The judiciary and extra-judicial indiscretion
IT is indeed heartening to note that the highest court in Bangladesh has directed the concerned executive organs to explain the reported continuance of extra-judicial killings. In a scenario where the police have been unsuccessfully struggling to transform themselves and the political class of the country is apathetic towards the need to revamp the police, the concern of the judiciary to keep the law-enforcers on the democratic track is gratifying.
A people whose consciousness of rights is poor, a land where legal services at the incipient stages are rare, and an investigative organ whose frequent resort to third- degree methods have firm roots -- these and a host of other realistic factors must come into the court's knowledge when ensuring the constitutional rights of the accused.
There are improved methods and refined processes in expert investigation, and use of brains as against brawn. This improvement has not, unfortunately, been consistent and torture tactics have regrettably been revealed. Therefore, the court needs to be guided by principled pragmatism.
The apex court in Bangladesh through a number of observations and direction containing guideline, has exhibited its dismay over the torture by law-enforcers and custodial deaths. It is, therefore, time to emphasise that exaggerated adherence to and insistence upon establishment of proof beyond reasonable doubt by the prosecution, ignoring ground realities, would actually amount to miscarriage of justice.
The administrative and enforcement inertia, leading to flagrant infringement of fundamental rights, can be corrected by the apex court by invoking the right to monetary compensation. The appropriate cases would be those where the infringement is patent and incontrovertible, the violation is gross and ex-facie glaring, and of shocking magnitude.
The assertive and often aggressive approach of the apex court in matters of physical excesses committed by enforcement personnel would strengthen the faith of common people in law enforcement and the rule of law. In fact, the Supreme Court, in our situation, should intervene heavily with its activism. In reality, the manner of functioning of the police and the role of the Supreme Court vis-à-vis an individual's constitutional rights sharply interact with one another.
Demanding high standards of professionalism, the Supreme Court needs to ask the police to promote public confidence in it and expect the organisation to act as defenders of truth.
In recent times, when the awareness among the people about their democratic rights is growing and the philosophy of human rights has pervaded almost all spheres of democratic activities, the pattern of police functioning has acquired an added importance. The democratic and human rights of the people invariably interact with the process of criminal administration of justice with which the country's police is directly involved.
In progressive stages of any democracy and in the area of omnipresence of human rights, the traditional concept of police as a mere law-enforcing agency or a coercive instrument of the government is rendered obsolete. The entire focus of the role of the police shifts, and police needs to project itself not as a servant of those in power but as a guardian of citizens' values and as a monitor of democratic order.
In a democratic society, the police force has to confront a variety of situations even while functioning in the traditional area of crime prevention, investigation and detection. The offences which originate from social tensions call for a humane approach and selective treatment by the police. Family violence, sexual offences, offences by and against the women and children, or the crimes traceable to factors like poverty and unemployment are not crimes, but are social ills and aberrations, which the police have to control. The police in a democracy have also to deal with class violence, clashes resulting from religious fanaticism and political violence, especially during the time of elections.
A developing democracy like ours has been experiencing the menace of violence by terrorist and insurgent groups or militant forces that operate with advanced techniques of warfare and latest weapons. Countering their activities often becomes an acid test for the country's police force on account or want of infrastructural facilities and training. Working on these several fronts, at times, call for the police to arrange priorities.
Law-enforcers are expected to observe great restraint, as excess on their part can result in direct violation of a citizen's fundamental and democratic rights. In modern democratic times, in fact, there is hardly any activity left where the police is not to be posted on duty. Be it a cricket stadium or cinema theatre, the presence of policemen becomes relevant. That is precisely why the police force has become an integral part and an intrinsic need in a socio-politico-democratic process.
While the role of the Supreme Court in the area of police torture and indiscipline, and of positive action through selective activism, is encouraging, much of the improvement has to come from within the police force only.
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