Shri D.K. Basu Vs. State of West Bengal
Email(Under Article 32 of the Constitution of India)
WITH
Writ Petition (CRL.) No. 592 of 1987
(Under Article 32 of the Constitution of India)
WITH
Writ Petition (CRL.) No. 592 of 1987
Tapas Ray, Ms. K. Amareswari, Senior Advocates Dr. A.M. Singhvi,
(A.C.), Mr. Sushil Kumar Jain, Mr. Sudhanshu Atreya, Mr. P.K.
Bansal, Mr. P. Parmeswaran, Mr. R.P. Srivastava, S.K. Nandy,
(I.S. Goyal) Advocate for Ms. Indu Malhotra, Naresh K. Sharma,
Ashok Mathur, Sakesh Kumar, Uma Nath Singh, A.S. Bhasme, D.N.
Mukherjee, Ms. Hemantika Wahi, Kailash Vasdev, Ms. Alpana
Kirpal, Mr. Raj Kumar Mehta, R.S. Suri, Mr. G.K. Bansal, A.S.
Pundir, Mr. Dilip Singh, Mr. Krishnamurthi Swami, Mr. P.K.
Manohar, Mr. G. Prabhakar, M. Veerappa, Ms. S. Janani, Mr. G.
Prakash, Mr. M.T. George, Mr. K.V. Venkataraman, Mr. K.V.
Viswnathan, Mr. B.K. Prasad, T.V.S. Chari, Mr. B.B. Singh, Anip
Sachthey, Mr. M. Raghuraman, Mr. K.R. Nambiar, Indra Makwana, R.
Mohan, Gopal Singh, Ms. Kamini Jaiswal, D.N. Goburdhan, C.V.S.
Rao, Mr. R. Sasiprabhu, S.K. Agnihotri, R.B. Misra, Advocates
with them for the Appearing Parties.
Article 21, 22, 32, – Public interest litigation – Custodial
violence and deaths in police lock-up – Torture by police
strikes a blow at the rule of law – Custodial torture held to
be calculated assault on human dignity and mental agony and
physical pain is causing concern when it is caused by custodial
torture and violates fundamental rights enshrined in Articles
21 & 22 – State must ensure that police and other law
enforcement agencies, Excise and Customs Enforcement Directorate employed for combating crime and terrorism, act within the bounds of law – Need for developing scientific methods of investigation and interrogation of accused – Need for contemporaneous recording and notification of all cases of arrest and detention.
Human Rights
Experience shows worst violations of human rights take place
during course of investigation when police adopt and resort
to third degree to secure confession – Affects credibility of
rule of law and criminal justice.
Rule of law
Custodial violence, torture and third degree methods of
interrogation by police and other agencies violate rule of
law and effect credibility of administration of criminal
justice – Right granted under Article 21 cannot be denied to
under trials convicts, detenues and prisoners in custody – Law
does not justify third degree.
Police Custody
Investigation and interrogation should be purposeful – No third
degree – Transparency of action and accountability – Police
should develop work culture, training and orientation – No
questionable forms of interrogation – Balanced approach
required so that criminals do not scot free – Crime suspect has
to be subjected to sustained and scientific interrogation in
accordance with rule of law – Structuring of appropriate
machinery required for recording and notification of all cases
of arrest and preparation of memo of arrest in the presence of
witness or relation at least for some part of interrogation –
Directions issued to be followed in all cases of arrest,
detention and custody.
Criminal Law
Custodial violence and death in police custody – Need for restructuring of machinery – More transparency and keeping,
recording and notifying each case of arrest, custody, detention
and interrogation – Indian Penal Code Sections 220, 330, 31 –
To repair the wrong done and give judicial redress for legal
injury is a compulsion of judicial conscience.
Compensation
Compensation in proceedings under Article 32, 226 for
established violation of fundamental rights granted under
Article 21 is a desirable for penalising wrong does and fixing
liability on the State when it fails to protect fundamental
rights of citizens – Monetary compensation against the State
is appropriate, effective and sometimes only suitable remedy
for redressal of established infringement of fundamental right
to life from public servants.
Public law Jurisdiction
Award of compensation is without prejudice to any action like
civil suit for damages etc., – Question of compensation
depends on facts and cases of established invasion of
fundamental rights – State required to consider all these
aspects.
no emphasis and, therefore,,to deter breaches thereof becomes a
sacred duty of the Court, as the custodian and protector of the
fundamental and the basic human rights of the citizens.
Custodial violence, including torture and death in the lock ups,
strikes a blow at the Rule of Law, which demands that the powers
of the executive should not only be derived from law but also
that the same should be limited by law. Custodial violence is a
matter of concern. It is aggravated by the fact that it is
committed by persons who are supposed to be the protectors of
the citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up,
the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other law
enforcing officers is a matter of deep concern in a free society.
These petitions raise important issues concerning police powers,
including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by
Articles 21 and 22 of the Constitution of India. The issues are
fundamental.
“Torture” has not been defined in the Constitution or in
other penal laws. ‘Torture’ of a human being by another human
being is essentially an instrument to impose the will of the
‘strong’ over the ‘weak’ by suffering. The word torture today has
become synonymous with the darker side of human civilisation.
No violation of any one of the human rights has been the
subject of so many Conventions and Declarations as ‘torture’- all
aiming at total banning of it in all forms, but inspite of the
commitments made to eliminate torture, the fact remains that
torture is more widespread now than ever before. “Custodial
torture” is a naked violation of human dignity and degradation
which destroys, to a very large extent, the individual
personality. It is a calculated assault on human dignity and
whenever human dignity is wounded, civilisation takes a step
backward – flag of humanity must on each such occasion fly half-
mast.
In all custodial crimes what is of real concern is not only
infliction of body pain but the mental agony which a person
undergoes within the four walls of police station or lock-up.
Whether it is physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview of
law.
“Custodial violence” and abuse of police power is not only
peculiar to this country, but it is widespread. It has been the
concern of international community because the problem is
universal and the challenge is almost global. The Universal
Declaration of Human Rights in 1948, which marked the emergence
of a worldwide trend of protection and guarantee of certain basic
human rights, stipulates in Article 5 that ” No one shall be
subjected to torture or to cruel, inhuman or degrading treatment
or punishment.” Despite the pious declaration, the crime
continues unabated, though every civilised nation shows its
concern and takes steps for its eradication.
Fundamental rights occupy a place of pride in the Indian
Constitution. Article 21 provides “no person shall be deprived
of his life or personal liberty except according to procedure
established by law”. Personal liberty, thus, is a sacred and
cherished right under the Constitution. The expression “life or
personal liberty” has been held to include the right to live
with human dignity and thus it would also include within itself a
guarantee against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest
and detention in certain cases and declares that no person who is
arrested shall be detained in custody without being informed of
the grounds of such arrest and he shall not be denied the right
to consult and defend himself by a legal practitioner of his
choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the
nearest Magistrate within a period of 24 hours of such arrest,
excluding the time necessary for the journey from the place of
arrest to the court of the Magistrate. Article 20(3) of the
Constitution lays down that a person accused of an offence shall
not be compelled to be a witness against himself. These are some
of the constitutional safeguards provided to a person with a view
to protect his personal liberty against any unjustified assault
by the State. In tune with the constitutional guarantee a number
of statutory provisions also seek to protect personal liberty,
dignity and basic human rights of the citizens. Chapter V of
Criminal Procedure Code, 1973 deals with the powers of arrest of
a person and the safeguards which are required to be followed by
the police to protect the interest of the arrested person.
However, inspite of the constitutional and statutory
provisions aimed at safeguarding the personal liberty and life of
a citizen, growing incidence of torture and deaths in police
custody has been a disturbing factor. Experience shows that
worst violations of human rights take place during the course
of investigation, when the police with a view to secure evidence
or confession often resorts to third degree methods including
torture and adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of liberty
merely as a prolonged interrogation. A reading of the morning
newspapers almost everyday carrying reports of dehumanising
torture, assault, rape and death in custody of police or other
governmental agencies is indeed depressing. The increasing
incidence of torture and death in custody has assumed such
alarming proportions that it is affecting the creditability of
the Rule of Law and the administration of criminal justice
system. The community rightly feels perturbed. Soceity’s cry for
justice becomes louder.
