Interview with D. K. Basu

Bruce Van Voorhis

(Ed. note: D. K. Basu is a former judge of the High Court in West Bengal whose work for legal aid in India has sought to give all Indians access to the country’s courts. A letter that he sent to the Chief Justice of India in the mid-1980s sparked a decision by the country’s Supreme Court that altered police procedures to better protect India’s citizens from abuse in police custody.)

AHRC: Thank you, Justice Basu, for taking time to speak with us. To begin our conversation, please tell us about your legal background in India.

BASU: I began my legal career in 1964 as a lawyer practicing before the High Court and the Supreme Court of India. During the first stage of my professional life, I was very eager to appear for the people, especially for the people of the vulnerable sections in society. While I had the occasion to appear in many cases in the High Court and Supreme Court, I also was able to extend legal aid to people who needed assistance. Giving legal aid and assistance for needy people became a part of life to me. It was not compassion; but in my professional life, I thought that lawyers are really social scientists, and therefore, they have some social obligations. In order to discharge this obligation, I thought that I should be a “people’s lawyer,” a role I took for myself until 1986.

Meanwhile, before I was elevated to a judge on the Calcutta High Court on Jan. 1, 1987, I was the founding executive chairman of the state non-governmental organisation catering for legal aid and assistance, Legal Aid for East and West Bengal that was based in West Bengal. As the executive chairman of this organisation and as a lawyer, I subsequently initiated and brought many actions before the High Court through public interest litigation. I emphasize this point because there is nothing in the law books about public interest litigation.

Consequently, in order to invoke the jurisdiction of public interest litigation, I used to innovate, I used to identify problems in society. The main strategy is to use public interest litigation to identify human rights issues in order to protect the people from the misdeeds of the administration. In doing this, I used to take up cases, I used to identify issues and problems, and I would use this mechanism, that is, public interest litigation, for this purpose.

AHRC: Could you describe one of the first cases where you as a lawyer used this concept, this strategy, of public interest litigation?

BASU: Certainly. In 1985, a person came to me and said that he has a colleague, a young doctor working as a volunteer in a medical clinic in Calcutta, who was taken into police custody.

Now, when a person is taken into custody, the law states that the person must be produced before a court of law within 24 hours of his or her arrest. Thus, when this case came to me, I directed my associate junior lawyer to make arrangements to secure bail for this doctor who was in police custody. Unfortunately, he was not produced before the appropriate court. You must understand that when a person is arrested within a specific police station division in India that person must be produced before a court having jurisdiction of that police station.

After the first day when we failed to attain bail for this young doctor, we made arrangements on the second day to keep watch in different courts where he might be produced because, as I said, the law is very clear that the accused should be produced before a magistrate within 24 hours of his arrest. He was not produced in court the next day though. Sometimes the police used to produce the detainee in another court, stating that he was intercepted in that jurisdiction. This ruse is done to avoid any confrontation with a lawyer, i.e., so that no lawyer will appear on the person’s behalf when they are produced in court asking for bail.

Three or four days passed by in this manner. Subsequently, I personally took up his case, and I heard from other people that probably he had been taken to a torture chamber by the police for further interrogation. Then, through my legal aid organisation, I was able to learn and ascertain that he was threatened in that chamber, that he was given the third degree for two or three days, and that he was still in police custody in that torture chamber.

The next day his detention in the torture chamber was mentioned before the magistrate and also that I have reason to believe that this person, a doctor, was taken into custody 70 hours earlier but that he was not produced before a court, which, as I noted earlier, is against the law. Therefore, he should be produced in court, or otherwise we would file a writ of habeas corpus in the High Court. Immediately, the magistrate directed the police to produce the doctor before him, and he was thus finally produced in court.

AHRC: Did this case give you any other insights into law enforcement and the legal system in India?

BASU: In general, this incident prompted me to understand the custodial procedure in India and how a citizen is treated when he is taken into custody by the police in our country.

