Published On: 20th March, 2024

Authored By: Vaibhav Bhojwani
Symbiosis Law School, Nagpur


In “D.K. Basu v. West Bengal,”[1] the Apex Court ruled that certain basic norms and processes must be adhered to in all situations involving an arrest or imprisonment in order to prevent abuse of custodial rights and protect human rights. These Rules for Detainees and Arrested Persons were issued, as well as compensation for the family of the victim.


“Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man”

Actions against public policy and societal harmony are continually prohibited by the law’s norms and restrictions. Putting the perpetrator in prison and punishing him or her is a successful technique for lowering crime rates in society. In its widest sense, custody is defined as restricting an individual’s freedom of movement. Nonetheless, in recent years, there has been a considerable increase in the death and violence of accused people in police custody. Numerous people have died while being detained by police, but the administration has paid little notice. Deaths in Custody are much too prevalent in a democratic society like India.

The “Right to life and Personal Liberty” is a fundamental and valued constitutional right. It has been interpreted to encompass the right to live with human dignity, and as such it would include protection from torture and assault by the state or its agents.


  • K. Basu, the Executive Chairman of Legal Aid Services, a non-political organization based in West Bengal.
  • On August 26, 1986, he sent a letter to the Supreme Court of India, drawing attention to fatalities in police custody, which were reported in the Telegraph newspaper.
  • He sought that this letter be treated as a writ petition under the PIL (Public Interest Litigation).
  • Due to the importance of the issues raised in the letter, it was considered as a written petition, and the defendants were also notified.
  • Simultaneously, Mr. Ashok Kumar Johri sent a letter to the Chief Justice of the Supreme Court, drawing his notice to the death in police custody of Mahesh Bihari of Pilkhana, Aligarh.
  • His letter was attached to D.K. Basu’s plea for PIL.
  • On August 14, 1987, the court issued notifications to all state governments and other law commissions to provide relevant recommendations within two months.
  • Several states responded to this recommendation, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Manipur, and Maharashtra.


  • The arbitrariness with which police officials arrest people.
  • Whether custodial death and violence constitute a breach of Article 21 of the Indian Constitution?
  • Are the guidelines issued by the court being followed by State Enforcements?


Our criminal system provides arrest and custody as a punitive measure against the person who has done wrong. But the beauty of our criminal justice system is that no person is guilty unless proven beyond any reasonable doubt. Fundamental rights are at the heart of the Indian Constitution and these rights are considered so sacrosanct that they cannot be taken away by anybody including the government subject to reasonable restrictions. When the right is guaranteed by the state, the remedy must be sought against the state if the constitutional requirement imposed has not been met. The rights of the arrested persons have been brought at par with normal persons and it has been widely held that those in custody have the same fundamental rights as their fellow citizens including:

  • Right to Equality – (Article 14)
  • Right to life – (Article 21)
  • Safeguards provided under Articles 20 and 22 of the Indian Constitution

Pre-D.K. Basu position:

International human rights laws and treaties provide protection to people from cruelty, torture, discrimination, etc. The United Nations General Assembly adopted the “Universal Declaration of Human Rights” in 1948 which provides some basic tenets of administration of justice. Article 3 of the UDHR states that “Everyone has the right to life, liberty and security of the person. Right to life is one of the basic human rights and is available to both prisoners and freemen.” Also, “Basic Principles for The Treatment of Prisoners” was adopted and proclaimed by a General Assembly resolution on 14 December 1990.

These principles were implemented by the Indian judiciary in various case laws. These principles were already embedded in the Indian constitution viz the fundamental rights provided to every citizen of this democratic country particularly the Right to life given under Article 21 which includes the right to live with dignity. This has been reiterated by the judiciary in numerous case laws. In “Francis Coralie v. Delhi”[2], the court held that the “Right to life includes the right to live with human dignity with bare necessities of life. It does not mean mere animal or vegetative existence.” Also, in “Hussainara Khatoon v. Home Secretary State of Bihar[3], the court stated that “Right to speedy trial comes under the ambit of Article 21 and can be considered a fundamental right”. Whereas in “M H Hoskot V. State of Maharashtra”[4], the court directed the State to provide free legal aid to indigent prisoners.

