Shri D. K. Basu v. State of West Bengal (1997) 1 SCC 416

 Case name: Shri D. K. Basu v. State of West Bengal; Ashok K. Johri v. State of U.P. 

Citation: (1997) 1 SCC 416; judgment dated 18 December 1996​

Date of judgment: 18 December 1996​

Bench / Judges: Kuldip Singh and A. S. Anand, JJ. (judgment by Dr A. S. Anand, J.)​

 

Facts

The Executive Chairman of Legal Aid Services, West Bengal, wrote to the Chief Justice of India in August 1986 highlighting newspaper reports of increasing deaths and torture in police custody, seeking development of “custody jurisprudence” and modalities for compensation and accountability. The letter was treated as a PIL writ petition under Article 32; soon after, another letter from Ashok Kumar Johri about a custodial death in Aligarh was also tagged. Notices issued to all States and the Law Commission produced affidavits and the 113th Report on “injuries in police custody.” The Court examined the extent of police powers of arrest, detention and interrogation and the constitutional protection against custodial violence under Articles 21 and 22.​

 

Judgment / Holding

The Court held that custodial torture and deaths violate Articles 21 and 22 and that no person loses fundamental rights on arrest; only reasonable restrictions “according to procedure established by law” are permitted. It laid down 11 mandatory requirements to be followed in all arrests and detentions (such as arrest memo with witness, notice to family, diary entries, periodic medical examination, police control room intimation, and limited right to meet a lawyer), declaring that these flow from Articles 21 and 22 and are binding on all police and similar agencies. The Court also affirmed that for established violations of Article 21 in custody, public law monetary compensation is available against the State on a strict‑liability basis, in addition to civil and criminal remedies, and that sovereign immunity is no defence.​

 

Key observations

• The Court described custodial violence as a “naked violation of human dignity” that strikes at the rule of law, and noted the practical difficulties of prosecuting police personnel because evidence lies within police control and witnesses fear retaliation.​
• Relying on earlier cases like Rudul Sah, Nilabati Behera, Bhim Singh and Saheli, and comparative jurisprudence from Ireland, Trinidad & Tobago and New Zealand, the Court developed a robust public law remedy: courts must not stop at declaratory relief but can grant compensation directly under Articles 32/226 for unconstitutional deprivation of life or liberty.​
• The Court urged Parliament to consider inserting section 114‑B in the Evidence Act (as suggested by the Law Commission) to presume police responsibility for injuries in custody, and emphasized the need for police training, transparency, and scientific methods of investigation instead of “third‑degree methods.”​

 

Obiter dicta

• The Court acknowledged the genuine challenge posed by terrorism and serious crime, but stressed that “state terrorism is no answer to combat terrorism” and that even hardened offenders cannot be subjected to torture; interrogation must remain “right, just and fair” and within legal bounds.​
• It highlighted that protection against torture applies not only to police but also to other enforcement agencies like DRI, Enforcement Directorate, BSF, CRPF, CBI, etc., and that the D. K. Basu requirements equally bind them.​
• The judgment articulates an important obiter that public law compensation for violations of fundamental rights is based on strict liability, with a right of the State to recover from the individual wrongdoer, and that traditional private‑law notions and sovereign immunity cannot limit the Court’s constitutional role as protector of fundamental rights.​