By Asadullahil Galib
The concern has been increasing regarding the frequent use of section 57 of the Information and Communication Technology Act, 2006 (the ICT Act). Recently published news in nearly all newspapers and TV channels, broadcast talk-shows in reputed electronic medias and statements quoted from various intellectuals, human-rights activists, columnists, policy-makers have revealed a bitter truth that there exists an apparent controversy or conflict between the Government and the stakeholders of the State from different levels. It is alleged from civil society, particularly from the persons concerned with writing in newspapers and social media, that section 57 is facing a serious abuse by the government in order to restrict the ‘freedom of expression’ and ‘freedom of press’ in a capricious manner. Therefore, they suggest that the section be repealed or ,at least, be amended in a way that will ensure consistency with those freedoms. However, the Government defends the allegation stating that ‘the provisions of the section shall not, in any way, be exercised or used for apprehending any person unreasonably.” This writing is an observation endeavoring to find out the contents of the ‘freedom of expression’ and to examine the alleged abuse or scope of abuse in a rational way.
Freedom of Expression under the Constitution
The ‘freedom of expression and speech’ and ‘freedom of press’, as enshrined under article 39 of the Constitution, are qualified rights and capable of being restricted. Such restriction must be reasonable and lawful i.e. provided by any law. The grounds for restriction are (a) the interests of the security of the State, (b) the interests of friendly relations with foreign states, (c) the interests of public order, (d) the interests of decency or morality, (e) in relation to contempt of court, (f) in relation to defamation and (g) in relation to incitement to an offence.
Freedom of Expression and Its contents
The contents of the right, even of any right, are not defined in the Constitution itself. The recourse shall be made to the judicial interpretations and to the international norms and principles to fill up the vacuum.
After reading UDHR, Article 19, ICCPR, Article 19 (2) and observations made by the Human Rights Committee in General Comment No. 34, the following contents are found – (a) the expression and receipt of communications of every form of idea and opinion capable of transmission to others; (b) political discourse; (c) commentary on one’s own and on public affairs; (d) canvassing, discussion of human rights; (e) journalism; (f) cultural and artistic expression; (g) teaching; (h) religious discourse and (i) commercial advertising.
Imposed by Law and Reasonable Restrictions
The provision of existence of express legislation for imposing restrictions is given with a view to preventing the State from sudden imposition of limitation whimsically and to making the citizens aware of such express restrictions. The compartmentalization of the term ‘reasonableness’ is not possible for its ever-changing nature varying from fact to fact and circumstance to circumstance. Nevertheless, the same may be determined after exercising judicial mind to scrutinize as to whether the restriction is based on the aforesaid grounds expressly embodied in article 39.
Laws on the Aforesaid Grounds
There are various enactments, general and special, of Parliament providing restrictions on numerous acts, statements, publications and expressions affecting those grounds and prohibiting them by declaring as punishable offenses. The Penal Code, 1860, being a general law, is the most relevant one. It defined various offenses under different sections and prescribed punishments for committing them.
Besides, special laws like the Special Powers Act, 1974 prescribed for preventive detention for committing any prejudicial act as defined under section 2 (f); and the Pornography Control Act, 2012 prescribed punishments for publication of pornographic materials under section 8.
The ICT Act was enacted for filling up the vacuum of crimes committed through electronic means, not covered by the Penal Code and other older enactments, and inserted among other provisions, that of section 57 in the very beginning. But, the implementation of provisions of this section has been necessitated in recent times because of wide use of technological devices and social medias.
Section 57 and Grounds for Restriction
The plain reading of section 57 gives a clear idea about following contents –
Offenses are (a) publication of the material, or (b) transmission thereof, or (c) causing to publication, or (d) causing to transmission.
The means of publication are (a) website, or (b) any electronic form (which is very wide).
The nature of the material is (a) fake and obscene, or (b) tending to deprave or corrupt readers or viewers or listeners as the case may be, or c) causing deterioration of law and order, or (d) creating the possibility of deterioration of law and order, or (e) prejudicing the image of the State, or (f) prejudicing the image of any person, or (g) causing hurt to any religious belief, or (h) creating possibility of hurt to any religious belief, or (i) instigating against any person, or (j) instigating against any organization.
The prescribed punishment is maximum fourteen years or minimum seven years imprisonment and maximum fine of taka one crore.
Pros and Cons
The materials may be classified, according to its comprehensive effects, into three groups –
1) materials which deprave or corrupt the mentality of readers, viewers or listeners; such materials are generally concerned with morality and thereby indicating towards pornographic, obscene and the like things. There ought not be any justification for not prohibiting the publication or transmission of such materials.
2) materials hurting religious belief or tending to hurt religious belief, which are also beyond any confrontation of general public except a very bad elements of the society whose thrust cannot be fulfilled without hurting religious belief and thereby affecting the people practicing religion peacefully.
3) materials affecting the image of the State.
the term ‘State’ includes all members of Parliament including the Speaker and the Deputy Speaker and also the President and all Ministers including the Prime Minister and all statutory public authorities.
This type of material and its publication or transmission are the point of controversy between the Government and the media-personalities.
