D.K. Basu v State of West Bengal (Supreme Court, 1997) — the eleven requirements on arrest and custody

Article 22(1) and (2) give an arrested person the right to be told the grounds of arrest, to consult a lawyer and to be produced before a magistrate within twenty-four hours. D.K. Basu adds to those bare guarantees a set of practical requirements which flow from Articles 21 and 22(1), apply to every arrest, and are enforced by contempt of court. It is the standard citation on custodial torture and the rights of the arrested person.

The matter began as a letter to the Chief Justice about deaths in police custody, treated as a writ petition. The Court described custodial torture as a naked violation of human dignity. "Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise." It asked: "Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest?" and answered: "The answer, indeed, has to be an emphatic “No”."

"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 "should bear accurate, visible and clear identification and name tags with their designations", and their particulars must be recorded in a register.
2. The arresting officer "shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be 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. The arrestee "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".
4. Where the next friend or relative lives outside the district or town, the time, place of arrest and venue of custody must be notified through the Legal Aid Organisation in the district and the police station 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 recording the arrest, the name of the next friend informed, and the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be examined at the time of arrest and any injuries recorded; the "Inspection Memo" must be signed by the arrestee and the arresting officer and a copy given to the arrestee.
8. The arrestee "should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody" by a doctor on a panel approved by the Director, Health Services.
9. Copies of all the documents, including the memo of arrest, 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 about the arrest and the place of custody is to be communicated by the arresting officer within 12 hours and displayed on a notice board.

Sanction. "Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned 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."

Source and reach. "The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also". They are in addition to the constitutional and statutory safeguards.

The right to life under Article 21 is not suspended by arrest. Torture and cruel, inhuman or degrading treatment in custody violate Article 21, and the Court has laid down eleven requirements, on identification, the memo of arrest, informing a relative, medical examination, access to a lawyer and reporting to the magistrate and the control room, which flow from Articles 21 and 22(1), bind every arresting agency, and are enforceable by contempt.