Policing the line between publicity and justice

GS-II – Governance, Polity and Social Justice | Police Reforms | Criminal Justice | Fundamental Rights

Why in News?

• Supreme Court PIL: A Supreme Court of India Public Interest Litigation (PIL) has questioned the law guiding police publishing images of accused persons, seeking national media protocols/police media briefings.
• Social Media: Photographs of alleged offenders often flood social media even before the accused appears before a magistrate within minutes of an arrest.
• Previous Stories Displaying Wanted: Reward notices, photos of wanted persons have aided in solving crimes, finding missing children and catching fugitives.
• Legal Void: Many reasons to publicise photos, but the law still lags.

Current Law and Practice

• No One Law: There is no one law that specifically allows or prohibits the police from publishing photographs of accused persons.
• Section 84, BNSS, 2023: Section 84 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (Section 82 of the Code of Criminal Procedure or CrPC) allows courts to proclaim absconders and publish proclamations in newspapers.
• Photographs: The Section 84 does not mention photographs, but attaching one has become a matter of settled practice as it is helpful to ensure appearance before the person.
• Investigation Stage: This is never a matter of public record until proven in courts, therefore the first component required for such publicity cannot be fulfilled at the investigation stage itself as it presupposes that a magistrate has given his/her new approval with respect to this particular warrant.
• Publication at the Investigation Stage: Publication at the investigation stage is governed by the general powers of an investigating officer (IO).
• Hue and Cry Notice: The practice of posting the photographs on social media to seek identification, trace absconders or witnesses is an internet-age extension of the “Hue and Cry Notice” in State Police Manuals.
• Reward Announcements: Reward announcements fall in a clearer, narrower space and in general are regulated under State Police Regulations pursuant to the Police Act, 1861.
• Criminal Procedure (Identification) Act, 2022: Relates to acquisition, collection and processing of measurements i.e., photographs for purposes of identification but does not provide for publication.

Constitutional Limits

• Article 21: Jurisprudence under Article 21 has honed constitutional issues concerning the notoriety of accused persons.
• Presumption of Innocence: Continues to be fundamental to criminal justice.
• Pre-Trial Publicity: The media flashing the face of an arrested person as a proven criminal, without framing any formal charge, is real and irreparable damage.
• Institutional Humiliation: Categorizing such practice as an “institutional humiliation”, Rajasthan High Court.
• Digital Circulation: Digital circulation is also permanent, searchable and unconcerned by acquittal in future.
• BPR&D Manual: Drafted by the Bureau of Police Research and Development, it is a manual on media briefings by police personnel which was sent to the Home Ministry in July 2024.
• Supreme Court, January 2026: The Supreme Court stated that the amicus had formulated a Police Manual for Media Briefing and ordered States to formulate suitable policies in accordance with it within three months.

Absolute Red Lines

• Juveniles: A juvenile in conflict with law shall not be identified except by a name, which is necessary in the interest of the child and with permission of Juvenile Justice Board.
• Sexual Assault Survivors: A sexual assault survivor is a person whose identity, by law, is protected.
• Ordinary Adult: The debate centers around the ordinary adult who gets accused and arrested while not yet tried.

Making the Differentiation Between What is a Real Exposure and Police Branding

• Loyal Investigations: Publication may be necessary to prevention of crime, maintenance of public-order and a healthy justice.
• Public Assistance: Publicity may help identify, trace absconders, locate witnesses and resolve specific police published crimes.
• Police Optics: Photography released for the purpose of demonstrating arrests since this is good police optics and it makes a claim against an individual.
• Prejudice: This kind of publicity may cause a trial by media rather than using the legal system to determine the facts.
• US: “Wanted” notices done by the US are exceptions to privacy law as they are not public records, and agencies [are trained to] use terms like “alleged” and “wanted for questioning” in order to keep presumption of innocence.
• British Policing: How British policing is more cautiously withholding identities of arrested persons entirely.

Way Forward

• Implementing a Uniform National Protocol: Create a written, national uniform protocol that differentiates between proportionate need-based disclosures and prejudicial publicity.
• Mandatory Blackout Categories: These include juveniles and sexual-offence complainants.
• No Time-Limited Review: Require a time-bound review and takedown after the investigative purpose is exhausted, or an accused is discharged/acquitted.
• Common Application: Having the protocol applied uniformly across States.
• Necessity Test: Before seeking to publish any photo, think about whether the disclosure is necessary to the investigation or just helpful to the story.

Conclusion

• Balance: The public must assist in investigating crime while considering the presumption of innocence and constitutional protections.
• Legal Basis: You have a well defined legal basis and not just precedential practice.
• Proportionate Intent: The intent should be proportional, based on need not stigmatizing circumstances.

UPSC Mains Practice Question

Q. The publication of photographs of arrested persons brings up a balance between investigative necessity, assistance to the public and the presumption of innocence. Examine the legal and constitutional issues involved.