Custodial death is perhaps one of the worst crimes in a
civilised society governed by the Rule of Law. The rights
inherent in Articles 21 and 22(1) of the Constitution require to
be jealously and scrupulously protected. We cannot wish away
the problem. Any form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of the
Government become law breakers, it is bound to breed contempt
for law and would encourage lawlessness and every man would have
the tendency to become law unto himself thereby leading to
anarchanism. No civilised nation can permit that to happen.
Does a citizen shed off his fundamental right to life, the moment
a policeman arrests him? Can the right to life of a citizen be
put in abeyance on his arrest? These questions touch the spinal
cord of human rights jurisprudence. The answer, indeed, has to be
an emphatic ‘No’. The precious right guaranteed by Article 21 of
the Constitution of India cannot be denied to convicts, under
trials, detenues and other prisoners in custody, except according
to the procedure established by law by placing such reasonable
restrictions as are permitted by law.
Police is, no doubt, under a legal duty and has legitimate
right to arrest a criminal and to interrogate him during the
investigation of an offence but it must be remembered that the
law does not permit use of third degree methods or torture of
accused in custody during interrogation and investigation with a
view to solve the crime. End cannot justify the means. The
interrogation and investigation into a crime should be in true
sense purposeful to make the investigation effective. By
torturing a person and using third degree methods, the police
would be accomplishing behind the closed doors what the demands
of our legal order forbid. No society can permit it.
How do we check the abuse of police power?
Transparency of action and accountability perhaps are two
possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work
culture, training and orientation of the police force consistent
with basic human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic human
values and made sensitive to the constitutional ethos. Efforts
must be made to change the attitude and approach of the police
personnel handling investigations so that they do not sacrifice
basic human values during interrogation and do not resort to
questionable forms of interrogation. With a view to bring in
transparency, the presence of the counsel of the arrested at some
point of time during the interrogation may deter the police from
using third degree methods during interrogation.
Apart from the police, there are several other governmental
authorities also like Directorate of Revenue Intelligence,
Directorate of Enforcement, Coastal Guard, Central Reserve Police
Force (CRPF), Border Security Force (BSF), the Central Industrial
Security Force (CISF), the State Armed Police, Intelligence
Agencies like the Intelligence Bureau, R.A.W., Central Bureau of
Investigation (CBI), CID, Traffic Police, Mounted Police and
ITBP, which have the power to detain a person and to interrogate
him in connection with the investigation of economic offences,
offences under the Essential Commodities Act, Excise and Customs
Act, Foreign Exchange Regulation Act etc.
There is one other aspect also which needs our
consideration. We are conscious of the fact that the police in
India have to perform a difficult and delicate task, particularly
in view of the deteriorating law and order situation, communal
riots, political turmoil, student unrest, terrorist activities,
and among others the increasing number of underworld and armed
gangs and criminals. Many hard core criminals like extremists,
the terrorists, drug peddlers, smugglers who have organised
gangs, have taken strong roots in the society. It is being said
in certain quarters that with more and more liberalisation and
enforcement of fundamental rights, it would lead to difficulties
in the detection of crimes committed by such categories of
hardened criminals by soft peddling interrogation. It is felt in
those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals
may go scot-free without exposing any element or iota of
criminality with the result, the crime would go unpunished and in
the ultimate analysis the society would suffer. The concern is
genuine and the problem is real. To deal with such a situation,
a balanced approach is needed to meet the ends of justice. This
is all the more so, in view of the expectation of the society
that police must deal with the criminals in an efficient and
effective manner and bring to book those who are involved in the
crime. The cure cannot, however, be worst than the disease
itself.
The right to interrogate the detenues, culprits or arrestees
in the interest of the nation, must take precedence over an
individual’s right to personal liberty. The latin maxim salus
populi est suprema lex (the safety of the people is the supreme
law) and salus republicae est suprema lex (safety of the State is
the supreme law) co-exist and are not only important and relevant
but lie at the heart of the doctrine that the welfare of an
individual must yield to that of the community. The action of the
State, however, must be “right, just and fair”. Using any form of
torture for extracting any kind of information would neither be
‘right nor just nor fair’ and, therefore, would be impermissible,
being offensive to Article 21. Such a crime-suspect must be
interrogated – indeed subjected to sustained and scientific
interrogation – determined in accordance with the provisions of
law. He cannot, however, be tortured or subjected to third
degree methods or eliminated with a view to elicit information,
extract confession or drive knowledge about his accomplices,
weapons etc. His Constitutional right cannot be abridged except
in the manner permitted by law, though in the very nature of
things there would be qualitative difference in the method of
interrogation of such a person as compared to an ordinary
criminal. Challenge of terrorism must be met with innovative
ideas and approach. State terrorism is no answer to combat
terrorism. State terrorism would only provide legitimacy to
‘terrorism’. That would be bad for the State, the community and
above all for the Rule of Law. The State must, therefore, ensure
that various agencies deployed by it for combating terrorism act
within the bounds of law and not become law unto themselves.
That the terrorist has violated human rights of innocent citizens
may render him liable for punishment but it cannot justify the
violation of his human rights except in the manner permitted by
law. Need, therefore, is to develop scientific methods of
investigation and train the investigators properly to interrogate
to meet the challenge.
In addition to the statutory and constitutional
requirements to which we have made a reference, we are of the
view that it would be useful and effective to structure
appropriate machinery for contemporaneous recording and
notification of all cases of arrest and detention to bring in
transparency and accountability. It is desirable that the
officer arresting a person should prepare a memo of his arrest at
the time of arrest in the presence of atleast one witness who may be a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. The date
and time of arrest shall be recorded in the memo which must also
be counter signed by the arrestee.
We, therefore, consider 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 :
Failure to comply with the requirements hereinabove
mentioned shall apart from rendering the concerned official
liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for contempt
of court may be instituted in any High Court of the country,
having territorial jurisdiction over the matter.
The requirements, referred to above flow from Articles 21
and 22(1) of the Constitution and need to be strictly followed.
These would apply with equal force to the other governmental
agencies also to which a reference has been made earlier.
These requirements are in addition to the constitutional
and statutory safeguards and do not detract from various other
directions given by the courts from time to time in connection
with the safeguarding of the rights and dignity of the arrestee.
Some punitive provisions are contained in the Indian Penal
Code which seek to punish violation of right to life. Section
220 provides for punishment to an officer or authority who
detains or keeps a person in confinement with a corrupt or
malicious motive. Sections 330 and 331 provide for punishment of
those who inflict injury or grievous hurt on a person to extort
confession or information in regard to commission of an offence.
Illustrations (a) and (b) to Section 330 make a police officer
guilty of torturing a person in order to induce him to confess
the commission of a crime or to induce him to point out places
where stolen property is deposited. Section 330, therefore,
directly makes torture during interrogation and investigation
punishable under the Indian Penal Code. These statutory
provisions are, however, inadequate to repair the wrong done to
the citizen. Prosecution of the offender is an obligation of the
State in case of every crime but the victim of crime needs to be
compensated monetarily also. The Court, where the infringement
of the fundamental right is established, therefore, cannot stop
by giving a mere declaration. It must proceed further and
give compensatory relief, not by way of damages as in a civil
action but by way of compensation under the public law
jurisdiction for the wrong done, due to breach of public duty by
the State of not protecting the fundamental right to life of the
citizen. To repair the wrong done and give judicial redress for
legal injury is a compulsion of judicial conscience.
The claim in public law for compensation for
unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the
Constitution, is a claim based on strict liability and is in
addition to the claim available in private law for damages for
tortuous acts of the public servants. Public law proceedings
serve a different purpose than the private law proceedings.
Award of compensation for established infringement of the
indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since the
purpose of public law is not only to civilize public power but
also to assure the citizens that they live under a legal system
wherein their rights and interests shall be protected and
preserved. Grant of compensation in proceedings under Article 32
or 226 of the Constitution of India for the established violation
of the fundamental rights guaranteed under Article 21, is an
exercise of the Courts under the public law jurisdiction for
penalising the wrong doer and fixing the liability for the public
wrong on the State which failed in the discharge of its public
duty to protect the fundamental rights of the citizen.
