Revisiting D. K. Basu Judgment in 2020 after #JayarajAndFenix.
Written by: Adv. Suyash S. Sule, Associate, D. N. Salvi and Associates, Bombay
“Torture” has been defined in numerous articles, judgments, and texts altogether. But torture is a feeling that no amount of words will ever be able to describe. Words in itself will never be able to adequately justify the “feeling” of torture. One of the very best and closest a definition can ever get to describing the word torture has been iterated by Hon’ble Justice Dr. A. S. Anand, as his Lordship then was, while authoring the judgment in the landmark case of D. K. Basu Vs. State of West Bengal[i]. His Lordship quoted a very graphic and realistic definition by Adriana P. Bartow, “Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."
Custodial torture first surfaced and was addressed by our Courts of Law in the year 1986.
On 26th August, 1986, an Executive Chairman of Legal Aid Services addressed a letter to the Chief Justice of India. The letter so addressed was regarding the issue of “Custodial Jurisprudence”, which was an utterly disregarded issue at that time. The letter pleaded to the Chief Justice of India to look into the matters of custodial deaths and, to provide justice as well as monetary compensation to the victims of such violence caused by the people in authority. This issue was taken up suo moto by Hon’ble Chief Justice of India and decided by Hon’ble Justice Dr. A. S. Anand, as his Lordship then was, as it was aggravated by the fact that such violence was committed by the people who are supposed to be the protectors of citizens.
This judgment received a lot of commendation as it addressed the issues of custodial torture right of the bat and did not beat around the bush.
Hon’ble Justice Dr. A. S. Anand while authoring his judgment has addressed the provisions under Article 20 of the Constitution as it is directly relevant to the Criminal jurisprudence. Article 20 (1) prohibits retrospective operation of penal legislations. Article 20 (2) guards against double jeopardy for the same offence. Article 20 (3) provides that no persons accused of any offence shall be compelled to be a witness against himself. Although, prima facie it may appear that these three provisions deal with 3 distinct aspects. But it is important to understand that these three provisions have a common task of keeping a check on the substantive, procedural and evidentiary powers bestowed upon the arms of criminal justice system, and that such powers are not used to oppress accused persons.
The judgment also held that Article 21 of the Indian Constitution provides that "No person shall be deprived of his life or personal liberty expect according to procedure established by law". Personal liberty is a sacrosanct and cherished right under the Constitution. The expression “Life or personal liberty” in Article 21 also includes that Right to live with dignity as has been held and propounded by the Supreme Court multiple times. Hence, a person even though accused, has the right to live his life with dignity and not face any sort of torture or abuse in any form, that's literally one of his basic legal rights. Though Article 21 does not contain any express provision against torture or custodial crimes, the expression life or personal liberty occurring in the article has been interpreted to include constitutional guarantee against torture, assault or injury against a person under arrest or under custody.
Further, it also deals with Article 22. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.
The judgment has also critically analysed the provisions in the procedural code i.e. Criminal procedure code with regards to arrests of accused persons. Chapter V of the criminal procedure code deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. A list of important provisions discussed in this judgment from Chapter V is reiterated below: -
1. Section 41 states when the police may arrest an accused without an order from the Magistrate or without a warrant.
2. Section 46 lays down an elaborate method in which an arrest may be effectuated.
3. Section 49 states that even a person being arrested may not be restrained more than what is required to prevent his escape.
4. Section 50 explicitly provides a right to the accused to be informed on what grounds is he/ she arrested, and also, his/ her right to bail.
5. Section 53 provides an arrested accused to be examined by a medical practitioner at the request of police officer, who believes such a medical examination may be important as an evidence to the offence for which the person is arrested.
6. Section 54 states that an arrested person may be required to be examined by a medical practitioner.
7. Section 57 lays down a very important principle. It states that a person arrested without a warrant shall not be detained in police custody for more than 24 hours and shall be presented before the Magistrate before expiry of 24 hours.
8. Section 167 provides procedure to be followed by the police when the investigation does not get completed in 24 hours.
The judgment has very explicitly laid down guidelines which have been attributed legislative effect since the passing of this judgment with regards to the process of arrest of a person. The guidelines are briefly reproduced under: -
Identification of the Police officer arresting the accused.
Prepare an arrest memo.
Inform a friend, relative, etc. of the arrestee about the arrest.
Time, place and venue of arrest to be notified to the relative, friend, etc. of the arrestee.
Arrestee to be made aware of his right to inform a close friend.
An entry about the arrest in a diary.
