The DK Basu vs State of West Bengal case is widely considered a landmark in

criminal jurisprudence. The guidelines established in DK Basu vs State of West

Bengal were later integrated into the Criminal Procedure Code, 1973, through
the Code of Criminal Procedure (Amendment) Act, 2008, effective from
November 1, 2010.
Before the DK Basu case, custodial violence and deaths were not uncommon
and although compensation was occasionally awarded, there were no specific
provisions or rules to hold parties accountable for such incidents. The case
emerged as a crucial response to address the pressing issue of custodial deaths
and violence. It marked the beginning of holding the police liable for their
actions in custody.
While there has been a reduction in custodial deaths and violence following this
case, these issues have not been entirely eradicated. Some of the guidelines
outlined in the case remain more of theoretical regulations on paper rather than
consistently enforced practices in reality.

DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non-
Political organisation on 26.08.1986 addressed a letter to the Chief Justice of
India drawing his attention to certain news items published in the Telegraph
Newspaper regarding deaths in police lock up and custody. He requested that
the letter be treated as a Writ Petition within the “Public Interest Litigation”
Category. Considering the importance of the issues raised in the letter, it was
treated as a Writ Petition and notice was served to the Respondents. While the
Writ Petition was under consideration, one Mr Ashok Kumar Johri addressed a
letter to the Chief Justice drawing his attention to the death of one Mahesh
Bihari of Pilkhana, Aligarh in Police Custody. The same letter was also treated
as a Writ Petition and was listed along with the Writ Petition of D.K.Basu. On
14.08.1987, the Court made the Order issuing notices to all the State
Governments and notice was also issued to the Law Commission of India
requesting suitable suggestions within a period of two months. In response to
the notice, affidavits were filed by several states including West Bengal, Orissa,
Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and
Manipur.
Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to
assist the Court. All the Advocates appearing rendered useful assistance to the
Court

Issues Raised
The petition by D.K. Basu highlighted the following issues:
1. Increasing Incidents of Custodial Violence:
o Widespread reports of custodial torture, deaths, and abuse by law
enforcement agencies.
o Instances where detainees were subjected to inhumane treatment,
in violation of their fundamental rights.
2. Lack of Accountability in Police Practices:
o Absence of robust mechanisms to hold police officers accountable
for misconduct.
o Failure to document arrests properly or inform family members,
often leading to disappearances or deaths in custody.
3. Erosion of Fundamental Rights:
o The treatment of detainees often violated Article 21 (Right to Life
and Personal Liberty) of the Constitution.
o Arbitrary arrests and custodial torture contravened procedural
safeguards provided under Article 22.
4. Failure of the Legal System:
o Ineffective enforcement of existing laws and provisions of the
Criminal Procedure Code (CrPC) and the Indian Evidence Act.
o Lack of judicial oversight over police practices contributed to
systemic abuse.

Constitutional and Statutory Provisions Involved

1. Constitution of India:
 Article 21: Right to Life and Personal Liberty—prohibits any action that
undermines the dignity or life of an individual without following due
process.
 Article 22: Protection against arbitrary arrest and detention—mandates
that detainees must be informed of reasons for arrest and produced before
a magistrate within 24 hours.
2. Criminal Procedure Code (CrPC)
Arguments by Petitioner (D.K. Basu)
1. Violation of Fundamental Rights:
o Torture and deaths in custody breach Article 21, which guarantees
dignity, liberty, and the right to life.
o Arbitrary arrests without following due procedures outlined in
Article 22 further exacerbated the issue.
2. Lack of Transparency:
o Absence of systematic documentation of arrests and detention
increased the risk of abuse by police.
o Non-compliance with statutory provisions of the CrPC led to
unchecked custodial violence.
3. Police Impunity:
o Existing mechanisms failed to hold law enforcement accountable
for misconduct.
o Many custodial deaths were not reported or were falsely recorded
as suicides or accidents.
4. Demand for Procedural Safeguards:
o The petitioner urged the Court to lay down enforceable guidelines
to curb custodial torture and ensure the dignity of detainees.

