South Asia has hit the spotlight with regards to muzzling online dissent by bringing in vague laws. Democracy and liberty in South Asia have tough times to go through.
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What has been the cause of recent concern for free speech defenders in India and Bangladesh?
IN the past few years, South Asia has seen a spate of laws being passed that assault the freedom of speech. Recently, the decision of the Government of Bangladesh to introduce a draft regulation for over-the-top (‘OTT’) and digital platforms following the footprints of India, when it already has in its store the draconian Digital Security Act, 2018 (‘DSA’) has left many astounded.
Part II of the regulation imposes certain responsibilities on social media intermediaries, while Part III imposes a code of ethics in relation to digital media. Clause 6.02 prescribes the appointment of a Resident Complaint Officer to acknowledge complaints within 24 hours and dispose of them within 20 days of receipt. Clause 7.02 provides for the appointment of a compliance officer and an agent for “24×7 coordination” with government agencies. These provisions are seen by journalists and free speech activists as unduly burdensome on social media platforms.
Clause 7.03 asks social media intermediaries to enable identification of “first originator” of any information if required by a court or the Bangladesh Telecommunication Regulatory Commission. This section is problematic as identification of the “first originator” would require intermediaries to decrypt the information and messages of users, in violation of an assurance for “end-to-end” encryption” by social media intermediaries. This attack on end-to-end encryption would threaten the privacy of users and would expose them to fraudsters.
These new rules will particularly put small social media start-ups of Bangladesh in a vulnerable position as they would not be able to comply with these burdensome requirements, and would be forced out of the market, thus putting a question over internet freedom and its equal accessibility.
People are at the liberty of the police, arrests and seizures can be made without any checks and balances, creating a police State where the doctrine of rule of law has taken a backseat.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in India, which are very similar to the Bangladeshi rules, regulating OTT and digital media, were challenged in various high courts on grounds of having vague terms and being violative of the Constitution of India, and interim orders were passed granting stay on the implementation of some of those rules. These included the Bombay High Court staying the application of the ‘code of ethics’ for being prima facie violative of Article 19(1)(a) of the Constitution, and also for being against the substantive provisions of the Information Technology Act, 2002 (‘IT Act’). Similarly, the Kerala and Madras high courts, too, had stayed any coercive action by the Union Government under these Rules last year, for robbing the media of independence.
Also read: Explained: Bombay High Court order partially stay new IT rules on plea by The Leaflet
In addition to this, an Indian delegation at a United Nations ad-hoc committee suggested measures, which were surprisingly very identical to the struck down Section 66A of the IT Act, to categorise offensive messages through social media.
With these steps, South Asia has hit the spotlight with regards to muzzling online dissent by bringing in vague laws. Democracy and liberty in South Asia have tough times to go through, and the Bangladeshi DSA is the prime example of this. The DSA was in news last year for the death of writer Mushtaq Ahmed in pre-trial custody after being arrested under the DSA, and has remained a source of contention not just in Bangladesh but in the entire free speech and human rights fraternity.
Passed by the parliament of Bangladesh in 2018 after major instances of sectarian violence, caused by provocation from social media, to replace the Information and Communication Technology Act, 2006 (‘ICT’), the Act has faced widespread criticism because of its vague wordings and rampant misuse. Earlier, Section 57 of the ICT was infamous for being used as a potential weapon against the critiques of the government, the victims of which were majorly journalists. As many as 25 journalists and hundreds of bloggers and Facebook users were prosecuted under the infamous section 57. The offences under section 57 were non-bailable and had 14 years imprisonment as the maximum penalty. The practical implementation of the ICT Act thus belied all claims about the good intent of the legislature.
Does the DSA violate the Constitution of Bangladesh and other domestic statutes?
The DSA is legally frail. It has sections which are so vaguely worded that they can be interpreted in any manner. Perhaps the most curious example of this is of Section 21, which prohibits any kind of “propaganda” against the liberation war. Interestingly, the term propaganda has not been defined in the Act. Section 25 talks about criminalising the sharing of information that is annoying, insulting to any person, and also information that a person knows to be false or propaganda, and is shared with the intent to affect the “image or reputation of the country” or spreads confusion.
Article 39(2) of the Constitution of Bangladesh provides for reasonable restrictions for the curtailment of free speech on grounds of security of the State, friendly relations with foreign states, public order, decency, morality, contempt of court defamation or, incitement to an offence. The terms “propaganda” or “image of nation” have nowhere been mentioned; the use of such wide terms in the DSA violates Article 39 (2). When the police is left to interpret a statute without concrete guidelines, a lot of disservice is done to ideals of liberty and democracy.
The DSA, by being vague in nature, having unduly harsh punishments, and giving arbitrary powers of arrests to the police officials, violates the provisions of ICCPR and UDHR guaranteeing freedom of speech.
