Policing the line between publicity and justice

Why in the News

A public interest litigation before the Supreme Court of India seeking a nationwide media protocol for police media briefings has forced a question Indian policing has quietly avoided: under what law are photographs of accused persons published, should they be published, and where should that stop. Within minutes of an arrest a handcuffed face, flanked by policemen and sometimes garlanded with placards cataloguing the crime, circulates on social media, often before the accused is produced before a magistrate. The practice rests on a patchwork of regulations written before Independence, an identification statute and the general architecture of criminal procedure. The contested point is whether a practice carried forward as police habit can bear the constitutional weight of publishing an untried person’s identity.

What is the legal basis cited for publishing an accused person’s photograph?

1. Court proclamation of absconders: Section 84 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced Section 82 of the Code of Criminal Procedure, 1973, allows courts to proclaim absconders and publish proclamations in newspapers.
2. General powers of the investigating officer: Publication at the investigation stage rests on the investigating officer’s general powers. Every person must assist the police in preventing and investigating offences, and an investigating officer may examine anyone with relevant information.
3. The Hue and Cry Notice: Publishing photographs on social media to solicit identification, trace absconders or find witnesses is a digital extension of the “Hue and Cry Notice” carried in State Police Manuals.
4. Reward announcements: Rewards are typically governed by State Police Regulations framed under the Police Act, 1861, which vest sanctioning authority in a hierarchy running from the Station House Officer (SHO) to the State government.

Why does the investigative case for publication remain strong?

1. Crimes solved: Photographs of wanted persons and reward notices have solved crimes and brought fugitives to book years after trails went cold.
2. Missing children recovered: The same notices have helped recover missing children.
3. Public capacity the force lacks: An alerted public has done what a thinly stretched police force acting alone could not.
4. Why a ban is the wrong answer: An outright ban on soliciting public assistance would be legally unwarranted and self defeating. The defect is the absence of a legal basis, not the presence of the practice.

Where does the patchwork fail to authorise what police actually do?

1. No enabling or prohibiting statute: No single statute permits or prohibits police from publishing photographs of accused persons.
2. Section 84 comes too late: The proclamation process under Section 84 is triggered only after a warrant fails. It provides no basis for publicity at the investigation stage.
3. Photographs by practice, not provision: Section 84 says nothing about photographs. Attaching one has become settled practice because it serves the purpose of securing the person’s appearance.
4. A vocabulary from before Independence, stretched: The State Police Manual provisions predate Independence, and their language, “description of the subject”, is broad enough only to plausibly cover photographs and rewards.
5. The Identification Act does not reach publication: The Criminal Procedure (Identification) Act, 2022 governs the taking, storage and use of measurements including photographs for identification. It says nothing about circulating them, and is often wrongly cited as enabling publication.
6. Rewards rest on discretion, not adjudication: A reward requires no prior warrant or proclamation. It is an exercise of administrative discretion rather than a judicial precondition.

What constitutional limits does Article 21 impose?

1. Article 21 jurisprudence has sharpened: The protection under Article 21 has been read more strictly over time, not more loosely.
2. Presumption of innocence: The presumption of innocence remains central to criminal justice, and a published photograph presents guilt as settled before any charge is framed.
3. Irreversible harm: Courts increasingly recognise that broadcasting an arrested person’s face as a fait accompli of guilt can cause real and irreversible harm. The Rajasthan High Court termed such practices “institutional humiliation”.
4. Permanence of digital circulation: Digital circulation is permanent, searchable and indifferent to a later acquittal.
5. Categories already barred: A juvenile in conflict with the law cannot be identified except in the child’s best interest and with the permission of the Juvenile Justice Board. A sexual assault survivor’s identity is protected by law.
6. The category left open: The unresolved case is the ordinary adult who is accused and arrested, but not yet tried.

What distinguishes investigative necessity from publicity?