A similar approach of redressing the wrong by award of
monetary compensation against the State for its failure to
protect the fundamental rights of the citizen has been
adopted by the Courts of Ireland, which has a written
constitution, guaranteeing fundamental rights, but which also
like the Indian Constitution contains no provision of remedy for
the infringement of those rights. That has, however, not
prevented the Courts in Ireland from developing remedies,
including the award of damages, not only against individuals
guilty of infringement, but against the State itself.
Thus, to sum up, it is now a well accepted proposition in
most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for redressal of the
established infringement of the fundamental right to life of a
citizen by the public servants and the State is vicariously
liable for their acts. The claim of the citizen is based on the
principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount
of compensation from the State, which shall have the right to be
indemnified by the wrong doer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on punitive
element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be
left to the criminal courts in which the offender is prosecuted,
which the State, in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without
prejudice to any other action like civil suit for damages which
is lawfully available to the victim or the heirs of the deceased
victim with respect to the same matter for the tortuous act
committed by the functionaries of the State. The quantum of
compensation will, of course, depend upon the peculiar facts of
each case and no strait jacket formula can be evolved in that
behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the
public law jurisdiction is, thus, in addition to the traditional
remedies and not in derrogation of them. The amount of
compensation as awarded by the Court and paid by the State to
redress the wrong done, may in a given case, be adjusted against
any amount which may be awarded to the claimant by way of damages
in a civil suit.
(Para 9, 10, 11, 12, 13, 17, 18, 22, 29, 30, 31, 32, 34, 35, 36,
37, 38, 39, 41, 44, 47 & 54)
(4) SC 445 (Para 24)
2.Joginder Kumar v. State 1994 (4) SCC, 260 (Para 20)
3.Neelabati Bahera v. State of Orissa JT 1993 (2) SC 503 = 1993
(2) SCC, 746 (Para 23)
4.Saheli v. Commissioner of Police, Delhi JT 1989 (4) SC 553 =
1990 (1) SCC 422 (Para 42)
5.Bhim Singh v. Stateof J & K 1984(Supp) SCC 504 = 1985(4) SCC
677 (Para 42)
6.Sebastian M. Hongrey v. Union of India 1984 (3) SCC 339 (Para
42)
7.Rudal Shah v. State of Bihar 1983 (4) SCC 141 (Para 42)
8.Kasturi Lal Ralia Ram Jain v. State of U.P. (1965 (1) SCR,
375 (Para 42)
1. The Executive Chairman, Legal Aid Services, West Bengal, a
non-political organisation registered under the Societies
Registration Act, on 26th August, 1986 addressed a letter to
the Chief Justice of India drawing his attention to certain
news items published in the Telegraph dated 20, 21 and 22 of
July, 1986 and in the Statesman and Indian Express dated 17th
August, 1986 regarding deaths in police lock-ups and custody.
The Executive Chairman after reproducing the news items submitted
that it was imperative to examine the issue in depth and to
develop “custody jurisprudence” and formulate modalities for
awarding compensation to the victim and/or family members of the
victim for attrocities and death caused in police custody and to
provide for accountability of the officers concerned. It was also
stated in the letter that efforts are often made to hush up the
matter of lock-up deaths and thus the crime goes unpunished and
“flourishes”. It was requested that the letter alongwith the
news items be treated as a writ petition under “public interest
litigation” category.
2. Considering the importance of the issue raised in the
letter and being concerned by frequent complaints regarding
custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to
the respondents.
3. In response to the notice, the State of West Bengal filed a
counter. It was maintained that the police was not hushing up
any matter of lock-up death and that wherever police personnel
were found to be responsible for such death, action was being
initiated against them. The respondents characterised the writ
petition as misconceived, misleading and untenable in law.
4. While the writ petition was under consideration a letter
addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble
Chief Justice of India drawing the attention of this Court to the
death of one Mahesh Bihari of Pilkhana, Aligarh in police custody
was received. That letter was also treated as a writ petition
and was directed to be listed alongwith the writ petition filed
by Shri D.K. Basu. On 14.8.1987 this Court made the following
order :
“In almost every states there are allegations and these
allegations are now increasing in frequency of deaths in
custody described generally by newspapers as lock-up deaths.
At present there does not appear to be any machinery to
effectively deal with such allegations. Since this is an all
India question concerning all States, it is desirable to issue
notices to all the State Governments to find out whether they
are desire to say anything in the matter. Let notices
issue to all the State Governments. Let notice also issue to
the Law Commission of India with a request that suitable
suggestions may be made in the matter. Notice be made
returnable in two months from today.”
5. In response to the notice, affidavits have been filed on
behalf of the States of West Bengal, Orissa, Assam, Himachal
Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya,
Maharashtra and Manipur. Affidavits have also been filed on
behalf of Union Territory of Chandigarh and the Law Commission of
India.
6. During the course of hearing of the writ petitions, the
Court felt necessity of having assistance from the Bar and Dr.
A.M. Singhvi, senior advocate was requested to assist the Court
as amicus cuarie.
7. Learned counsel appearing for different States and Dr.
Singhvi, as a friend of the court, presented the case ably and
though the effort on the part of the States initially was to show
that “everything was well” within their respective States,
learned counsel for the parties, as was expected of them in view
of the importance of the issue involved, rose above their
respective briefs and rendered useful assistance to this Court in
examining various facets of the issue and made certain
suggestions for formulation of guidelines by this Court to minimise, if not prevent, custodial violence and for award of
compensation to the victims of custodial violence and the kith
and kin of those who die in custody on account of torture.
8. The Law Commission of India also in response to the notice
issued by this Court forwarded a copy of the 113th Report
regarding “Injuries in police custody and suggested incorporation
of Section 114-B in the Indian Evidence Act.”
9. The importance of affirmed rights of every human being need
no emphasis and, therefore,,to deter breaches thereof becomes a
sacred duty of the Court, as the custodian and protector of the
fundamental and the basic human rights of the citizens.
Custodial violence, including torture and death in the lock ups,
strikes a blow at the Rule of Law, which demands that the powers
of the executive should not only be derived from law but also
that the same should be limited by law. Custodial violence is a
matter of concern. It is aggravated by the fact that it is
committed by persons who are supposed to be the protectors of
the citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up,
the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other law
enforcing officers is a matter of deep concern in a free society.
These petitions raise important issues concerning police powers,
including whether monetary compensation should be awarded for
established infringement of the Fundamental Rights guaranteed by
Articles 21 and 22 of the Constitution of India. The issues are
fundamental.
10. “Torture” has not been defined in the Constitution or in
other penal laws. ‘Torture’ of a human being by another human
being is essentially an instrument to impose the will of the
‘strong’ over the ‘weak’ by suffering. The word torture today has
become synonymous with the darker side of human civilisation.
“Torture is a wound in the soul so painful that sometimes you
can almost touch it, but it is also so intangible that there is
no way to heal it. Torture is anguish squeezing in your chest,
cold as ice and heavy as a stone paralyzing as sleep and dark
as the abyss. Torture is despair and fear and rage and hate.
It is a desire to kill and destroy including yourself.”
– Adriana P. Bartow
11. No violation of any one of the human rights has been the
subject of so many Conventions and Declarations as ‘torture’- all
aiming at total banning of it in all forms, but inspite of the
commitments made to eliminate torture, the fact remains that
torture is more widespread now than ever before. “Custodial
torture” is a naked violation of human dignity and degradation
which destroys, to a very large extent, the individual
personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step
backward – flag of humanity must on each such occasion fly half-
mast.
12. In all custodial crimes what is of real concern is not only
infliction of body pain but the mental agony which a person
undergoes within the four walls of police station or lock-up.
Whether it is physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview of
law.
13. “Custodial violence” and abuse of police power is not only
peculiar to this country, but it is widespread. It has been the
concern of international community because the problem is
universal and the challenge is almost global. The Universal
Declaration of Human Rights in 1948, which marked the emergence
of a worldwide trend of protection and guarantee of certain basic
human rights, stipulates in Article 5 that ” No one shall be
subjected to torture or to cruel, inhuman or degrading treatment
or punishment.” Despite the pious declaration, the crime
continues unabated, though every civilised nation shows its
concern and takes steps for its eradication.
