Legal Language including Legal

Writing and General English

Date-Day: 26th Sep 2023-
Tuesday
3rd Yr BLS.LLB ( Sem 5)
Prof. Viraj Deshpande
Assistant Professor (Law)
ABACL
 Todays Topics
MODULE No. 6:

Judicial Material

1]DK BASU vs STATE OF WEST BENGAL AIR 1997 SC 610

2] M.C. Mehta V/s.Union of Indian AIR 1987 SC 965
• “If the Government becomes a lawbreaker and
brings contempt of law; it invites every man to
become a law into him” – Justice Louis Brandeis
(U.S Supreme Court)
DK BASU vs STATE OF WEST BENGAL AIR 1997
SC 610

➢Facts of the Case:

➢On 26th August 1986, the Executive Chairman – Mr Dilip Kumar
Basu of Legal Aid Services – West Bengal, a non-political organisation
wrote a letter to the Chief Justice of India pertaining to some news
article in the Telegraph Newspaper publishing events of deaths in police
custody.
➢ The petitioner requested that his letter be accepted as Writ Petition
under “Public Interest Litigation” Category. As his letter addressed
some importance contentions it was considered to be treated as a
Writ Petition and the respondents were served notice.
➢ Mr Ashok Kumar Johari, while the said petition was still under
consideration send another letter to the Chief Justice addressing the
death in Aligarh Police Custody of Mahesh Bihari of Pikhana.
• Both of these letters were treated as Writ Petition. On 14th
August 1987, the Court issued a notice through Order to all the
States to come up with suitable suggestions within two months.
• This led to the filling of several affidavits in the response of the
notice by different states including West Bengal, Assam, Orissa,
Haryana, Meghalaya, Maharashtra, Manipur and Himachal
Pradesh. The allegations were denied by the state of West
Bengal. Dr A.M. Sanghavi, Senior Advocate was later appointed
to assist the court as the Amicus Curiae.
What are the issues in this case?

1.Death of several accused in the Police Custody due to Custodial

Torture by police.
2.Arbitrariness while arresting a person by the police.
• What was held by the Court?
• The Court relied on various judgements delivered by Indian as well as
foreign courts. It delivered that the state should act in a “fair, right
and just” manner.
• Torturing an individual for extracting any kind of information is
neither fair nor right nor just and is thus violative of Article 21. A
crime suspect can be interrogated but cannot be tortured as it
abridges his or her constitutional rights.
• The Court keeping in view of the already existing procedures laid
down in Joginder Kumar v. State of UP created structured machinery to
be followed in cases of arrest or detention.
• The Supreme Court relied on the judgment of Neelabati
Behra v. State of Orissa, wherein it was held that
torture of any form, or cruel and inhumane behaviour
towards arrested persons deprived them of
their Fundamental Rights, especially Article 21, which is
against the law of the country.
• A restriction on Fundamental Rights could only be
imposed on the citizens in accordance with the
provisions of the law. The same view was also observed
in the case of Sunil Batra v. Delhi Administration.
• The Supreme Court also mentioned the case of Joginder
Kumar v. State of Uttar Pradesh, and held that even
though procedural requirements regarding arrests of
criminals had already been laid down, it was found that
police officers were making arrests without warrants.
• Simply because a police officer is allowed under law to
arrest a person does not imply that he can arrest a
person without reason, i.e. arrests should not be the
routine
Arguments from the side of Petitioner

