where a person is tortured, raped or dies in police custody?
2. Can such compensation be granted by the Supreme Court and the High Courts under Article 32 or 226, in their public-law jurisdiction, in addition to the private-law remedy of a civil suit for damages?
3. Is the defence of sovereign immunity (the State's defence that it cannot be sued for the wrongful acts of its officers) available to the State against a claim for compensation for an established violation of Article 21?
4. What concrete requirements should be laid down, to be followed in every case of arrest or detention, as preventive measures against custodial violence until Parliament makes legal provision on the subject?

Arguments Contended

The reported judgment does not set out formal opposing legal arguments from the respondent States. It records the following.

For the petitioners:

• Modalities should be formulated for awarding compensation to the victim or family members of the victim for atrocities and death caused in police custody, and to provide for the accountability of the officers concerned (D.K. Basu's original letter-petition) (Anand, J.).

For the respondents:

• The judgment does not record formal legal submissions opposing the relief. It records only the State of West Bengal's factual denial, in its counter-affidavit, that it hushed up lock-up deaths, and its statement that action was taken wherever police personnel were found responsible; it called the petition misconceived, misleading and untenable in law (Anand, J.).

Court's Reasoning

The judgment of the Court was delivered by Dr. Anand, J. for the Bench of Kuldip Singh and Dr. A.S. Anand, JJ. It has no numbered paragraphs.

Dr. Anand, J. (for the Bench)