14. In England, torture was once regarded as a normal practice
to get information regarding the crime, the accomplices and the
case property or to extract confessions, but with the development
of common law and more radical ideas imbibing human thought and
approach, such inhuman practices were initially discouraged and
eventually almost done away with, certain aberrations here and
there notwithstanding. The police powers of arrest, detention and
interrogation in England were examined in depth by Sir Cyril
Philips Committee – ‘Report of a Royal Commission on Criminal
Procedure’ (Command -Papers 8092 of 1981). The report of the
Royal Commission is, instructive. In regard to the power of
arrest, the Report recommended that the power to arrest without
a warrant must be related to and limited by the object to be
served by the arrest, namely, to prevent the suspect from
destroying evidence or interfering with witnesses or warning
accomplices who have not yet been arrested or where there is a
good reason to suspect the repetition of the offence and not to
every case irrespective of the object sought to be achieved.
15. The Royal Commission suggested certain restrictions on the
power of arrest on the basis of the ‘necessity principle’. The
Royal Commission said :
“….. we recommend that detention upon arrest for an offence
should continue only on one or more of the following criteria :
(a) the person’s unwillingness to identify himself so that a
summons may be served upon him;
(b) the need to prevent the continuation or repetition of that
offence;
(c) the need to protect the arrested person himself or other
persons or property;
(d) the need to secure or preserve evidence of or relating to
that offence or to obtain such evidence from the suspect by
questioning him; and
(e) the likelihood of the person failing to appear at court to
answer any charge made against him.”
The Royal Commission also suggested :
“To help to reduce the use of arrest we would also propose the
introduction here of a scheme that is used in Ontario enabling
a police officer to issue what is called an appearance notice.
That procedure can be used to obtain attendance at the police
station without resorting to arrest provided a power to arrest
exists, for example to be finger printed or to participate in
an identification parade. It could also be extended to
attendance for interview at a time convenient both to the
suspect and to the police officer investigating the
case…..”
16. The power of arrest, interrogation and detention has now
been streamlined in England on the basis of the suggestions made
by the Royal Commission and incorporated in Police and Criminal
Evidence Act, 1984 and the incidence of custodial violence has
been minimised there to a very great extent.
17. Fundamental rights occupy a place of pride in the Indian
Constitution. Article 21 provides “no person shall be deprived
of his life or personal liberty except according to procedure
established by law”. Personal liberty, thus, is a sacred and
cherished right under the Constitution. The expression “life or
personal liberty” has been held to include the right to live
with human dignity and thus it would also include within itself a
guarantee against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest
and detention in certain cases and declares that no person who is
arrested shall be detained in custody without being informed of
the grounds of such arrest and he shall not be denied the right
to consult and defend himself by a legal practitioner of his
choice. Clause (2) of Article 22 directs that the person
arrested and detained in custody shall be produced before the
nearest Magistrate within a period of 24 hours of such arrest,
excluding the time necessary for the journey from the place of
arrest to the court of the Magistrate. Article 20(3) of the
Constitution lays down that a person accused of an offence shall
not be compelled to be a witness against himself. These are some
of the constitutional safeguards provided to a person with a view
to protect his personal liberty against any unjustified assault
by the State. In tune with the constitutional guarantee a number
of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of
Criminal Procedure Code, 1973 deals with the powers of arrest of
a person and the safeguards which are required to be followed by
the police to protect the interest of the arrested person.
Section 41, Cr.P.C. confers powers on any police officer to
arrest a person under the circumstances specified therein without
any order or a warrant of arrest from a Magistrate. Section 46
provides the method and manner of arrest. Under this Section no
formality is necessary while arresting a person. Under Section
49, the police is not permitted to use more restraint than is
necessary to prevent the escape of the person. Section 50 enjoins
every police officer arresting any person without warrant to
communicate to him the full particulars of the offence for which
he is arrested and the grounds for such arrest. The police
officer is further enjoined to inform the person arrested that he
is entitled to be released on bail and he may arrange for
sureties in the event of his arrest for a non-bailable offence.
Section 56 contains a mandatory provision requiring the police
officer making an arrest without warrant to produce the arrested
person before a Magistrate without unnecessary delay and Section
57 echoes Clause (2) of Article 22 of the Constitution of India.
There are some other provisions also like Sections 53, 54 and 167
which are aimed at affording procedural safeguards to a person
arrested by the police. Whenever a person dies in custody of the
police, Section 176 requires the Magistrate to hold an enquiry
into the cause of death.
18. However, inspite of the constitutional and statutory
provisions aimed at safeguarding the personal liberty and life of
a citizen, growing incidence of torture and deaths in police
custody has been a disturbing factor. Experience shows that
worst violations of human rights take place during the course
of investigation, when the police with a view to secure evidence
or confession often resorts to third degree methods including
torture and adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of liberty
merely as a prolonged interrogation. A reading of the morning
newspapers almost everyday carrying reports of dehumanising
torture, assault, rape and death in custody of police or other
governmental agencies is indeed depressing. The increasing
incidence of torture and death in custody has assumed such
alarming proportions that it is affecting the creditability of
the Rule of Law and the administration of criminal justice
system. The community rightly feels perturbed. Soceity’s cry for
justice becomes louder.
19. The Third Report of the National Police Commission in India
expressed its deep concern with custodial violence and lock-up
deaths. It appreciated the demoralising effect which custodial
torture was creating on the society as a whole. It made some very
useful suggestions. It suggested :
“…. An arrest during the investigation of a cognizable case
may be considered justified in one or other of the following circumstances :-
(i) The case involves a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused
and bring his movements under restraint to infuse confidence
among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes
of law.
(iii) The accused is given to violent behaviour and is likely
to commit further offences unless his movements are brought
under restraint.
(iv) The accused is a habitual offender and unless kept in
custody he is likely to commit similar offences again. It
would be desirable to insist through departmental instructions
that a police officer making an arrest should also record in
the case diary the reasons for making the arrest, thereby
clarifying his conformity to the specified guidelines……”
The recommendations of the Police Commission (supra) reflect the
constitutional concomitants of the fundamental right to personal
liberty and freedom. These recommendations, however, have not
acquired any statutory status so far.
20. This Court in Joginder Kumar v. State (1994 (4) SCC, 260)
(to which one of us, namely, Anand, J. was a party) considered
the dynamics of misuse of police power of arrest and opined :
“No arrest can be made because it is lawful for the police
officer to do so. The existence of the power of arrest is one
thing. The justification for the exercise of it is quite
another…. No arrest should be made without a reasonable
satisfaction reached after some investigation about the
genuineness and bonafides of a complaint and a reasonable
belief both as to the person’s complicity and even so as to
the need to effect arrest. Denying a person his liberty is a
serious matter.”
21. Joginder Kumar’s case (supra) involved arrest of a
practising lawyer who had been called to the police station in
connection with a case under inquiry on 7.1.94. On not receiving
any satisfactory account of his whereabouts, the family members
of the detained lawyer preferred a petition in the nature of
habeas corpus before this Court on 11.1.94 and in compliance with
the notice, the lawyer was produced on 14.1.94 before this Court.
The police version was that during 7.1.94 and 14.1.94 the lawyer
was not in detention at all but was only assisting the police to
detect some cases. The detenue asserted otherwise. This Court
was not satisfied with the police version. It was noticed that
though as on that day the relief in habeas corpus petition could not be granted but the questions whether there had been any need
to detain the lawyer for 5 days and if at all he was not in
detention then why was this Court not informed, were important
questions which required an answer. Besides, if there was
detention for 5 days, for what reason was he detained. The
Court, therefore, directed the District Judge, Ghaziabad to make
a detailed enquiry and submit his report within 4 weeks. The
Court voiced its concern regarding complaints of violations of
human rights during and after arrest. It said :
“The horizon of human rights is expanding. At the same time,
the crime rate isalso increasing. Of late, this Court has been
receiving complaints about violations of human rights because
of indiscriminate arrests. How are we to strike a balance
between the two?
……….. …….. ……….
A realistic approach should be made in this direction.
The law of arrest is one of balancing individual rights,
liberties and privileges, on the one hand, and individual
duties, obligations and responsibilities on the other; of
weighing and balancing the rights, liberties and privileges
of the single individual and those of individuals
collectively; of simply deciding what is wanted and where to
put the weight and the emphasis; of deciding which comes
first – the criminal or society, the law violator or the
abider ….”
This Court then set down certain procedural “requirements” in
cases of arrest.