The other protections provided by the Constitution are:

  • Article 22 provides protection from arrest and detention in specific situations. It states that no one who is arrested can be held in custody without being told the reason for their arrest and that they are entitled to represent themselves in court with a legal professional of their choosing.
  • Article 22 Clause (2) directs that the individual who has been arrested and placed under custody must appear before the closest magistrate within twenty-four hours of the arrest, not counting the time required for transportation from the site of the arrest to the magistrate’s court.
  • 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 protections available to a person in order to preserve his personal liberty against unwarranted state aggression. This is intended to avoid any sort of custodial violence that might result in the person’s death.

The courts had increasingly started giving importance to the rights of the victims well before the D.K Basu case. In “Nandini Satpathy v. P.L. Dani”[5], the court declared that, “To strike the balance between the needs of law enforcement on the one hand and the protection of citizens from oppression and injustice at the hands of law enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swing to the right.” The court remarked in the case of “Sunil Batra v. Delhi Administration”[6] that “cruel torturing and abuse is against Article 21 of the Constitution of India, which includes the right to live with human dignity. The rights provided by Article 21 are indeed basic, but also human rights.” Similarly, in “Nilabati Behera v. State of Orissa[7] the Supreme Court had held that “The 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 detained.” The apex court in “Joginder Kumar vs State of Uttar Pradesh[8] has held that, “Simply because a police officer is allowed under law to arrest a person does not imply that he can arrest a person without reason, i.e. arrests should not be the routine and proper reasoning and justification needs to be given.”. Thus, the court advocated substituting the arrest of the person with notice of appearance which would lower the custody-related wrongs.

Section 49 of the CrPC also states that “The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.” Also, in its 113th report, the Indian Law Commission recommended that Section 114-B, which dealt with custodial violence, be incorporated into the Indian Evidence Act but it is still not included.

Post D.K. Basu position:

Arnesh Kumar v. State of Bihar[9]:

In its conclusion, the Supreme Court granted the petitioner interim release for a variety of reasons. In this groundbreaking decision, the Court not only granted bail but also examined and touched on previously unaddressed concerns, such as the misuse of Section 498-A of the Indian Penal Code. The court completed its judgment by providing eight golden principles/directions for detaining a person under Indian Penal Code Section 498-A.

“The Supreme Court, in a landmark decision led by Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose, beautifully carved out the issue of misuse of Section 498-A of the Indian Penal Code, not only granted bail but also gave directions to the state government and police officers on how to deal with arrest when a complaint or FIR is registered under Section 498-A of the Indian Penal Code.”

Consequently, the Supreme Court addressed the central problem of criminal jurisprudence and the ability of enforcement authorities to arrest in light of Section 41 of the Code of Criminal Procedure. The Supreme Court’s directives in the verdict alleviate the authorities’ casual attitude to making arrests, which was previously based on simple allegations or small claims of conduct of an offence.

Arnab Goswami Vs State of Maharashtra[10]: 

In the case of “Arnab Goswami Vs, The State of Maharashtra and Ors.”, the Supreme Court in its judgment revoked the arrest memo on the basis of which the appellant had been arrested. The appellant moved to Supreme Court under Article 32 as he was illegally detained by the concerned police officer even after the case was closed and also revoked the FIR filed against the journalist.

The journalist and the other accused were detained and hauled by police, and they were held in judicial detention for 14 days.

The Supreme Court granted them bail while noticing certain facts concerning prima facie and even mentioned that a suicide note cannot interpret the accused’s intention that the deceased committed suicide, so the court dismissed the FIR while observing this.

Re: Contagion of COVID Virus in Prisons[11]:

As the first wave of the COVID-19 Pandemic struck our country in March 2020, the Hon’ble Supreme Court issued instructions with respect to jail prisoners in order to limit the spread of the COVID-19 virus within Indian prisons.