1. Noted: Custodial violence, including torture and death in lock-ups, strikes a blow at the Rule of Law, which demands that executive power be derived from, and limited by, law. It is aggravated because it is committed by the very persons meant to protect citizens (Anand, J.).
2. Held: Torture of one human being by another is essentially an instrument to impose the will of the strong over the weak by suffering. Custodial torture is a naked violation of human dignity and degradation, which destroys a large part of the individual's personality (Anand, J.).
3. Noted: The judgment quotes a passage by Adriana P. Bartow, describing torture as "a wound in the soul so painful that sometimes you can almost touch it," to illustrate the human cost of custodial torture (Anand, J.).
4. Noted: No human right has been the subject of as many international Conventions and Declarations as torture, yet torture is more widespread now than ever, despite the commitments made to eliminate it (Anand, J.).
5. Noted: Article 5 of the Universal Declaration of Human Rights, 1948 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Anand, J.).
6. Noted: In England, torture was once a normal practice to extract information or confessions. The Sir Cyril Philips Committee — the Royal Commission on Criminal Procedure (Command Papers 8092 of 1981) — recommended restricting the power of arrest by a necessity principle (Anand, J.).
7. Noted: The Royal Commission proposed that detention after arrest continue only where necessary. This covered identifying the person, and preventing continuation or repetition of the offence (Anand, J.).
8. Noted: It also covered protecting the arrested person, others or property; securing or preserving evidence; and the risk that the person may fail to appear in court (Anand, J.).
9. Noted: The Royal Commission also proposed introducing an Ontario-style appearance-notice scheme, letting a police officer obtain a suspect's attendance at the station, for example for fingerprinting or an identification parade, without resorting to arrest (Anand, J.).
10. Noted: The Royal Commission's suggestions were incorporated into the Police and Criminal Evidence Act, 1984, greatly reducing custodial violence in England (Anand, J.).
11. Held: Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. The expression life or personal liberty has been held to include the right to live with human dignity, and so includes a guarantee against torture and assault by the State or its functionaries (Anand, J.).
12. Held: Article 22 protects a person against arrest and detention. An arrested person must be informed of the grounds of arrest, and may consult and be defended by a legal practitioner of choice (Anand, J.).
13. Held: Under Article 22, clause (2), the arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding travel time. Article 20(3) protects against being compelled to be a witness against oneself (Anand, J.).
14. Noted: Chapter V of the Code of Criminal Procedure, 1973 sets out powers of arrest and safeguards for the arrested person (Anand, J.).
15. Noted: Section 41 empowers arrest without a warrant in specified circumstances. Section 46 governs the method and manner of arrest. Section 49 forbids more restraint than necessary to prevent escape (Anand, J.).
16. Noted: Section 50 requires the arresting officer to communicate the full particulars of the offence and the grounds of arrest, and to inform the arrestee of the right to bail. Section 56 requires production before a Magistrate without unnecessary delay, and Section 57 echoes the Article 22(2) 24-hour rule (Anand, J.).
17. Noted: Sections 53, 54 and 167 give further procedural safeguards. Section 176 requires a Magistrate to hold an inquiry whenever a person dies in police custody (Anand, J.).
18. Held: Despite these constitutional and statutory safeguards, torture and custodial deaths remain a disturbing factor. Worst violations occur during investigation, when the police, to secure evidence or a confession, resort to third-degree methods and screen the true nature of an arrest by not recording it or by describing detention merely as prolonged interrogation (Anand, J.).
19. Noted: The Third Report of the National Police Commission expressed deep concern at custodial violence. It suggested that an arrest during investigation be justified only in defined circumstances: a grave offence, likelihood of absconding, violent behaviour, or habitual offending (Anand, J.).
20. Noted: The Commission also suggested that the arresting officer record reasons for the arrest in the case diary; these suggestions have not acquired statutory status (Anand, J.).
21. Noted: In Joginder Kumar v. State, [1994] 4 SCC 260 (to which Anand, J. was a party), the Court had considered the dynamics of misuse of the power of arrest. It held that the existence of the power to arrest is different from the justification for exercising it, and that no arrest should be made without a reasonable belief in both complicity and the need to arrest, since denying liberty is a serious matter. That case involved a lawyer detained for several days without a satisfactory police account, and the Court there set down certain procedural "requirements" for arrest (Anand, J.).
22. Held: Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law (Anand, J.).
23. Held: The rights inherent in Articles 21 and 22(1) must be jealously and scrupulously protected. A citizen does not shed his fundamental right to life the moment a policeman arrests him, and that right cannot be put in abeyance on arrest (Anand, J.).
24. Noted: In Neelabati Behera (Nilabati Behera) v. State of Orissa, [1993] 2 SCC 746 (to which Anand, J. was a party), the Court held that convicts, prisoners and undertrials are not denuded of their Article 21 rights, and only restrictions permitted by law may be imposed on them (Anand, J.).
