VERY IMPORTANT POINTS
1. 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.
2. The precious right of life and personal liberty guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.
3. 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.
4. Amendment of the relevant provisions of law to protect the interest of arrested persons is a genuine need.

Headnote:(i) CUSTODIAL VIOLENCE-Abuse of police power-Power of arrest, interrogation and detention-Constitutional and statutory safeguards -Sharp rise in custodial violence, torture and death-Urgency for amendment of relevant provisions of law-Need to develop scientific methods of investigation -Court issued requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures-Requirements need to be strictly followed-Failure to comply with these requirements-Departmental action-Contempt of Court-The requirements are in addition to Constitutional and Statutory safeguards.
       Held : (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 during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
       (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
       (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
       (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. (Para 30)
       (ii) Constitutional of India-Articles 21 and 22(1)-Personal liberty-Expression life or personal liberty includes right to live with human dignity-It would also include within itself a guarantee against torture and assault by State or its functionaries-Any form of torture or cruel, inhuman or degrading treatment would fall within inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise-Precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to procedure established by law-Constitutional and statutory safeguards-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-Custodial death-One of the worst crime in a civilised society governed by Rule of law.
       Held : 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, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. (Para 21)
       (iii) POLICE POWER-Abuse of-Custodial violence-Transparency of action and accountability are two possible safeguards-Training methodology of police needs restructuring-Need to develop scientific methods of investigation-Urgency to amend relevant provisions of law to protect interest of arrested persons.
       Held : 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 person 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. (Para 9)
       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. (Para 18)
       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. (Para 26)
       Further held : 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 and 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. (Para 27)
       (iv) PREVENTIVE DETENTION-Terrorism-Right to interrogate detenues -Action of State must be right, just and fair. (Para 28A)
       (v) RULE OF LAW-Custodial violence, including torture and death in lock ups-Strikes a blow at Rule of Law-It demands that powers of executive should not only be derived from law but also that same should be limited by law. (Para 9)
       (vi) CUSTODIAL VIOLENCE-Torture-Definition and scope. (Paras 9 & 10)
       (vii) CUSTODIAL VIOLENCE-Violation of right to life-Remedy-Monetary compensation-Quantum of compensation will depend upon peculiar facts of each case.
       Held; 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. (Para 43)
       (viii) PUBLIC LAW-Tortious acts of public servants-Established violation of rights guaranteed under Article 21 of Constitution-Defence of sovereign immunity is not available to State-Claim for compensation based on strict liability-It is in addition to claim available in private law for damages.
       Held : 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. (Para 38)
       Further held : 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. (Para 39)

Judgement Key Points

Ratio Decidendi:

Custodial violence, including torture and death in lock-ups, violates the rule of law, as executive powers must derive from and be limited by law. (!) [1000013550008]

The fundamental right to life and personal liberty under Article 21 extends to convicts, undertrials, detenues, and prisoners in custody, permitting only reasonable restrictions per procedure established by law, and prohibits any form of torture, cruel, inhuman, or degrading treatment by state functionaries. (!) [1000013550016][1000013550020] (!) (!)

Monetary compensation is an appropriate, effective remedy in public law for established violations of Article 21 by public servants, based on strict liability, with the State vicariously liable (and entitled to indemnification from the wrongdoer); sovereign immunity is unavailable, and such compensation is compensatory (not punitive), additional to private law remedies like civil suits, with quantum depending on case facts. (!) [1000013550009] (!) (!) (!) (!)

To prevent custodial abuse, the following 11 requirements must be followed in all arrests/detentions (in addition to constitutional/statutory safeguards, applicable to police and other agencies), with non-compliance attracting departmental action and contempt proceedings:

Arresting/interrogating personnel must wear visible identification/name tags; particulars recorded in a register. (!)
Memo of arrest prepared at arrest time, attested by family member/respectable local witness, countersigned by arrestee, noting time/date. (!)
Arrestee entitled to inform friend/relative/known person of welfare interest promptly (unless attesting witness is such). (!)
If relative/friend outside district/town, notify via District Legal Aid Organisation/police station telegraphically within 8-12 hours. (!)
Arrestee must be informed of right to notify someone upon arrest/detention. (!)
Diary entry at detention place disclosing arrest, informed person's name, and custody officials' details. (!)
On request, examine arrestee at arrest for injuries, record in "Inspection Memo" signed by both, copy to arrestee. (!)
Medical exam by trained approved doctor every 48 hours during custody; Director of Health Services to maintain panels. (!)
Copies of documents (incl. arrest memo) sent to area Magistrate. (!)
Arrestee permitted lawyer meetings during (not throughout) interrogation. (!)
Police control rooms at district/state HQs to receive/display arrest/custody info within 12 hours. (!)

These requirements flow from Articles 21/22(1), must be publicized (circulated, broadcast, pamphlets), and promote transparency/accountability. (!) (!) (!) (!) (!)

Abuse of arrest/detention powers requires justification (e.g., per National Police Commission criteria), scientific investigation, police training in human values, and legislative amendments (e.g., Evidence Act presumption for custody injuries).[1000013550018][1000013550019] (!) (!)

JUDGMENT

Dr. Anand, J.-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 whereever 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 curiae.

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

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1996 Supreme(SC) 2202

Cases Referred (8)