Arguments by Respondents (State of West Bengal and Others)

1. Denial of Widespread Custodial Abuse:
o The respondents argued that the instances of custodial violence
were isolated and not representative of systemic abuse.
o They claimed that the existing laws under the CrPC and the
Constitution were sufficient to address such cases.
2. Operational Challenges:
o The State emphasized the practical difficulties faced by law
enforcement agencies in handling criminal investigations.
o They argued that excessive restrictions or guidelines might hinder
effective policing and the ability to combat crime.
3. Existing Legal Frameworks:
 o The respondents contended that the judiciary had adequate
oversight through provisions like mandatory magistrate review of
arrests.
o They also referred to disciplinary proceedings and criminal
prosecutions already in place to penalize police misconduct.
4. Risk of Undue Interference:
o The State warned that stringent procedural guidelines could
interfere with police autonomy and reduce their ability to act
swiftly during investigations.

Court's Assessment of Arguments

1. Balance of Law and Enforcement:
o The Court acknowledged the operational challenges faced by law
enforcement but emphasized that this could not justify violations of
constitutional and statutory rights.
2. Deficiency in Current Practices:
o The Court found that the existing mechanisms were insufficient to
address custodial violence. Widespread non-compliance with
procedural safeguards contributed to unchecked abuses.
3. Supremacy of Fundamental Rights:
o Upholding Article 21, the Court reiterated that no state action,
including policing, can compromise an individual’s right to life and
dignity.
4. Need for Preventive Measures:
o The Court observed that custodial torture often occurred in the
absence of accountability. Hence, preventive guidelines were
essential to ensure transparency and adherence to due process.

K Basu Guidelines

In light of this, the Apex Court laid down the following guidelines for the arrest
and detention of individuals:
1. Police officers involved in the arrest and interrogation of an arrestee must
wear clear, visible identification and name tags with their designations.
Details of all police personnel handling the interrogation must be
recorded in a register.
2. The police officer affecting the arrest must prepare a memo of arrest at
the time of arrest. It should be witnessed by at least one person who may
be a family member or a respected individual from the area where the
arrest occurs. The memo should also be countersigned by the arrested
person and include the time and date of the arrest.

3. Any person arrested and held in custody has the right to have a friend,
relative, or someone is known to them informed about their arrest and
detention as soon as possible unless the witness to the arrest is such a
friend or relative.

4. The police must notify the time, place of arrest and place of custody of
the arrestee to the next of kin if they live outside the district or town. This
notification should be made through the Legal Aid Organisation in the
district and the concerned area’s police station within 8 to 12 hours after
the arrest.

5. The person arrested must be informed of their right to have someone

informed of their arrest or detention as soon as they are taken into
custody.

6. An entry regarding the arrest must be made in the case diary at the place
of detention. This entry should also include the name of the person
informed about the arrest (next of kin) and the names and details of the
police officials responsible for the arrestee.

7. The arrestee, upon request, should be examined at the time of arrest and
any visible injuries on their body, major or minor, should be documented.
Both the arrestee and the police officer should sign an “Inspection
Memo,” and a copy should be provided to the arrestee.

8. The arrestee should undergo a medical examination by a qualified doctor

every 48 hours during their custody. These doctors should be on a panel
of approved doctors appointed by the Director of Health Services in the
respective State or Union Territory. Such a panel should be prepared for
all Tehsils and Districts.
9. Copies of all documents, including the memo of arrest, should be sent to
the Magistrate for their records.

10.The arrestee may be allowed to meet with their attorney during the
interrogation, although not necessarily throughout the entire process.

11.Police control rooms should be established at all district and state

headquarters. The officer in charge of the arrest must communicate
information about the arrest and the place of custody of the arrestee to the
control room within 12 hours of effecting the arrest. This information
should be displayed on a visible notice board at the control room.
Joseph Shine vs. Union of India (2019)

Court: Supreme Court of India

Bench: Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y.
Chandrachud, Indu Malhotra
Date of Decision: 27 September 2018
Citation: (2019) 3 SCC 39, AIR 2018 SC 4898

Facts of the Case

The case of Joseph Shine vs. Union of India is a landmark decision that led to the
decriminalization of adultery in India by striking down Section 497 of the Indian Penal
Code (IPC). The petitioner, Joseph Shine, an Indian expatriate, challenged the
constitutionality of Section 497, which criminalized adultery but only punished the man
involved in an adulterous relationship, while the woman was immune from punishment.