25. Noted: The State has a strict duty, admitting no exceptions, to ensure a person in its custody is not deprived of the right to life except by procedure established by law (Anand, J.).
26. Noted: In cases of custodial torture and death, the death is often not shown in lock-up records. The police tries to dispose of the body, or claims the person died after release (Anand, J.).
27. Noted: Complaints are often not entertained because of ties of brotherhood among police. Direct evidence is hard to secure, because witnesses are policemen or co-prisoners afraid of retaliation, and the police control the very records that could prove the case (Anand, J.).
28. Noted: In State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 3 Scale 343, one Nathu Banjara died in police custody at Rampura police station after interrogation. The trial court acquitted all accused for want of direct evidence (Anand, J.).
29. Noted: One respondent, S.I. Trivedi, had gone to the spot to conduct an inquest under Section 174, Cr.P.C. The High Court largely upheld the acquittals, but set aside Trivedi's acquittal for offences under Sections 218, 201 and 342, IPC; it kept his acquittal for offences under Section 302 read with Section 149, and Section 147, IPC (Anand, J.).
30. Held: On the State's appeal, this Court found the prosecution had established circumstances consistent only with the respondents' guilt, and criticised the lower courts' unrealistic over-simplification of those circumstances. It set aside the acquittal of respondents 1, 3, 4 and 5, restored convictions including under Section 304 Part II read with Section 34, IPC, and directed that fines imposed be paid to the heirs of the deceased by way of compensation (Anand, J.).
31. Held: The Shyamsunder Trivedi case showed that courts must have a change in outlook in custodial-crime cases, and adopt a realistic rather than a narrow technical approach (Anand, J.).
32. Held: Courts must ensure, as far as possible, that the guilty do not escape, so the victim's family has the satisfaction that the law has prevailed (Anand, J.).
33. Noted: The Law Commission's 113th Report recommended inserting Section 114-B in the Indian Evidence Act. This is a presumption that an injury caused to a person during police custody was caused by the officer having custody (Anand, J.).
34. Noted: The presumption would consider the period of custody, the victim's statement, medical evidence and the Magistrate's record. This amendment has still not been enacted, and the Court invites Parliament's attention to the urgency of it (Anand, J.).
35. Held: Police have a legal duty and legitimate right to arrest and interrogate, but the law does not permit third-degree methods or torture during interrogation. The end cannot justify the means (Anand, J.).
36. Held: No society can permit the police to accomplish behind closed doors what the law forbids (Anand, J.).
37. Held: To check abuse of police power, transparency of action and accountability are the two safeguards the Court must insist upon (Anand, J.).
38. Held: Police training and work culture need to be made sensitive to basic human values and the constitutional ethos. The presence of the arrestee's counsel at some point during interrogation may deter third-degree methods (Anand, J.).
39. Noted: Several other governmental agencies besides the police also have powers of detention and interrogation, and have seen custodial deaths (Anand, J.).
40. Noted: These agencies include the Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, CRPF, BSF, CISF, State Armed Police, Intelligence Bureau, RAW, CBI, CID, Traffic Police, Mounted Police and ITBP (Anand, J.).
41. Noted: In Re: Death of Sawinder Singh Grover, [1995] Supp 4 SCC 450 (to which Kuldip Singh, J. was a party), the Court took suo motu notice of a death in Directorate of Enforcement custody, and directed the CBI to register an FIR and prosecute (Anand, J.).
42. Noted: The Court also directed an interim ex-gratia (paid as a favour, without admitting legal liability) payment of Rs. 2 lakh to the widow (Anand, J.).
43. Noted: Society genuinely fears that too much emphasis on the rights of hardened criminals may let them go unpunished. A balanced approach is needed, as the cure cannot be worse than the disease (Anand, J.).
44. Noted: In Miranda v. Arizona, 384 US 436, the U.S. Supreme Court answered the argument that society's need for interrogation outweighs the individual's privilege, citing Chambers v. Florida, 309 US 227. It held that the Fifth Amendment right against self-incrimination (being forced to give evidence against oneself) cannot be abridged (Anand, J.).
45. Held: An individual's freedom must yield to the security of the State (Anand, J.).
46. Held: The Latin maxims salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae est suprema lex (the safety of the State is the supreme law) lie at the heart of a doctrine (Anand, J.).
47. Held: That doctrine is that individual welfare yields to the community's (Anand, J.).
48. Held: State action must still be right, just and fair. Using any form of torture to extract information is neither right nor just nor fair, and is impermissible as offensive to Article 21 (Anand, J.).
49. Held: A suspect may be subjected to sustained and scientific interrogation, determined according to law, but not tortured or subjected to third-degree methods. State terrorism is no answer to combat terrorism (Anand, J.).
50. Held: It would be useful and effective to structure machinery for the contemporaneous recording and notification of every arrest and detention, to bring in transparency and accountability. The officer should prepare a memo of arrest at the time of arrest, in the presence of at least one witness who may be a family member or a respectable local person, recording date and time, and counter-signed by the arrestee (Anand, J.).
51. Held: The Court then set out eleven requirements to be followed in every case of arrest or detention as preventive measures until Parliament legislates (see Judgement) (Anand, J.).