22. Custodial death is perhaps one of the worst crimes in a
civilised society governed by the Rule of Law. The rights
inherent in Articles 21 and 22(1) of the Constitution require to
be jealously and scrupulously protected. We cannot wish away
the problem. Any form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of the
Government become law breakers, it is bound to breed contempt
for law and would encourage lawlessness and every man would have
the tendency to become law unto himself thereby leading to
anarchanism. No civilised nation can permit that to happen.
Does a citizen shed off his fundamental right to life, the moment
a policeman arrests him? Can the right to life of a citizen be
put in abeyance on his arrest? These questions touch the spinal
cord of human rights jurisprudence. The answer, indeed, has to be
an emphatic ‘No’. The precious right guaranteed by Article 21 of
the Constitution of India cannot be denied to convicts, under
trials, detenues and other prisoners in custody, except according
to the procedure established by law by placing such reasonable
restrictions as are permitted by law.
23. In Neelabati Bahera v. State of Orissa (JT 1993 (2) SC 503
= 1993 (2) SCC, 746), (to which Anand, J. was a party) this Court
pointed out that prisoners and detenues are not denuded of their
fundamental rights under Article 21 and it is only such
restrictions as are permitted by law, which can be imposed on the
enjoyment of the fundamental rights of the arrestees and
detenues. It was observed :
“It is axiomatic that convicts, prisoners or under trials are
not denuded of their fundamental rights under Article 21 and it
is only such restrictions, as are permitted by law, which can
be imposed on the enjoyment of the fundamental right by such
persons. It is an obligation of the State to ensure that there
is no infringement of the indefeasible rights of a citizen to
life, except in accordance with law, while the citizen is in
its custody. The precious right guaranteed by Article 21 of
the Constitution of India cannot be denied to convicts, under
trials or other prisoners in custody, except according to
procedure established by law. There is a great responsibility
on the police or prison authorities to ensure that the citizen
in its custody is not deprived of his right to life. His
liberty is in the very nature of things circumscribed by the
very fact of his confinement and therefore his interest in the
limited liberty left to him is rather precious. The duty of
care on the part of the State is strict and admits of no
exceptions. The wrongdoer is accountable and the State is
responsible if the person in custody of the police is deprived
of his life except according to the procedure established by
law.
24. Instances have come to our notice where the police has
arrested a person without warrant in connection with the
investigation of an offence, without recording the arrest, and
the arrested person has been subjected to torture to extract
information from him for the purpose of further investigation or
for recovery of case property or for extracting confession etc.
The torture and injury caused on the body of the arrestee has
sometimes resulted into his death. Death in custody is not
generally shown in the records of the lock-up and every effort is
made by the police to dispose of the body or to make out a case
that the arrested person died after he was released from custody.
Any complaint against such torture or death is generally not
given any attention by the police officers because of ties of
brotherhood. No first information report at the instance of the
victim or his kith and kin is generally entertained and even the
higher police officers turn a blind eye to such complaints. Even
where a formal prosecution is launched by the victim or his kith
and kin, no direct evidence is available to substantiate the
charge of torture or causing hurt resulting into death, as the
police lock-up where generally torture or injury is caused is
away from the public gaze and the witnesses are either
police men or co-prisoners who are highly reluctant to appear as prosecution witnesses due to fear of retaliation by the superior
officers of the police. It is often seen that when a complaint
is made against torture, death or injury, in police custody, it
is difficult to secure evidence against the policemen responsible
for resorting to third degree methods since they are incharge of
police station records which they do not find difficult to
manipulate. Consequently, prosecution against the delinquent
officers generally results in acquittal. State of Madhya Pradesh
v. Shyamsunder Trivedi & Ors.( JT 1995 (4) SC 445 = 1995 (3)
Scale, 343 = ) is an apt case illustrative of the observations
made by us above. In that case, Nathu Banjara was tortured at
police station, Rampura during the interrogation. As a result of
extensive injuries caused to him he died in police custody at the
police station. The defence set up by the respondent police
officials at the trial was that Nathu had been released from
police custody at about 10.30 p.m. after interrogation on
13.10.1986 itself vide entry Ex. P/22A in the Roznamcha and that
at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was
recorded at the police station, Rampura, at the instance of
Ramesh respondent NO. 6, to the effect that he had found “one
unknown person” near a tree by the side of the tank riggling with
pain in his chest and that as soon as respondent No. 6 reached
near him, the said person died. The further case set up by SI
Trivedi, respondent No. 1, incharge of the police station was
that after making a Roznamcha entry at 7.00 a.m. about his
departure from the police station he (respondent No. 1-
Shyamsunder Trivedi) and Constable Rajaram respondent proceeded
to the spot where the dead body was stated to be lying for
conducting investigation under Section 174 Cr.P.C. He summoned
Ramesh Chandra and Goverdhan respondents to the spot and in their
presence prepared a panchnama Ex. P/27 of the dead body recording
the opinion therein to the effect that no definite cause of death
was known.
25. The First Additional Sessions Judge acquitted all the
respondents of all the charges holding that there was no direct
evidence to connect the respondents with the crime. The State of
Madhya Pradesh went up in appeal against the order of acquittal
and the High Court maintained the acquittal of respondents 2 to
7 but set aside the acquittal of respondent No. 1, Shyamsunder
Trivedi for offences under Section 218, 201 and 342 IPC. His
acquittal for the offences under Section 302/149 and 147 IPC was,
however, maintained. The State filed an appeal in this Court by
special leave. This Court found that the following
circumstances had been established by the prosecution beyond
every reasonable doubt and coupled with the direct evidence of
PWs 1, 3,4, 8 and 18 those circumstances were consistent only
with the hypothesis of the guilt of the respondents and were
inconsistent with their innocence :
(a) that the deceased had been brought alive to the police
station and was last seen alive there on 13.10.81;
(b) that the dead body of the deceased was taken out of the police station on 14.10.81 at about 2 p.m. for being removed to
the hospital;
(c) that SI Trivedi respondent No. 1, Ram Naresh Shukla,
Respondent No. 3, RajaRam, respondent No. 4 and Ganiuddin
respondent No. 5 were present at the police station and had all
joined hands to dispose of the dead body of Nathu – Banjara;
(d) that SI Trivedi, respondent No. 1 created false evidence
and fabricated false clues in the shape of documentary evidence
with a view to screen the offence and for that matter, the
offender;
(e) SI Trivedi respondent in connivance with some of his
subordinates, respondents herein had taken steps to cremate the
dead body in hot haste describing the deceased as a ‘lavaris’
though the identity of the deceased, when they had
interrogated for a sufficient long time was well known to
them
and opined that :
“The observations of the High Court that the presence and
participation of these respondents in the crime is doubtful are
not borne out from the evidence on the record and appear to be
an unrealistic over simplification of the tell tale
circumstances established by the prosecution.”
26. One of us (namely, Anand, J.) speaking for the Court went
on to observe :
The trial court and the High Court, if we may say so with
respect, exhibited a total lack of sensitivity and a ‘could not
careless’ attitude in appreciating the evidence on the record
and thereby condoning the barbarous third degree methods which
are still being used, at some police stations, despite being
illegal. The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt, by the
prosecution, ignoring the ground realities, the fact situations
and the peculiar circumstances of a given case, as in the
present case, often results in miscarriage of justice and makes
the justice delivery system a suspect. In the ultimate
analysis the society suffers and a criminal gets encouraged.
Tortures in police custody, which of late are on the increase,
receive encouragement by this type of an unrealistic approach
of the Courts because it reinforces the belief in the mind of
the police that no harm would come to them, if an odd prisoner
dies in the lock-up, because there would hardly be any evidence
available to the prosecution to directly implicate them with
the torture. The Courts, must not loose sight of the fact that
death in police custody is perhaps one of the worst kind of crime in a civilised society, governed by the rule of law and
poses a serious threat to an orderly civilised society.”
This Court then suggested :
The Courts are also required to have a change in their outlook
and attitude, particularly in cases involving custodial crimes
and they should exhibit more sensitivity and adopt a realistic
rather than a narrow technical approach, while dealing with the
cases of custodial crime so that as far as possible within
their powers, the guilty should not escape so that the victim
of the crime has the satisfaction that ultimately the Majesty
of Law has prevailed.”
