SC on Custodial Crimes and Preventive Detention

Rahul Choudhary

Mehoob Batcha & Ors. Vs State Rep. by Supdt of Police (Criminal Appeal No 1511 of 2003) Delivered on March 29, 2011. Rekha vs. State of Tamil Nadu & Anr (Criminal Appeal No. 755 of 2011) Delivered on April 05, 2011

“all three powers are… organs of political hegemony, but in different degrees: 1. Legislature; 2, Judiciary; 3. Executive. It is to be noted how lapses in the administration of justice make an especially disastrous impression on the public: the hegemonic apparatus is more sensitive in this sector, to which arbitrary actions on the part of the police and political administration may also be referred.” (Antonio Gramsci)

It was the police’s “arbitrary actions” that came under Supreme Court Justice Markandey Katju’s scrutiny in Mehoob Batcha & Ors. Vs State Rep. by Supdt of Police (Criminal Appeal No 1511 of 2003). In this case Justice Katju strongly called for death penalty, though not even a case of murder was made out at the charge stage. The reason for not charging the perpetrators for murder is not known but the statement of one of the victims puts forth the barbaric face of the state apparatus as it is experienced at the grassroots level. In this case, the policemen were accused of killing one person in custody and gang-raping his wife in the premises of the police station. And what we are more familiar with, the policemen were not charged with murder, and instead the Trial Court treated the death of the deceased victim as suicide. Custodial deaths are happening more often across the country, some are reported and some remain unnoticed.

Previously, the Supreme Court had passed direction against custodial death, but not much seems to be happening on the ground. In 1997, the Supreme Court in D.K. Basu vs. State of Bengal [(1997)1SCC416] pronounced,

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that power of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens…”

In the Mehboob Batcha case, the actions of the policemen were more inhumane and barbaric than any other case. The recorded statement of the rape victim tells the tale that defies any interpretation other than guilty mind(s). The Supreme Court says, “the horrendous manner in which Padmini was treated by policemen was shocking and atrocious, and calls for no mercy”. In the end the court says that the copy of the order of this case be sent to Home Secretary and Director General of all States and Union Territories, who shall circulate the same to all police officers up to the level of SHO with a directive that they must follow the directions given by the Court in D.K.Basu’s case and that custodial violence shall entail harsh punishment.

D.K. Basu Vs. State of West Bengal laid out the guidelines to be followed in case of arrest:

(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 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) 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 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 nest 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 a 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 State or Union Territory concerned. 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 the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not through 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

The Court also stated that failure to comply with the guidelines 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.

The requirements, referred above, flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to other governmental agencies like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, central reserve Police Force, Border Security Force, Central Industrial Security Force, the State Armed Police, Intelligence Agencies like Intelligence Bureau, RAW, CBI, CID, Traffic Police, Mounted Police and ITBP.

This strict direction was passed way back in 1997. However, it seemed to have failed to work, which called for its reassertion by the SC.

Another judgement was delivered a few days later once again by Justice Katju which could be read in continuation. The issue in Rekha vs. State of Tamil Nadu & Anr was that of ‘preventive detention’. The detention order was passed under “Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers and Video Pirates Act, 1982”. This Act popularly known Goondas Act, itself reminds of the legislations which Marx describes as “Bloody Legislation against the Expropriated”.

While Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law, Article 22(1) and 22(2) provides protection against arrest and detention in certain cases, Article 22 (3) provides for preventive detention as an exception to Article 21 and 22(1) and 22(2).

Article 22(1) of the constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to the cases of preventive detention. In the past, the Supreme Court passed various judgments against ‘preventive detention’.

In the case before the Supreme Court, the issue was the husband of the Petitioner was found selling expired drugs after tampering with the labels and printing fresh labels showing them as non –expired drugs. The ground for detention was that there is a possibility of him coming out on bail and if he comes out on bail he will indulge in further activities, which will be prejudicial to the maintenance of public health and order.

According to Justice Katju, Article 22(3) (b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. The Court went into details of whether the case for preventive detention was made out or not and also remarked against the very concept of preventive detention.

“…Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal…

…It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence.

Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law…”

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