52. Held: Failure to comply with the requirements renders the official liable to departmental action and to be punished for contempt of court, and contempt proceedings may be instituted in the High Court with territorial jurisdiction. The requirements flow from Articles 21 and 22(1) and apply with equal force to the other governmental agencies named above (Anand, J.).
53. Held: Under the heading PUNITIVE MEASURES, the Court invokes the Latin maxim ubi jus ibi remedium (there is no wrong without a remedy). The law wills that a wronged person must have a remedy (Anand, J.).
54. Held: A mere declaration of custodial violence or death does not by itself provide a meaningful remedy; much more needs to be done (Anand, J.).
55. Held: Sections 220, 330 and 331 of the Indian Penal Code punish, respectively, an officer who confines a person with a corrupt or malicious motive, and those who inflict hurt or grievous hurt to extort a confession or information (Anand, J.).
56. Held: Illustrations to Section 330 make a police officer guilty of torturing a person to induce a confession. These statutory provisions alone are inadequate to repair the wrong (Anand, J.).
57. Held: The State must also give compensatory relief, under public-law jurisdiction, for its breach of duty to protect the fundamental right to life (Anand, J.).
58. Held: Article 9(5) of the International Covenant on Civil and Political Rights, 1966 provides an enforceable right to compensation for unlawful arrest or detention. On ratifying the Covenant in 1979, India made a specific reservation that Indian law did not recognise a right to compensation for victims of unlawful arrest or detention, and so did not become a party to the Covenant on that point (Anand, J.).
59. Held: That reservation has lost its relevance, given this Court's own line of compensation cases: Rudul Shah v. State of Bihar, [1983] 4 SCC 141; Sebastian M. Hongrey v. Union of India, [1984] 3 SCC 339 (and [1984] 3 SCC 82); Bhim Singh v. State of J&K, [1984] Supp SCC 504 (and (1985) 4 SCC 677); and Saheli v. Commissioner of Police, Delhi, [1990] 1 SCC 422 (Anand, J.).
60. Held: For almost two decades the State's tortious liability was enforced only by an ordinary civil suit, where the defence of sovereign immunity could apply (Anand, J.).
61. Held: In Nilabati Behera, this Court explained that the sovereign-immunity plea upheld in Kasturi Lal Ralia Ram Jain v. State of U.P., [1965] 1 SCR 375, is confined to the sphere of tort liability (Anand, J.).
62. Held: Tort liability is distinct from the State's liability for contravention of fundamental rights, to which sovereign immunity has no application and is no defence under Articles 32 and 226 (Anand, J.).
63. Held: The claim in public law for compensation for unconstitutional deprivation of the right to life and liberty is a claim based on strict liability (liability that does not require proof of fault or intention). It is additional to the private-law claim for damages for the public servants' tortious acts (Anand, J.).
64. Held: Public-law proceedings serve a different purpose from private-law proceedings. Awarding compensation under Article 21 not only civilises public power but assures citizens that their rights are protected (Anand, J.).
65. Held: The old doctrine of relegating an aggrieved citizen only to a civil suit limits the courts' role too much as protector of indefeasible rights. Monetary compensation is, at times, the only effective remedy to redress the family of a deceased victim, who may have been the family's bread-winner (Anand, J.).
66. Noted: The judgment discusses comparable reasoning from other written constitutions with no express compensation clause. These are the Irish cases The State (at the prosecution of Quinn) v. Ryan, (1965) IR 70, and Byrne v. Ireland, (1972) IR 241 (Anand, J.).
67. Noted: In Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670, the Privy Council interpreted Section 6 of the Constitution of Trinidad and Tobago. Lord Diplock held that an order for compensation, when a right protected under Section 1 has been contravened, is a form of redress available under Section 6(1) and 6(2) (Anand, J.).
68. Noted: Lord Diplock further held that the measure of compensation recoverable under Section 16 is a public-law, not a private-law, measure (Anand, J.).
69. Noted: The New Zealand Court of Appeal's decision in Simpson v. Attorney General (Baigent's case), (1994) NZLR 667, awarded damages for a breach of the New Zealand Bill of Rights Act, 1990, relying partly on Nilabati Behera (Anand, J.).
70. Noted: The judgment quotes Lord Denning's 1949 Hamlyn Lecture, Freedom under the Law, on the need for new remedies — declarations, injunctions and actions for negligence — to check abuse of executive power, in place of the old prerogative writs (Anand, J.).
71. Held: It is now a well-accepted proposition in most jurisdictions that monetary compensation is an effective, and sometimes the only suitable, remedy for an established infringement of the right to life (Anand, J.).
72. Held: The State is vicariously liable (liable for the wrongful acts of its officers, done in the course of their duty), and the citizen must receive compensation from the State, which may then seek indemnity from the wrongdoer (Anand, J.).
73. Held: The emphasis in assessing compensation is compensatory, not punitive; punishing the offender is left to the criminal courts (Anand, J.).
74. Held: The quantum depends on the facts of each case, and no strait-jacket formula can be laid down. Compensation awarded in public law may, in a given case, be adjusted against damages later awarded in a civil suit (Anand, J.).
75. Noted: Before parting with the judgment, the Court records its appreciation of the counsel for the States, and particularly of Dr. A.M. Singhvi, senior counsel, who assisted as amicus curiae (Anand, J.).

