ডিডিটাল ডিরাপত্তা
আইি, ২০১৮
1
Introduction
1. 08.10.2018, the Parliament enacted the ডিডিটাল ডিরাপত্তা আইি, ২০১৮ (hereinafter
referred to as ‘the Ain’)1 to ensure digital security, identification, prevention, control,
trial and relating matters of crime committed in digital format.2 The Ain was given
immediate effect.3 Of the total 62 sections of the Ain, some sections are seen to be
draconian by many. Before discussing those provisions of the Ain, it is pertinent to
mention the background of the Ain. On 08.10.2006, the Parliament passed তথ্য ও
য াগায াগ প্র ুডি আইি ২০০৬4 to provide legal recognition and protection to the
information-technology in addition, other matters.5 The provisions of section 57 of
this Act provided punishment for publishing false, obscene or defamatory information
in electronic form. The punishment for the said offence was imprisonment for a
period that may extend to fourteen years but not less than seven years and a fine of
taka not more than one crore. There was huge criticism from every section against
the provisions and use of this section for being violative of fundamental rights
enshrined in the third chapter of the Constitution of Bangladesh. Offences under the
provisions of this section were loosely defined. Some learned lawyers of the Hon’ble
High Court Division filed two different writ petitions challenging the vires of this
section. In these two writ petitions, the High Court Division issued Rule Nisi. Due to
the widespread misuse of the provisions of this section, the Government assured that
the Ain scheduled to be passed would address the issue and repeal this draconian
provisions. And the Ain repealed the sections along with other provision but virtue
of this sections have been given a place in the provisions of sections 25, 28,29 and
31 of the Ain. When the Government proposed to formulate this Ain and prepared a
draft, the concerned sections i.e. journalist, academicians, lawyers, Human Rights
activists and various national and international raised concerns and voiced against
the Ain. The Government though promised to consider concerns did not keep it
commitment, rather passed the law. There was an immediate outcry regarding its
provisions for being contrary to freedom of speech and expression guaranteed under
the Constitution. Journalists, authors, academicians, human rights activists, local and
international watchdog agencies voiced concerns about the Act. They contended that
1 Act No. 46 of 2018
2 Preamble of the Ain
3 Section 1(2) of the Ain
4 Act No. 39 of 2006
5 Preamble of the Act No. 39 of 2006
2
the Ain curbed press freedom and created a climate of fear and intimidation making
investigative journalism almost impossible. Ambiguities in penal provisions and and
the absence of objective method of determination of ingredients of the offences of
the Ain, the heavy penalties are the main causes of concerns. Since the enactment of
the Ain, civil society, journalists, academicians, politicians have been protesting and
criticizing this draconian act through demonstrations, human chains, seminar,
writing etc.
2. The provisions of section 25(1)(Ka) of the Ain reads that an individual commits an
offence if he, through a website or any other digital means, intentionally or knowingly
transmits any information that is menacing or causes fear, or publishes or propagates
any information knowing the same to be false with the intention to annoy, insult,
humiliate or denigrate any person. The provision of section 25(1)(Kha) of the Ain
provides that an individual commits an offence if he publishes or assists in publishing
any information in whole or in part in a distorted form to tarnish the image or
reputation of the State or for spreading confusion with the knowledge that the
information is false or in the nature of propaganda. The provisions of Section 25(2)
of the Act speak of that an individual who commits an offence under section 25(1)
shall be liable to be sentenced to a term not exceeding 3 (three) years or a fine not
exceeding Tk. 3 lacs or both. Under section 25(3), an individual who commits an
offence mentioned in sub-section (1) for a second time or repeatedly, shall be liable
to be sentenced to imprisonment for a term not exceeding 5(five) years or with fine
of Tk. 10 lacs or both.
3. It appears that the offence section 25(1) of the Ain framed in wide terms are vague
and unspecified. It makes it an offence to publish information that is ‘menacing’ or
which ‘causes fear’. However, there is no definition in the Ain to identify such
information. It is also not clear from the Ain as to what information would be
categorized as false information published with the intent to annoy or insult any
person. It is also not clear as to what would undermine the reputation of the State.
Since the ingredients of the offence under section 25(1) of the Ain have not been
stipulated in specific terms, the provision of this section violates the equality clause
in Article 27 and the due process clause in Article 31 of the Constitution.
4. There is no guideline to regulate the exercise of discretion of the Executive and/or
the Prosecuting authority in filing cases against citizens under section 25(1) of the
3
Ain. The prosecuting authority is at liberty to take advantage of the vague and
unspecified terms. It is evident from the recent actions of the law enforcing agencies
in filing cases under the Ain. Section 25(1) of the Ain, which is a penal law, being
vague and uncertain terms, violates Articles 27, 31 and 32 of the Constitution.