“In Re: Contagion of COVID-19 Virus in Prisons dated: 16.03.2020 the Government of India” advises that “social distancing must be maintained to prevent the transmission of the COVID-

19 virus, the harsh reality is that our jails are overcrowded, making social distancing impossible.” The Hon’ble Supreme Court expressed severe concern and an essential need to take immediate action to prevent the spread of the COVID-19 virus in our prisons. After that, the Hon’ble Supreme Court issued many directives in this respect in an order dated 13.04.2020.

As the second COVID-19 wave began in April 2021, The Hon’ble Supreme Court noticed that an unusual rise of COVID-19 in recent weeks has resulted in a sharp increase in the number of persons afflicted by COVID-19. The Hon’ble Supreme Court also stated that “India has over 4 lakh jail prisoners. Several of the jails in India are overloaded and are holding convicts beyond their capacity. From minimizing arrests to caring for COVID-19 patients, efficient pandemic management from within prison walls is required to battle this deadly virus.”

The following Directions were issued:

  1. Release of all detainees freed previously (last year) in accordance with the Hon’ble Supreme Court’s ruling dated: 23.03.2020 In Re: Contagion of COVID Virus in Prisons It is directed that all Jail Inmates who were released on parole or interim bail in accordance with the earlier order of the Hon’ble Supreme Court Dated: 23.03.2020, In Re: Contagion of COVID Virus in Prisons in the Year 2020, be released forthwith by respective authorities in accordance with this order for a period of 90 days on Parole or interim bail as the case may be. However, any parole or interim bail release should be subject to suitable terms set by the same relevant authorities that exercised such jurisdiction at the time of their previous release.
  2. As a result, Jail Authorities are ordered to guarantee that jail occupancy is shown on their websites. The decisions of this HPC will be posted on the websites of the U.P. State Legal Services Authority, the State Government, and the Hon’ble High Court of Judicature in Allahabad.
  3. The refusal to release under HPC instructions may be owing to fear of viral infection, the absence of social roots due to the passage of time or extreme old age, or their having no place or relative to go, or any other cause. Under current HPC instructions, there will be no forcible release of jail detainees. In the event of an unforeseeable situation, the Prison Authorities and District Magistrates in each district will be responsible for transporting Jail inmates. Transportation and prisoner unwillingness will be within the local jurisdiction of the District Legal Services Authority. This direction shall likewise be applied to the release of jail convicts on temporary bail or parole in accordance with the earlier order of this HPC dated 26.04.2021 from now on.
  4. Further guidelines for testing, jail hygiene, sanitation, and treatment in prison, among other things, are directed that regular testing of offenders, as well as officials, personnel, and other stakeholders for COVID-19, Proper Medical facilities, all suitable measures.”

D.K Basu Guidelines Evolution through the years:

After applying the constitutional as well as other International human rights law principles as well as following the principles and guidelines laid down in previously decided case laws, the court came up with 11 guidelines. The basic tenet of these guidelines was that denial of liberty to any individual is a matter of grave concern and therefore arrests should be made by following proper procedure established by law as well as the guidelines. The court also asserted that the provision and existence of such power to arrest is one thing, the justification and reasoning for the exercise of it is quite another, and no arrest should be made until it is necessarily required for the purpose of justice. Following the case these amendments were made in the CrPC-

  1. “Amendments in Section. 41 CrPC- providing arrest only after reasonable satisfaction.
  2. 41A – Notice of Appearance before Police officer instead of direct arrest.
  3. 41 B- Procedure of Arrest & Duties of Officer making arrest.
  4. 41 C- Control Room at Districts.
  5. 41 D- Right to meet an advocate of his choice during interrogation.”

The courts have also held the State liable for custodial violence and deaths. The court in Mariappan v. State of Tamil Nadu[12] held that “perpetrators of the crime that is the police officials must be punished for the act and the state is liable to pay the compensation to the family of the victims.”