➢The petitioner argued that bodily pain and mental agony

suffered by prisoners within the four walls of a police station or
confinement should be avoided.
➢ Whether it is physical assault or rape in police custody, the
scope of trauma experiences is beyond the purview of the law.
➢The petitioner further contended that there is a need for a
civilized nation and some major steps should be taken for its
eradication.
• Arguments from the side of Respondent
• The counsel appearing for different states and Dr. A.M.Singhvi,
presented the case and contented that “everything was final”
within their respective states, presented above their respective
beliefs and rendered useful assistance to this Court in
examining various facets of the issue and made certain
suggestions for formulation of guidelines by this court to
reduce, if not prevent, custodial violence and relatives of those
who die in custody on account of torture.
• Guidelines issued:
• The Court issued a list of 11 guidelines in addition to the
Constitutional and Statutory Safeguards to be followed in all
cases of arrest and detention.
The guidelines are as follows: –
• 1. Police personnel who make the arrest and handle the
interrogation of the arrested person must wear precise, visible
and clear identifications and identification labels with their
designations. Details of all personnel handling the
interrogations of the arrested person must be recorded in a
register.
• 2. The police officer making the arrest of the detainee will
prepare a memorandum of arrest at the time of the arrest and
said memo will be witnessed by at least one witness who may
be a member of the family of the arrested person or a
respectable person from the locality from where the arrest is
made. It must also be signed by the detainee and must contain
the time and date of the arrest.
• 3. A person who has been arrested or detained and is detained
at a police station or interrogation centre or other confinement,
shall have the right to have a friend or relative or other person
known to him or who has an interest in his well-being will be
informed, as soon as possible, that he/they has/ have been
arrested and is /are being detained in a particular place unless
the witness crediting the arrest memorandum is himself a friend
or relative of those arrested
• 4. Police must notify a detainee’s time, place of detention, and
place of custody where he is being kept to the detainee’s next
friend or relative living outside the district or city through the
District’s Legal Aid Organization and the station.
• Police of the affected area should be telegraphically informed
within the period of 8 to 12 hours after the arrest.
• 5. The person arrested must be made aware of his right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
• 6. An entry must be made in the Case Diary at the place of
detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the
police official in whose custody the arrestee i
• 7. Upon request, the Arrestee must also be examined at the time
of his arrest and major and minor injuries, if present on his
body, must be recorded at that time. The “Inspection Memo”
must be signed by both the detainee and the arresting police
officer and a copy must be provided to the detainee.
• 8. The detainee must undergo a medical examination by a
trained physician every 48 hours while in custody by a
physician on the panel of approved physicians appointed by the
Director of Health Services of the State or Union Territory
concerned.
• 9. Copies of all documents, including the arrest memo, must be
sent to the Magistrate for registration.
• 10.The Arrestee may be allowed to meet with his attorney
during the interrogation, although not throughout the
interrogation.
• 11.A Police Control Room must be provided at all central
district and state offices, where the arresting officer must
communicate information about the arrest and the place of
custody of the arrested, within 12 hours after the arrest and in
the Police Control Room Board, must be displayed on a visible
notice board.
• Failure to comply with abovementioned guidelines must not only
make the concerned official liable for departmental actions but will
also be making him liable for punishment for contempt of court. The
proceeding for contempt of court against such official will take place
in High Court of the State concerned having jurisdiction on the
matter.
• The guidelines are inflow of Article 21 and Article 22(1) of the
Constitution of India and therefore needs to be followed strictly.
• This is in addition to the already existing “constitutional and statutory
safeguards and does not detract from various other directions given
by the courts from time to time in connection with the safeguarding
of the rights and dignity of the arrestee.”
Conclusion
• Where we fail is in operationalising the spirit of DK Basu,
in punitive measures, in last mile implementation, in
breaking intra-departmental solidarity with errant
policemen and in ensuring swift, efficacious departmental
coercive action plus criminal prosecution.
•M.C. Mehta v/ Union Of India AIR
1987 SC 965: Oleum gas leak case
Who is MC Mehta in the case of MC Mehta v.
Union of India?
• The full name of MC Mehta is Mahesh Chander Mehta,
and he is a public interest attorney dealing with
environmental issues. He currently runs an NGO called
the M.C. Mehta Environmental Foundation which
advocates for the protection of the environment.
• Judges Bench: P.N. Bhagwati (CJ), G.L. Oza, M.M. Dutt, K.N.
Singh, JJ. - Citation: 1987 AIR 965, 1986 SCR (1) 312
Date Of Judgement: December 20, 1986
Facts:
• Shriram, a subsidiary of Delhi Cloth Mills Ltd., had several units
situated in a single complex comprising land of approximately 76
acres in a densely populated area around it.
• The enterprise manufactured various chemicals like caustic soda,
chlorine, hydrochloric acid, sulphuric acid, alum, anhydrous
sodium sulphate, high test hypochlorite and active earth and
regularly used products such as bleaching powder,
superphosphate, vanaspati and soap. The caustic chlorine plant
in question was commissioned in 1949 and had a strength of 263
employees.
• After the Bhopal Gas Disaster in 1984, the Central Government
appointed a firm named ‘Technica’ to inspect the caustic chlorine
plant owned by Shriram, and a preliminary report identifying
potential areas of concern and suggestions for improvement
were submitted by the firm.
• In March 1985, the possibility and dangers of any major
leakage from the caustic chlorine plant of Shriram were
discussed in Parliament.
• In response to that, an expert committee called the
Manmohan Singh Committee was constituted to further
inspect the caustic chlorine plant.
• They submitted a report after a detailed inspection with
recommendations for various safety and pollution
control measures.
• The petitioner-in-person MC Mehta filed the first Civil Writ
Petition 12739 of 1985 under Article 32 of the Constitution
of India to seek a direction for the closure of various
industrial units owned by Shriram Foods &
Fertilisers Industries (here-in-after referred to as ‘Shriram’
for convenience) since they were located in a heavily
populated area in Delhi and were hazardous to the people
living in the vicinity.
• During the pendency of the abovementioned petition, there
was an incident of leakage of Oleum gas from one of the
industrial units of Shriram for which awards of
compensation were filed by both the Delhi Legal Aid and
Advice Board and the Delhi Bar Association.
Issues Involved:
• Do such hazardous industries allowed to operate in such areas?
• Would any regulating mechanism be evolved if such kinds of
industries have to run in the area?
• How to determine the liability and amount of compensation in
such a scenario?
• How Article 32 of the Indian Constitution does extend in these
cases?
• Whether the rule of Absolute Liability or Rayland v. Fletcher is to
be followed?
• Whether 'Shriram' could be considered to be a 'State' within the
ambit of Article 12?
Arguments by the petitioner

