Case Summary: D.K. Basu vs. State of West Bengal

• Title of case: SHRI D.K. BASU, ASHOK K. JOHRI VS STATE OF WEST BENGAL, STATE OF U.P
• Citation: AIR 1997) 6 SC 642
• Case no.: WRIT PETITION (CRL) NO. 592 OF 1987
• Court: Supreme Court of India
• Bench: Kuldip Singh and Dr. A.S. Anand
• Date of Decision: 18 December 1996
• Appellant: SHRI D.K. BASU, ASHOK K. JOHRI
• Respondent: STATE OF WEST BENGAL, STATE OF U.P.

Constitutional and Statutory Provisions Discussed

• Article 20 (3), 21, 22, 226 and 32 of the Constitution of India.
• Sections 41, 46, 49, 50, 53, 54, 56, 57, 167, 174 and 176 of the Criminal Procedure Code, 1973.
• Sections 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of the Indian Penal Code (IPC), 1860.

Introduction

Whenever a criminal is arrested, they must be detained in police custody and produced before a Magistrate for trial. In a general sense, it means the apprehension or restraint or deprivation of one’s personal liberty. The Constitution of India, particularly Article 21, safeguards the Right to Life and Liberty. It emphasises that even in the face of legal actions, one’s humanity cannot be stripped away without due process.

Unfortunately, instances of police brutality on those in custody persist, posing a serious concern, especially if it results in loss of life. The police’s role should be to prevent further crimes, not to engage in unauthorised torture. Custodial deaths, where a person dies in police custody, have been increasing in India. The landmark case of D.K. Basu v. State of West Bengal marked a significant turn in human rights protection in India. Decided by the Supreme Court of India in 1997, this case laid down crucial guidelines to prevent custodial violence and ensure that the rights of arrested individuals are safeguarded. These guidelines include necessary steps like identification of the arresting officer and timely medical examination of the arrestee. This case emerged from concerns about increasing instances of custodial torture and deaths in police custody. The Supreme Court issued 11 guidelines detailing the police’s responsibilities and the rights of the arrested persons. These directives aim to bring greater accountability and transparency to police procedures, ensuring that the fundamental rights of detainees under Article 21 of the Constitution of India are not violated. This case remains a cornerstone for other legal battles concerning human rights violations and custodial torture.

Brief Facts:

The Executive Chairman of Legal Aid Services, West Bengal, sent a letter dated 26-8-1986 to the Chief Justice of India, highlighting newspaper reports on deaths occurring in police lock-ups between July and August 1986. The letter urged the Supreme Court to develop “custody jurisprudence,” provide compensation to victims’ families, and ensure accountability of police officers. Treating the communication as a public-interest writ petition, the Court issued notice on 9-2-1987. Subsequently, a separate letter of 29-7-1987 concerning the custodial death of one Mahesh Bihari (Aligarh) was also treated as a writ petition and tagged with the main matter. On 14-8-1987, the Court issued notices to all State Governments and to the Law Commission of India. Affidavits were filed by numerous States, the Union Territory of Chandigarh and the Law Commission. Dr. A. M. Singhvi, Senior Advocate, was appointed amicus curiae. The proceeding evolved into an inquiry of national scope on custodial violence, culminating in the present judgment.

Legal Issues:

• Whether the Supreme Court can frame enforceable guidelines under Articles 21 and 22 of the Constitution to prevent custodial violence and deaths.
• Whether monetary compensation is payable under the Court’s public-law jurisdiction for infringement of the fundamental right to life caused by State functionaries. 
• Whether existing constitutional and statutory safeguards are adequate or need supplementation by judicial directions.

Arguments from the side of the Petitioner

The petitioner argued that bodily pain and mental agony suffered by a person within the four walls of a police station or confinement should be avoided. Whether it is physical assault or rape in police custody, the scope of trauma experiences is beyond the purview of the law. The petitioner further contended that there is a need for a civilised nation and that some major steps should be taken for its eradication.

Arguments from the side of the Respondent

The counsel appearing for different states and Dr. A.M. Singhvi, presented the case and contented that “everything was final” within their respective states, presented above their respective beliefs 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 reduce, if not prevent, custodial violence and relatives of those who die in custody on account of torture.

Judgment:

The Supreme Court held that custodial torture is a naked violation of human dignity and degradation that destroys, to a very large extent, the individual personality. Relying on Nilabati Behera vs. State of Odisha (1993), the court stated that any form of torture or cruel, inhuman or degrading treatment falls within the ambit of Article 21, whether it occurs during investigation, interrogation or otherwise. The rights guaranteed by Article 21 cannot be denied to undertrials, convicts, detenus and other prisoners in custody, except according to the procedure established by law, by placing such reasonable restrictions on the right as are permitted by law.

