D. K. Basu Judgement and After

The Supreme Court passed a landmark judgment on 18th December, 1996 on procedure of arrest to minimize custodial violence in a writ petition, suo moto taken by the Apex Court on a letter given by Mr. Dilip Kumar Basu, then a lawyer and later elevated to Judge of Calcutta High Court. Till date this judgment is blatantly ignored and violated by the police and the administration even after lapse of an era after passing of the judgment though many directions of this celebrated judgment time to time got incorporated in the statute itself. No serious attention was paid by the authorities concerned to implement the directions of the court, which are as follows:

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 at least 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 countersigned 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 center 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 Organization 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 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 panel 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 ilaqa 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 police board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter."

MASUM, from its experience in addressing the victims of police or state torture can conclude that in many cases it has been detected that the police and the BSF blatantly ignore the guideline of D. K. Basu Judgments while conducting any arrest and during detention period in police lock up.
Arrest by the police without proper uniform is regular feature and they do not seem to be much worried for violation the law. In maximum cases it is seen that the police do not issue any memo of arrest at the time of arrest and normally they prepare memo or arrest only before producing the arrestee to the court. To add to this, ‘No injury found’ medical report is also prepared in routine manner usually for all persons produced from police custody in connivance with government medicos. Entire show has turned into a farcical process.
As per the direction of the said judgment, all records of arrest should display on every district level police control room, but hardly do we find any record on the display board of the district police control room or any state head quarter either.
After the arrest it is mandatory for the police to inform family members or near relatives of the arrestee of the arrest made by the police concerned and the particulars of the police officer who made the arrest. Subsequently this provision was incorporated in section 50A of Code of Criminal Procedure. But seldom police follow this procedure.
It can easily be said that the spirit of D.K. Basu judgment has been defeated as none of the concerned agency is interested or committed to implement the judgment in its true sprit. The lower judiciary is also not playing any effective role at all to implement the judgment. Even some High Courts held that the contempt proceeding for non-compliance of guidelines of D.K. Basu by the police is a civil contempt.
Many years back on 4th August 1998, Masum filed a contempt application before Calcutta High Court against many government officials and police administration but the said case in High Court found missing.