The section failed to comply with, and remained inconsistent with, the contents of ‘freedom of expression’ as provided in the international instruments. Because, political discourse, discussion of human rights and open rational journalism, being important contents of the freedom, cannot be ousted merely by the fact that such exercise of freedom opposes the Government’s decision or policy in a particular matter.
Constructive Criticism or Sedition
It is an accepted proposition that publication of any statement or writing with intent to create hatred towards the Government, its policies, activities and decisions and thereby causing instigation to the people against the Government is not permissible in law, instead is a punishable offence. However, making criticism to the Government-policies in a constructive way with intent to demand the betterment of such policies is not punishable rather is appreciable. This proposition can be inferred from the ‘Explanations’ of section 124A of the Penal Code, 1860.
Test for Determining Sedition
There is a conflict on the question of the ambit of section 124A between decisions of the federal Court and of the Privy Council, in Kedar Nath Singh v. State of Bihar and in Bal Gangadhar Tilak v. State respectively.
However, keeping in mind the reasons for the introduction of section 124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence.
However neither section 124A of the Penal Code, 1860 nor section 57 of the ICT Act, 2006 provided for existence of ‘intention’ as an element of the offense. Be the case it be, it is against the fundamental concept of criminal law to impose strict liability which can only be imposed upon civil liability as dictated in the judgment of the famous case Rylands v. Fletcher.
Liberal Opinions or Hatred towards Religion
The exercising ‘progressivism’ and ‘liberalism’ have reached, in recent times, the apex of evolution. Such doctrines are being used nowadays as instruments for justifying the liberal or constructive critisims towards established religious belief of different sects and communities. However, if any criticism is made by any writing, satatement, sign or any other visible expression, even constructively to obtain betterment of religion, such acts will be regarded absolutely as offences under the Penal Code, 1860 and consequent silence or inaction of the Government will be a clean violation of the right ‘freedom of religion’ under article 41, for not fulfilling the ‘protect’ component.
The different treatment for statements wounding religious feelings is there for the law does not provide any exception for religious-criticism. In this point, the provision of section 57 as to prohibition of religious-criticism is good and may be retained.
Determination of Intention in Political Criticism
The term ‘intention’, being a state of mind, cannot be readily inferred from the very act. The proof of such intention in the procedure of trial may be possible with reference to the circumstances under which such act was done. Therefore, there is a big room to arrest a person for committing an offense under section 57; and the accused person will suffer a serious trouble through apprehension, search, seizure etc before the proof, in the trial, of the fact whether there is an alleged intention or not.
The underlying philosophy behind the section 57 apears to create loyalty or affection towards the State by not publication of any flaws contained in the Government-policy. Such unwarranted mindset is an absolute result of following the principles of colonial legislative mechanism blindly.
Revealing the Truth or Defamation
Section 57 also provides another ground that is to say ‘defamation’ which is to be interpreted by taking into consideration all the exceptions provided in section 499 of the Penal Code, 1860, such as ‘fair comment’, ‘revealing the truth’, ‘publication of accusation by the Court’ etc. This is causing a serious problem in exercising ‘freedom of press’, because the newspapers in their websites and electronic medias in their channels are publishing or transmitting such ‘defamatory’ statements or materials everyday.
Who May Be Affected
The writers, bloggers, journalists, newspapers, TV channels, social-media-users are directly affected by section 57. The situation created a condition wherein medias and journalists will be in a constant fear of sanction of the Government for it may find the matter controversial and opposed to it. This fear or mindset of deference will compel the medias to comply with the process of ‘self-censorship’ which is followed in authoritarian countries, not in any democratic country having the practice of constitutionalism and pledging to ensure rule of law. Because, Article 19 of the Universal Declaration of Human Rights guarantees freedom of speech from all forms of censorship.
The Next Level: draft Digital Security Act, 2016
Recently, the Cabinet approved a new bill in the name of ‘The Digital Security Act, 2016’ which is yet to be passed by Parliament. The proposed bill contains 36 sections, of which the section 16 is almost similar to that of the ICT Act, 2006.
This section treats publication of three types of materials, in website or electronic arrangement, as an offense. Those are (a) defamatory materials, (b) obscene and pervasive materials causing defamation, and (c) materials hurting religious feelings. The provisions of this section, as they appear, are more adaptable than those of section 57, by the reason of, exclusion of political-criticism affecting the image of the State therefrom.
Therefore, we may reach a conclusion that the introduction of section 16, upon passing the Digital Security Act, will make section 57 nugatory and capable of being repealed.
Upon the balance of conveniences and inconveniences, it may be said that there is a big scope of abusing the mandate of section 57. It will cause infringement and violation, by the State, of ‘freedom of speech’, ‘freedom of expression’, ‘freedom of press’ and ‘freedom of privacy’. The section may be repealed or at least, until the introduction of the Digital Security Act, be amended by retaining the provisions only as to prohibition of publication of ‘obscene materials’ and ‘religious-criticism’. But, there is no way to believe the Government stating ‘no unreasonable apprehension or arrest shall be made invoking section 57″. The recent incidents of several arrests and the termination of broadcasting of several TV channels and of publication of several newspapers caused not to put any trust on Government’s good faith.