Authorities

• Joginder Kumar v. State, [1994] 4 SCC 260 — relied on; the existence of the power of arrest differs from the justification for exercising it; set earlier procedural requirements for arrest which this judgment builds on (Anand, J.).
• Neelabati Behera (Nilabati Behera) v. State of Orissa, [1993] 2 SCC 746 — relied on; held prisoners retain Article 21 rights, and explained that sovereign immunity does not apply to constitutional compensation claims (Anand, J.).
• State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 3 Scale 343 — relied on as an illustrative custodial-death case; convictions restored on the State's appeal, with compensation to the heirs (Anand, J.).
• Miranda v. Arizona, 384 US 436 — referred to; the Fifth Amendment right against self-incrimination cannot be abridged, even against the argument that society needs interrogation (Anand, J.).
• Chambers v. Florida, 309 US 227 — cited within the Miranda passage (Anand, J.).
• Re: Death of Sawinder Singh Grover, [1995] Supp 4 SCC 450 — relied on; suo motu notice of a custodial death in Enforcement Directorate custody, CBI directed to prosecute, interim ex-gratia compensation directed (Anand, J.).
• Rudul Shah v. State of Bihar, [1983] 4 SCC 141 — relied on, among the Court's earlier compensation cases (Anand, J.).
• Sebastian M. Hongrey v. Union of India, [1984] 3 SCC 339 and [1984] 3 SCC 82 — relied on (Anand, J.).
• Bhim Singh v. State of J & K, [1984] Supp SCC 504 and (1985) 4 SCC 677 — relied on (Anand, J.).
• Saheli v. Commissioner of Police, Delhi, [1990] 1 SCC 422 — relied on (Anand, J.).
• Kasturi Lal Ralia Ram Jain v. State of U.P., [1965] 1 SCR 375 — distinguished; its sovereign-immunity holding is confined to ordinary tort liability and does not apply to constitutional compensation (Anand, J.).
• The State (at the prosecution of Quinn) v. Ryan, (1965) IR 70 — referred to; Irish courts developed remedies, including damages, for constitutional-rights breaches (Anand, J.).
• Byrne v. Ireland, (1972) IR 241 — referred to; the Constitution is deemed to create a remedy against the State for breach of a guaranteed right (Anand, J.).
• Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670 — referred to; the Privy Council held monetary compensation to be a form of constitutional redress (Anand, J.).
• Simpson v. Attorney General (Baigent's case), (1994) NZLR 667 — referred to; New Zealand Court of Appeal awarded damages for breach of the Bill of Rights Act, relying partly on Nilabati Behera (Anand, J.).

This source is a scanned OCR text and misprints some of the above names in places: Nilabati Behera v. State of Orissa also appears as Nilabti Behera v. State of Orissa and as Neelabati Bahera v. State D of Orissa; Saheli v. Commissioner of Police also appears as Saheli v. Conunissioner of Police; Byrne v. Ireland also appears as Byme v. Ireland; and Maharaj v. Attorney General of Trinidad and Tobago also appears as Maharaj v. Attomey General of Trinidad and Tobago. All refer to the cases listed above.