5. Freedom of thought and conscience, and of speech of the citizens are guaranteed in
Article 39(2) of the Constitution subject to reasonable restrictions imposed by the law
in the interests of the security of the State, friendly relations with foreign states, public
order, decency or morality or concerning contempt of court, defamation or
incitement to an offence. Provisions prohibiting publication of information which is
menacing or which causes fear or which is made with the intent to annoy or humiliate
anyone in the section 25(1)(Ka) of the Ain is a clear violation of Article 39 of the
Constitution. Because the eight exceptions recognized in Article 39(2) for the exercise
of the right of free speech do not in any manner warrant the prohibition of publication
of such information. A blanket prohibition on the publication of materials which
undermines the image or reputation of the State or causes confusion section
25(1)(Kha) of the Ain is contrary to the fundamental right of freedom of speech and
expression guaranteed under Article 39 of the Constitution.
6. The restrictions on the exercise of fundamental rights under Article 39 of the
Constitution are unreasonable since the Act has conferred arbitrary and uncontrolled
powers upon the Executive and the Prosecuting authority to determine whether a
particular act satisfies the vague and unspecified ingredients of an offence under
section 25(1)(Ka) or 25(1)(Kha) of the Ain.
7. The provisions of section 28(1) of the Ain makes it an offence to publish/broadcast
any materials in a website or in any electronic form which offends or is likely to
offend against religious sentiments, and has been made punishable under section
28(2) by a maximum sentence of 5 years imprisonment and a fine of Tk.10 lacs.
However, the offence of deliberate and malicious acts intended to outrage the
religious feelings of any class of citizens has already been made punishable under
section 295A of the Penal Code by a maximum sentence of two years imprisonment
or with fine or both.
8. There are no guidelines about the situations or circumstances to prosecute a person
under section 28(1) of the Ain and not the overlapping provision of section 295A of
4
the Penal Code. As such, the Prosecution enjoys unfettered discretion and unguided
powers in prosecuting citizens under section 28(1) of the Ain, which is a far more
draconian provision than the corresponding overlapping provisions of the Penal
Code. Accordingly, section 28(1) of the Ain to the extent that it allows the Executive
the authority to pick and choose and to discriminate between similarly placed
offenders.
9. The creation of a separate offence in section 28(1) of the Ain for publication in a
website or electronic medium of malicious statements intended to outrage the
religious feelings of a class and stipulating a higher penalty in comparison with the
section 295A of the Penal Code is arbitrary and irrational. Because there are no
material differences in the ingredients of the offence of section 28(1) of the Act and
section 295A of the Penal Code.
10. The provisions of section 29(1) of the Ain makes it an offence to publish/broadcast
any defamatory statement (within the meaning of section 499 of the Penal Code) in
a website or electronic medium which has been made punishable by a maximum
sentence of 3 years imprisonment and a fine of Tk. 5 lacs. The offence of defamation
has been made punishable under sections 499 and 500 of the Penal Code by a
maximum sentence of 2 years imprisonment or with fine or both.
11. There is no rule about the situations or circumstances to prosecute a person under
section 29(1) of the Act and not the overlapping provision of section 499 of the Penal
Code. As such, the Prosecution enjoys unfettered discretion and unguided powers in
prosecuting citizens under section 29(1) of the Act, which is a far more draconian
provision than the corresponding overlapping provisions of the Penal Code.
Accordingly, section 29(1) of the Act to the extent that it allows the Executive the
authority to pick and choose and to discriminate between similarly placed offenders.
This treatment is discriminatory and unconstitutional.
12. The creation of a separate offence in section 29(1) of the Ain for publication of
defamatory statements (within the meaning of section 499 of the Penal Code) in a
website or electronic medium is arbitrary and irrational since the commission of the
offence of defamation is not in any manner dependent on the mode of publication of
the defamatory content. This is arbitrary and irrational and violates the rule of law
which is a basic feature of the Constitution.
5
13. Section 31(1) of the Ain speaks of that an individual commits an offence if he, through
a website or digital means, intentionally publishes information which creates hostility
and hatred between different classes or communities of people or destroys communal
harmony, or causes unrest or disorder, or causes or is likely to cause a deterioration
in the law and order situation. Section 31(2) of the Act provides that an individual
who commits an offence under section 31(1) shall be liable to be sentenced to a term
not exceeding 7 (seven) years or a fine not exceeding Tk. 5 lacs or both. Under
section 31(3), an individual who commits an offence mentioned in sub-section (1)
for a second time or repeatedly, shall be liable to be sentenced to imprisonment for
a term not exceeding 10 (ten) years or with fine of Tk. 10 lacs or both.
14. The provisions of section 31 of the Ain makes it an offence to promote feelings of
enmity or hatred between different classes of citizens is broadly similar to the offence
under sections 153A of the Penal Code, which is punishable by a maximum sentence
of only two years imprisonment. No guidelines have been provided about the
situations or circumstances to prosecute a person under section 31(1) of the Act and
not the overlapping provision of section 153A of the Penal Code. In this situation,
the prosecution enjoys unfettered discretion and unguided powers in prosecuting
citizens under section 31(1) of the Act. This provision is far more draconian provision
than that of the Penal Code. Section 31(1) of the Act to the extent also allows the
Executive or the authority to pick and choose and to discriminate between similarly
placed offenders.
