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Why is the judiciary failing to check arbitrary detention?
When we speak about arbitrary arrest and detention, the discussion usually focuses on holding law enforcement agencies, especially the police, accountable.
Why is the judiciary failing to check arbitrary detention?
Nafiul Alam Shupto
VISUAL: ANWAR SOHEL
When we speak about arbitrary arrest and detention, the discussion usually focuses on holding law enforcement agencies, especially the police, accountable. Unlawful arrests, politically motivated cases, misuse of remand, custodial torture, forced confessions, and the culture of impunity in law enforcement are seen as the main problems. In every political crisis, every mass arrest, and every claim of custodial abuse, the conversation almost always finds one issue: the need to reform the police.
However, we must acknowledge that the police do not act alone in sustaining the culture of arbitrary arrests and detention. They may arrest a person, produce an accused before court, seek remand, and prepare the narrative. But in a constitutional system, police action is not supposed to become lawful merely because the police say so. There is in fact a judicial body placed between the citizen and the coercive power of the state. That body is supposed to ask questions: was the arrest lawful? Was the accused produced before a court within the required time? Are there reasonable grounds for detention? Is remand truly necessary? Has the accused been subjected to torture, threats, coercion, or intimidation? Is detention being used to aid investigation, or has it already become punishment before trial?
In Bangladesh, public conversation rarely asks whether the judiciary performs its constitutional role with adequate seriousness. We criticise the police, often rightly so. We criticise the executive, also rightly. But we rarely examine the judicial conduct that allows unlawful or excessive police action to continue. And this silence has consequences. In many cases, the first appearance of the accused before a magistrate becomes a procedural ritual rather than a meaningful exercise of judicial scrutiny. Remand prayers are allowed with limited scrutiny. Bail is refused without sufficient reasoning. Police narratives are accepted as facts. Allegations of torture or coercion are not always dealt with urgently. Vague accusations, particularly in politically sensitive cases, are allowed to be used to justify detention. Often the accused stands before the court, but the court does not always insulate the accused from the state.
That is where the real problem lies: the police may initiate arbitrary detention, but the judiciary often gives it legal life. This is neither to suggest that every judge or magistrate acts improperly, nor to deny the structural pressures within which the lower judiciary operates.
Courts are overburdened and overcrowded. Magistrates work under enormous pressure. The criminal justice system is under-resourced and, in politically sensitive cases, judicial officers may also have to negotiate with invisible pressures, institutional caution, or fear of consequences. But none of these changes the core principle: when the state seeks to take away a person’s liberty, the court’s responsibility is at its highest.
A court is not meant to be an administrative extension of the investigation. The judiciary exists to test or resist state power, especially when that power is exercised against individuals who are vulnerable, unpopular, accused, poor, or inconvenient for any political party.
In the political sphere, arrests are often made during periods of protest, opposition mobilisation, labour unrest, student movements, or wider political crises. In these times, the criminal justice system is often used not only to investigate or prosecute for crime but also to control dissent, intimidate communities, and create fear. The police may be the visible arm of that process, but the courts are where it is either checked or validated.
When bail is denied without meaningful reasoning, the process is itself a punishment. Where charges of custodial abuse are not challenged, impunity for police intensifies. When the judiciary bypasses tough questions in politically sensitive cases, constitutional protection becomes selective. And selective liberty is not liberty at all.
That is why judicial accountability must enter the conversation. This, of course, does not mean undermining judicial independence, which itself needs to be protected from institutional privilege through judicial accountability. But we must seek independence from the executive, police narratives, political pressure, and from fear of the public. A judiciary that is accountable to the law is stronger, not weaker.
But what does judicial accountability look like when it comes to arrests and detention? First, remand orders must be reasoned. A person should not be sent to police custody through a few routine lines. The court must explain why remand is necessary, why alternatives are insufficient, and how the rights of the accused will be protected. Second, bail decisions, particularly in politically sensitive or mass arrest cases, must reflect individualised judicial assessment. The accused should not be treated as part of a crowd merely because the police case is drafted that way. Third, any allegation of torture, coercion, unlawful arrest, or procedural violation must trigger judicial inquiry. Courts should not wait for the accused to prove abuse from a position of custody and fear. Fourth, data on remand, bail, and pre-trial detention should be made more transparent. If particular categories of cases consistently result in remand or bail refusal, that should be visible and open to scrutiny.
Additionally, the higher judiciary must set clearer standards for magistrates on arrest, remand, bail, and custodial protection, including by activating the Monitoring Committee for Subordinate Courts under Chapter IA of the Supreme Court Rules. This is especially urgent after the Appellate Division’s guidelines in BLAST v Bangladesh on sections 54 and 167 of the Code of Criminal Procedure (CrPC), and the 2025 CrPC amendment giving statutory force to several safeguards. But these reforms will mean little if magistrate courts continue to approve police action mechanically rather than treating these safeguards as binding constitutional duties.
Finally, the legal community must also reflect on its own silence. Lawyers, civil society actors, academics, and rights organisations often criticise police abuse, but hesitate to speak about judicial failure. Part of that hesitation comes from respect for the institution, but part of it comes from fear of contempt proceedings. There is also the reality that lawyers must continue to appear before the same courts.
Bangladesh does need police accountability urgently, but after more than five decades of repeating the same demand, we must admit that police reform alone cannot end arbitrary detention. The police station is only the first site of abuse. The courtroom can either stop that abuse or formalise it. Too often, the latter transpires. Every remand order, every bail rejection, every silent acceptance of a questionable arrest reveals whether that constitutional promise is alive or merely decorative. We have spent decades asking why the police abuse power. It is time to ask why the courts so often allow that abuse to continue.
