Shri D.K. Basu, Ashok K. Johri v/s State of West Bengal, State of U.P : Case Comment.
Author: Kausahl B. Shah
Lord’s Universal College of Law
The “Indian Legal Solution International Journal of Law and Management (ILSIJLM)” has given an opportunity to show cause my writing and research skills in the form of a Case comment. The topic which I have selected for my Case comment is “Shri D.K.Basu, Ashok K.Johri v/s State of West Bengal, State of U.P”. The reason behind selecting and writing on such topic is that ours is a federal and democratic country and every right and freedom as enshrined under the constitution of India which has been guaranteed to each of the netizens of this country should be brought into service in a rightful and accountable direction.
Due to rapid increase in the cases of torture and such cruelty towards human beings also the policy of divide and rule by the public servants and various official bureaucrats, the Supreme Court and the government of India are empowered to formulate the various public policies and need to introduced the Amendment Bill for the justice of the victim and the measures of judicial reforms from time to time.
SHRI D.K.BASU, ASHOK K.JOHRI V/S. STATE OF WEST BENGAL, STATE OF U.P (1997) 1 SCC 416
Introduction & Facts:
The entire case revolves around the Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986, the executive chairman of which addressed a letter to the Chief Justice of India by turning a spotlight on to the matters being reported in telegraph regarding deaths in police lock-ups and custody. Due to aggravation in complaints regarding custodial violence and deaths in police lock-ups, the matter was frequently published in telegraph and this letter which, when filed before ‘the Supreme Court’ was treated as a writ petition and was issued to the respondent on 09.02.1987. Meanwhile the court was scrutinizing the above (supra) writ petition, a letter was addressed by Shri Ashok Kumar johri on 29th July,1987 to the chief justice of India by highlighting the plight of the matter to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody to the Supreme Court of India. This letter was treated as a writ petition and was directed to be posted along with the writ petition filed by Shri D.K Basu in this court for a similar issue. In response to the above notice, the affidavit was filed on behalf of the state of West Bengal by claiming that the police personnel was no hushing up any matter of lock-up death and unnecessary action was being initiated against them. The respondent treated the writ petition as misappropriate, misleading and untenable in law. During the course of hearing, the court took the assistance of Dr. A.M.Singhvi, senior advocate to assist the court as amicus curiae.
The Executive Chairman states that “it is imperative to examine the issue of custodial and lock-up deaths in depth because such crimes often go unpunished and flourishes”. The chairman also addressed that a modus operandi should be formulated for awarding compensation to the victim or the family members of the victim for atrocities caused in the police custody and to develop the awareness of “custody jurisprudence”. In this case, the petitioners also rose important issues concerning the police powers and if monetary compensation should be awarded for established infringement of Fundamental Rights, as under Article 21, Article 22, and Article 20(3) of the Constitution of India. The court, in this case, said that the lock-up deaths are to be reduced. It will directly take a toll on the belief of the public in law and order. ‘The Supreme Court’ directed all high courts to check on the details and punishment that are being imposed on prisoners in the jails. They were asked to give a detailed list of all the persons who were arrested and were in lock-ups. In order to amend the rules of evidence regarding the prosecution of police officials accused of custodial violence, the parliament’s attention was drawn to the urgent need. The recommendations of the Law Commission of India in its 113th report was taken into consideration regarding a shift in the burden of proof, with the introduction of a presumption of custodial violence if there is evidence that the detainees injury was caused during the period of detention, and the consideration by the court of all relevant circumstances. The court held that Custodial violence, including torture and death in the lockups, 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. To check the abuse of police power, transparency of action and accountability were the two safeguards laid down by the court. The bench consisting of Kuldip. Singh and A.S.Anand issued 11 directives where it spelled out the rights of an arrestee or a detainee and the manner in which the arresting or detaining authority is expected to behave, including the written record of arrest, informing of arrestee’s family of his arrest, the medical examination on request, among others.
- Was the court’s decision appropriate?
- Does this decision change? Was the reasoning consistent with the previous reasoning in similar cases? Is it likely that the decision will significantly influence existing law?
- Did the court adequately justify its reasoning? Was its interpretation of the law appropriate? Was the reasoning logical/consistent? Did the court consider all/omit some issues and arguments? And, if there was an omission, does this weaken the merit of the decision?