• On the basis of the liberty given to him by the Supreme Court,

the petitioner-in-person formed a committee of experts named
the “Agarwal Committee” and inspected the caustic chlorine plant
of Shriram.
• The Committee found multiple inadequacies in the safety
measures and was of the opinion that the complete elimination
of hazards was impossible due to the location of the plant in a
densely populated area.
• Based on the findings, the petitioner-in-person submitted before
the Court that the caustic chlorine plant should not be allowed to
restart since there would always be a significant possibility of
hazards to the people living nearby even if all the
recommendations made by all the expert committees were
properly implemented by the management of Shriram.
• Submission by counsel for the trade unions
• The counsel for Lokahit Congress Union and Karamchari Ekta
Union, the two trade unions of Shriram submitted that the
permanent closure of the plant would result in the
unemployment of about 4,000 workmen.
• Statement of Additional Solicitor General
• The Additional Solicitor General appeared on behalf of both the
administration of Delhi and the Union of India. Both the Delhi
administration and the Union of India did not withdraw their
objections on the issue of reopening the plant. However, it was
submitted that if the Court decided to permit the reopening after
examining the absence of any real hazards to the local
community, the reopening could only be ordered after imposing
strict safety measures to ensure the safety of the employees as
well as the people nearby.
• Pleadings of counsel of Shriram
• The counsel for Shriram pleaded before the Court to allow
Shriram to restart operations in the caustic chlorine plant since
the management of Shriram had taken all the possible steps and
safety measures and implemented all the recommendations
made by both the Manmohan Singh Committee and the Nilay
Choudhary Committee. With all the precautions, there was no or
very little possibility of leakage of chlorine gas.
• Furthermore, due to the closing down of the factory, about
4,000 employees would be unemployed and the Delhi Water
Supply Undertaking would face non-availability of chlorine and a
short supply of downstream products used to purify water. It was
also submitted that other plants of Shriram would be opened
after adopting proper maintenance and safety measures.
• Final decision
• The final decision by the Supreme Court was to give
Shriram permission to reopen the mentioned plant. Though
the earlier two orders passed by the Inspector and Assistant
Commissioner of factories dated 7th and 24th December,
1985 were not vacated, both the orders were suspended.
• The Court gave temporary permission to run the plant and
set ten conditions to strictly follow, along with fines. The
Court also mentioned that failure to maintain the conditions
would result in the cancellation of the permission granted by
the Court.
• Conditions to be followed
• The strict conditions set by the Supreme Court for Shriram to restart
the caustic chlorine plant were as follows:
• The Court noted that only after filing the PIL, Shriram was forced to
implement all the recommendations given by the expert committees.
Hence, the Court directed an expert committee to monitor the safety
measures and maintenance once a fortnight twice and then submit a
report before the Court. The Court directed Shriram to pay Rs thirty
thousand as the cost of various expenses of the expert committee.
• The Court directed Shriram to engage one plant operator to supervise
the safety and security measures of the plant. In case of any further
future mishap, the operator would be held responsible personally.
• .
• The Chief Inspector of Factories or any other inspector under his
direction was supposed to pay a surprise visit without prior
information once every week. The duty of the inspector was to
inspect whether the management of the plant was following all
the safety measures as directed by the expert committees.
• In addition to the above, the Court further asked the Central
Board to engage another senior officer to examine whether
Shriram was properly following the waste management rules.
• The Court directed the Chairman and Managing Director of Delhi
Cloth Mills Ltd, the company which was the owner of all the units
of Shriram, to submit an undertaking to the Court declaring that
in future, they would be liable for further accidents and should
personally pay compensation to every victim
• Payment of compensation
• The Court directed Shriram to pay a sum of Rs twenty
lacs for the payment of compensation to victims of
oleum gas leakage. Besides that, a bank guarantee of
Rs fifteen lacs should be submitted to the Registrar as a
security deposit to be used as funds for compensation
claims in case of any injury or death of any local people
or employee due to chlorine gas leakage within three
years. In such a situation, the District Judge of Delhi
would decide the amount of compensation to be paid.
Conclusion:
• After this landmark case, the Supreme Court directed
the government to set up environmental courts
regionally to deal with cases regarding various
environmental issues such as pollution, ecological
destruction, and other conflicts with proper attention.
The Environmental Court should have one professional
judge and two experts in science and technology from
the “Ecological Sciences Research Group” to assist the
judge in adjudicating the case.
• However, either of the parties may appeal the decision
of the Environmental Court to the Supreme Court.
• Because of the public interest litigation, an industry, for the first time in
Indian legal history, was held absolutely liable for an accident and was
required to pay a large sum as compensation. The judgement was also
able to reinstate the faith of the judiciary in common people due to the
reiteration of epistolary jurisdiction. The judgement is unique because
the Court did not declare a blanket ban on industrialisation since it
would stop all scientific and technological advancements.
• Rather, it took into account the need for industrialisation and the fact
that accidents are inevitable and accordingly emphasised the need for
policies to prevent accidents and subsequent liability in case of
accidents.
• The case of MC Mehta v. Union of India (1986) has ever since emerged
as a landmark case not only in environmental activism but also in
judicial activism. It still acts as a precedent while deciding similar
cases.
THANK YOU

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