According to Section 497, if a man had sexual intercourse with a married woman without her
husband’s consent, he could be prosecuted for adultery. However, the woman involved would
not be held liable as an abettor or participant in the crime. Furthermore, the husband of the
woman had the exclusive right to file a complaint against the adulterous man, while a wife
whose husband committed adultery had no such right.

Shine, through his petition, sought to demonstrate that this provision violated constitutional
rights, perpetuated gender bias, and invaded individual privacy. The writ petition was filed
under Article 32 of the Indian Constitution, seeking to declare Section 497 as
unconstitutional for violating Articles 14, 15, and 21 of the Constitution.

Legal Issues Raised

1. Does Section 497 of CRPC create arbitrary discrimination by treating men and
women unequally before the law?
2. Does Section 497 discriminate based on gender, violating Article 14 by perpetuating
stereotypes that treat women as subordinate to men?
3. Does criminalizing adultery under Section 497 infringe upon the personal liberty,
privacy, and autonomy of individuals by allowing state interference in consensual
sexual relationships between adults?
4. Should adultery be criminalized in a society based on moral arguments that protect
the sanctity of marriage and family structures?
Arguments of the Petitioner

The petitioner, Joseph Shine, and his legal team contended that Section 497 was not only
outdated but also unconstitutional in various respects. They argued that the section reflected a
patriarchal mindset that treated women as property and that it violated several fundamental
rights under the Indian Constitution.

1. Section 497 is Arbitrary and Violates Article 14 (Right to Equality):

The petitioners contended that Section 497 was inherently arbitrary because it only
punished the man involved in the act of adultery while exonerating the woman,
irrespective of whether she was a willing participant. This gender-specific
punishment, according to the petitioners, failed the test of reasonable classification
under Article 14, as it was based on the outdated presumption that women were
passive participants in sexual relations and needed to be protected.
o The petitioners pointed out that there was no rational nexus between the
object of the law—protecting the sanctity of marriage—and the discriminatory
treatment of men and women. By only punishing men, the law ignored the
equal responsibility of women in an adulterous act, thus treating them as
property of their husbands rather than as independent individuals.
o Furthermore, the law created inequality within marriages by granting
husbands the exclusive right to prosecute the man involved, while denying
wives the same right in cases where their husbands committed adultery. This
differential treatment of spouses violated the principle of equality before the
law.
2. Violation of Article 15 (Prohibition of Discrimination on Grounds of Sex):
The petitioners argued that Section 497 was deeply rooted in gender
discrimination. The law presumed that a woman was incapable of exercising agency
in sexual matters and treated her as the husband's property, whose consent was needed
to prosecute the adulterous man.
o They contended that the law perpetuated the stereotype that women were
weak, passive, and incapable of making decisions regarding their own bodies.
The law’s protection of women from punishment was not an act of
affirmative action under Article 15(3) (which allows the state to make
special provisions for women and children), but rather a reflection of
patriarchal control over women's bodies.
3. Violation of Article 21 (Right to Privacy and Personal Autonomy):
Citing the landmark judgment in K.S. Puttaswamy vs. Union of India (2017), which
recognized the right to privacy as a fundamental right under Article 21, the
petitioners argued that Section 497 violated an individual’s right to make personal
choices in their private lives.
o They argued that adultery was a matter of personal choice and personal
liberty between consenting adults and should not be criminalized by the state.
The law’s intrusion into the personal realm of sexual relationships amounted
to excessive state interference in private lives.
4. Adultery as a Civil Matter, Not a Criminal Offense:The petitioners argued that
adultery should be viewed as a civil wrong rather than a criminal offense. While
adultery may justify divorce or separation, it should not be treated as a criminal act
punishable by imprisonment. The state should not criminalize consensual sexual
relations between adults, especially when it does not involve any societal harm.
Arguments of the Respondent (Union of India)

The Union of India, defending Section 497, argued that adultery was a moral wrong that
warranted criminal sanction to protect the sanctity of marriage and the family unit. They
relied on traditional notions of morality and public order to justify the law.