This particular case also prompted me to look for other problematic incidents in the newspaper. I found, for instance, that there had been several cases of death while in police custody. I became aware that there were cases of rape in police custody as well. I discovered too that many injuries were caused in police custody and that people often had to tolerate serious forms of harassment.

All these incidents prompted me to address a letter to the chief justice of India in 1986 to which I attached clippings from various Indian newspapers. I thus tried to persuade the chief justice that violence, death, rape, assault and injuries in custody have become the rule of the government in police administration. Therefore, it is necessary, it is imperative, that the court should promulgate modalities, should prescribe some strong modalities, for the manner in which India’s citizens should be treated in police custody. Not only did I raise this problem and other issues of concern, but I also provided some guidelines that set out how the court can intervene and make arrangements for safeguarding our citizens’ rights; the court can prescribe the modalities for custodial cases against the police and their disposal.

Thereafter this letter was treated as a writ petition under the public interest litigation category by the Supreme Court of India, but this was not known to me at the time in 1986. Then in 1996 the Supreme Court took up the matter, and the court passed an order that is now publicly known as D. K. Basu vs. the State of West Bengal. In this judgment, the Supreme Court interpreted the law through which it prescribed the modalities of arrests and remedies regarding how to monitor detainees while in police custody and the means of enforcement.

In addition to stipulating the modalities, the court should also have prescribed compensation for such violent acts in police custody. Publicly, I suggested that, in case of death or rape, a minimum sum of 100,000 rupees (US,233) should be given to the detainee or the victim’s family. In the case of major injury, it should be 50,000 rupees (US,116.50); and in the case of minor injury, it should be 25,000 rupees (US8.25). Initially, these payments should be paid by the government, but the government can recover the money from the police officers who arrested and tortured the victim. This could be done on a pro-rata basis. All in all, it means the officers have to repay the government. Through this required reimbursement, the officers in a police station will be made to think twice after arresting a person and resorting to forceful attacks on detainees.

In the 1996 judgment of D. K. Basu vs. the State of West Bengal, the Supreme Court prescribed 11 specific commandments and formulas to protect the rights of India’s citizens. The judgment also publicly states that it is the duty of the Indian government to protect the rights and safety of all Indian citizens.

AHRC: What are these 11 commandments?

BASU: First, when a police officer goes to anyone’s home to make an arrest, the police officer should have a tag disclosing their identity. In addition, an arrest memo has to be prepared by the arresting police officer on the basis of these court-established 11 commandments as soon as the person is arrested, and it has to be countersigned by the person who is arrested. In the arrest memo, the police officer has to write his or her name, the police station where they are posted and under which offence this particular person is being taken into custody. The police officer should also record if the arrested person has any major injuries and the condition of their health so that the police will know what kind of medical treatment must be given to the person while in custody. Medical check-ups are to be performed every 48 hours.

The arrested person will then be taken to the police station, and immediately from the police station the legal aid office is to be notified about the person’s arrest and whether the person is young or old. In this way, immediate legal aid and other assistance can be given to the person in custody. In the case of a village-area arrest or other non-metropolitan city arrest, and if it is beyond the jurisdiction of a particular district, the district’s police control office has to be informed; the arrest in these cases has to be controlled and monitored by the district control office.

AHRC: What about cases of arrest on the street or outside of the home?

BASU: The relevant action to be taken on these occasions has been prescribed too. In cases like these, a person in the vicinity of the arrest is to be asked to countersign the arrest memo. Therefore, these local people, or the people from the surrounding area, will be able identify the police officers so that they can easily tell the relatives of the arrested person. The intent is that as soon as the arrest memo is completed the relative of the accused or friend of the accused will know at which police station the accused will be produced. The arrested person cannot be taken from the police station to other places. In short, the effect of the judgment delivered by the Supreme Court is that it ensures protection of the rights of India’s citizens.

