Custodial Torture | DK Basu Guidelines Can't Stop Highhanded Cops : Singhvi Urges Supreme Court To Pass Additional Safeguards

"There have been orders passed, and certain pertinent directions have been passed. They have taken proper shape; they have been explained also. By and large, principal orders have been passed. That is being followed by the Courts all over the country”, the Bench orally observed while asking whether “continuous mandamus” would serve any additional purpose.

“If some intervention of the Court is needed, we will do it. But we can't go on intervening. That's our concept. Anyway, there are substantive orders (already passed in the case), and nobody can touch that. So, we are broadly contemplating to give this matter a closure", the Court hinted.

"At least three orders passed, and courts are following them. The last order was in 2015, we are in 2023. In between, several amendments, enactments, and principles evolved”, the Bench pointed out. “Do we continue this petition here and leave it open for fresh issues to come up?”, the Bench asked Singhvi.

Singhvi highlighted that despite the guidelines, instances of custodial torture continue to recur. He referred to the Jeyaraj-Bennix case of 2020 relating to the custodial killing of a father-son duo in Tamil Nadu.

One major issue highlighted by Singhvi was that the DK Basu guidelines start to operate only after the time of formal arrest. However, there is enough room for police foul play at the stage of custody before the formal arrest is recorded.

" All the safeguards such as display of name-tag, allowing to talk to somebody, etc., arise after arrest. What has to happen is from the pre-arrest to the formal date of the arrest. After the arrest, everybody shows DK Basu. That dilemma at the heart of Article 21 remains. We have realised that the only way is to approximate an improvement. There has been a substantial improvement but there's much to be done. When a police officer is high-handed, DK Basu will not stop him", he said.

He suggested that the Bench increase safeguards around the existing directions. “As your Lordships add substantive directions to the existing catalog, your Lordships strengthen the area around it”.

Change In NHRC Guidelines

During the hearing, the Amicus pointed out one issue in the ‘existing’ NHRC guidelines.

One of the guidelines states that an enquiry by a Judicial Magistrate or Metropolitan Magistrate is mandatory in only those cases of custodial death where there is reasonable suspicion of foul play or commission of the offense. In other cases, where death is caused by natural causes or by disease, it can be looked into by an Executive Magistrate, the guidelines state.

But this is a restrictive view, Singhvi said while pointing out that NHRC itself admitted that their guideline is contrary to the amendment in section 176 of CrPC.

According to him, the correct position is that there should be an enquiry conducted by a judicial magistrate or metropolitan magistrate in all cases of custodial deaths, including natural deaths or deaths due to any illness.

“Pursuant to my application, they said that there's an error in their own guidelines. That was resolved to be done but never done”, he argued.

But the NHRC counsel said that the change has been done and a fresh notification was issued to that effect.

"Has it been issued? Issue a notification and finish it off", the Bench said, to which the NHRC Counsel said that he would do the needful.

Criminal laws being revisited, informs Centre

The counsel appearing for the Union government informed that the Parliament has already constituted a committee to relook at the criminal law.

The Bench asked the advocate to place the same on record. "If the Parliament is already dealing with the matter or the parliamentary committee, we will take a call on that."

Further, the bench also reminded that the matter is non-adversarial in nature and concerns the entire country and its populace.

Advocate Devesh Saxena informed that a PIL was filed in 2020, in the wake of the custodial deaths of a father-son duo in Tamil Nadu. The plea aimed to have a legal framework for preventing custodial torture and rapes.

"That would be dealt with in the main petition. You join there. Otherwise, will add to the confusion. Please give suggestions to Amicus", the Bench said.

With this, the Court also disposed of another plea that sought to fill up vacancies in State Human Rights Commissions. "There are so many vacancies. Then we will have to take up everything".

"All vacancies have to be filled up by the Supreme Court or what?", the Bench orally asked before closing the proceedings in the plea.

"We haven't stopped anybody in DK Basu. Any constructive suggestion, or anything of relevant substance is most welcome. But please don't multiply", the Bench said, before concluding.

The matter will be next heard on March 14

Case Title: D.K. Basu v State of WB MA 1259/2020 in WP(Crl) No. 539/1989 PIL

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