LEGAL Aid Services West Bengal (Lasweb) is a non-political organisation in India. It carries out a wide range of legal service delivery, capacity building and research activities.

Public interest litigation (PIL) – as an instrument of legal empowerment in matters of prisoners’ rights and environmental justice – is a hallmark of Lasweb’s legal empowerment work. 

Sometime in August 1986, then Laswab executive chairman D.K. Basu wrote a letter to the chief justice of India pertaining to a news article in the Telegraph Newspaper on events of deaths in police custody.

Basu requested that his letter be accepted as a writ petition for a case of PIL. As his letter addressed some important contentions, it was so treated and the state government of West Bengal was served with a notice.

While the petition was under consideration, one Ashok Kumar Johari sent another letter to the chief justice pertaining to the death in police custody in Aligarh, Uttar Pradesh. The letter too was treated as a writ petition.

A year later in August 1987, the Supreme Court of India issued a notice through an order to all the states to come up with suitable suggestions within two months. This led to the filling of several affidavits by the states. (India is a federal union comprising 28 states and 8 union territories, with a central or federal government like Malaysia.)

Presented with the menace of custodial violence, including torture and death in the police lock-up, the Indian apex court did not mince words when it condemned the use of violence and third-degree methods of interrogation of a detainee, and described custodial death as one of the worst crimes against the society.

Lamenting the growing incidence of torture and deaths in police custody, the court noted that despite violation of one or the other of the human rights had been the subject matter of several conventions and feclarations and despite commitments had been made to eliminate the scourge of custodial torture, gruesome incidents of such torture continued unabated.

The court described custodial torture as a naked violation of human dignity and degradation that destroys self-esteem of the victim and does not even spare his personality. Custodial torture, observed the court, is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backwards.

The court held that the freedom of an individual must yield to the security of the State, and the right to interrogate a suspect and detainee in the interest of the nation must take precedence over an individual’s right to personal liberty.

However, the action of the state must be just and fair. Using any form of torture for extracting any kind of information would neither be right nor just or fair, hence, impermissible, and offensive to personal liberties guaranteed under the constitution.

A crime suspect, declared the court, may be interrogated and subjected to sustained and scientific interrogation in the manner determined by the provisions of law, but, no such suspect can be tortured or subjected to third degree methods or eliminated with a view to eliciting information, extracting a confession or deriving knowledge about such matter as his accomplices and weapons used. His constitutional right cannot be abridged except in the manner permitted by law.

Moved by the spectre of custodial violence and deaths, the court decided to issue directions and guidelines in all cases of arrest and/or detention.

The case, D.K. Basu v State of West Bengal (1997) 1 SCC 416, thus became celebrated for the guidelines that the Supreme Court issued to be followed in “all cases of arrest or detention till legal provisions are made in that behalf as preventive measures.” The guidelines can be seen here.

The case too became known as another hallmark in judicial activism in India, where the court departs from its traditional function of being an impartial adjudicator based on the interpretation of the law and allows its personal views and opinions to colour the nature of its judgement. (see Black’s Law Dictionary)

In that case, it took only a letter to move the court to act in accordance with its duty to be the custodial guardian and protector of personal rights and liberties guaranteed under the supreme law of the land – that is the constitution.

In that case, the Court did not treat the letter writer a busybody, an idle and whimsical party, a dilettante who litigates for a lark. (see the judgment of Abdoolcader J (as he then was) in Tan Sri Haji Othman Saat v Mohamed Bin Ismail [1982] 2 MLJ 177)

The case was recently cited in the Federal Court in the case of Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan (joint administrator and dependant of Chandran a/l Perumal, deceased) & Anor [2021] 3 MLJ 365 where custodial deaths were condemned in the strongest of words.

Federal Court judge Nallini Pathmanathan said: “Custodial deaths are one of the most reprehensible of wrongs in a civilised society governed by the rule of law. All the more so, when those conferred with the responsibility of protection and care on behalf of the State, like the appellants here, are themselves the perpetrators of inhumane acts and omissions of neglect or violence, resulting in the detainee’s death.

“The sanctity of human life is the most cherished value of an evolved society. Accordingly, most legal systems identify, acknowledge and protect the right to life as the most basic of human rights. Malaysia is no exception. Such protection takes its form in art 5(1) of Part II of the Federal Constitution. It provides that no one shall be deprived of his life or personal liberty save in accordance with law.

“This precious right of life is available to all and cannot be denied to persons in custody, prisoners or persons awaiting trial. On the contrary, there is a great responsibility on the police and prison authorities to ensure that citizens held in custody are not deprived of this fundamental right, save for such restrictions as are permitted by law.”

The above is reminiscent of the Indian Supreme Court. But ultimately, will our courts indulge in judicial activism like in India where judges allow their personal opinions on public policy, among other factors, to direct their decisions, at least in such fundamental matters as constitutional violations of personal liberties?

In a recent Indian case of Court On its Own Motion v State of Jharkhand and others (2016) Indlaw JHKD 455, the facts are as follows:

The Hindustan Times in its Ranchi edition dated June 19, 2016 reported that a girl was questioned for more than 10 hours at a police station over the elopement of another girl from her native village with a boy. It was further reported that the parents quoted the girl as saying that she was beaten up all over and throttled by the police officer during interrogation.

The parents also alleged that neither they nor any woman constable was present during the interrogation. According to the news report, the parents rushed the girl to a hospital from where she was referred to another medical institute.

The Jharkhand High Court suo moto (on its own motion) took cognisance of the news reports and registered the same for consideration of various issues involved and emanating from it as a PIL.

The High Court issued notices to the state government, the state police and the district police, among others, who became the respondents in the case. The court took serious note that the police in the state was not following the basic norms of investigation as provided under the Indian Criminal Procedure Code, a glaring example where police had failed in its duty.

Virender Singh J. said: “There appears to be a prime need in the state for sensitising the police as the police units are the first to come into contact with children in conflict with law, victims of crime and abandoned children. It is a matter of concern for the state that child rights are protected and preserved.”

Accordingly, the court directed the respondents to:

1. file affidavits to acknowledge the court about the incident, measures – both interim and final – that were being taken for preventing the similar accident in future, about the persons who were responsible for the incident and the steps which had been taken against them;

2. take all steps necessary for the proper treatment of the girl and for giving proper assistance to the parents of the girl;

3. coordinate and oversee into the matter from all aspects in accordance with law; and

4. pay interim compensation to the father of the girl immediately and report compliance of such payment.

Will our courts suo moto take cognisance of custodial deaths? – February 11, 2022.

* Hafiz Hassan reads The Malaysian Insight.