What happened
The case did not start as a conventional lawsuit. D. K. Basu, the Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India drawing attention to news reports of deaths in police lock-ups and custody. The Court treated the letter as a writ petition. A second petition, by Ashok K. Johri, concerning a custodial death in Uttar Pradesh, was heard along with it. What the Court was confronting was not a single incident but a pattern: people taken into custody who were injured or died there, arrests that were not recorded, families who could not find out where a relative had been taken, and the near-impossibility of proving what happened inside a lock-up. The Court noted that custodial violence strikes at the rule of law itself, because it is committed by the very people charged with enforcing it, and behind closed doors where evidence is hardest to obtain. Rather than deciding one case and stopping, the Court laid down a set of requirements to be followed in all cases of arrest or detention, as a preventive measure, until legislation covered the ground. Judgment was delivered on 18 December 1996.
What the court held
The Court laid down eleven requirements to be followed in every case of arrest or detention. In substance they are these. Police personnel carrying out an arrest and handling interrogation must wear accurate, visible and clear identification and name tags with their designations, and the particulars of all such personnel must be recorded in a register. The arresting officer must prepare a memo of arrest at the time of arrest, attested by at least one witness — a family member of the arrested person or a respectable person of the locality — and countersigned by the arrested person, bearing the date and time of arrest. A person who has been arrested is entitled to have one friend, relative or other person interested in their welfare informed, as soon as practicable, that they have been arrested and where they are being held. Where the next friend or relative lives outside the district, the time, place of arrest and place of custody must be notified to the nearest legal aid organisation by telegraph within a period of 8 to 12 hours after the arrest. The arrested person must be made aware of this right to have someone informed, as soon as they are arrested or detained. An entry must be made in the diary at the place of detention recording the arrest, naming the person who was informed and identifying the officers in whose custody the arrestee is. On request, the arrested person must be examined at the time of arrest and any injuries recorded, with a copy of the inspection memo signed by both the officer and the arrestee. The arrested person must be subjected to medical examination by a trained doctor every 48 hours during detention, by a doctor on a panel approved by the Director of Health Services. Copies of all these documents must be sent to the Magistrate for record. The arrested person may be permitted to meet their lawyer during interrogation, though not throughout the interrogation. And a police control room must be provided at district and State headquarters, where the arresting officer must communicate information about the arrest and the place of custody within 12 hours of the arrest, to be displayed on a conspicuous notice board. Separately, the Court held that monetary compensation is an appropriate public law remedy when the Court finds an infringement of the indefeasible right to life — a remedy distinct from a civil suit for damages — and that the defence of sovereign immunity is not available to the State for the tortious acts of its public servants where fundamental rights under Article 21 are violated.
The law behind it
The constitutional foundation is Article 21 (no deprivation of life or personal liberty except by a fair, just and reasonable procedure) together with Article 22, which gives an arrested person the right to be told the grounds of arrest, the right to consult and be defended by a lawyer of their choice, and the right to be produced before a Magistrate within 24 hours.
These requirements are not optional courtesies. The Court framed them as binding directions to be followed in all cases of arrest or detention until legislation occupied the field, and made non-compliance punishable as contempt of court in addition to departmental action.
Much of the D.K. Basu checklist has since been written into statute. The arrest provisions that once sat in the Code of Criminal Procedure now appear in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC — including the obligations to prepare a memorandum of arrest attested by a witness, to inform a nominated person of the arrest, and to have the arrested person medically examined. You can read the current provisions in our legal codes browser.
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What it changed
The D.K. Basu requirements became the baseline for lawful arrest in India and were subsequently incorporated into the Code of Criminal Procedure by amendment, and now sit in the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court returned to the case years later to review how well the directions were actually being implemented, and the requirements continue to be relied on by High Courts when arrests are challenged. The holding that compensation for custodial violation is a public law remedy — and that sovereign immunity is no defence — remains a foundation of state-liability law in India.
What this means for you
This is the judgment to know if you, or someone in your family, is ever arrested. It means the police cannot lawfully make a person disappear into a lock-up. There must be a written memo of arrest, attested by a witness and countersigned by the person arrested, recording when and where it happened. Someone of the arrested person's choosing has to be told about the arrest and where they are being kept, and the arrested person has to be told that this right exists. There has to be a medical examination — on request at the time of arrest, and every 48 hours in custody — which is the single most important safeguard against custodial violence, because it creates a contemporaneous record of injuries. The information has to reach a control room within 12 hours, and copies go to the Magistrate. If a relative has been picked up and you are being told nothing, these are the specific things you are entitled to insist on. And if a person is injured or dies in custody, the State cannot escape liability by claiming sovereign immunity; compensation can be awarded directly by a constitutional court.
What to do
If someone you know has been arrested, ask immediately for a copy of the memo of arrest and check that it names the time and place of arrest, has an attesting witness and is countersigned by the person arrested. Insist that the arrested person be medically examined and that any injuries are recorded in writing, and ask for a copy of the inspection memo. Note the names and identification of the officers involved — they are required to wear visible name tags, and their particulars must be in a register. Confirm that the person is produced before a Magistrate within 24 hours, and tell the Magistrate directly if there are injuries or if the requirements were not followed. Keep a written record of dates, times, police station and officer names. If the requirements have been breached, or there has been custodial violence, the remedies include a writ petition in the High Court, a complaint to the State or National Human Rights Commission, and a complaint to the Magistrate. Legal aid is available free of cost through the District Legal Services Authority (DLSA), and the police are required to notify the nearest legal aid organisation where the arrested person's relatives live outside the district.
Source
Supreme Court of India, Justice Kuldip Singh and Justice A. S. Anand (judgment delivered by Dr. Justice A. S. Anand), 18 December 1996. Citation: AIR 1997 SC 610; (1997) 1 SCC 416. Read the full judgment .
This explainer was written from the primary judgment text, not from news reports.