Nafiul Alam Shupto is a lawyer and activist.
Nafiul Alam Shupto
VISUAL: ANWAR SOHEL
When we speak about arbitrary arrest and detention, the discussion usually focuses on holding law enforcement agencies, especially the police, accountable. Unlawful arrests, politically motivated cases, misuse of remand, custodial torture, forced confessions, and the culture of impunity in law enforcement are seen as the main problems. In every political crisis, every mass arrest, and every claim of custodial abuse, the conversation almost always finds one issue: the need to reform the police.
However, we must acknowledge that the police do not act alone in sustaining the culture of arbitrary arrests and detention. They may arrest a person, produce an accused before court, seek remand, and prepare the narrative. But in a constitutional system, police action is not supposed to become lawful merely because the police say so. There is in fact a judicial body placed between the citizen and the coercive power of the state. That body is supposed to ask questions: was the arrest lawful? Was the accused produced before a court within the required time? Are there reasonable grounds for detention? Is remand truly necessary? Has the accused been subjected to torture, threats, coercion, or intimidation? Is detention being used to aid investigation, or has it already become punishment before trial?
In Bangladesh, public conversation rarely asks whether the judiciary performs its constitutional role with adequate seriousness. We criticise the police, often rightly so. We criticise the executive, also rightly. But we rarely examine the judicial conduct that allows unlawful or excessive police action to continue. And this silence has consequences. In many cases, the first appearance of the accused before a magistrate becomes a procedural ritual rather than a meaningful exercise of judicial scrutiny. Remand prayers are allowed with limited scrutiny. Bail is refused without sufficient reasoning. Police narratives are accepted as facts. Allegations of torture or coercion are not always dealt with urgently. Vague accusations, particularly in politically sensitive cases, are allowed to be used to justify detention. Often the accused stands before the court, but the court does not always insulate the accused from the state.
That is where the real problem lies: the police may initiate arbitrary detention, but the judiciary often gives it legal life. This is neither to suggest that every judge or magistrate acts improperly, nor to deny the structural pressures within which the lower judiciary operates.
Courts are overburdened and overcrowded. Magistrates work under enormous pressure. The criminal justice system is under-resourced and, in politically sensitive cases, judicial officers may also have to negotiate with invisible pressures, institutional caution, or fear of consequences. But none of these changes the core principle: when the state seeks to take away a person’s liberty, the court’s responsibility is at its highest.
A court is not meant to be an administrative extension of the investigation. The judiciary exists to test or resist state power, especially when that power is exercised against individuals who are vulnerable, unpopular, accused, poor, or inconvenient for any political party.
In the political sphere, arrests are often made during periods of protest, opposition mobilisation, labour unrest, student movements, or wider political crises. In these times, the criminal justice system is often used not only to investigate or prosecute for crime but also to control dissent, intimidate communities, and create fear. The police may be the visible arm of that process, but the courts are where it is either checked or validated.
When bail is denied without meaningful reasoning, the process is itself a punishment. Where charges of custodial abuse are not challenged, impunity for police intensifies. When the judiciary bypasses tough questions in politically sensitive cases, constitutional protection becomes selective. And selective liberty is not liberty at all.
That is why judicial accountability must enter the conversation. This, of course, does not mean undermining judicial independence, which itself needs to be protected from institutional privilege through judicial accountability. But we must seek independence from the executive, police narratives, political pressure, and from fear of the public. A judiciary that is accountable to the law is stronger, not weaker.
But what does judicial accountability look like when it comes to arrests and detention? First, remand orders must be reasoned. A person should not be sent to police custody through a few routine lines. The court must explain why remand is necessary, why alternatives are insufficient, and how the rights of the accused will be protected. Second, bail decisions, particularly in politically sensitive or mass arrest cases, must reflect individualised judicial assessment. The accused should not be treated as part of a crowd merely because the police case is drafted that way. Third, any allegation of torture, coercion, unlawful arrest, or procedural violation must trigger judicial inquiry. Courts should not wait for the accused to prove abuse from a position of custody and fear. Fourth, data on remand, bail, and pre-trial detention should be made more transparent. If particular categories of cases consistently result in remand or bail refusal, that should be visible and open to scrutiny.
Additionally, the higher judiciary must set clearer standards for magistrates on arrest, remand, bail, and custodial protection, including by activating the Monitoring Committee for Subordinate Courts under Chapter IA of the Supreme Court Rules. This is especially urgent after the Appellate Division’s guidelines in BLAST v Bangladesh on sections 54 and 167 of the Code of Criminal Procedure (CrPC), and the 2025 CrPC amendment giving statutory force to several safeguards. But these reforms will mean little if magistrate courts continue to approve police action mechanically rather than treating these safeguards as binding constitutional duties.
Finally, the legal community must also reflect on its own silence. Lawyers, civil society actors, academics, and rights organisations often criticise police abuse, but hesitate to speak about judicial failure. Part of that hesitation comes from respect for the institution, but part of it comes from fear of contempt proceedings. There is also the reality that lawyers must continue to appear before the same courts.
Bangladesh does need police accountability urgently, but after more than five decades of repeating the same demand, we must admit that police reform alone cannot end arbitrary detention. The police station is only the first site of abuse. The courtroom can either stop that abuse or formalise it. Too often, the latter transpires. Every remand order, every bail rejection, every silent acceptance of a questionable arrest reveals whether that constitutional promise is alive or merely decorative. We have spent decades asking why the police abuse power. It is time to ask why the courts so often allow that abuse to continue.
Nafiul Alam Shupto is a lawyer and activist.