Minor or major injuries of the arrestee must be recorded as "Inspection memo".
Arrestee to be provided with medical examination every 48 hours.
Copies of all documents must be sent to the Illaqa Magistrate.
Arrestee must be allowed to meet his lawyer during interrogation, though not throughout it.
A police control room should be provided for maintaining records of arrests, and any arrest must be informed to it within 12 hours of arrest, and such an arrest must be displayed on a conspicuous place of the control room.
Succinctly reproducing all guidelines laid down by the Supreme Court and the provisions of Constitution and the criminal procedure code is paramount to understand the manner in which the police have violated all these norms in the recent Jayaraj and Bennix case. It is very clearly seen that the provisions in the procedure code and the guidelines laid down by the D. K. Basu Judgment provide adequate number of safeguards to the accused in any case. It is the implementation of these provisions which is deficient.
"Properly exercised the new powers of the executive lead to the welfare state: but abused they lead to a totalitarian state. None such must ever be allowed in this country."
- Lord Denning
On Friday, June 19, a regular evening, Bennix a regular shopkeeper was in his shop. At around 8 PM he was informed by a couple of friends that Jayaraj, his 58-year-old father was picked up by the police and was taken to Sathankulam police station, Tamil Nadu. On being informed the same, Bennix rushed to the police station to figure out why was his father picked up. Upon reaching the police station, he was informed that his father was taken to the police station for “inquiry purposes”. The friends who had accompanied Bennix were not permitted to enter the police station premises with him. Although the F.I.R states that father-son duo was arrested together, which is not in corroboration of the testimonies of the witnesses.
It was only after 3 days that Jayaraj and Bennix were declared to be dead in the Kovilpatti Government Hospital, around 100 kilometres from their hometown.
The reasons cited by the police officials in the F.I.R were that the shop was open after curfew hours which has been imposed by the district administration due to the COVID-19 nationwide lockdown. Jayaraj, his son Bennix and a few others were standing outside the shop. When the police told them to disperse, others went away, Jayaraj and Bennix sat on the ground and abused the police officers present there verbally and rolled on the ground, which was the reason cited by police officials for the internal injuries suffered by both of them. It has also been alleged to have been stated by the police in the F.I.R that the father-son duo had threatened to beat and kill the police officials.
All of this was brought into limelight by a social media post put up by a lady explicitly stating the details in totality, and graphically describing the physical abuse police inflicted on the father-son duo, which led to their death after 3 days. It cannot be unnoticed that the facts stated in the F.I.R by the police are in stark contradiction to that, which are alleged by the witnesses present there, as also mentioned in the social media post.
Eyewitnesses had alleged that they were stripped naked, their knees were smashed and their chest hair was ripped out. They further claimed that the cops inserted metal objects into the victims’ rectum leaving them bleeding till their lungis had to be changed seven times in about 5 hours. The allegations of the severe police brutality were later confirmed in the autopsy reports.[ii]
Perusing the facts of this case, it is extremely clear that the conduct of the police officials is in utter disregard to each and every provision and guidelines laid down by the Supreme Court in the abovementioned D. K. Basu case and also Criminal procedure code.
It is about time when implementation of directions issued by the Supreme Court in landmark case of D. K. Basu concerning functioning of the police across states needs to be constantly monitored. There is an urgent need for investment in training, equipment and infrastructure to reduce the pressure on law enforcement agencies. If not a legislation, strict scrutiny of the activities of the police has to be brought in for the betterment of the society.
A common notion that runs in our society today is that police is a state machinery which is to be feared and hence respected. But instead, people need to realise that police are a machinery around which people need to feel safe and hence respect it. It is due to incidents like this, that the society is scared of the police and abide by their orders, and not because they respect the police. The police need to follow the rule of law and not take laws in their own hands and implement it as it deems fit to them.
“When you have police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe”
― Mary Frances Berry
It would also be incorrect to blame the police machinery without understanding their realistic position. A large number of cases of police brutality take place not because of individual aberration, but because of systematic compulsions. A large number of such malpractices and immoralities occur due to systemic corruptions also, and most of the times the hands of police are tied down due to systemic pressure created upon them by superior authorities have to give in to such breach of ethics.
[i] Writ Petition (Crl) No. 539 of 1986. [Supreme Court.] [ii] https://www.india.com/news/india/tamil-nadu-custodial-deaths-2-police-officers-arrested-on-murder-charges-as-cbi-takes-over-jayaraj-fenix-case-4072952/
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