15. The provision of section 31(1) of the Act does not contain any principles or guidelines
to determine the nature of information that will be regarded as creating hostility and
hatred between different classes and communities of people or threatening
communal harmony. Furthermore, the category of information that ‘causes unrest or
disorder’ or ‘causes or is likely to cause deterioration in the law and order situation’
is wide and unspecified.
16. The blanket prohibition in section 31(1) of the Act on the publication of materials
which may create hostility between communities or causes unrest or disorder or
causes or is likely to cause any deterioration in the law and order situation violates
the fundamental right of freedom of speech and expression guaranteed under Article
39 of the Constitution.
6
17. On 19.01.2020, a group of lawyers of the High Court Division, senior Journalist and
Teachers of Dhaka university filed a writ petition being Writ Petition No. 775 of 2020
challenging the vires of the provisions of sections 25, 28, 29 and 31 of the Ain for
being violative of the Articles 7, 11, 26, 27, 31, 32 and 39 of the Constitution. On
24.02.2020, upon hearing a Division Bench of the Hon’ble High Court Division
comprising their Lordships Mr. Justice Sheikh Hassan Arif and Mr. Justice Md.
Mahmud Hassan Talukder was pleased to issue Rule Nisi call upon the Respondents
to show cause as to why sections 25 and 31 of ডিডিটাল ডিরাপত্তা আইি, ২০১৮ should not
be declared ultra vires the Articles 7, 11, 25, 27, 31, 32 and 39 of the Constitution.
This writ petition is pending for hearing.
18. On 24.03.2015, the Supreme Court of India in the case of Shreya Singhal vs. Union
of India6 struck the provisions of 66A of the Information Technology Act of 2000 for
being unconstitutional on the ground that it takes within its sweep protected speech
and speech that was innocent. Section 66A Provides that any person who sends, by
means of a computer resource or a communication device (a) any information that is
grossly offensive or has menacing character; or (b) any information which he knows
to be false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently
by making use of such computer resource or a communication device; or (c) any
electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin
of such messages, shall be punishable with imprisonment for a term which may
extend to three years and with fine. The Court also held that Section 66A arbitrarily,
excessively and disproportionately invades right of free speech and upsets the
balance between such right and reasonable restrictions that may be imposed on such
right and section 66A creates offence which was vague and overbroad, and,
therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2).
19. On 08.03.2020, the Government framed ডিডিটাল ডিরাপত্তা ডিডিমালা, ২০২০7 by exercising
the power given in section 60 of the ডিডিটাল ডিরাপত্তা আইি, ২০১৮. But, there is also no
6 (2015) 5 SCC 1
7https://ictd.gov.bd/sites/default/files/files/ictd.portal.gov.bd/law/47feddca_af51_4995_9c28_3f451cddf9ab/%E0%A6
%A8%E0%A6%BF%E0%A6%B0%E0%A6%BE%E0%A6%AA%E0%A6%A4%E0%A7%8D%E0%A6%A4%E0%A6%
BE%20%E0%A6%AC%E0%A6%BF%E0%A6%A7%E0%A6%BF%E0%A6%AE%E0%A6%BE%E0%A6%B2%E0%A6
%BE-%20%E0%A7%A8%E0%A7%A6%E0%A7%A8%E0%A7%A6.pdf
7
definition or rule or guideline to remove the ambiguity and vagueness of those penal
provisions of the Ain.
20. Between 2019 and 2020, a number of 10135 cases under the provisions of ডিডিটাল
ডিরাপত্তা আইি, ২০১৮ have been filed against the journalist, university teachers and
general peoples. Even a boy of 14 years has not been spared from the clutches of this
draconian Ain. Till date, a number of 2029 persons have been implicated in those
case, of which 960 accused have been arrested so far. All cases have arisen out of
the same kind of allegation defamatory statements, sharing photos and rumors and
conspiring against the Government in digital format. Human Rights activists alleged
that the Government using this law as a weapon to exploit oppositions and critics
and block free speech.8
Conclusion
21. The above-mentioned provisions of sections 25, 28, 29 and 31 negate cardinal
‘principle of certainty’ of criminal law. Though the Ain repealed the provisions of
section 57 along with some other sections, offences enumerated in provisions
sections 25, 28, 29 and 31 silence free speech and violate fundamental rights to a
great extent. The very Ain which was enacted for the protection of citizenry is being
used to exploit those citizens for being vigilant against the arbitrary actions of the
Government. Considering the exploitation by means of these draconian provisions
and misuse of these vague and unspecified penal provisions, the Ain should be
amended to protect and preserve the fundamental rights of the citizens guaranteed
in the Constitution of People’s Republic of Bangladesh.
Mohammad Shishir Manir
Advocate
Supreme Court of Bangladesh
8 https://www.prothomalo.com/bangladesh/article/1667482/কর োনোকোরে-সমোরেোচনো-কটূ ক্তি -বিরুরে-বিক্তিটোে