1. The two ends of the scale: At one end publication serves legitimate investigative necessity, covering crime prevention, public order and law and order purposes. At the other end it showcases police achievements.
2. What showcasing costs: Photographs released merely to showcase arrests serve police optics at the accused’s expense. They can prejudice public opinion before trial.
3. The operative test: The question before any photograph is released is whether the disclosure is necessary to the investigation, or merely convenient to the narrative.

Can publicity be permitted without conceding the presumption of innocence?

1. United States: American law treats “wanted” notices as public record exceptions to privacy law. Agencies are trained to frame them carefully, using “alleged” and “wanted for questioning”, so the presumption of innocence survives the appeal for help.
2. United Kingdom: British policing takes the more conservative route and withholds the identities of arrested persons altogether.
3. What the two demonstrate: Both systems place the safeguard in a rule rather than in individual discretion. One regulates the wording of the notice and the other removes the category from publication, and neither leaves the decision to the officer making the arrest.

Challenges to a national police media protocol

1. Two drafts and no protocol: A manual has been drafted twice and adopted nowhere, so practice continues under the older regulations. Eg. The Bureau of Police Research and Development shared a draft manual on media briefings with the Ministry of Home Affairs (MHA) in July 2024, and in January 2026 the Supreme Court directed the States to evolve policies within three months on a manual prepared by the amicus.
   The Fix: Codify a single uniform national protocol rather than leaving each State to evolve its own policy from the same draft.
2. Disclosure without a proportionality test: Without a stated test, a release that is necessary and a release that is convenient look identical on the file. Eg. A photograph published to solicit identification and one published to announce an arrest are both issued under the same general powers of the investigating officer.
   The Fix: Require the protocol to distinguish proportionate, need based disclosure from prejudicial publicity, and to record the ground before release.
3. Blackout categories resting on separate statutes: The absolute bars protect only juveniles and sexual offence complainants, and each sits in its own law rather than in a police instruction. Eg. Identification of a juvenile in conflict with the law requires the Juvenile Justice Board’s permission, a step that has no counterpart for any other category.
   The Fix: Write the blackout categories into the protocol itself, so the bar reaches the officer rather than only the court.
4. No takedown once the purpose ends: A photograph published for an investigative purpose stays online after that purpose is served, and after a discharge or an acquittal. Eg. A search against an acquitted person’s name still returns the arrest material that was circulated.
   The Fix: Require time bound review and takedown once the investigative purpose is served, or the accused is discharged or acquitted.
5. Variation from State to State: Each State frames its own police regulations, so the same act is permitted in one State and not in another. Eg. Reward sanctioning authority under State Police Regulations runs from the Station House Officer up to the State government, and that hierarchy differs by State.
   The Fix: Apply the protocol uniformly across States, so the rule does not change with the place of arrest.

Conclusion

Publication of an accused person’s face is one of the few police powers in India with no statute behind it and no bar against it. The decision therefore rests where it should not, with the officer whose case the publicity also serves, and the harm falls on a person the law still treats as innocent. Two drafts of a protocol now exist and neither governs anything. The marker to watch is whether the States file the policies the Supreme Court directed, and whether those policies carry a necessity test and a takedown obligation rather than a restatement of existing practice.

Back2Basics: Bharatiya Nagarik Suraksha Sanhita, 2023

1. What it replaced: The BNSS is one of three central criminal laws that came into force on 1 July 2024, replacing the colonial era framework entirely. It replaces the Code of Criminal Procedure, 1973.
2. Trial timelines: The BNSS mandates judgment within 45 days of the completion of arguments. Trials must commence within 60 days of the first hearing.
3. Zero First Information Report codified: The BNSS codifies the Zero First Information Report (FIR) in Section 173, so an FIR must be registered even where the offence occurred outside that station’s jurisdiction.
4. Custody limits: Total detention without a chargesheet is 60 days for an offence punishable with less than 10 years, and 90 days where the punishment is death, life or 10 years or more. Crossing that limit makes default bail an indefeasible right.

Matching Previous Year Question

“[2017, GS2, 15 marks] Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy.”