- (1.) In D.K. Basu etc. v. State of West Bengal etc., 1997 1 SCC 416 this Court lamented the growing incidence of torture and deaths in police custody. This Court noted that although violation of one or the other of the human rights has been the subject matter of several Conventions and Declarations and although commitments have been made to eliminate the scourge of custodial torture yet gruesome incidents of such torture continue unabated. The court described 'custodial torture' as a naked violation of human dignity and degradation that destroys self esteem of the victim and does not even spare his personality. Custodial torture observed the Court is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backwards. The Court relied upon the Report of the Royal Commission on Criminal Procedure and the Third Report of the National Police Commission in India to hold that despite recommendations for banishing torture from investigative system, growing incidence of torture and deaths in police custody come back to haunt. Relying upon the decisions of this Court in Joginder Kumar v. State of U.P. and Ors., 1994 4 SCC 260; Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors., 1993 2 SCC 746; State of M.P. v. Shyamsunder Trivedi and Ors., 1995 4 SCC 262; and the 113th report of the Law Commission of India recommending insertion of Section 114-B in the Indian Evidence Act, this Court held that while the freedom of an individual must yield to the security of the State, the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take precedence over an individual's right to personal liberty. Having said that the action of the State, observed this Court, must be just and fair. Using any form of torture for extracting any kind of information would neither be right nor just or fair, hence, impermissible, and offensive to Article 21 of the Constitution. A crime suspect, declared the court, may be interrogated and subjected to sustained and scientific interrogation in the manner determined by the provisions of law, but, no such suspect can be tortured or subjected to third degree methods or eliminated with a view to eliciting information, extracting a confession or deriving knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be a qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. State terrorism declared this Court is no answer to combat terrorism. It may only provide legitimacy to terrorism, which is bad for the State and the community and above all for the rule of law. Having said that, the Court issued the following directions and guidelines in all cases of arrest and/or detention: "35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs 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 a 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 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 he 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 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 Stare 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."
(2.) This Court also examined whether compensation could be awarded and declared that pecuniary compensation was permissible in appropriate cases by way of redressal upon proof of infringement of fundamental rights of a citizen by the public servants and that the State was vicariously liable for their acts. The Court further held that compensation was payable on the principle of strict liability to which the defence of sovereign immunity was not available and that the citizen must receive compensation from the State as he/she has a right to be indemnified by the government.
(3.) D.K. Basu(1) was followed by seven subsequent orders Dilip K. Basu v. State of W.B. and Ors., 1997 6 SCC 642; Dilip K. Basu v. State of W.B. and Ors., 1998 9 SCC 437; Dilip Kumar Basu v. State of W.B. and Ors., 1998 6 SCC 380; Dilip K. Basu and Ors. v. State of W.B. and Ors., 2002 10 SCC 741; Dilip K. Basu and Ors. v. State of W.B. and Ors., 2003 11 SCC 723; Dilip K. Basu and Ors. v. State of W.B. and Ors., 2003 11 SCC 725; and Dilip K. Basu v. State of W.B. and Ors., 2003 12 SCC 174. All these orders were aimed at enforcing the implementation of the directions issued in D.K. Basu(1). It is not, in our view, necessary to refer to each one of the said orders for observations made therein and directions issued by this Court simply show that this Court has pursued the matter touching enforcement of the directions with considerable perseverance.;