Section 28 of the DSA prohibits publication and broadcast, among other things, of information that hurts religious values and sentiments with an intention to hurt or provoke religious values and sentiments. Comparing this to Sections 298 and 295A of the Penal Code of Bangladesh, it is clear that this section has loose wording and comparatively higher punishment. Section 295A talks about deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Similarly, section 298 criminalises uttering words, etc. with deliberate intent to wound religious feelings.
While sections 298 and 295A of the Penal Code of Bangladesh use the term ‘deliberate intention’ and ‘deliberate and malicious intention’ respectively, section 28 of the DSA uses only the term ‘intent’, which is certainly a lower standard of proof when compared to the other two sections. Moreover, the maximum punishment provided for under section 28 of the DSA is five years or fine not exceeding 10 lakh takas, or with both, which in case of repeat offences can be enhanced to a maximum imprisonment of 10 years or with fine, or with both; whereas under the Penal Code, the offence under section 295A is punishable with a maximum two years’ sentence or fine or both, and that under section 298, with one year’s sentence or fine or both in 298. One wonders why there is a difference in the wording of these and the penalty provided therein, even though they relate to essentially the same offence.
In addition to this vagueness and lack of legal clarity, Section 43 of the DSA gives the power of search, seizure and arrest without warrant on the basis of subjective satisfaction of a police official that any offence under the DSA is being committed or is likely to be committed. This subjective satisfaction of the police officials and the resultant application of statute in accordance with it on people would violate Article 27 of the Bangladesh Constitution, which says that “all citizens are equal before law and entitled to equal protection of law.” Particularly, the ‘equal protection of law’ stands destroyed by the vagueness of these sections, especially section 21, which has been declared a cognisable and non-bailable offence.
In the case of Shuttlesworth versus Birmingham (1969), the U.S. Supreme Court held that, “The restriction is to be imposed by law and when discretion is conferred on any authority, the law should provide sufficient guidelines for the exercise of the discretion.” Taking cue from this, it was necessary that the legislature provide guidelines in the DSA so that its provisions do not get misused. At present, this vagueness, without any guidelines, places those who criticise the government or do not see eye to eye with the political elite under a higher likelihood of being prosecuted. People are at the liberty of the police, arrests and seizures can be made without any checks and balances, creating a police State where the doctrine of rule of law has taken a backseat.
The whole notion of free speech, including the freedom of press, suffers. Explaining free speech, the Supreme Court of Bangladesh in the case of Dewan Abdul Kader versus Bangladesh (1994) said that it is, “a right to express one’s own opinion absolutely freely by spoken words, writing, printing, painting or in any other manner which may be open to the eyes and ears…”. Laws like DSA have a chilling effect over free speech and lead to self-censorship, which is dangerous for any democratic society. Progress in society depends on the space that is given to people who are vocal and have innovative ideas. This point was well endorsed by the Lahore High Court in then-unsplit Pakistan in the case of Farid Ahmed versus West Pakistan (1965) where the court held. “Without freedom of speech, there cannot be any democracy and the first thing an autocrat does is to curb the freedom of speech.”
In this manner, these vague sections violate the fundamental rights of the citizens of Bangladesh. These rights are part of the basic structure of the Constitution of Bangladesh, as held in the case of Anwar Hussain versus Bangladesh (1989) (famously known as the eight-amendment case). Also, it is to be noted that Article 26 of the Bangladesh categorically declares that any law made by the State, except amendments under Article 142, violating Fundamental rights shall be void to that extent void.
Also read: Social media, content moderation and free speech: A tussle
Does the DSA violate other international covenants?
The DSA is also violative of international treaties to which Bangladesh is a signatory. Article 19(2) of the International Covenant on Civil and Political Rights (‘ICCPR’) prescribes the freedom of expression to receive and impart information and ideas of all kinds. Articles 19(3) and 20 of ICCPR provide for restrictions that do not include any such thing as ‘propaganda’ or ‘image of nation’, terms which are vague in nature. Article 20(1) of ICCPR talks about prohibiting “propaganda for war” and not just “propaganda” in isolation, while Article 20(2) prohibits advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence; surely neither of these is equivalent to ‘annoyance’.
Equating ‘nation’ with ‘government’ is a very common phenomenon commonly seen in cases of sedition as well. Even honest news reports bringing the failure of the government can be termed as propaganda against the nation or affecting the image of the nation as both the terms are not defined precisely and are open ended, thus allowing executive authorities to interpret matters at their whim.
Three key articles of the Universal Declaration of Human Rights, 1948 (‘UDHR’) denote the essence of liberty which is at stake due to the DSA. Article 3 of the UDHR declares, “Everyone has the right to life, liberty and security of person”. Article 7 of the UDHR declares, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Also, Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The DSA, by being vague in nature, having unduly harsh punishments, and giving arbitrary powers of arrest to the police officials, violates the above provisions of ICCPR and UDHR guaranteeing the freedom of speech.