1. Moral Grounds for Criminalizing Adultery: The government argued that adultery
was not just a personal wrong but had moral and social ramifications. Adultery
could destroy families, cause emotional harm, and destabilize marriages. By
criminalizing adultery, the law sought to deter such immoral behavior and protect
the institution of marriage.The government contended that the sanctity of marriage
was a matter of public interest, and the state was justified in enacting laws that
discouraged acts that could potentially break marriages. By criminalizing adultery, the
law served as a deterrent to those who might engage in extramarital affairs, thereby
preserving the family structure.
2. Reasonable Restriction on Article 21 (Right to Privacy): The respondents argued
that while the right to privacy and personal autonomy were guaranteed under
Article 21, these rights were not absolute. The government could impose reasonable
restrictions in the interest of protecting societal values, such as the institution of
marriage.
3. Affirmative Action for Women under Article 15(3): The government defended the
law's gender-specific nature by invoking Article 15(3), which allows the state to
make special provisions for women and children. They argued that exempting
women from criminal liability in adultery cases was an act of affirmative protection,
as women were historically subjected to greater social and legal disadvantages.The
respondents emphasized that women were often victims of circumstances in cases
of adultery, being coerced or manipulated into such relationships by men. Therefore,
the law’s intent was to shield women from further harm and stigmatization by holding
only the man responsible.
4. Role of Consent and Family Stability: The government highlighted that Section 497
made the husband's consent central to determining whether adultery was a crime. This
provision, according to the respondents, reinforced the idea that marriage was a
sacred contract and that extramarital affairs without the spouse’s consent violated
the trust inherent in this relationship. The respondents argued that marriage, as a
social institution, was based on mutual trust and fidelity. Criminalizing extramarital
affairs where consent was absent helped preserve family unity and ensured that trust
was maintained within the marriage.

Judgment of the Court

The Supreme Court, in a unanimous decision, struck down Section 497 of the IPC as
unconstitutional. The judgment, delivered by a five-judge bench, marked a paradigm shift in
how the legal system views marriage, personal autonomy, and gender equality. Some of the
key observations made by the court are:
 1. Violation of Articles 14 and 15:The court ruled that Section 497 was arbitrary and
violated the right to equality under Article 14. The provision treated men and
women unequally by placing the onus of prosecution on the husband and excluding
women from any liability. Furthermore, it was held to be violative of Article 15, as it
discriminated based on gender and perpetuated the stereotype of women being
subservient to men.
2. Violation of Article 21 - Right to Privacy and Autonomy: The judgment heavily
relied on the court’s previous ruling in the Puttaswamy case, which recognized the
right to privacy as a fundamental right. Justice D.Y. Chandrachud observed that
sexual autonomy was an essential aspect of personal liberty, and criminalizing
adultery amounted to a state intrusion into an individual’s private life. He emphasized
that the choice of an intimate partner falls within the scope of privacy, and such
choices should be left to the individuals concerned.
3. Adultery as a Private Wrong, Not a Criminal Offense: The court made a clear
distinction between civil wrongs and criminal offenses. It held that while adultery
may be a valid ground for divorce, it did not fit the definition of a criminal act, which
involves harm to society at large. Adultery is a private matter between adults, and its
consequences should be confined to civil remedies, such as divorce or separation,
rather than criminal punishment.
4. Affirmative Action Not Applicable: The court rejected the argument that Section
497 was a form of affirmative action under Article 15(3). It held that the provision
did not protect women but, in fact, subjugated them by denying them agency and
treating them as mere property.
5. Comparison with Other Jurisdictions: Justice Chandrachud drew comparisons
with the jurisprudence of other countries, particularly the United States, where
adultery laws had either been repealed or limited to civil wrongs. He emphasized the
need for Indian laws to reflect modern values of gender equality and personal
autonomy

Impact of the Judgment

1. Advancement of Gender Equality: The decision reaffirmed that men and women
are equal partners in a marriage and that laws should not reinforce patriarchal notions
that treat women as subordinates.
2. Recognition of Privacy and Personal Autonomy: By decriminalizing adultery, the
court recognized the right to personal autonomy, especially in intimate
relationships, and protected individuals from state interference in their private lives.
3. Civil Remedies for Adultery: While adultery is no longer a criminal offense, it
continues to be a valid ground for divorce or separation. This ensures that while
individuals have the freedom to make personal choices, the sanctity of marriage is
still protected through civil remedies.