|D K Basu Guidelines
8th March 2005
D. K. BASU JUDGMENT – REQUIREMENTS FOR ARREST, DETENTION, INTERROGATION
“ Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law…………………….
Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon.”
D.K.Basu vs. State of West Bengal (1997) 1 SCC 216
In view of the increasing incidence of violence and torture in custody, the Supreme Court of India has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These are:
Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.
A memo of arrest must be prepared at the time of arrest. This should:
have the time and date of arrest.
be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made.
be counter-signed by the person arrested.
The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.
Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.
The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.
An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.
The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The "Inspection Memo" should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.
The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.
Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.
The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.
There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board.
These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.
Failure to comply with these requirements would make the concerned official liable for departmental action. Not following these directions constitutes a contempt of the Supreme Court, which is a serious offence, punishable by Imprisonment and fine. This contempt of court petition can be filed in any High Court.
These requirements are in addition to other rights and rules, such as:
The right to be informed at the time of arrest of the offence for which the person is being arrested.
The right to be presented before a magistrate within 24 hours of the arrest.
The right not to be ill-treated or tortured during arrest or in custody.
Confessions made in police custody cannot be used as evidence against the accused.
A boy under 15 years of age and women cannot be called to the police station only for questioning.
The Constitution of India, which is the basic law of the country, provides protection to all persons from ill treatment and torture by the police and other state agencies.
Guarantees the right to life and personal liberty to all persons.
Lays down the rights available at the time of arrest and detention. These rights can be enforced by directly approaching the High Courts and the Supreme Court of India.