Provisions mentioned

• Article 21: no person shall be deprived of life or personal liberty except by procedure established by law; held to include the right to live with human dignity and a guarantee against torture (Anand, J.).
• Article 22: protection against arrest and detention; requires that an arrested person be told the grounds of arrest, be allowed to consult a lawyer, and — under clause (2) — be produced before a Magistrate within 24 hours (Anand, J.).
• Article 20(3): no person accused of an offence can be compelled to be a witness against himself (Anand, J.).
• Articles 32 and 226: the constitutional-remedy jurisdiction under which public-law compensation is awarded (Anand, J.).
• CrPC 1973, Section 41: powers of a police officer to arrest without a warrant in specified circumstances (Anand, J.).
• CrPC 1973, Section 46: the method and manner of arrest (Anand, J.).
• CrPC 1973, Section 49: forbids more restraint than necessary to prevent escape (Anand, J.).
• CrPC 1973, Section 50: the arresting officer must communicate the offence's particulars and the grounds of arrest, and inform the arrestee of the right to bail (Anand, J.).
• CrPC 1973, Sections 53, 54 and 167: further procedural safeguards for the arrested person (Anand, J.).
• CrPC 1973, Section 56: the arrested person must be produced before a Magistrate without unnecessary delay (Anand, J.).
• CrPC 1973, Section 57: echoes the Article 22(2) 24-hour rule for production before a Magistrate (Anand, J.).
• CrPC 1973, Section 176: a Magistrate must hold an inquiry whenever a person dies in police custody (Anand, J.).
• IPC 1860, Section 220: punishes an officer or authority who detains or confines a person with a corrupt or malicious motive (Anand, J.).
• IPC 1860, Sections 330 and 331: punish inflicting hurt or grievous hurt to extort a confession or information; Section 330's illustrations cover police torture to extract a confession (Anand, J.).
• Indian Evidence Act, Section 114-B (recommended, not enacted; printed once in this scanned text as Section 1148): the Law Commission's 113th Report proposed a presumption that a custodial injury was caused by the officer in charge; the amendment was never made law (Anand, J.).
• Article 5, Universal Declaration of Human Rights, 1948: no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Anand, J.).
• Article 9(5), International Covenant on Civil and Political Rights, 1966: a victim of unlawful arrest or detention has an enforceable right to compensation (Anand, J.).
• Police and Criminal Evidence Act, 1984 (England): incorporated the Royal Commission's recommendations and reduced custodial violence there (Anand, J.).

Judgement

1. The police personnel carrying out an arrest and handling interrogation must bear accurate, visible, clear identification and name tags with designations; the particulars of all such personnel must be recorded in a register (Anand, J.).
2. The arresting officer must prepare a memo of arrest at the time of arrest, attested by at least one witness — a family member of the arrestee or a respectable local person. The memo must be countersigned by the arrestee and state the time and date of arrest (Anand, J.).
3. A person arrested or detained is entitled to have one friend, relative, or other interested person informed, as soon as practicable, of the arrest and place of detention, unless the attesting witness is himself that friend or relative (Anand, J.).
4. Where the next friend or relative lives outside the district, the time, place of arrest and venue of custody must be notified to them, through the District Legal Aid Organisation and the local police station, telegraphically, within 8 to 12 hours of arrest (Anand, J.).
5. The arrested person must be made aware of the right to have someone informed, as soon as he is put under arrest or detained (Anand, J.).
6. An entry must be made in the diary at the place of detention, showing the arrest, the next friend informed, and the names of the police officials holding the arrestee in custody (Anand, J.).
7. The arrestee, if he so requests, must be examined at the time of arrest. Any major or minor injuries on the body must be recorded in an Inspection Memo, signed by both the arrestee and the arresting officer, with a copy given to the arrestee (Anand, J.).
8. The arrestee must be medically examined every 48 hours during detention, by a doctor on a panel approved by the Director, Health Services of the State or Union Territory, who must prepare such a panel for every Tehsil and District (Anand, J.).
9. Copies of all documents, including the memo of arrest, must be sent to the area (illaqa) Magistrate for the record (Anand, J.).
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout it (Anand, J.).
11. A police control room must be provided at every district and State headquarters, to which information of the arrest and place of custody must be communicated within 12 hours, and which must display this information on a conspicuous notice board (Anand, J.).
12. Failure to comply with these requirements renders the official concerned liable to departmental action, and also to be punished for contempt of court; contempt proceedings may be instituted in the High Court with territorial jurisdiction (Anand, J.).
13. These requirements flow from Articles 21 and 22(1) and must be strictly followed. They apply with equal force to other governmental agencies, including the Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, CRPF, BSF, CISF, the State Armed Police, the Intelligence Bureau, RAW, CBI, CID, Traffic Police, Mounted Police and ITBP (Anand, J.).
14. These requirements are additional to constitutional and statutory safeguards, and do not detract from other directions given by courts from time to time (Anand, J.).
15. The requirements must be forwarded to the Director General of Police and the Home Secretary of every State and Union Territory, who must circulate them to every police station and have them notified at a conspicuous place. They should also be broadcast on All India Radio, shown on Doordarshan, and publicised through pamphlets in local languages (Anand, J.).
16. No compensation was awarded to any named petitioner or victim in this proceeding; the Court instead laid down general preventive requirements and public-law compensation principles for future application. No order as to costs is recorded. "Petition disposed of." (Anand, J.).

