D.K. Basu: Custodial Torture and 11 Arrest Safeguards (SC)

Custodial Torture Violates Article 21; Eleven Arrest Safeguards Laid Down: Supreme Court

Published: 11 October 2026 · NyayVidhan

In a public interest case begun by a letter about deaths in police lock-ups, the Supreme Court held that torture in custody falls within the inhibition of Article 21 and laid down eleven requirements to be followed in all cases of arrest or detention (paras 23, 37). Non-compliance invites departmental action and contempt proceedings (para 38). Compensation in public law for such violations rests on strict liability, to which sovereign immunity is no defence (para 57).

Key holdings

Torture or cruel, inhuman or degrading treatment in custody falls within the inhibition of Article 21, whether during investigation, interrogation or otherwise (para 23).

The eleven requirements include identification tags for arresting officers, an attested and countersigned arrest memo, informing a friend or relative, medical examination every 48 hours, copies to the Magistrate, a lawyer during interrogation and a police control room (para 37).

Non-compliance makes the official liable to departmental action and to contempt proceedings in any High Court with territorial jurisdiction; the requirements also bind other agencies with power to detain (paras 38-39).

Compensation for established infringement of the right to life is a public law remedy on strict liability, with no sovereign immunity defence; it is compensatory, recoverable from the wrongdoer and adjustable against civil damages (paras 46, 57).

Brief Facts

On 26 August 1986 the Executive Chairman of Legal Aid Services, West Bengal wrote to the Chief Justice of India about newspaper reports of deaths in police lock-ups, asking the Court to develop "custody jurisprudence" and compensation for victims; the letter was treated as a writ petition (paras 1-2). A 1987 letter about a death in police custody in Aligarh was tagged with it (para 4). On 14 August 1987 the Court issued notice to all State Governments and the Law Commission (para 4). Several States filed affidavits, Dr. A.M. Singhvi assisted as amicus curiae, and the Law Commission sent its 113th Report suggesting a new Section 114-B in the Evidence Act (paras 5-8).

Court's Findings

Custodial violence "strikes a blow at the Rule of Law" (para 9). Article 21 includes a guarantee against torture and assault by the State (para 17), and any torture or cruel, inhuman or degrading treatment falls within its inhibition, whether during investigation, interrogation or otherwise; a citizen does not shed the right to life on arrest (para 23). Relying on Joginder Kumar, the Court noted that the power to arrest differs from its justification (paras 21-22). It invited Parliament's attention to the Law Commission's proposed Section 114B (para 29). The law does not permit third-degree methods, and transparency and accountability are the safeguards (paras 30-31). Even suspects in terrorism cases may be interrogated but not tortured: "State terrorism is no answer to combat terrorism" (para 35). The Court then issued eleven requirements, binding on other detaining agencies too, flowing from Articles 21 and 22(1) (paras 37-39). Mere declarations give no meaningful remedy (para 42). Following Nilabati Behera, compensation under Articles 32 or 226 is a public law remedy based on strict liability, in addition to private law damages (paras 44-46, 57).

Legal Principle

Custodial torture violates Article 21, and an arrest or detention must follow the eleven requirements of transparency and accountability, enforceable by departmental action and contempt. For an established infringement of the right to life, the State is liable in public law to pay compensation on strict liability, without a sovereign immunity defence (paras 23, 37-39, 57).

Precedents Relied Upon

Joginder Kumar v. State (1994) 4 SCC 260
Relied Upon Discussed at ¶ 21, 22
The existence of the power of arrest is one thing and the justification for its exercise another; the Court there set down procedural requirements in cases of arrest.
Neelabati Bahera v. State of Orissa (1993) 2 SCC 746
Followed Discussed at ¶ 24, 44, 45, 48, 55
Prisoners and detenues are not denuded of their Article 21 rights; compensation for custodial death is a public law remedy based on strict liability to which sovereign immunity does not apply.
State of Madhya Pradesh v. Shyamsunder Trivedi & Ors. 1995 (3) Scale 343
Referred To Discussed at ¶ 25, 26, 27, 28, 29
Illustrates how prosecutions of police officers for custodial death fail for want of direct evidence; courts must not adopt an unrealistic approach in such cases.

View all precedents (14)

In re Death of Sawinder Singh Grover 1995 Supp (4) SCC 450
Referred To Discussed at ¶ 32
Suo motu action and compensation for a death in the custody of the Directorate of Enforcement.
Miranda v. Arizona 384 US 436
Referred To Discussed at ¶ 34
Society's need for interrogation cannot override the privilege against self-incrimination.
Rudal Shah v. State of Bihar (1983) 4 SCC 141
Referred To Discussed at ¶ 44
Among the cases awarding compensation for infringement of the fundamental right to life.
Sebastian M. Hongrey v. Union of India (1984) 3 SCC 339 and (1984) 3 SCC 82
Referred To Discussed at ¶ 44
Among the cases awarding compensation for infringement of the fundamental right to life.
Bhim Singh v. State of J & K 1984 Supp SCC 504 and (1985) 4 SCC 677
Referred To Discussed at ¶ 44
Among the cases awarding compensation for infringement of the fundamental right to life.
Saheli v. Commissioner of Police, Delhi (1990) 1 SCC 422
Referred To Discussed at ¶ 44
Among the cases awarding compensation for infringement of the fundamental right to life.
Kasturi Lal Ralia Ram Jain v. State of U.P. (1965) 1 SCR 375
Referred To Discussed at ¶ 45
Its upholding of sovereign immunity for tortious acts of State servants does not apply to public law claims for violation of fundamental rights (as explained in Nilabati Behera).
The State (At the Prosecution of Quinn) v. Ryan [1965] IR 70
Referred To Discussed at ¶ 50
Constitutional rights cannot be set at nought or circumvented; the courts are their custodians.
Byrne v. Ireland [1972] IR 241
Referred To Discussed at ¶ 51
Where the Constitution bestows a right on citizens, it is deemed to have created a remedy against the State.
Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All ER 670
Referred To Discussed at ¶ 52, 53
Monetary compensation is a form of redress for contravention of constitutional rights; it is a public law claim, not a tort claim.
Simpson v. Attorney General [Baigent's case] (1994) NZLR 667
Referred To Discussed at ¶ 54, 55, 56
Pecuniary compensation can be granted for breach of the New Zealand Bill of Rights Act despite the absence of an express remedy.

Custodial Torture Violates Article 21; Eleven Arrest Safeguards Laid Down: Supreme Court

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Precedents Relied Upon

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