DK Basu v. State of West Bengal (1997) is a landmark case that has laid down guidelines for the police officers at the time of conducting the arrest of a person and when the person is under the custody of police, in order to safeguard the fundamental rights of the prisoners. This case takes Article 21 and 22 of the Indian constitution into consideration.

Introduction
Custodial violence is an issue of international concern[1]. It refers to any kind of violence done on the arrestee while in the judicial or police custody. The form of violence ranges from physical, psychological to sexual violence. This article is concerned with the case of DK Basu v. State of West Bengal, which discusses the custodial violence in the custody of police, therefore the scope of this article is limited to the custodial violence in the custody of police. In this article the case is and the effectiveness of the judgment is analyzed and thereafter, certain suggestions are provided for effective implementation of the DK Basu Guidelines.

The case DK Basu v. State of West Bengal is a landmark case, which lead to the recognition of the fundamental rights for the prisoners at a large scale. Before this judgment police could not be held liable for custodial violence and there were no proper guidelines for providing compensation to the victims of custodial violence[2].

Summary of the case DK Basu v. State of West Bengal[3]
Facts
Shri DK Basu was an Executive Chairman of the Legal Aid Services for the State of West Bengal. He wrote a letter to the Chief Justice of India bringing his attention to the news items published in the Telegraph dated 20, 21 and 22 of the July 1986 and in the Statesman and the Indian Express dated 17 August, 1986. The news items were regarding deaths under the police custody and lock-ups. He asked the Supreme Court to examine the issue in depth and to formulate 'custody jurisprudence' and the provision for compensating the victim or his family for the atrocities and death caused in the police custody. He also urged the court to consider this letter as a Writ Petition under the category of Public Interest Litigation.

The Chief Justice of India considered the letter as a writ petition and a notice was issued to the respondents, which is the State of West Bengal invoking its original jurisdiction under Article 133 of the Indian Constitution.

While this writ petition was under consideration there was a letter received by the Chief Justice of India from Shri Ashok Kumar Johri on 29 July 1987 regarding the death of a prisoner in Aligarh. This petition was also considered as a writ petition along with the writ petition of Shri DK Basu.

There were many writ petitions from different states as well and were clubbed in this case.

Court appointed Dr. AM Singhvi, senior advocate as amicus curiae for this case.

Issues:

• Whether custodial violence violates the right to life and personal liberty under Article 21 of the constitution?
• Whether there is a need of framing the guidelines for the police officers to follow them during the time of arrest of a person?
• Whether prisoners have the right to life and personal liberty under Article 21 of the constitution?
• Whether police officers can be made liable for custodial violence?
• Whether compensation should be awarded to the victims of custodial violence?

Arguments:

Arguments of the Petitioner:

Every human being has fundamental rights and the court being the custodian of the fundamental rights, it is its duty to protect their fundamental rights. Even the prisoners are entitled to the fundamental rights.

Arguments of the Respondent:

State argued that the police is not doing any sort of custodial violence and if any police officer is found guilty of death in custody, then action was being initiated against them. They also said that the writ petition is misleading. All the states were trying to protect themselves by stating that everything is under order.

Judgment:

1. This judgment has defined the word torture.
2. Court observed that custodial violence is not only a problem in India, but it is an international concern.
3. Court also observed that Article 21, which provides personal liberty which is a cherished right under the constitution and hence held that the prisoners also have the right to personal liberty.
4. Court also took an account of the third report of the National Police Commission and mentioned the suggestions given in the report for curbing custodial violence.
5. Court also observed that the horizon of the human rights is increasing.
6. Court in this case laid down 11 guidelines for the police officers to observe while conducting any arrest.

Guidelines:

1. Identification of the Police Officer: Every officer carrying out the arrest is required to wear proper clear name tag with designation and should be in proper uniform.
2. Arrest Memo: An arrest memo should be prepared at the time of arrest, including time, date and place of arrest. It should be attested by at least one witness from the locality.
3. Right to inform: Arrestee should be informed of his right to inform a relative, friend or any other person about his arrest, as soon as possible.
4. An entry should be made in the diary regarding the arrest of the person and it should contain the name of the person to whom the arrest has been informed.
5. Right to Information: Arrestee has the right to be informed about the reason of his arrest.
6. Information to the Police Control Room: The police should notify the Police Control Room about the arrest within 12 hours.
7. Medical Examination: Arrestee should undergo a medical examination every 48 hours by a doctor.
8. Inspection Memo: Arrestees body should be examined for injuries at the time of arrest and should be attested by the arrestee and the arresting officer.
9. Arrestee has the right to meet an advocate.
10. Copies of all the documents should be sent to the Magistrate for his record.
11. A police control room can be provided at all districts and headquarters, where information regarding all the arrestees should be communicated within 12 hours of arrest and such information should be displayed at a conspicuous place.

Supreme Court also stated that any violation of these guidelines will attract liability on behalf of the concerned police officer for departmental action and contempt of court.

Effectiveness of the DK Basu Guidelines
Effectiveness of any judgment depends on how well it has been executed. So, to check this below is a chart depicting the number of custodial deaths in the custody of police in the past 26 years. The data has been collected from the annual reports of the National Human Rights Commission of India[4].

The statistics show a significant decrease in the number of custodial deaths till the year 2011 but after that the deaths have remained constant with negligible decrease till 2016. Thereafter, there is an increase in the custodial deaths till the year 2022.

This shows that there was a significant decrease but thereafter it again started increasing. This leads us to the interpretation that the guidelines are effective and can be more effective only if they are kept in proper execution at all times.

Suggestions to enhance the effectiveness of these guidelines
A non-governmental organization or a person from a non-governmental organization should be appointed to take daily visits in the police station and the prison. Their duty should be to inspect the premises everyday in order to take a note of the condition of the prisoners and to ensure whether the guidelines given by the court are being followed or not, at the time of arrest of a person and after the arrest of a person. They should be allowed to inspect the police daily diary, case diary and other relevant documents.

They should also have a duty of noting down everything in a diary and sending its monthly report to the concerned police control room.

Conclusion
DK Basu v. State of West Bengal (1997) is a landmark case as it throws light on the fundamental rights of the prisoners, an aspect which is often overlooked. It lays down the guidelines for police officers for conducting arrest of a person and after the arrest. It also acknowledges the compensation for the victims of custodial violence. To make the DK Basu guidelines more effective, an impartial third party should be allowed to take visits of the police station and prisons on a daily basis and to report the same to the lawful authority.

End Notes:

1. DK Basu v. State of West Bengal (1997) 6 SCC 642
2. Kathakali Banerjee, DK Basu v. State of Bengal (1997) : case analysis, IPLEADERS, https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis
3. DK Basu v. State of West Bengal (1997) 6 SCC 642
4. Annual Reports, NATIONAL HUMAN RIGHTS COMMISSION, INDIA, https://nhrc.nic.in/publications/annual-reports