27. The State appeal was allowed and the acquittal of
respondents 1, 3, 4 and 5 was set aside. The respondents were
convicted for various offences including the offence under
Section 304 Part II/34 IPC and sentenced to various terms of
imprisonment and fine ranging from Rs. 20,000/- to Rs. 50,000/-.
The fine was directed to be paid to the heirs of Nathu Banjara by
way of compensation. It was further directed :
“The Trial Court shall ensure, in case the fine is deposited by
the accused respondents, that the payment of the same is made
to the heirs of deceased Nathu Banjara, and the Court shall
take all such precautions as are necessary to see that the
money is not allowed to fall into wrong hands and is utilised
for the benefit of the members of the family of the deceased
Nathu Banjara, and if found practical by deposit in
Nationalised Bank or post office on such terms as the Trial
Court may in consultation with the heirs for the deceased
consider fit and proper.”
28. It needs no emphasis to say that when the crime goes
unpunished, the criminals are encouraged and the society
suffers. The victim of crime or his kith and kin become
frustrated and contempt for law develops. It was considering
these aspects that the Law Commission in its 113th Report
recommended the insertion of Section 114B in the Indian Evidence
Act. The Law Commission recommended in its 113th Report that in
prosecution of a police officer for an alleged offence of having
caused bodily injury to a person, if there was evidence that the
injury was caused during the period when the person was in the
custody of the police, the Court may presume that the injury was
caused by the police officer having the custody of that person
during that period. The Commission further recommended that the
court, while considering the question of presumption, should have
regard to all relevant circumstances including the period of
custody, statement made by the victim, medical evidence and the
evidence which the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In Shyam Sunder Trivedi’s case
(supra) this Court also expressed the hope that the Government
and the legislature would give serious thought to the
recommendation of the Law Commission. Unfortunately, the
suggested amendment, has not been incorporated in the statute
so far. The need of amendment requires no emphasis – sharp rise
in custodial violence, torture and death in custody, justifies
the urgency for the amendment and we invite Parliament’s
attention to it.
29. Police is, no doubt, under a legal duty and has legitimate
right to arrest a criminal and to interrogate him during the
investigation of an offence but it must be remembered that the
law does not permit use of third degree methods or torture of
accused in custody during interrogation and investigation with a
view to solve the crime. End cannot justify the means. The
interrogation and investigation into a crime should be in true
sense purposeful to make the investigation effective. By
torturing a person and using third degree methods, the police
would be accomplishing behind the closed doors what the demands
of our legal order forbid. No society can permit it.
30. How do we check the abuse of police power?
Transparency of action and accountability perhaps are two
possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work
culture, training and orientation of the police force consistent
with basic human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic human
values and made sensitive to the constitutional ethos. Efforts
must be made to change the attitude and approach of the police
personnel handling investigations so that they do not sacrifice
basic human values during interrogation and do not resort to
questionable forms of interrogation. With a view to bring in
transparency, the presence of the counsel of the arrestee at some
point of time during the interrogation may deter the police from
using third degree methods during interrogation.
31. Apart from the police, there are several other governmental
authorities also like Directorate of Revenue Intelligence,
Directorate of Enforcement, Coastal Guard, Central Reserve Police
Force (CRPF), Border Security Force (BSF), the Central Industrial
Security Force (CISF), the State Armed Police, Intelligence
Agencies like the Intelligence Bureau, R.A.W., Central Bureau of
Investigation (CBI), CID, Traffic Police, Mounted Police and
ITBP, which have the power to detain a person and to interrogate
him in connection with the investigation of economic offences,
offences under the Essential Commodities Act, Excise and Customs
Act, Foreign Exchange Regulation Act etc. There are instances of
torture and death in custody of these authorities as well. In Re
Death of Sawinder Singh Grover (1995 Supp (4) SCC,450), (to which
Kuldip Singh, J. was a party) this Court took suo moto notice of
the death of Sawinder Singh Grover during his custody with the
Directorate of Enforcement. After getting an enquiry conducted
by the Additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the
CBI to lodge a FIR and initiate criminal proceedings against all
persons named in the report of the Additional District Judge and
proceed against them. The Union of India/Directorate of
Enforcement was also directed to pay a sum of Rs. 2 lacs to the
widow of the deceased by way of ex gratia payment at the interim
stage. Amendment of the relevant provisions of law to protect
the interest of arrested persons in such cases too is a genuine
need.
32. There is one other aspect also which needs our
consideration. We are conscious of the fact that the police in
India have to perform a difficult and delicate task, particularly
in view of the deteriorating law and order situation, communal
riots, political turmoil, student unrest, terrorist activities,
and among others the increasing number of underworld and armed
gangs and criminals. Many hard core criminals like extremists,
the terrorists, drug peddlers, smugglers who have organised
gangs, have taken strong roots in the society. It is being said
in certain quarters that with more and more liberalisation and
enforcement of fundamental rights, it would lead to difficulties
in the detection of crimes committed by such categories of
hardened criminals by soft peddling interrogation. It is felt in
those quarters that if we lay too much of emphasis on protection
of their fundamental rights and human rights, such criminals
may go scot-free without exposing any element or iota of
criminality with the result, the crime would go unpunished and in
the ultimate analysis the society would suffer. The concern is
genuine and the problem is real. To deal with such a situation,
a balanced approach is needed to meet the ends of justice. This
is all the more so, in view of the expectation of the society
that police must deal with the criminals in an efficient and
effective manner and bring to book those who are involved in the
crime. The cure cannot, however, be worst than the disease
itself.
33. The response of the American Supreme Court to such an
issue in Miranda v. Arizona, 384 US 436 is instructive. The
Court said :
“A recurrent argument, made in these cases is that society’s
need for interrogation out-weighs the privilege. This argument
is not unfamiliar to this Court. See. e.g., Chambers v.
Florida, 309 US 227, 240-41, 84 L ed 716, 724, 60 S Ct 472
(1940). The whole thrust of our foregoing discussion
demonstrates that the Constitution has prescribed the rights
of the individual when confronted with the power of
Government when it provided in the Fifth Amendment that an
individual cannot be compelled to be a witness against
himself. That right cannot be abridged.”
(Emphasis ours)
34. There can be no gain saying that freedom of an individual
must yield to the security of the State. The right of preventive
detention of individuals in the interest of security of the State
in various situations prescribed under different statutes has
been upheld by the Courts. The right to interrogate the
detenues, culprits or arrestees in the interest of the nation,
must take precedence over an individual’s right to personal
liberty. The latin maxim salus populi est suprema lex (the
safety of the people is the supreme law) and salus republicae est
suprema lex (safety of the State is the supreme law) co-exist and
are not only important and relevant but lie at the heart of the
doctrine that the welfare of an individual must yield to that of
the community. The action of the State, however, must be “right,
just and fair”. Using any form of torture for extracting any kind
of information would neither be ‘right nor just nor fair’ and,
therefore, would be impermissible, being offensive to Article 21.
Such a crime-suspect must be interrogated – indeed subjected to
sustained and scientific interrogation – determined in accordance
with the provisions of law. He cannot, however, be tortured or
subjected to third degree methods or eliminated with a view to
elicit information, extract confession or drive knowledge about
his accomplices, weapons etc. His Constitutional right cannot be
abridged except in the manner permitted by law, though in the
very nature of things there would be qualitative difference in
the method of interrogation of such a person as compared to an
ordinary criminal. Challenge of terrorism must be met with
innovative ideas and approach. State terrorism is no answer to
combat terrorism. State terrorism would only provide legitimacy
to ‘terrorism’. That would be bad for the State, the community
and above all for the Rule of Law. The State must, therefore,
ensure that various agencies deployed by it for combating
terrorism act within the bounds of law and not become law unto
themselves. That the terrorist has violated human rights of
innocent citizens may render him liable for punishment but it
cannot justify the violation of his human rights except in the
manner permitted by law. Need, therefore, is to develop
scientific methods of investigation and train the investigators
properly to interrogate to meet the challenge.
35. In addition to the statutory and constitutional
requirements to which we have made a reference, we are of the
view that it would be useful and effective to structure
appropriate machinery for contemporaneous recording and
notification of all cases of arrest and detention to bring in
transparency and accountability. It is desirable that the
officer arresting a person should prepare a memo of his arrest at
the time of arrest in the presence of atleast one witness who
may be a member of the family of the arresteee or a respectable
person of the locality from where the arrest is made. The date
and time of arrest shall be recorded in the memo which must also
be counter signed by the arrestee.
