In a significant ruling, the Madhya Pradesh High Court has held that production of victims and suspects before the media and disclosure of personal information of the suspect to the media or display of their photographs in newspapers or on any digital platform are violative of Article 21 of the Constitution of India.
The Gwalior Bench of Justice G.S. Ahluwalia passed this order in a writ petition on November 2. Suresh Agrawal represented the petitioner and Advocate General Purushendra Kaurav appeared for the respondents.
The court also added that, “parading of suspects in general public is also held to be violative of Article 21 of the Constitution of India. The publication of photographs of suspects whether with covered or uncovered faces shall also not be done under any circumstances.”
Further, the Bench directed the State Government to “implement the Witness Protection Scheme in its letter and spirit.” The Director General of Police, was also directed to issue necessary instructions with regard to providing protection to the witnesses as well as to ensure prompt appearance of witnesses including the police witnesses before the Trial Court.
The petitioner, accused of encroaching upon a part of his landlady’s house, had alleged that his uncovered face’s photograph was published in the newspapers as well as on social media, by projecting him as a ‘hard core criminal’.
The police officer who had arrested the petitioner was placed under suspension and the said news was published in all the newspapers. Later, it was found out that his suspension was revoked.
Aggrieved by this, the petitioner filed a plea before the High Court. After notice was issued in the petition, a meagre fine of Rs. 5,000 was imposed on the police officers.
When asked about the law under which photographs of the uncovered face of an accused can be published, the State submitted a circular issued by the Director General of Police on January 2, 2014. The circular permitted the sharing of information and photos pertaining to an accused with the media subject to various restrictions.
Clause 6A of the said circular states that the suspect/accused should not be produced before the media but clause 8 allows the police to produce the suspect as well as the victim before the media after the recording of the police statement. Further, Clause 6B of the circular prohibited the display of photographs of an accused till the Test Identification Parade is conducted.
Court’s analysis of the circular
The court opined that the circular itself is self-contradictory in nature and that, “On one hand, it speaks about protecting the fundamental rights of an accused, but on the other hand, it gives liberty to the police men to violate the fundamental rights of the suspects/accused.”
Accordingly, the court quashed the clauses 6B, 8 and 11 of the circular dated January 2, 2014 issued by the Director General of Police in exercise of its suo motu power under Article 226 of the Constitution of India.
The Bench relied on a catena of cases and opined that, “privacy/reputation/dignity of a citizen of India, are integral part of Article 21 of the Constitution of India and cannot be infringed, unless and until a restriction is imposed by or under the authority of law and such restriction should be reasonable having nexus with object sought to be achieved. The Privacy/ reputation/dignity of any person, including a hardcore criminal cannot be violated, unless and until the reasonable restriction permits to do so.”
Adding on, the court also observed that, “tarnishing the reputation of a person, by the police, on the basis of its own investigation, amounts to prejudging the correctness of the allegations, which is unknown to Indian Law, and a person is presumed to be innocent, unless and until he is convicted. Thus, without there being any statutory provision putting reasonable restrictions, the police cannot violate the fundamental rights i.e., Privacy/dignity/reputation of a citizen of India, on the basis of an executive instruction issued by the Director General of Police.”
Focusing on the menace of media trials the court further noted that, “By producing the victims and suspects before the media, the police not only violates the fundamental rights of the suspect as enshrined under Article 21 of the Constitution of India but also encourages the media trials.
The police “instead of tapping its own back by disclosing the identity of the suspected persons in print, social or digital media, must concentrate on ensuring the timely appearance of the police witnesses before the Trial Court, so that the guilt of a person can be established”, ruled the court.
On the petitioner’s detention
The court took cognisance of the fact that the aggrieved petitioner was not only evicted from his shop without court orders, but also illegally detained by the police. Further, the court noted that it was a case of mistaken identity and that the petitioner was wrongly taken into custody as some other person with similar name and details was wanted in a criminal case.
The court referred to D.K Basu v State of West Bengal AIR 1997 SC 610 and said that, “If the petitioner was taken into custody under a mistaken identity, then there was no hurdle for the police to arrest him formally after following the requirements as directed by the Supreme Court in the case of D.K. Basu.”
It said in absence of any formal arrest, there was no occasion for the police, to publish the uncovered face of the petitioner in the newspaper or on any social media platform, thereby projecting him as a criminal.
“Thus, it is clear that for no reasons, the petitioner was not only kept in illegal detention, but his reputation was tarnished and his privacy and dignity was violated”, added the court. The Bench also issued a show cause notice to the respondent police officers to explain as to why they should not be punished for contempt of court.
In terms of compensation, the court noted that, “it is clear that violation of Fundamental Right of a person due to police misconduct, would not only give rise to a liability under Criminal, Tort and Public Law but pecuniary compensation can also be awarded.”
This matter has now been slated for hearing on November 9, 2020 where the Superintendent of Police, Gwalior has been directed to appear through video conferencing with the entire record for the assistance of the Court.
The order may be read here: