Pre-trial Detention: Why Punishment Before Conviction?

When most prisoners have yet to be found guilty, can a justice system claim to uphold the rule of law? Bangladesh’s overcrowded prisons hold large numbers of undertrial detainees, many of them poor people unable to secure bail or legal representation. Some remain imprisoned for years, occasionally longer than the maximum sentence for the alleged offence. This exposes the gap between constitutional guarantees and criminal justice in practice.

Pre-trial detention covers custody from arrest until trial. Although it may prevent absconding or interference with evidence, prolonged or unjustified detention arbitrarily deprives people of liberty. It must remain a last resort.

The presumption of innocence is fundamental to due process. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a party, states that detention of people awaiting trial should not be the general rule. As Lord Bingham emphasised, restrictions on liberty before conviction must satisfy necessity, legality and proportionality.

Bangladesh’s Constitution provides safeguards against arbitrary detention. Article 32 protects life and personal liberty except in accordance with law, while Article 31 guarantees protection of the law. Article 33 requires arrested persons to be informed of the grounds for arrest, allowed access to legal counsel and produced before the nearest magistrate within 24 hours, excluding necessary journey time.

The Supreme Court has also addressed arbitrary arrest and detention. In BLAST v. Bangladesh (2016), the Appellate Division upheld directions governing police arrest and remand under Sections 54 and 167 of the Code of Criminal Procedure (CrPC), reinforcing judicial oversight to protect constitutional rights. In State v. Md. Roushan Ali (2000), the High Court Division addressed prolonged detention caused by prosecution delays, recognising that unreasonable delay may justify bail.

The Code of Criminal Procedure, 1898, governs bail. Section 496 makes bail a right in bailable offences, while Section 497 regulates bail in non-bailable cases, subject to statutory restrictions. The Legal Aid Services Act, 2000, established the National Legal Aid Services Organization (NLASO) and district legal aid committees. Under Section 9, eligible indigent accused persons can receive publicly funded legal representation.

Yet legal aid provisions have not removed financial barriers. Bail often depends on money or solvent sureties, leaving even those granted bail behind bars because they cannot meet the conditions. Poverty thus becomes a cause of prolonged imprisonment.

Court backlogs compound the problem. Shortages of judicial officers, delayed police reports, absent prosecution witnesses and repeated adjournments can postpone trials for years, leaving people accused of non-violent offences in overcrowded prisons without verdicts.

Reform is essential. Parliament should expand personal recognisance bonds and non-monetary release, particularly for indigent defendants accused of non-violent offences. Wealth must not determine liberty.

Legislation should also impose clear limits on pre-trial detention. Automatic release could be considered when custody exceeds half the maximum sentence for the alleged offence or one year for minor offences, subject to appropriate safeguards and judicial review. Strengthening NLASO is equally important. Public defender offices in district courts and legal aid clinics in jails could ensure timely representation, including during initial magistrate and bail hearings.

Can a constitutional democracy allow its prisons to become holding grounds for the poor? Pre-trial detention reform is essential to due process and human dignity. Bangladesh must remove financial barriers to bail, curb excessive detention and ensure effective legal representation. Personal liberty must be a constitutional right, not a privilege for those who can afford it.