- What are the policy implications of the decision? Are there alternative approaches which could lead to more appropriate public policy in this area?
- After hearing the entire pleading from the respective counsel of the petitioner and the defendant, ‘the Supreme Court’ observed and held its verdict by setting out a charter of rights of the arrested person to safeguard the interest of the arrestee in this case. This list of guidelines was set out keeping intact the principles of Articles 21, Article 22 and Article 20(3) of the Indian Constitution and has directed its adherence. The guidelines were set out in addition to the constitutional and statutory safeguards and do not detract from the other directions given by the courts from time to time in safeguarding the dignity of the arrestee. These safeguards are however not available to an alien enemy or to a person detained under a law providing for the preventive detention. Further, to ensure the strict compliance of such guidelines ‘the Supreme Court’ stated that the non-compliance of the guidelines would attract departmental action and also be punished for the contempt of court against the official responsible for the non-compliance. So the court’s decision is appropriate.
- The court has formulated the guidelines for the rights of the arrested person and to protect their rights, the procedure to be followed by every police personnel after making an arrest because some of the police department add extra procedures in order to help the officer avoid making a legal mistake which would ruin the prosecution’s case. After pronouncing the verdict in this case the decision of the court has so far not been changed. In the case of Agnelo Valdaris who died on April 18, 2014, and of the three co-accused, it was observed that even after adhering to the rules on presenting people before magistrates and conducting medical tests will not necessarily spare suspects from being tortured. Suspects are afraid to say they have been mistreated or that medical staff did not carry out their responsibilities in a professional or impartial manner. Any existing law is influenced if any decision and the guidelines of ‘The Supreme Court’, high court or any bill introduced in ‘The Parliament’ violates the provisions of the constitution of India. In this case, the measures implemented by the supreme court does not violate any fundamental rights of the citizen.
- The reasoning and the interpretation of the law by the court are within the ambit of the provisions of the constitution of India and also in line with the sections enacted in the criminal procedure code 1973 and Indian penal code 1860. The judgment pronounced by the court is logical but there are lacunae in consideration of some issues by the court due to which the merits of the decision is weakened. Some of the omissions in consideration of issues are:
The police officers are heavily burdened with the plethora of cases being reported before them and they have to comply with such stringent rule of procedure. While complying with such lengthy procedures, they are unable to gather the much-required evidence. The police officers do such crimes for their involvement in politics, rampant corruption, for their meritorious gains, due to drunkenness. Due to a high number of pending cases before the police officer, supreme court and the high court it causes not only frustration among the public, relatives of the accused, police officers but also hampers them to cause violence in the lock-ups. On the other hand, the media is also responsible for causing hype and publishing defamatory articles, due to which the police officials and judges face the legal consequences.
- ‘The Supreme Court’ can frame more appropriate public policy in this area and implement it effectively. Some of these public policies are as follows:
The Protection of Prisoners Cell (PPC) should be established for those prisoners who are in the imprisonment between seven yrs to a maximum of ten yrs. Only the officials appointed by ‘The Supreme Court’, high court and CBI should be allowed to visit such cells and not the local police officials. The Fast Track court in every state which takes a maximum of six months for the speedy redressal of the dispute.The measures of videotape recording and the installing of CCTV in order to curb the crime committed by a police officer or by a prisoner while he/she is in police custody or lock-ups.
It is very difficult for anyone of us or altogether to completely devastate a particular crime from its very root but it can be prevented to a greater extent. It is necessary for the government to take every single step to prevent such offence to spread like a wildfire. The government should introduce The Prisons (Amendment) Bill, 2019 for the benefit of the accused person and the prisoners, as Article 368 of the constitution of India grants formal power of amendment to the courts, and also to the Parliament to amend the constitution. Train investigating officers on modern, non-coercive techniques for suspect and witness interviewing and questioning. There should be initiatives by the government to make the public pubic socially aware as to how, when and where the complaints are to be filed on its portal.
 Article 21-the right to life and personal liberty, the right to live with human dignity. It thus also includes a guarantee against torture and assault by the state or its functionaries.
Article 22- Protection against arrest and detention in certain cases, the individuals who are arrested and detained in custody should be informed of the grounds of arrest; he should not be denied the right to consult, defend them by a legal practitioner.
Article 20(3) – A person accused of an offence shall not be compelled to be a witness against himself or herself.