Arrests by the Police: Rethinking the legal framework

Police: 'You are under arrest.'
Suspect: 'Why am I being arrested?'
Police: 'You will soon know once we get to the police station.'

This is a very common incident often seen in our Bengali and Hindi movies. And perhaps some of us have also faced similar interactions with the police in our real lives. Those of us have faced this sort of harassment unsurprisingly remain baffled at the thought that what are the safeguards against such harassment.  And this is not the end of it. The rights violations perpetrated by the police occur in an environment where not only arbitrary arrest, but, torture, lengthy pre-trial detention and impunity are commonplace. The questions arise that whether the police have the power to arrest a person without any caution as we often see in our movies and what are the rights and protections of the suspects. Here lies the answer:  The safeguards as to arrest and detention by police have been set out in section 33 of our Constitution. Accordingly, the arrested person has a fundamental right under the Constitution to be informed as soon as possible, in ordinary language, of the grounds of his arrest unless that can be inferred from the surrounding circumstances or if he makes it impossible for the arrested to inform him. There is a duty on a police officer to caution a person on arrest and any statement made by the latter without first being cautioned cannot be produced as evidence at his trial. The caution must be administered in the following words or to the like effect:
“It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say whether in answer to a question or not may be given in evidence. “
Furthermore, it is as of right of every person arrested that he cannot be denied to consult and be defended by a legal practitioner of his choice but he does not, however, have to be informed of the existence of this right (Section 33(1)). Pursuant to section 33 (2) of the constitution an arrested person who is detained in custody must be produced to the nearest magistrate within 24 hours of his arrest.
Generally police must arrest with an arrest warrant excluding the situations specified in section 54 of the Code of Criminal Procedure 1898, where, undoubtedly, it is a necessity for the concerned police officer to be logical, careful and of firm belief. Conforming to Section 54, a police officer, without warrant, may arrest:
1)    Any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information had been received, or a reasonable suspicion exists;
2)    Any person having in his possession without lawful excuse any implement of house breaking;
3)    Any person who has been proclaimed as an offender;
4)    Any person who posses any stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
5)    Any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
6)    Any person reasonably suspected of being a deserter from the armed forces of Bangladesh;
7)    Any person who has committed an act out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence
8)    Any released convict committing a breach of any rule made under section 565(3);
9)    Any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition;
Additionally, various international and national treaties and conventions provide safeguards and recognize rights of the citizens against police powers.  As specified in article 9 of the United Nations Universal Declaration of Human Rights that no one shall be subjected to arbitrary arrest, detention or exile. The treaty, International Covenant on Civil and Political Rights, gives further protections. Article 9 of the treaty prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. Article 9(2) requires the suspect to know the ground of his arrest.
Despite all these safety valves of law, unfortunately, our citizens are faced with arbitrary arrest and torture and wrongful detention by the police. Whereas in other countries police symbolises as a friend and protector of the society, we seldom can think police like that. Why is this so? Why our rights are being persistently denied? Are the police only to be blamed? Certainly to answer these queries we need to focus on the reforms that are required in the police force. The first loophole can be found in the Police Act of 1861 which is the primary piece of legislation governing the police; it outlines the constitution of the police force, its superintendence, appointments, dismissals and other conditions of service. Written by the British colonial authorities, the act makes the police accountable to government agents rather than the local population. The main function of police under the law now – and in 1861 – is to control, rather than protect, citizens. Although Police Ordinance (2007) has been drafted to replace the Police Act of 1861, the ordinance was not promulgated. The ordinance would make the police publicly accountable, operationally neutral, functionally specialised, professionally efficient, democratically controlled and responsive to the needs of the community. Its supporters emphasise that a reformed police would serve and protect citizens. To underscore this point, the drafters have renamed the Bangladesh Police as the Bangladesh Police Service.
Another reason the police are unable to think themselves as the servants of the republic is because of lack of proper training, recruitment and motivation. Proper training will make them aware about their role of establishing rule of law. As members of an important agency of state and criminal justice system, they are under lawful compulsion to provide proper service to all types of people of the society. The recruitment process also involves bribing and buying their way into the force.
Thirdly, for most officers, life in the police force is difficult and unrewarding. Conditions of service and facilities, particularly for the subordinate ranks, are abysmal and drive police morale downwards; salaries for gazetted officers are far from generous and among the lowest in the civil service. Corruption in the police is rampant and systemic. It will be nearly impossible to eliminate until poor salaries and working conditions are improved, particularly for officers at and below the rank of sub-inspector.
Fourthly, political and bureaucratic interference are the most significant impediments to police efficiency and have resulted in the worst forms of abuse including illegal detention, death in custody, torture and pervasive corruption. Low police salaries and government control of promotions and transfers all but ensure that the police are dependent on the political leadership, which prevents investigation of serious issues of corruption, organised crime or other matters that some political leaders would prefer remain untouched.
To sum up, if we really want to convert our Bangladesh police to Bangladesh police service and do not want to face  circumstances like I mentioned previously like in the movies all these reforms in the system are indispensable. With the inadequate training, low salaries and various corruptions we will continue to be deprived of our rights. Apart from all these government and opposition need to be devoted for altering Bangladesh Police to Bangladesh Police Service that will control crime professionally and serve the people amicably.

The writer IS a Barrister-at-Law.