The presumption of innocence is a hallowed principle of the criminal justice system. Every individual is considered innocent until he is proven guilty of a crime beyond a reasonable doubt. The Universal Declaration of Human Rights (UDHR) enshrined this principle as a right of a person who is charged with a penal offense. Many other international Conventions, such as the International Covenant on Civil and Political Rights (ICCPR), and the Arab Charter on Human Rights contain this principle as a safeguard against arbitrary detention, wrongful conviction, and abuse of power by law-enforcing agencies. However, the provisions mentioned in Sections 46(2) and 46(3) of the Criminal Procedure Code (CrPC) of 1898 contradict this principle and raise significant concern regarding the violations of human rights, extra-judicial killings, and crossfire.
The first step in a case is an arrest. If someone forcibly opposes arrest or makes a try to evade arrest, police officers or other authorized personnel are empowered by Section 46(2) of the CrPC 1898 to use “all means necessary” to carry out the arrest. The term “all means necessary” in this case is extremely ambiguous because it lacks clear guidelines, leaving room for broad and potentially dangerous interpretations, which gives the officers an unsettling amount of power when making an arrest.
Furthermore, Section 46(3) indirectly allows police officers or other authorized persons to cause the death of a person while arresting someone who is accused of an offense punishable with death or transportation for life. This creates an alarming precedent wherein it becomes more difficult to distinguish between an extrajudicial execution and a valid arrest. The Constitution of Bangladesh, the UDHR, and the ICCPR all guarantee the right to life. Any law that permits the use of deadly force must be strictly regulated and limited to prevent abuse; however, Sections 46(2) and 46(3) of the CrPC 1898 do not adhere to these criteria. By granting police officers discretionary power, it also facilitates the use of deadly force. The principle of presumption of innocence is also compromised when law enforcement officers are given the power to use “all means necessary” without adequate checks and balances. It could lead to situations where those who are suspected of committing a crime but have not yet been proven guilty beyond a reasonable doubt face serious and possibly fatal consequences.
Furthermore, there is a connection between the ambiguity of these sections and the occurrence of crossfire and extrajudicial killings. Execution without following the proper legal procedures is a grave violation of human rights. In 2023, 24 people were killed extrajudicially, of these four were killed in alleged crossfires and eleven were shot. On May 27, 2018, Ekramul Haque, a local leader, was allegedly shot in cold blood by police in disguise of gunfights. Also on March 23, 2011, Limon Hossain, a college student, was shot by the RAB with claims of fleeing arrest. These kinds of occurrence frequently take place when law enforcement officers use their discretionary powers under the CrPC, disguising as resisting arrest or trying to avoid imprisonment.
In contrast, after the ruling of Tennessee v. Garner case, the use of deadly force by police personnel is significantly restricted in the USA. In this case, it was established that no police officer can use deadly force unless there is a reasonable suspicion that the suspect poses a significant risk to them or others of causing death or serious physical harm. Similarly, in the UK, according to the Section 3 of the Criminal Law Act 1967 and Section 117 of the Police and Criminal Evidence Act 1984, any force used by police officers or law enforcing agencies must be reasonable in the circumstances. The Pennsylvania Supreme Court established in the case of Commonwealth v. Loughead that an officer has no right to shoot someone suspected of being a criminal who is simply fleeing from him without using any force. He must refrain from using force that would result in the sacrifice of human life.
To comply with international human rights norms, the CrPC 1898 should be reformed. Firstly, it is important to amend Sections 46(2) and 46(3) to incorporate clear guidelines and restrictions regarding the use of force by law-enforcing officers. The principles of presumption of innocence and proportionality must be emphasized. Secondly, a strong mechanism should be established to investigate matters related to extrajudicial killings, excessive use of force, and abuse of power. Thirdly, the law-enforcing agencies should receive adequate training on human rights standards and appropriate use of power.
Using deadly force or shooting a suspect is not a sufficient justification, though suspicion or escape are present, either separately or together. There must be concrete proof that the suspect has committed a serious crime, that all other options have been used to stop the suspect, and that if he escapes, he could murder or seriously hurt someone. Legal reforms and strong mechanisms are essential to ensure that the justice system upholds the human rights and dignity of all individuals. Only such measures can restore the integrity of the legal system and then the principle of the presumption of innocence can be truly upheld.
About the Author:
Md. Khairul Islam is a human rights activist and a law student at the University of Chittagong. He is currently interning at Transparency International Bangladesh (TIB) and the Bangladesh Institute of Labour Studies (BILS). He co-founded Legal Empowerment Bangladesh, where he served as the Founding Executive Director. He is also actively involved with The Network for International Law Students (NILS) Chittagong University Chapter, the Consumers Association of Bangladesh (CAB), and the Youth Policy Forum (YPF). His research interests focus on labor rights, consumer rights, access to justice, environmental justice, and combating child labor and exploitation.