D.K. Basu v State of West Bengal

Citation: AIR 1997 SC 610

Court: Supreme Court of India

Bench: Justice A.S. Anand and Justice Kuldip Singh

Date of Judgment: 18^th December 1996

Relevant Statutes/Key Provisions: Articles 20(3), 21 and 22, 226 and 32 of the Constitution of India. Sections 41, 46, 49, 50, 54, 56, 57, 167, 174 and 176 of the Code of Criminal Procedure 1973 (CrPC). Sections 147, 149, 201, 218, 220, 302, 304, 330, 331 and 342 of the Indian Penal Code 1860 (IPC).^[1]

Brief Facts

D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, addressed a letter to the Chief Justice of India expressing concern over the alarming rise in custodial deaths and torture by police personnel. The Supreme Court treated the letter as a writ petition under Article 32. A similar letter by Ashok K. Johari was also clubbed. The case did not originate from a specific incident but sought preventive judicial guidelines against such abuse. Several states and the Law Commission were made parties. The petitions aimed at ensuring accountability and safeguarding citizens’ rights against arbitrary police action.

Issues Involved

1. Whether custodial torture and deaths amount to a violation of the fundamental right to life and personal liberty under Article 21 of the Constitution of India.^[2]
2. Whether there is an increase in cases of custodial deaths and violence.^[3]
3. Whether the existing statutory safeguards under the Code of Criminal Procedure and other laws are sufficient to prevent arbitrary arrest and custodial abuse.^[4]
4. Whether the Supreme Court can formulate guidelines that are to be followed by police officers while arresting.^[5]

Arguments

Petitioner’s Arguments:

The petitioner contended that custodial torture and deaths were in gross violation of the right to life and personal liberty guaranteed under Article 21 of the Constitution. It was argued that such incidents were not isolated but systemic, recurring with alarming frequency across the country. The petitioner emphasized that despite existing provisions in the Code of Criminal Procedure^[6] and the Indian Penal Code^[7], there was a glaring lack of effective implementation, oversight, and accountability mechanisms. Since the victims were in police custody and access to evidence was limited, the petitioner also highlighted the inherent difficulty in proving custodial abuse. Hence, in the absence of a specific statutory framework, the Supreme Court was urged to step in and lay down enforceable procedural guidelines to safeguard the rights of arrested individuals, drawing upon its constitutional powers under Articles 32 and 142.^[8]

Respondent’s Arguments:

The respondents, including the State of West Bengal, submitted that adequate legal safeguards already existed within the Indian legal system through provisions in the CrPC, IPC, Police Rules, and departmental manuals. They argued that custodial misconduct, though unfortunate, occurred in a minority of cases and did not warrant sweeping judicial intervention or new procedural mandates. The State also contended that law enforcement officers operated under difficult and high-pressure conditions, and creating additional procedural requirements might hamper police efficiency. Furthermore, it was argued that formulating such guidelines would amount to judicial overreach into the domain of the legislature and executive, particularly when existing mechanisms allowed for remedies through departmental action or criminal prosecution in case of misconduct.^[9]

Judgment

The Supreme Court unanimously held that custodial violence is a clear violation of Article 21, and that the rights of arrested persons must be protected at all stages. The Court emphasized that mere legislative provisions are insufficient without proper implementation. Recognising the gaps in statutory implementation, the Court laid down 11 binding guidelines to be followed during arrest and detention. These would remain in force until suitable legislation is enacted.

The 11 Guidelines laid down in D.K. Basu v State of West Bengal:

1. Identification of Police Officers: Police personnel carrying out the arrest must wear clear, accurate, and visible identification and name tags. The particulars of all officers involved must be recorded.
2. Memo of Arrest: A memo of arrest must be prepared at the time of arrest and must be attested by at least one witness (a family member or a respectable person from the locality) and countersigned by the arrestee.
3. Right to Inform: The arrested person has a right to inform a relative, friend, or well-wisher about the arrest and place of detention.
4. Intimation to a Friend/Relative: The police must inform the next friend or relative of the arrestee who lives outside the district, within 8 to 12 hours of arrest.
5. Arrest Diary Entry: The details of the arrest must be entered in a diary maintained at the place of detention, including time and place of arrest and the name of the next friend informed.
6. Medical Examination: The arrestee must undergo a medical examination at the time of arrest and every 48 hours thereafter by a doctor on the panel approved by the Director of Health Services.
7. Inspection Memo: The arrestee should be examined for any major or minor injuries, and this must be recorded in the Inspection Memo, which should be signed by both the arrestee and the arresting officer.
8. Right to Meet a Lawyer: The arrested person must be permitted to meet their lawyer during interrogation, though not throughout the entire period.
9. Information to Magistrate: Copies of all documents, including the arrest memo, must be sent to the Magistrate for their record.
10. Police Control Room Record: The Police Control Room at district and State levels must receive information about the arrest and detention and display it on a public notice board.
11. Compliance and Accountability: Non-compliance with these guidelines would attract departmental action and may render the concerned officers liable for contempt of court.^[10] 

Ratio Decidendi

The Supreme Court ruled that Article 21^[11] is not merely a guarantee against the arbitrary deprivation of life and liberty, but also imposes a positive duty on the State to safeguard dignity and bodily integrity. In the absence of enforceable legislation, courts may issue procedural guidelines to prevent constitutional violations.^[12]

Obiter Dicta

The Court remarked that police torture is not just illegal but “an affront to human dignity”. It emphasized that mere enshrinement of rights in the Constitution is not sufficient without effective enforcement.^[13]

Final Decision

The Court laid down mandatory procedural guidelines to be followed across India, pending formal legislation. These guidelines became binding under Article 141 and were meant to ensure accountability of law enforcement agencies. The petition was allowed, and the judgment became a cornerstone in human rights jurisprudence in India.

 

References

[1] Lawjure, “Case Summary: D.K Basu vs The State of West Bengal” (Lawjure, February 3, 2021) <https://share.google/OLJAa9cigiOINjmN3> accessed June 28, 2025

[2] “DK BASU V. STATE OF WEST BENGAL” (Aashayein Judiciary) <https://share.google/wOz61q9aLCKeriRo9> accessed June 28, 2025

[3] ibid

[4] “D.K. Basu v. State of West Bengal” (Naya Legal) <https://share.google/42z42cUzBXktrpuCy> accessed June 28, 2025

[5] Ibid

[6] Code of Criminal Procedure, 1973

[7] Indian Penal Code, 1860

[8] D K Basu v State of West Bengal, Supreme Court of India, 18 December 1996, Indian Kanoon  <https://indiankanoon.org/doc/501198/> accessed June 20, 2025

[9] ibid

[10] Agrawal A, “DK Basu vs State of West Bengal” (LawBhoomi, October 21, 2023) <https://share.google/CsFhw3odjTTsH1LI4> accessed June 28, 2025

[11] The Constitution of India, art. 21

[12] Lawjure (n 1), ratio decidendi

[13] Ibid, obiter dicta