For people outside of India, the importance of these procedural changes might not be apparent. Another example might be necessary. For instance, in West Bengal in the 1970s and 1980s, the members of the Naxalite movement were sometimes arrested and taken into police custody. On the next day, during the night, they were asked to leave the police station to go with the police to an area outside of the city. Then they were asked to get out of the police vehicle. As they got out, they were shot dead. The next morning on the front page of the newspaper there would be a story stating that a young boy had died due to a confrontation, that there was a police encounter and the young boy tried to kill the officer. In this manner, the boy died in an “encounter” with the police; it was an “encounter killing.”

Consequently, if we can introduce a system with an arrest memo, then possibly the police cannot take anyone outside of the police station. With a memo, the family members of the arrested person and society will know that he was taken into police custody at this particular police station and by this particular police officer.

AHRC: Are there any other practical consequences of this judgment?

BASU: Yes, in every police station, all these guidelines should be published and disclosed. This is done so that anyone that enters the police station understands that these are the guidelines, and accordingly, the police are to follow these guidelines according to the Supreme Court’s judgment. This change was very well publicized.

AHRC: It has now been 10 years since this judgment of the Supreme Court of India came into effect. How has this judgment been implemented in the past decade?

BASU: Although there is a great deal of awareness in the media and in academic circles and the courts about this judgment in India, it is not being properly implemented; there are violations. When this occurs, it amounts to contempt of court. The Supreme Court has stated that anyone can then approach any High Court and file a contempt application that indicates which order has been violated.

AHRC: Has this judgment had any influence outside of India?

BASU: Yes, it has also had an impact in other countries in South Asia. It has been relied upon, for instance, in Bangladesh, including the Supreme Court of Bangladesh; and in Sri Lanka, this judgment is being considered to combat torture in police custody, i.e., citizens have the right not to be tortured. In short, the judgment is a tool for justice for lawyers, human rights activists and, indeed, anyone in India and elsewhere.

AHRC: If you could make any additions to this judgment, what would they be?

BASU: Although a few additions have already been made to this judgment, one addition has not been made that is absolutely necessary: a court should pass an order awarding compensation in cases of death, rape or any kind of injury to anyone while in custody as compensation is presently not prescribed in the guidelines given by the Supreme Court. Legal aid and human rights activists in India are trying their best to have the order amended by the Supreme Court, but this change has not taken place yet and needs to be added to the judgment.

AHRC: In spite of the ruling and the 11 commandments, we know from our experience, and, indeed, as you noted earlier, that in many instances this judgment is being ignored, that torture, rape and assaults unfortunately continue to take place in police custody in India. Obviously there is a gap between what the rules and procedures of the judgment prescribe and what, in fact, is taking place in police custody in India. Thus, where do you think the breakdown is occurring?

BASU: Basically, it is necessary to generate awareness among the people. The majority of the people in India are unaware that they have these rights through this Supreme Court judgment. You must understand, and the people of our country must understand, that in India there are different laws in operation. One law is constitutional law, one is statutory law and another is judge-made law. The people should know this basic legal framework of our country. In this manner, awareness can be generated among the people; they will become aware that they have a particular right.

In addition, the role of the media is very important in this process. The voluntary organisations too—all those who are working in human rights groups, the human rights defenders, all of these people—should be aware of this particular judgment and the legal right given to the people through it. They can be another avenue for educating the people.

In short, it is the people’s right to tell the law enforcement authorities that they cannot arrest and detain any person in a haphazard manner and without the appropriate authority. Moreover, the police cannot torture people while they are in police custody. The law has to be enforced by the law enforcement authorities properly. Thus, if any citizen is aware that the police are not doing their job properly and are not honouring the law, the people must be able to point out to the police that they are not doing their job under the law. This is the main rationale behind the 11 commandments.

AHRC: Consequently, part of the problem is that there is not enough awareness among the people themselves regarding the judgment? Is that correct?