Even after laying down procedural requirements in Joginder Kumar vs. State of U.P., it has been observed that the police arrested a person without a warrant in connection with the investigation of an offence, and the arrested person has been subjected to torture to extract information or a confession.

Ratio Decidendi:

• When the right is guaranteed by the State, it is against the State that the remedy must be sought if the constitutional obligation imposed has not been fulfilled. 
• Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. It thus also includes a guarantee against torture and assault by the State or its functionaries.
• Protection against arrest and detention is guaranteed by Article 22. It provides that no individuals arrested shall be detained in custody without being informed of the grounds of arrest and that arrested individuals shall not be denied the right to consult and defend themselves by a legal practitioner of their choice.
• Article 20(3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself.

Obiter Dicta:

• The Court believed that custodial violence, including torture and death in lock-ups, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court to be one of the worst crimes in a civilised society governed by the rule of law.
• The Court observed that despite the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been a disturbing factor.
• Reference was made to the case of Nilabati Bahera v. State of Orissa (1993) 2 SCC 746, in which the Supreme Court had held that prisoners and detainees are not deprived of their Fundamental Rights under Article 21, and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detainees.

Supreme Court’s Guidelines

The frequent instances of police atrocities and custodial deaths, however, continued and prompted the Supreme Court to issue further guidelines for the protection of arrested persons, which are as under:

• The police personnel carrying out the arrest and handling the interrogation should bear an accurate and clear identification mark with their designation.
• The police officer carrying out the arrest shall prepare the memo of arrest, which shall be attested by at least one witness.
• The arrested person shall be entitled to have his friend or relative informed of his arrest. 
• He must be aware of his right to have someone informed of his arrest.
• The arrestee must be examined at the time of arrest, and every major or minor injury must be recorded.
• The arrestee should be subject to medical examination by a trained doctor every 48 hours.
•  The copies of documents, including the memo of arrest, should be sent to the Magistrate for the record. 
• The arrestee must be produced before a Magistrate within 24 hours.
• He must be permitted to meet a lawyer during interrogation.
• A police control room should be provided at every district and State Headquarters.

Need for guidelines:

In Joginder Kumar v. State of U.P. (1994) 4 SCC 260, the court observed that arrest and custodial deaths have become a handy rule and common phenomenon. The court clarified that the power to arrest is one thing and the exercise of such power is another. So, they directed the police officers not to make arrests routinely but only under compelling circumstances and laid down the following guidelines:

• An arrested person in custody is entitled to have one friend, relative or other person interested in his welfare to be informed of his arrest.
• He shall be informed of this right by the police officer making an arrest.
• An entry shall be made in a diary as to who was informed of his arrest. This protection from power must be held to flow from Articles 21 and 22(1) of the Constitution.

Amendment after Guidelines:

The Criminal Amendment Act, 2009, added the Code of Criminal Procedure 1973 (CrPC) in pursuance of all the parameters in the guidelines laid down in Joginder Kumar’s case and D.K. Basu’s case.

Conclusion

The case resulted in a landmark ruling that established guidelines for when someone should be apprehended for an offence related to justice, as opposed to when other crimes are committed for the sake of justice. No arrest can be made in a routine manner on a mere allegation of the commission of an offence made against a person. No arrest should be made without reasonable satisfaction reached after some investigation as to the genuineness and bona fide of a complaint and a reasonable belief both as to the person’s complicity and even to the need to effect arrest. The Court held that a person accused of an offence cannot be denied of right to life and personal liberty and human rights.

References:

1. D. K. Basu vs. State of West Bengal (18.12.1996 – SC): MANU/SC/0157/1997: https://indiankanoon.org/doc/501198/
2. A. Kumar, “D.K. Basu vs. State of West Bengal,” Law Times Journal, Jun. 07, 2020. https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/
3. https://lawbriefs.in/dk-basu-v-state-of-west-bengal-1996-guidelines-for-all-types-of-arrest-and-detention/
4. D.K. Basu v. State of W.B. | Supreme Court of India | Judgment | Law | Casemine
5. Pandey, J.N., The Constitution of India, 60th edition, 2023, p. 364, 371, 485, 787,789.
6. Ratanlal & Dhirajlal, The Bharatiya Nagarik Suraksha Sanhita, 2023, 24th edition 2025, p.111, 329.