36. We, therefore, consider 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 atleast 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 effecting 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 of 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.
37. Failure to comply with the requirements hereinabove
mentioned shall apart from rendering the concerned official
liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for contempt
of court may be instituted in any High Court of the country,
having territorial jurisdiction over the matter.
38. The requirements, referred to above flow from Articles 21
and 22(1) of the Constitution and need to be strictly followed.
These would apply with equal force to the other governmental
agencies also to which a reference has been made earlier.
39. These requirements are in addition to the constitutional
and statutory safeguards and do not detract from various other
directions given by the courts from time to time in connection
with the safeguarding of the rights and dignity of the arrestee.
40. The requirements mentioned above shall be forwarded to the
Director General of Police and the Home Secretary of every
State/Union Territory and it shall be their obligation to
circulate the same to every police station under their charge and
get the same notified at every police station at a conspicuous
place. It would also be useful and serve larger interest to
broadcast the requirements on the All India Radio besides being
shown on the National network of Doordarshan and by publishing
and distributing pamphlets in the local language containing these
requirements for information of the general public. Creating
awareness about the rights of the arrestee would in our opinion
be a step in the right direction to combat the evil of custodial
crime and bring in transparency and accountability. It is hoped
that these requirements would help to curb, if not totally
eliminate, the use of questionable methods during interrogation
and investigation leading to custodial commission of crimes.
PUNITIVE MEASURES
UBI JUS IBI REMEDIUM – There is no wrong without a remedy. The
law wills that in every case where a man is wronged and endamaged
he must have a remedy. A mere declaration of invalidity of an
action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose
fundamental right to life has been infringed. Much more needs to
be done.
41. Some punitive provisions are contained in the Indian Penal
Code which seek to punish violation of right to life. Section
220 provides for punishment to an officer or authority who
detains or keeps a person in confinement with a corrupt or
malicious motive. Sections 330 and 331 provide for punishment of
those who inflict injury or grievous hurt on a person to extort
confession or information in regard to commission of an offence.
Illustrations (a) and (b) to Section 330 make a police officer
guilty of torturing a person in order to induce him to confess
the commission of a crime or to induce him to point out places
where stolen property is deposited. Section 330, therefore,
directly makes torture during interrogation and investigation
punishable under the Indian Penal Code. These statutory
provisions are, however, inadequate to repair the wrong done to
the citizen. Prosecution of the offender is an obligation of the
State in case of every crime but the victim of crime needs to be
compensated monetarily also. The Court, where the infringement
of the fundamental right is established, therefore, cannot stop
by giving a mere declaration. It must proceed further and
give compensatory relief, not by way of damages as in a civil
action but by way of compensation under the public law
jurisdiction for the wrong done, due to breach of public duty by
the State of not protecting the fundamental right to life of the
citizen. To repair the wrong done and give judicial redress for
legal injury is a compulsion of judicial conscience.
42. Article 9(5) of the International Covenant on Civil and
Political Rights, 1966 (ICCPR) provides that “anyone who has been
the victim of unlawful arrest or detention shall have enforceable
right to compensation”. Of course, the Government of India at
the time of its ratification (of ICCPR) in 1979 had made a
specific reservation to the effect that the Indian legal system
does not recognise a right to compensation for victims of
unlawful arrest or detention and thus did not become a party to
the Covenant. That reservation, however, has now lost its
relevance in view of the law laid down by this Court in a number
of cases awarding compensation for the infringement of the
fundamental right to life of a citizen. {See with advantage
Rudal 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) Saheli v. Commissioner of Police, Delhi ( JT
1989 (4) SC 553 = 1990(1) SCC, 422)}. There is indeed no express
provision in the Constitution of India for grant of compensation
for violation of a fundamental right to life, nonetheless, this
Court has judicially evolved a right to compensation in cases of
established unconstitutional deprivation of personal liberty or
life. (See : Neelabati Bahera v. State (Supra))
43. Till about two decades ago the liability of the Government
for tortious act of its public servants was generally limited and the person affected could enforce his right in tort by filing
a civil suit and there again the defence of sovereign immunity
was allowed to have its play. For the violation of the
fundamental right to life or the basic human rights, however,
this Court has taken the view that the defence of sovereign
immunity is not available to the State for the tortious acts of
the public servants and for the established violation of the
rights guaranteed by Article 21 of the Constitution of India. In
Nilabati Behera v. State (supra) the decision of this Court in
Kasturi Lal Ralia Ram Jain v. State of U.P. (1965 (1) SCR, 375)
wherein the plea of sovereign immunity had been upheld in a case
of vicarious liability of the State for the tort committed by its
employees was explained thus :
“In this context, it is sufficient to say that the decision of
this Court in Kasturilal upholding the State’s plea of
sovereign immunity for tortious acts of its servants is
confined to the sphere of liability in tort, which is
distinct from the State’s liability for contravention of
fundamental rights to which the doctrine of sovereign
immunity has no application in the constitutional scheme, and
is no defence to the constitutional remedy under Articles 32
and 226 of the Constitution which enables award of
compensation for contravention of fundamental rights, when the
only practicable mode of enforcement of the fundamental
rights can be the award of compensation. The decisions of
this Court in Rudul Sah and others in that line relate to
award of compensation for contravention of fundamental rights,
in the constitutional remedy under Articles 32 and 226 of the
Constitution. On the other hand, Kasturilal related to the
value of goods seized and not returned to the owner due to
the fault of Government Servants, the claim being of damages
for the tort of conversion under the ordinary process, and not
a claim for compensation for violation of fundamental rights.
Kasturilal is, therefore, inapplicable in this context and
distinguishable.”
44. The claim in public law for compensation for
unconstitutional deprivation of fundamental right to life and
liberty, the protection of which is guaranteed under the
Constitution, is a claim based on strict liability and is in
addition to the claim available in private law for damages for
tortious acts of the public servants. Public law proceedings
serve a different purpose than the private law proceedings.
Award of compensation for established infringement of the
indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since the
purpose of public law is not only to civilise public power but
also to assure the citizens that they live under a legal system
wherein their rights and interests shall be protected and
preserved. Grant of compensation in proceedings under Article 32
or 226 of the Constitution of India for the established violation
of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for
penalising the wrong doer and fixing the liability for the public
wrong on the State which failed in the discharge of its public
duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the
remedies available in civil law limits the role of the courts
too much, as the protector and custodian of the indefeasible
rights of the citizens. The courts have the obligation to
satisfy the social aspirations of the citizens because the courts
and the law are for the people and expected to respond to their
aspirations. A Court of law cannot close its consciousness and
aliveness to stark realities. Mere punishment of the offender
cannot give much solace to the family of the victim -civil action
for damages is a long drawn and cumbersome judicial process.
Monetary compensation for redressal by the Court finding the
infringement of the indefeasible right to life of the citizen is,
therefore, a useful and at times perhaps the only effective
remedy to apply balm to the wounds of the family members of the
deceased victim, who may have been the bread winner of the
family.
46. In Nilabati Bahera’s case (supra), it was held :
“Adverting to the grant of relief to the heirs of a victim of
custodial death for the infraction or invasion of his rights
guaranteed under Article 21 of the Constitution of India, it is
not always enough to relegate him to the ordinary remedy of a
civil suit to claim damages for the tortious act of the State
as that remedy in private law indeed is available to the
aggrieved party. The citizen complaining of the infringement
of the indefeasible right under Article21 of the Constitution
cannot be told that for the established violation of the
fundamental right to life, he cannot get any relief under the
public law by the courts exercising writ jurisdiction. The
primary source of the public law proceedings stems from the
prerogative writs and the courts have, therefore, to evolve
‘new tools’ to give relief in public law by moulding it
according to the situation with a view to preserve and
protect the Rule of Law. While concluding his first Hamlyn
Lecture in 1949 under the title “Freedom under the Law” Lord
Denning in his own style warned :
“No one can suppose that the executive will never be
guilty of the sins that are common to all of us. You may be
sure that they will sometimes do things which they ought not to
do : and will not do things that they ought to do. But if and
when wrongs are thereby suffered by any of us what is the
remedy? Our procedure for securing our personal freedom is
efficient, our procedure for preventing the abuse of power is
not. Just as the pick and shovel is no longer suitable for the
winning of coal, so also the procedure of mandamus, certiorari,
and actions on the case are not suitable for the winning of
freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for
negligence… This is not the task of Parliament… the courts
must do this. Of all the great tasks that lie ahead this is
the greatest. Properly exercised the new powers of the
executive lead to the welfare state; but abused they lead to a
totalitarian state. None such must ever be allowed in this
country.”
