In the digital age, privacy is more critical than ever. Mobile phones have become extensions of our personal lives, storing intimate details ranging from private messages to financial information. Given their importance, the search and seizure of these devices must be strictly regulated to protect individual privacy.
Recent discussions on the legal limits of police authority to search mobile phones highlight a fundamental constitutional right. Bangladesh's Constitution, in line with international human rights standards, protects the privacy of citizens' communications. No one can legally search a mobile phone without the owner's consent unless a court order is issued. This right is not just a legal formality but a crucial aspect of our freedoms.
Bangladesh's constitutional framework offers robust protections. Article 27 ensures equality before the law, Article 32 safeguards life and personal liberty, Article 36 grants freedom of movement, and Article 37 protects the freedom of assembly. These rights form the foundation of our democratic society, ensuring that citizens can live without undue state interference. Article 43 explicitly guarantees the right to privacy in correspondence and other communications, subject to reasonable restrictions for state security, public order, morality, or health.
Despite the legacy of British-era laws governing search and arrest procedures, the High Court in 2003 issued 15 guidelines for arrests without a warrant (under sections 54 and 167) and remands. In April 2016, the Supreme Court upheld these orders with amendments. The guidelines emphasise that mere suspicion is insufficient for a search; it must be documented in a police diary, explaining why the individual is suspected. The police must also inform the person of their station and reasons for the search. If an arrest is necessary, the individual should be asked if they wish to contact a family member or lawyer.
The police's responsibility to maintain law and order does not grant them unchecked powers. Searching a mobile phone without valid reason and proper authorisation is a severe violation of personal privacy and illegal. Article 12 of the Universal Declaration of Human Rights also protects against arbitrary interference with privacy, highlighting global recognition of this fundamental right.
The High Court's directives, reinforced by the Appellate Division, set clear boundaries for police conduct. They must document their reasons for suspicion, inform the individual, and respect his/her right to communicate with family or legal counsel if detained. These measures are essential to prevent abuse of power and protect individual freedoms.
While the state has a duty to ensure citizens' safety, this must not come at the expense of infringing constitutional rights. Protecting personal privacy, particularly regarding mobile phones, is vital and demands our unwavering commitment to justice and liberty.
Shahariar Islam Sovon
Master of Laws (LLM)
University of Asia Pacific