Increasingly, the magistracy controlled by the executives becomes insensitive to civil liberties. Denial of bails, indiscriminate granting of
police remand, the alleged torture of person(s) arrested in police custody create genuine concerns. What a number of advocates of Bangladesh Supreme Court told in a recently held Bar Council seminar organised for the new entrants to legal profession clearly reflects the situation. "The Magistracy virtually turns into an extension of the Police. In earlier days, magistracy was not so; magistrates were the real friends of the people whose liberties were at stake. The situation is getting worst."

Widespread torture of detainees is common in criminal investigations in Bangladesh in all regimes, and has become an unmistakable feature of the government's crackdown against independent and political voices. Persons detained by police are routinely subjected to physical and psychological abuse, often from the initial moments of their arrest. The concerned authority often refuses to hold police and security forces accountable for acts of torture, and even tacitly encourages torture though its broadcasting of political prisoners' public "confessions" as tools of political propaganda. Instituting legal and judicial reform to halt torture, and ending impunity for it, should be a matter of priority for the government of Bangladesh and for all parties interested in human rights and the security and stability of the region.

Unqualified use of the qualified power of arrest A lot have been written on the abuse of the Section 54 of the Code of Criminal Procedure. The Code of Criminal Procedure, 1898 deals with some of the crucial procedural elements of the power and function of the police. Chapter V of the Code particularly deals with procedure and mode of arrest of which section 54 is of utmost important. It grants police qualified power of arrest any person on reasonable suspicion without warrant on nine grounds Practically section 54(1) is the most abused section of the Code. The Police, in fact do not comply with the provision in its totality. They bluntly ignore the qualifying terms mentioned in the section e.g., cognisable offence' 'reasonable complaints', 'credible information', and reasonable suspicion'. It is being indiscriminately used by the police and as application of this section fraught more with ulterior motives than prevention of crimes and or arrest of persons suspected of having committed or about to commit cognisable crimes. Most of the arrests under section 54 are caused on fanciful suspicion and in most cases to fill in the quota allotted to an individual police officer to make an arrest each day. This incredible practice has been going on with impunity for many years. An arrest under section 54 is often a prelude to issuance of detention order under the Special Powers Act, 1974 (SPA). The SPA allows the authorities to detain any person on eight grounds, vague enough to detain any person according to the whim and caprice of the executives and the party in power. Such detention can extend to six months, and may extend beyond this period, if so sanctioned by the Advisory Board. The use and abuse of the SPA in the name of securing law and order have resulted in steady pattern of human rights violations. Successive governments have supported the continuation of this legal instrument that offer wide discretionary powers of detention.

Police Remand

Mounting numbers of torture and deaths in pre- and post-conviction detention facilities over the past three decades attest to the brutality of the treatment meted out against detainees and prisoners. Although the Constitution of Bangladesh prohibits torture, few law enforcement officers are held accountable for it.

Illegal action of the police personnel, in most cases, are either authorised or endorsed by a magistrate. Refusal to grant bail to a person accused of a bailable offence at the instance of police is an example police-magistrate joint collaboration. Section 167 of the Cr.P.C. allows the magistrate to grant police remand in custody beyond 24 hours for a total period of 15 days on request from the police after s/he satisfied that there are grounds for believing that the accusation or information is well founded" (Sec. 167.1 of the Cr.P.C.).

The term 'remand' is practically synonymous with torture for extracting confession. Like refusal of bail, granting of remand is another instance of police-magistrate joint solidarity, which at the end inspires the law enforcers to flout the legal safeguards more easily. In most cases, the magistrate does not ask for copy of the entries in the diary of the police officer making the investigation (Sec. 167.1 of the Cr.P.C). The magistrate in majority cases does not record his reasons with substance and clarity for allowing detention in the custody of the Police.

The criminal justice system lacks adequate procedural safeguards against police abuse, as it grants the prosecution wide powers concerning pre-trial custody, accesses to lawyers, and access to forensic evidence. Against the backdrop of such flagrant violations of the letter of the colonial law, the role of an assertive, pro-active higher judiciary becomes more important to break the unfortunate nexus between police and magistracy.

What is judicial activism?

The terms "judicial restraint" and "judicial activism" describe how a judge judges, that is, how he applies the law to facts in the cases before him. The difference is that restrained judges take the law as it is and activist judges make up the law as they go along. Judicial activism does not find any mention in the Constitution of Bangladesh, it is not defined anywhere but is widely talked about in all section of society, NGOs and bureaucrats. Assertion of Judiciary and its power is judicial activism, many people label it is over active judiciary. In South Asia, the Judiciary of India has created classic precedents of judicial activism for protecting human rights, human dignity and establishing good governance. Keshvanand Bharati Vs. Kesala, Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & S.P. Vs. Union of India etc. are few landmark cases that highlight judicial activism.

Using judicial activism as a weapon Supreme Court gives directive through government. In Vineet Narayan Vs. Union of India, the famous Hawala case Supreme Court monitored the riweshgahous, it issued directives for CBI and intelligence services to be present in all hearings. He said that Judicial reforms are needed therefore judicial activism should go hand in hand with judicial restraint.

Restrained judges respect the political process, whether they agree with its results or not, until it clearly crosses a clear constitutional line. Activist judges feel free to re-write statutes or the Constitution, to use extra-legal factors in their decisions, to ignore limits on their power in the search for desirable results. However, in an established and well-balanced democratic system, judicial activism rarely adventures beyond certain limits. Because ultimately it is the Legislature, and the Executive created and sustained by the Legislature, that is accountable to the people whose will, after all, is sovereign.

The last hope?

The alarming trend of torture the hands of the law enforcers in Bangladesh exposes once again its inherent tendency of being viewed with a philosophy of paramilitarism associated with the mechanism of awe, threat and coercion. The culture of impunity endorses the existing trend and protects the culprits from being prosecuted. It encourages others to follow the suit, as the criminal justice system is open to manipulation by the agencies. The Supreme Court, as usual, remains the key institution for the protection of human rights of the bewildered. The traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the Constitution of the People's Republic of Bangladesh. The purpose of the desired judicial activism, in the words of Justice V. R. Krishna Iyer, a living legend in South Asian legal fraternity, "To obliterate procedural anfractuosities, to broaden the idea of locus standi, to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and pachydermic chaos of interpretation so popular in British Indian lawyering practices and to establish free legal aid and public interest litigation these were forensic urgencies and jural necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians who would otherwise find the complicated court system "untouchable" and even not "approachable''.

The need of the hour is an organisational culture that condemns abuse of power and misuse of force and encourages pro people policing. All those who are concerned with the arrest, detention, and custody of the people, particularly of the poor and vulnerable sections of the society, must strictly implement the constitutional and legal protections and safeguards. It is necessary that the guardians of law and the custodians of lock-ups and prison houses should be made aware of the constitutional and legal rights of the people. For Bangladesh, an activist, goal oriented judiciary can limit the scope of executive arbitrariness ensure the implementation of its dictates.