47. A similar approach of redressing the wrong by award of
monetary compensation against the State for its failure to
protect the fundamental rights of the citizen has been
adopted by the Courts of Ireland, which has a written
constitution, guaranteeing fundamental rights, but which also
like the Indian Constitution contains no provision of remedy for
the infringement of those rights. That has, however, not
prevented the Courts in Ireland from developing remedies,
including the award of damages, not only against individuals
guilty of infringement, but against the State itself.
48. The informative and educative observations of O’Dalaigh CJ
in The State (At the Prosecution of Quinn) v. Ryan (1965) IR 70
(122) deserve special notice. The Learned Chief Justice said :
“It was not the intention of the Constitution in guaranteeing
the fundamental rights of the citizen that these rights should
be set at nought or circumvented. The intention was that
rights of substance were being assured to the individual and
that the Courts were the custodians of those rights. As a
necessary corollary, it follows that no one can with impunity
set these rights at nought or circumvent them, and that the
Court’s powers in this regard are as ample as the defence of
the Constitution requires.”
(Emphasis supplied)
49. In Byrne v. Ireland (1972) IR 241 , Walsh J opined
at p 264 :
“In several parts in the Constitution duties to make certain
provisions for the benefit of the citizens are imposed on the
State in terms which bestow rights upon the citizens and,
unless some contrary provision appears in the Constitution, the
Constitution must be deemed to have created a remedy for the
enforcement of these rights. It follows that, where the right
is one guaranteed by the State, it is against the State that
the remedy must be sought it there has been a failure to
discharge the constitutional obligation imposed”.
(Emphasis supplied)
50. In Maharaj v. Attorney General of Trinidad and Tobago (
(1978) 2 All E.R. 670). the Privy Council while interpreting
Section 6 of the Constitution of Trinidad and Tobago held that
though not expressly provided therein, it permitted an order for
monetary compensation, by way of ‘redress’ for contravention of
the basic human rights and fundamental freedoms. Lord Diplock
speaking for the majority said :
“It was argued on behalf of the Attorney General that Section
6(2) does not permit of an order for monetary compensation
despite the fact that this kind of redress was ordered in
Jaundoo v. Attorney General of Guyana. Reliance was placed on
the reference in the sub- section to ‘enforcing, or securing
the enforcement of, any of the provisions of the said foregoing
sections’ as the purpose for which orders etc. could be made.
An order for payment of compensation, it was submitted, did not
amount to the enforcement of the rights that had been
contravened. In their Lordships’ view an order for payment of
compensation when a right protected under Section 1 ‘has been’
contravened is clearly a form of ‘redress’ which a person is
entitled to claim under Section 6(1) and may well be the only
practicable form of redress, as by now it is in the instant
case. The jurisdiction to make such an order is conferred on
the High Court by para (a) of Section 6(2), viz. jurisdiction
‘to hear and determine any application made by any person in
pursuance of sub-section (1) of this section’. The very wide
powers to make orders, issue writs and give directions are
ancillary to this.”
Lord Diplock then went on to observe ( at page 680) :
“Finally, their Lordships would say something about the measure
of monetary compensation recoverable under Section 6 where the
contravention of the claimant’s constitutional rights consists
of deprivation of liberty otherwise than by due process of law.
The claim is not a claim in private law for damages for the
tort of false imprisonment, under which the damages recoverable
are at large and would include damages for loss of reputation.
It is a claim in public law for compensation for deprivation of
liberty alone.”
51. In Simpson v. Attorney General (Baigent’s case) (1994
NZLR, 667) the Court of Appeal in NewZealand dealt with the issue
in a very elaborate manner by reference to a catena of
authorities from different jurisdictions. It considered the
applicability of the doctrine of vicarious liability for torts,
like unlawful search, committed by the police officials which
violate the New Zealand Bill of Rights Act, 1990. While dealing
with the enforcement of rights and freedoms as guaranteed by the
Bill of Rights for which no specific remedy was provided.
Hardie Boys, J. observed :
“The New Zealand Bill of Rights Act, unless it is to be no more
than an empty statement, is a commitment by the Crown that
those who in the three branches of the government exercise its
functions, powers and duties will observe the rights that the
Bill affirms. It is I consider implicit in that commitment,
indeed essential to its worth, that the Courts are not only to
observe the Bill in the discharge of their own duties but are
able to grant appropriate and effective remedies where rights
have been infringed. I see no reason to think that this should
depend on the terms of a written constitution. Enjoyment of
the basic human rights are the entitlement of every citizen,
and their protection the obligation of every civilised state.
They are inherent in and essential to the structure of society.
They do not depend on the legal or constitutional form in which
they are declared. The reasoning that has led the Privy
Council and the Courts of Ireland and India to the conclusions
reached in the cases to which I have referred (and they are but
a sample) is in my opinion equally valid to the New Zealand
Bill of Rights Act if it is to have life and meaning.”
(Emphasissupplied)
52. The Court of Appeal relied upon the judgments of the Irish
Courts, the Privy Council and referred to the law laid down in
Nilabati Behera v. State (supra) thus :
“Another valuable authority comes from India, where the
constitution empowers the Supreme Court to enforce rights
guaranteed under it. In Nilabati Bahera v. State of Orissa
(1993)Cri.LJ 2899, the Supreme Court awarded damages against
the State to the mother of a young man beaten to death in
police custody. The Court held that its power of enforcement
imposed a duty to “forge new tools”, of which compensation
was an appropriate one where that was the only mode of
redress available. This was not a remedy in tort, but one in
public law based on strict liability for the contravention of
fundamental rights to which the principle of sovereign
immunity does not apply. These observations of Anand, J at p
2912 may be noted.
The old doctrine of only relegating the aggrieved to the
remedies available in civil law limits the role of the courts
too much as protector and guarantor of the indefeasible
rights of the citizens. The courts have the obligation to
satisfy the social aspirations of the citizens because the
courts and the law are for the people and expected to respond
to their aspirations. The purpose of public law is not only to
civilize public power but also to assure the citizen that
they live under a legal system which aims to protect their
interests and preserve their rights.”
.lm 1
53. Each of the five members of the Court of Appeal in
Simpson’s case (supra) delivered a separate judgment but there
was unanimity of opinion regarding the grant of pecuniary
compensation to the victim, for the contravention of his rights
guaranteed under the Bill of Rights Act, notwithstanding the
absence of an express provision in that behalf in the Bill of
Rights Act.
54. Thus, to sum up, it is now a well accepted proposition in
most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for redressal of the
established infringement of the fundamental right to life of a
citizen by the public servants and the State is vicariously
liable for their acts. The claim of the citizen is based on the
principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount
of compensation from the State, which shall have the right to be
indemnified by the wrong doer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on punitive
element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be
left to the criminal courts in which the offender is prosecuted,
which the State, in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without
prejudice to any other action like civil suit for damages which
is lawfully available to the victim or the heirs of the deceased
victim with respect to the same matter for the tortious act
committed by the functionaries of the State. The quantum of
compensation will, of course, depend upon the peculiar facts of
each case and no strait jacket formula can be evolved in that
behalf. The relief to redress the wrong for the established
invasion of the fundamental rights of the citizen, under the
public law jurisdiction is, thus, in addition to the traditional
remedies and not in derrogation of them. The amount of
compensation as awarded by the Court and paid by the State to
redress the wrong done, may in a given case, be adjusted against
any amount which may be awarded to the claimant by way of damages
in a civil suit.
55. Before parting with this judgment we wish to place on
record our appreciation for the learned counsel appearing for the
States in general and Dr. A.M. Singhvi, learned senior counsel
who assisted the Court amicus curaie in particular for the
valuable assistance rendered by them.