The Supreme Court added a few more directions in addition to existing guidelines in the year 2015 in D.K. Basu[13] case namely:

  1. “All vacancies, for the post of Chairperson or the Member of SHRC wherever they exist at present shall be filled up by the State Governments concerned within a period of three months from today.
  2. Vacancies occurring against the post of Chairperson or the Members of the SHRC in the future shall be filled up as expeditiously as possible but not later than three months from the date such vacancy occurs.
  3. The State Governments shall take appropriate action in terms of Section 30 of the Protection of Human Rights Act, 1993, in regard to setting up/specifying Human Rights Courts.
  4. The State Governments shall take steps to install CCTV cameras in all the prisons in their respective States, within a period of one year from today but not later than two years.
  5. The State Governments shall also consider the installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violations reported in such stations.
  6. The State Governments shall consider the appointment of non-official visitors to prisons and police stations in terms of the relevant provisions of the Act wherever they exist in the Jail Manuals or the relevant Rules and Regulations.
  7. The State Governments shall launch in all cases where an inquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the commission of offences disclosed by such enquiry report and/or investigation in accordance with the law.
  1. The State Governments shall consider deployment of at least two women constables in each police station wherever such deployment is considered necessary having regard to the number of women taken for custodial interrogation or interrogation for other purposes over the past two years.”

Furthermore, the case was recently reviewed, and the court stated its willingness to modify, add, or remove any protections that will effectively handle the issue of custodial violence in compliance with the current scenario.


Crimes, criminals, and desire of society to find quick-fix solutions to get justice even at the cost of complete violation of law and basic cannons of human rights has plagued our society and polity for long. Picking up anyone due to unbridled powers vested in police, and extracting forcible convictions, and illegal detentions were the threats to the rule of law and cardinal principles of criminal jurisprudence which were addressed by this historic judgment.

Inordinate delays in criminal trials and societal pressure often leads to a demand of vigilante justice as was witnessed in Hyderabad rape and murder of a young vet student. This tempts many trigger-happy cops to assume the role of prosecutor-jury and judge and this was the reason why the Supreme Court had to step in. The D.K. Basu guidelines have an immense impact on policing in India in the last two decades. The third-degree method and unbearable torture of accused which were norm have become exceptions though they do take place occasionally but are viewed very seriously by the system and courts. Custodial violence even if has popular backing has no place in any civilized country and gun trotting cops often glorified by media and Bollywood have no place in law enforcement on the contrary anyone breaching D.K. Basu guidelines has to face legal consequences. Cops have often complained that these guidelines are misused by organized mafia and hard-core criminals to hound law enforcers and it becomes difficult to detect crime and punish the real culprits. Such excuses cannot be used to infringe basic human rights and Constitutional guarantees and these guidelines are a major safeguard against the misuse of power by those in uniform who are expected to be our protector.


The procedures used in the execution of criminal law are a good indicator of a country’s civilization. The scope of rights is expanding, while criminal offences are increasing at the same time. The court has received allegations of human rights violations as a result of indiscriminate arrests. Individual rights, liberties, and privileges must be balanced against individual duties, obligations, and responsibilities under the law of arrest.

Custodial violence is a serious issue. It is made worse by the fact that it is done by people who are meant to be citizens’ defenders. It is perpetrated behind the shield of uniform and authority within the four walls of a police station or jail, with the victim completely defenseless.

Improving the criminal justice system is need of the hour but giving unfettered powers of arrest, detention and torture to cops is not the solution. Making our prosecution more accountable and ensuring dignity of the citizens who can be summoned by police officers going beyond the legal powers. These guidelines have filled the void and bridged the power asymmetry between hapless citizens and might of the state.


[1] AIR 1997 SC 610

[2] AIR 1981 SC 746

[3] AIR 1979 SC 1360

[4] AIR 1978 SC 1548

[5] AIR 1978 SC 1025

[6] 1980 AIR 1579

[7] AIR 1993 SC 1960

[8] AIR 1994 SC 1349

[9] (2014) 8 SCC 273

[10] 2020 SCC OnLine SC 964

[11] Suo Moto Writ Petition (Civil) No. 01/20

[12] Criminal Appeal No. 926 of 2009

[13] Writ Petition (CRL.) No. 539 of 1986

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