BASU: Yes, that is the main point. There is no adequate publicity of the judgment among the people. Recently, the Supreme Court commented that the government needs to enact relevant laws following the earlier guidelines given by the court. In India, the criminal procedure code has been amended and parts of these guidelines have been incorporated in the criminal procedure code, but as of yet, that has not come into force in our country. Hopefully, this will be part of the criminal procedure code very soon.

AHRC: Is there any punishment prescribed in the ruling of D. K. Basu vs. the State of West Bengal that if the police do not follow the legal guidelines or the rules of the judgment they will have to face the consequences of their actions?

BASU: Yes, the police are liable under the Contempt of Court Act; the police should be charged under this act for violation of the court’s order in D. K. Basu vs. the State of West Bengal. Thus, legal action can be initiated against any police officer who has violated this court order. Today hundreds of cases are pending before the Supreme Court and the High Court under this particular contempt jurisdiction.

AHRC: Returning now to a point you made at the beginning of this interview about the social obligations of a lawyer in society, I am interested in how you came to this conclusion. You described briefly how you tried to live this out, but I am interested in the social role of a lawyer that you mentioned at the very beginning of our conversation. How did you formulate this view?

BASU: Before I became a lawyer, I thought I would not opt for any salary but would pursue a profession. That was because my father was a professional lawyer. Therefore, I thought I would not work for a salary when I opted for this profession. From the beginning, I thought that a lawyer should be considered, and usually the lawyers in society are considered, social scientists. I think that I have been a social scientist, and I should be burdened by my obligation to society. How should this be done though?

At the initial stage, I started an organisation to provide legal aid and assistance for those who are part of the vulnerable sections of society. Such an organisation was formed, and I was the founding executive chairman. The main thrust of this organisation was to give free legal aid to people who could not afford the costs of litigation. Sometimes litigation procedures are a luxury in India, a pattern not only in India but also in other countries. This is the main reason that I think that the people who cannot afford it themselves should be given legal aid and assistance.

Therefore, we started this programme in Calcutta in the beginning and then throughout West Bengal. Later we spread our legal knowledge and activities to other states in India. Then we established a national committee—the National Committee for Legal Aid in India—of which I am the chairman. A number of retired judges, people from voluntary organisations and other social activists are attached to our organisation. Now in different states we have set up volunteer organisations. Through these groups, we are rendering legal aid and services to the people, a system that has become very helpful to them. In any state, through this network which we have started, anyone will be able to get the necessary assistance that they require.

AHRC: Can you provide some illustrations of how this programme and network function?

BASU: Yes, of course. For example, if a person is unable to approach a court just because they are living in an isolated area in their state, they will be able to easily approach the court. Moreover, if a person is living in a remote region and has to go all the way to the Supreme Court in New Delhi, they will need adequate funds to make that journey. These people just cannot afford the cost of litigation in the Supreme Court. I am happy to say though that we are providing this service to the people through our programmes in different states.

AHRC: Your legal aid work in India that you have described is the work of an NGO, of a non-governmental organisation. Does the government also offer legal aid, and, if so, why is your work necessary?

BASU: In India, there is a law, the State Legal Service Authorities Act of 1987, that has been enacted that states that the central body administering the government’s legal aid programme is under the chief justice of the Supreme Court of India. One of the Supreme Court judges is the executive chairman of this central body. However, its work has been decentralised. In all states in India, through this body, legal aid has to filter down to the grass roots.

Implementation of the 1987 State Legal Service Authorities Act, however, depends upon motivation—motivation though that is lacking. The government has granted enough funds for legal aid, but these funds have created a mini government that is indifferent to the legal needs of the people. Seeing this apathy, people consequently do not expect any adequate legal aid to be provided by India’s official legal aid body.

AHRC: This explains the important role that your legal aid organisation plays in India. Thank you once again, Justice Basu, for your time to explain to us the significance of D. K. Basu vs. the State of West Bengal and the state of legal aid in your country.