Custodial torture is a calculated
assault on human dignity and whenever human dignity wounded, civilization takes
a step backwards. Using any form of torture for extracting any kind of
information would neither be right nor just nor fair, hence, impermissible, and
offensive to Article 21 of the Constitution. A crime suspect,
declared the court, may be interrogated and subjected to sustained and
scientific interrogation in the manner determined by the provisions of law,
but, no such suspect can be tortured or subjected to third degree methods or
eliminated with a view to eliciting information, extracting a confession or
deriving knowledge about his accomplices, weapons etc. His constitutional right
cannot be abridged except in the manner permitted by law.
D. K. BASU
v. STATE OF WEST BENGAL 2015(8) SCC 744
The SC in this case observed that
the cases of custodial torture and custodial death have increased day by day.
The case came up before the court through a writ petition under Article 32 of
Constitution of India by a NGO. The SC of India developed a custodial
jurisprudence in D. K. BASU v. STATE OF WEST BENGAL (AIR 1997 SC
610).The Supreme Court considered it appropriate to issue the
following requirements to be followed in all cases of arrest or detention till
legal provisions are made in that behalf as preventive measures:
1. The police personnel carrying
out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
2. That the police officer
carrying out the arrest of the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may
be either a member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be counter signed by the
arrestee and shall contain the time and date of arrest.
3. A person who has
been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of
arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest
and venue of custody of an arrestee must be notified by the police where the
next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station of
the area concerned telegraphically within a period of 8 to 12 hours after the
arrest.
5. The person arrested must be
made aware of this right to have someone informed of his arrest or detention as
soon as he is put under arrest or is detained.
6. An entry must be made in the
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 officials in whose
custody the arrestee is.
7. The arrestee should,
where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any present on his/her body, must be recorded at that time.
The "Inspection Memo" must be signed both by the arrestee and the
police officer affecting the arrest and its copy provided to the
arrestee.
8. The arrestee should be
subjected to medical examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned State or Union Territory. Director,
Health Services should prepare such a penal for all Tehsils and Districts as
well.
9. Copies of all the
documents including the memo of arrest, referred to above, should be sent to
the illaqa Magistrate for his record.
10. The arrestee may be
permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
11. A police control room
should be provided at all district and state headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting
the arrest and at the police control room it should be displayed on a
conspicuous notice board.
This case was followed by seven
subsequent orders of the SC and emphasised on effective implementation of its
directions issued in the 1st D. K. BASU. In recent times there is
an increasing concern of the international community above the practice of
torture of prisoners and detenus. Torture is a well established too, of
investigation of the Indian Police despite its ruling in earlier cases and
growing incidence of torture and death in police custody. In this case the
court looked into the recommendations made by Amicus curiae.
India is party to the
International Covenants on Civil and Political Rights and the International
Covenants on Economics Social and Cultural Rights. Section 2 (d) of the
Protection of Human Rights Acts defines human rights and included in its ambit
of both covenants. The establishment of National Human Rights Commissions
of India was a step towards fulfilling its commitment at international level.
It is disturbing to note that even at the 22 years of the establishment of
NHRC, a few Indian states have failed to established State Human Rights
Commission and thus ignore the section 21 of the Protection of Human Rights
Acts. The NHRC has been Advocating for the establishment of SHRC by all the
states so that every citizen of the country has easy and inexpensive recourse
to redress the human rights violation.
In this case the court issued the
direction to the governments of Arunachal Pradesh, Delhi, Meghalaya, Mizoram,
Tripura and Nagaland for early establishment of SHRC. The court also issued
direction for fulfilling of the existing positions in all the existing SHRCs.
It is important to note here that the court should have also looked into the
effectiveness of the commission and its jurisdiction. In many cases it has been
found that NHRC is receiving complaints from specific states even though SHRC
was established in that state but somehow failed to generate trust among the
people about its independence and impartiality. The 3rd recommendation of Amicus curiae was
regarding the establishment of human rights court for each district as
stipulated under section 30 of PHRA. No doubt the establishment of human rights
court would help in speedy disposal of the cases related with human rights
violation. Unfortunately till date only the state of Sikkim has compiled with
the section 30 of PHRA and the other states are observing complete silence in
this regard. The court did not give any dead line for the establishment of
human rights court but suggested that the state government can take up the
matter with the Chief justice of High Court of their respective states and
examine the possibility of establishment of human rights court in their states.
Apart from these recommendations the court also issued directions for the
installation of CCTV cameras in all police stations within 2 years, appointment
of nonofficial visitors to prisons and police station and deployment of at
least two women constable sin each police station where ever such deployment is
considered necessary. The court also directed the state authorities for initiating
of an inquiry to establish culpability in custodial death and an appropriate
prosecution for the commission of such offences as disclosed by the inquiry
report.
The Supreme Court being the guardian of the Constitution it is its
duty to protect human rights of the citizens. Custodial violence , torture and
custodial death strikes a blow to the rule of law which demands that the
police authorities should take care of accused persons while they are under
police custody. Any form of torture or cruel, inhuman or degrading treatment,
would fall within the inhibition of Article 21, whether it occurred during
investigation, interrogation or otherwise.
Author
Professor - School of Law
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