Liberty is the most precious of all the human rights. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual.Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 of the Constitution of India, “Protection of life and personal liberty”, proclaims and declares that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and Article 22 clauses (1) and (2) are born out of a concern for human liberty. Undoubtedly, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. Clause (1) of Article 22 declares and provides that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”. Clause (2) of Article 22 says that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”
In our country, the Hon’ble Supreme Court and all the High Courts too have been emphasizing the inalienable and invaluable nature of liberty as also the societal interest in peace and law and order.
Whether it is for securing the liberty of an individual or for maintaining the peace and law and order in the society, law is essential. Not only should there be a proper law, there should also be proper implementation of law.
For this very reason and to maintain law and order numerous provisions have been provided in the Code of Criminal Procedure and out of them Chapter V deals with the powers of police to arrest. However, more often a large number of complaints persist, complaining of unlawful deprivation of liberty of the citizens at the hands of Police and other enforcement authorities, of their resort to unlawful methods of investigation and of cruel and unusual treatment of the accused while in their custody.
As per the 177th Report of the Law Commission of India on law relating to Arrest, in Delhi, while the total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are 1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the percentage of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89% and in Andhra Pradesh it is 36.59%. Indeed a perusal of the said abstract/Annexure II would disclose the unduly large number of arrests under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant. This is equally disturbing even if some of them are preventive arrests, as was suggested by some police officers during one of the seminars.”
From the abovementioned Report, it can be said that the procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive and that a procedure which does not satisfy the said test would be violative of Article 21.
In spite of the Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidents of abuse of powers by the police and torture during the police interrogation has been a disturbing factor.
The Hon’ble Supreme Court of India and all the High Courts from time to time have given numerous decisions and passed various judgments for the protection of an individual in cases of his naked violation of human dignity. One of the landmark Judgments of the Hon’ble Supreme Court in this regard is D.K. Basu v. State of West Bengal, AIR 1997 SC 610. This decision exhaustively referred to the law relating to arrest with reference to earlier decisions of the courts and further held that cases of torture, rape, custodial death in police custody/lock-up leads to sheer infringement of Article 21 as well as basic human rights and strikes a blow at rule of law and also that third degree methods used by police during interrogation are totally impermissible.
This case was taken up when the Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26-8-1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in The Telegraph dated 20-7-1986, 21-7-1986 and 22-7-1986 and in the Statesman and Indian Express dated 17-8-1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the news items submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned. It was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and “flourishes”. It was requested that the letter along with the news items be treated as a writ petition under “public interest litigation” category. The Hon’ble Apex Court considering the importance of the issue raised in the letter and being concerned by frequent complaints regarding custodial violence and deaths in police lock-up, treated the letter as a writ petition and issued notice. In response to the notice, affidavits were filed on behalf of States of West Bengal, Orrisa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalya, Maharashtra, Manipur, Union Territory of Chandigarh and also by the law Commission of India.
The Apex Court discussed in detail the issue of Custodial violence and raised great concern regarding the protection of an individual from torture and abuse by the police and other law enforcing officers. It was further discussed that “custodial violence” and abuse of police powers is not only peculiar to this country, but its wide spread. Custodial Death is perhaps one of the worst crimes in a civilized society governed by law. 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. If the functionaries of the Government become law-breakers, it is bound to bred contempt of law and would encourage lawlessness and everyman would have the tendency to become law unto himself thereby leading to anarchanism. Moreover the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as permitted by law.
The Apex Court further strictly took notice of that fact that Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.