Legal Principle / Ratio

Custodial violence and death in police or other governmental custody violate Article 21, and compensation for such an established violation lies in the Court's public-law jurisdiction under Articles 32 and 226, in addition to any private-law tort suit for damages. This public-law claim rests on strict liability, and the defence of sovereign immunity does not apply to it. The Court laid down eleven mandatory requirements for every arrest and detention as preventive measures, until Parliament legislates, breach of which exposes the official to departmental action and to contempt of court. As the judgment put it: "Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law."

Critical Analysis

Analysis based on the judgment text.

• The quantum of compensation is left open. The Court holds that the quantum will depend on the facts of each case, and that no strait-jacket formula can be evolved. The judgment sets no scale or method for assessing compensation in a future case.
• The Evidence Act amendment remains unenacted. The Court records that the Law Commission's 113th Report recommendation to insert Section 114-B — a presumption shifting the burden of proof for custodial injury — has not been incorporated in the statute. The Court can only invite Parliament's attention to it, leaving the safeguard to depend on judicial guidelines rather than legislation.
• Enforcement of the eleven requirements is limited to departmental action and contempt. The judgment states only that non-compliance renders the official liable for departmental action and for contempt of court. It does not prescribe how promptly these consequences must follow a breach, or who is responsible for monitoring compliance across every police station and agency named.

Significance

• The judgment converts the general Article 21 right to live with human dignity into eleven specific, checkable requirements. These must be followed at the moment of every arrest and detention — from an identifiable, named police officer, to a witnessed memo of arrest, to a District Legal Aid notification, to a control-room record.
• It extends the public-law compensation line begun in Rudul Shah and Nilabati Behera. It explains, through Kasturi Lal, exactly why sovereign immunity — good as a defence to an ordinary tort suit — has no application to a claim for breach of a fundamental right.
• It applies these requirements with equal force beyond the police, to every other governmental agency with powers of detention that it names. This includes the Directorate of Revenue Intelligence, the Enforcement Directorate, CRPF, BSF, CISF, and other intelligence and investigation agencies.
• The Court directed that these requirements be actively publicised — through the Director General of Police and Home Secretary of every State, notices at every police station, All India Radio, Doordarshan, and pamphlets in local languages. Awareness itself becomes part of the remedy against custodial crime.

Exam-Important Points

• Facts in one line: a legal-aid NGO's 1986 letter to the CJI about newspaper reports of custodial deaths was treated as a writ petition; a second letter about a named custodial death was joined to it; decided 18 December 1996 by Kuldip Singh and Dr. A.S. Anand, JJ. (judgment by Anand, J.).
• Holding: custodial violence violates Article 21; public-law compensation is available in addition to a private-law tort suit, and sovereign immunity is no defence to it (distinguishing Kasturi Lal).
• The eleven requirements are the heart of the case — memo of arrest, witness attestation, right to have someone informed, 8-to-12-hour telegraphic notification outside the district, medical examination every 48 hours, control-room record. They bind the police and agencies like CBI, Enforcement Directorate, CRPF, BSF and CISF.
• Classic exam trap: this petition itself awarded no compensation to any named victim — it is a preventive, guideline-laying judgment, not a damages award.
• Two Latin maxims from the judgment: salus populi est suprema lex (the safety of the people is the supreme law) and ubi jus ibi remedium (there is no wrong without a remedy). Know which part of the reasoning each supports — State power to interrogate, versus the case for compensation.
• Non-compliance with the requirements exposes the official to departmental action and contempt of court — two separate consequences, not one.
• Cases to remember alongside this one: Joginder Kumar (existence vs. justification of the power to arrest), Nilabati Behera (public-law compensation for custodial death; sovereign immunity confined to ordinary tort), and Shyamsunder Trivedi (courts must take a realistic, not narrow-technical, approach to custodial-crime evidence).
• The Law Commission's 113th Report recommendation — Section 114-B, Indian Evidence Act, presuming police responsibility for a custodial injury — was never enacted. The Court only invited Parliament's attention to it.

Prepared from the full text of the judgment. This judgment does not number its paragraphs; citations refer to the delivering judge's opinion (Anand, J. for the Bench).