Checking phones for political rally: 'Violation of constitution, abuse of power'
While the police may stop and check people’s mobile phones and detain them if need be in emergency situations or on reasonable grounds, checking them on a large scale is a violation of people’s constitutional rights and cannot be justified by any means
While both Bangladesh Awami League and Bangladesh Nationalist Party (BNP) held separate rallies at the capital on Wednesday (12 July), the police set up checkposts in Gabtoli and Amin Bazar.
There were allegations that members of Dhaka Metropolitan Police (DMP) and Dhaka district police checked people at these two points from early Wednesday morning to 12 pm, and arrested several leaders and activists of the BNP after checking their mobile phones.
According to several BNP activists, at least 50 people were detained by police from the Amin Bazar checkpost on Wednesday.
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This is not the first instance of the police doing something like this in recent times. Earlier on 10 December last year, police had set up checkposts in the said two areas in a similar manner ahead of BNP's rally.
The police authorities, however, denied such allegations, claiming that setting-up of checkposts was "part of their regular activities because of the ongoing traffic week" and "no one was detained or stopped due to the BNP rally".
Still, the allegations raise a question about whether the police have any authority to stop and check people's mobile phones on the streets.
The Business Standard reached out to several experts to understand the long and short of the matter. It turns out that while the police may stop and check people's mobile phones and detain them if need be in emergency situations or on reasonable grounds, checking them on a large scale is a violation of people's constitutional rights and cannot be justified by any means.
"The law enforcement agencies may check people if they have the information from the intelligence that some criminal activity is going to take place. But what happened yesterday (Wednesday) doesn't seem like that. This is clearly a violation of people's privacy, which is a right established by the constitution," said Supreme Court lawyer Jyotirmoy Barua.
According to Article 43 of Bangladesh's constitution, "Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health – (a) to be secured in his home against entry, search and seizure; and (b) to the privacy of his correspondence and other means of communication."
"You won't find a culture like this in the developed nations," Barua added.
However, Nurul Huda, former inspector general of police, begs to differ. According to him, the police authorities have the jurisdiction to carry out any activity of searching if they have reliable and logical reasons.
"Thousands of people entered Dhaka for the rallies. So, there might be a threat of law and order being compromised. In such instances, the police can search a few for the greater safety of the people," Huda said, adding that this practice should be a continuous process and carried out from time to time.
Section 54 of The Code of Criminal Procedure gives any police officer the authority to arrest anyone without an order from a Magistrate and without a warrant on some special grounds. However, the High Court Division in 2003 gave a 15-point instruction to the police on the circumstances under which Section 54 can be applied.The state later appealed against the HC instruction. The Appellate Division eventually upheld the 15 points with some changes.
"But harassing people on a mass level, that too on a particular day, can never be justified by any law," said Supreme Court lawyer Shahdeen Malik. "It is simply an abuse of power, and it shows that the police department does not care about the rule of law."
The eminent jurist also opined that the higher officials of the police department should be held accountable for such practice, "because things like these cannot happen without their permission".
Advocate Barua also suggested that the aggrieved people may go to the court for compensation.
"This is one kind of harassment, and the home ministry is responsible for this. So, one can also file a case against the state. In foreign countries, you may find many such instances, but unfortunately, this is not a common practice in Bangladesh because people here are not aware of it," Barua concluded.
