Is it legal to parade the arrestees before the media?
Mohammed Shahjahan: In our country, law-enforcing agencies including the Police, the Detective Branch, the Rapid Action Battalion and the Border Guard Bangladesh are prone to parading arrested persons before the media with tags attached to their chests branding them as criminals. The media outlets, in turn, publish and air their images with the seized items in front of them.
Parading the arrestees before the media in such a manner constitutes serious violations of human rights and legal rights of the arrestees. Besides, faced with media trial, arrestees in such cases fail to recover from the stigma and the damage to reputation caused by such media exposure even if they are acquitted of the charges in due course. The whole phenomena tends to prejudice them as well.
One may wonder why the law-enforcing agencies indulge in such practices. Are these practices legal? Quite contrarily, there is virtually no law in our country that permits such practices; they are nothing short of muscle-flexing by the law-enforcing agencies, so to speak.
Presumption of innocence is one of the loftiest principles of criminal jurisprudence. This principle stipulates that no accused could be branded as criminals or offenders until they were proven guilty before a competent court of law. But as things stand as of now, this time-tested principle of law seems to have been altered by the law-enforcing agencies parading the arrestees before the media-the accused are guilty until they are proven innocent!
The hon’ble High Court Division of the Supreme Court of Bangladesh took serious note of these illegal practices indulged in by the law-enforcing agencies on several occasions.
In the Case of Ayesha Siddiqua Minni Vs. State reported in 40 BLD (HCD) (2020) 470,a Division Bench of the hon’ble High Court Division led by Mr. Justice Enayetur Rahim observed, inter alia, that producing the arrestees in sensational cases before the media during investigation prior to producing them before the Courts concerned is derogative of human rights and hence not permissible; it has to be kept in mind by all that until a person is proven guilty upon legal evidence adduced in trial, it cannot be said that he is the real offender or it is he who committed the alleged offence; it is not proper to produce an arrestee before the media in such a manner as would damage his prestige and reputation.
In the Case of Akil Uz Zaman Vs. Secretary, Ministry of Home Affairs (Criminal Misc. Case No. 51071 of 2012), a Division Bench of the hon’ble High Court Division led by Mr. Justice A.H.M. Shamsuddin Choudhury (as he then was) passed an Order dated 11.12.2012 prohibiting the parade of the arrested before the media. The law-enforcing agencies concerned submitted by way of filing Affidavit-in-Compliance in the said Case that they would not parade the arrestees before the media any longer.
Let us now look beyond at the other jurisdictions as to how the judiciary has dealt with the issue at hand.
In the Case of Manu Sharma v. State (NCT of Delhi) reported in (2010) 6 SCC 1, the Supreme Court of India cautioning all modes of media to extend their cooperation to ensure fair investigation, trial, defense of accused and non-interference in the administration of justice in matters sub judice observed, inter alia, that the impact of television and newspaper coverage on a person’s reputation creates a widespread perception of guilt, regardless of any verdict in a Court of law; presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending; in that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under the Constitution.
In New Zealand, in the Case of Attorney General v. Tonks reported in [1934] NZLR 141, 154, the Apex Court of New Zealand per Mr. Justice Blair observed that, “If a photograph of an accused person is broadcast in a newspaper immediately after he is arrested, then such of the witnesses who have not then seen him, may quite unconsciously be led into the belief that the accused as photographed is the person they saw. The fact that a witness claiming to identify the accused person, has seen a photograph of him before identifying him, gives the defense an excuse for questioning the soundness of the witness’s identification.”
In Australia, in AG (NSW) v. TCN Channel Nine Pty Ltd reported in (1990) 20 NSWLR 368, the relevant facts in a nutshell were that two women and a child were killed and the suspect surrendered to the police who held a press conference; It was announced in the press conference that the suspect had confessed to have killed the said victims; As all these were broadcast on television news, the NSW Court of Appeal observed that such publication tended to prejudice the accused at the trials. In R v. Clarke, Ex parte Crippen reported in(1910) 103 LT 636, the relevant facts stated in short were that a suspect named Crippen was arrested and a news item appeared in a daily to the effect that Crippen admitted in the presence of witnesses that he had killed his wife; the publication was treated as contempt; Mr. Justice Darling observed in the Judgment that anything more calculated to prejudice the defense could not be imagined.
The law-enforcing agencies must stop parading the arrestees before the media in such an abominable manner forthwith. Necessary on-the-job training to the relevant members of the agencies should be imparted and they should be made to face the music in cases of default, willful neglect or disobedience through departmental proceedings. Alternatively, those aggrieved can file contempt petitions for violations of the directives of the hon’ble High Court Division. Equally important it is for the victims to claim compensations and for the state to come up with a compensation scheme in this regard.
The Writer is an Advocate, Supreme Court of Bangladesh.