Vagueness deprives the public of having a clear understanding of what is and is not covered under a legislation; it also gives wide discretion to the executive authorities and the courts, who are then left to interpret the legislation in an open-ended manner. The line between the permissible and impermissible gets blurred and the new requirement, although unintended, becomes the subjective satisfaction of the law enforcement personnel rather than any law per se.
While holding that international agreements as not directly enforceable in a court of law without being incorporated into the domestic law, Justice B.B. Roy Chowdhury in his opinion in the Bangladesh Supreme Court ruling in H.M. Ershad versus Bangladesh & Ors. (2000) said, “National courts should draw upon the principles incorporated in the international instruments if the domestic laws are ambiguous or absent.” Similarly, in BNWLA versus Government of Bangladesh & Ors. (2009), the Supreme Court of Bangladesh held that a recourse can be taken to international treaties and covenants to address any gap in municipal law and guidelines, which are to be followed by all, until a new legislation is made by the parliament.
Previously, in Tayazudin versus Bangladesh (2001), the Bangladesh Supreme Court used Article 3 of UDHR to interpret Article 32 of the Constitution of Bangladesh. Similarly, in Bangladesh versus Hasina (2008), the Bangladesh Supreme Court held that it would look into the provisions of ICCPR while interpreting the provisions of the Constitution to determine the contours of the right to life and liberty, among other rights. Based on these precedents, the DSA calls for thorough reforms.
What have courts in other parts of the world had to say about vagueness?
Vagueness has been a source of much debate in the legal parlance. The doctrine was first introduced by the Fifth Amendment to the U.S. constitution which stated that, “no person shall be deprived of life, liberty and property”. This was ratified in the Fourteenth Amendment, which said, “Nor shall any state deprive any person of life, liberty, or property without due process of law.” Vagueness deprives the public of having a clear understanding of what is and is not covered under a legislation; it also gives wide discretion to the executive authorities and the courts, who are then left to interpret the legislation in an open-ended manner. The line between the permissible and impermissible gets blurred and the new requirement, although unintended, becomes the subjective satisfaction of the law enforcement personnel rather than any law per se.
The results of vagueness are selective prosecution that reduce the confidence of people in the rule of law. The U.S. Supreme Court endorsed this view, holding in Kingsley International Pictures Corp. versus Regents (1959) that “legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise, of human spirit.”
Similarly, in Kartar Singh versus State of Punjab (1961), the Supreme Court of India held tht vague laws leave basic policy matters to police men and judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. As mentioned earlier, our Supreme Court also held Section 66A of the IT Act unconstitutional because it included words like “annoyance” and “menacing” which are vague in nature, and violative of the fundamental right to freedom of speech and expression.
Also read: Recalling why Section 66A of IT Act was struck down
The problematic provisions of the DSA are rampant with such vagueness.
Have any legal challenges been mounted against the DSA in Bangladesh?
The high number of cases being filed under the DSA every year has caused a lot of differing interpretation of its sections in order to grant bail, acquit or hold someone guilty. However, no decision has been rendered by the Bangladesh judiciary regarding its constitutionality. In 2020, the High Court division of the Supreme Court of Bangladesh had asked the Bangladeshi government to respond on why the DSA should not be declared as unconstitutional. The case still awaits an authoritative ruling. Last year, while hearing an appeal against bail granted by a lower court to an accused under the DSA, the Chief Justice of Bangladesh had said that the country’s image would be kept at priority while deciding cases under the DSA.
There is always a need to strike a balance between the need for freedom in a democratic society as provided for by the Constitution, and the social interest in prevention of disorder and anarchy.
This hints to the fact that doing away with the DSA is not going to be easy, even by petitions to the judiciary. While accepting that there have been excesses done under it, the government stands firm that there is no need to repeal the DSA. There have been assurances that reforms will happen, if needed, and immediate arrests of journalists will not take place as each case will be vetted by a specially constituted cyber cell, but these assurances are not enough to correct the flaws in the law. Therefore, at present, the DSA stands as it is, with challenges pending against it, and it continues to haunt people by keeping them in fear and self-censorship.
It is true that anti-social elements need to be reined on online media platforms, but in doing so, the restrictions imposed on the freedom of speech cannot be unreasonable and without any nexus with the object sought. There is always a need to strike a balance between the need for freedom in a democratic society as provided for by the Constitution, and the social interest in prevention of disorder and anarchy. While striking this elusive balance, governments need to keep in mind what British judge Baron Bridge of Harwich said, in the U.K. Privy Council’s judgment in Leonard Hector versus The Attorney General of Antigua and Barbuda (1990), on government’s tolerance to criticism: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”
Therefore, the rampant misuse of the DSA calls for thorough reforms in it. Surely, certain problematic sections, such as sections 21 and 25 should be declared unconstitutional on grounds of being vague and being violative of the constitutional provisions in Bangladesh, whereas a reconsideration needs to be given to the wording of section 28. In addition to this, certain safeguard needs to be provided with respect to section 43 so that innocent people merely exercising their free speech do not get booked up in the reckless application of it by the police merely due to political compulsions.
