জ্যোতির্ময় বড়ুয়া 
The Information Technology and Communication Act, 2006 (hereinafter referred to as the “Act”) have been enacted by the last elected government to curb the cyber-crimes in Bangladesh. The Act apparently had a hidden agenda to control the criticism against corruption by the government. This law directly interfered with the freedom of expression and the right to privacy of the citizen. Since 2006, there had been no such cases under the Act for violation of its provisions though there were apparent vilations as described by the Act. The first case to be reported was in 2008 at Rajshahi, where one Shahi Mirza and three others on 4 September hacked the website of the Rapid Action Battalion (RAB). Subsequently RAB arrested them and detained in the custody for 22 days. They have been charged under the Act. There had been instances of dealing with some online activities under the regular penal law, such as, after the death of famous media person Mishuk Munir in a road accident, a teacher at Jahangirnagar University posted a comment against the Prime Minister Sheikh Hasina in his facebook and he was summoned by the court suo moto. As he failed to appear before the court as directed, the court in his absence on 4 January, 2012 sentenced him for 6 months. Few other people were arrested in last two years for posting cartoon of the Prime Minister Sheikh Hasina on the internet but none of them were charged under the Act. The law had been given full force in April 2013, where two cases had been filed against four bloggers under section 57(2) of the Act of 2006 for an allegation of insulting Islam and also for making derogatory comments against Prophet Mohammad. Both the cases are under trial now. Thereafter the “Amardesh” editor Mahmudur Rahman, human rights defender Advocate Adilur Rahman, Nasiruddin Elan, Barrister A.K.M Fakhrul Islam and few other political activists were charged under the new Act of 2013. Until the case of Adilur Rahman there has been no Cyber Crimes Tribunal to try the cases. As per Section 74 of the Act, the Sessions Judge was holding the trials. The only case to be reported to complete trial was the case against Hafijur Rahman Rana, a teacher at BUET. He has been tried in his absence and sentenced for 7 years of imprisonment under the Act.
The Act of 2006 has been amended by an Ordinance on 20 August 2013 and subsequently passed it as a regular Act on 9 October 2013 by the parliament. With some significant changes, the Act of 2006 remains unchanged with all its discrepancies. Therefore, the understanding of the original Act of 2006 is necessary to understand the subsequent changes.
The original Act of 2006 has both regulatory as well as penal provisions but the procedure to be followed is the Code of Criminal Procedure {Sec. 70(1)}. Despite endorsing the Code of Criminal Procedure, the Act lacks in many procedural aspects, such as Section 76(2) of the Act made all the penal sections to be non-cognizable which implies that the police or any other authorised person cannot not arrest a person without the permission of a Magistrate. The section further denotes that the police cannot lodge any case for a non-cognizable offence. The regular procedure for dealing with a non-cognizable offence has been laid down by Section 155(2) of the Code of Criminal Procedure, which states that no Police Officer can investigate any non-cognizable offence without prior permission of the Magistrate. Section 44 of the Police Act, 1861 and Regulation 377 of the Police Regulation of Bengal, 1943 endorses similar provisions as well. But in most of the recent cases, police have arrested the accused person(s) under section 54 of the Code of Criminal procedure and subsequently implicated under section 57(2) of the Act. Moreover, where there is an allegation of non-cognizable offence the procedure of lodging complaint is through filing a Petition of Complaint before the Magistrate. The cases under the ICT Act should have followed the said procedure where it clearly states that the offences are non-cognizable. However, we have not seen a single instance of following the correct procedure in the past. The amendment of 2013 vide section 76(1)(Kha) made Sections 54, 56, 67 and 61 cognizable and non-bailable and Sections 55, 58, 59, 60, 62, 63, 64 and 65 as non-cognizable and bailable. This has made significant changes in the initiation of proceedings and who can decide which falls under the purview of the penal sections under the Act. This essentially raises the question whether the Police have the required educational and technical expertise to consider a comment posted on the internet or a logical explanation posted in a blog to be offensive and derogatory as described loosely by the Section 57 of the Act? The usual recruitment process of the police inspectors clearly dictates otherwise. This major change gives unfettered power to the police and this will allow the Police to poke their nose into private-personal life of the citizens more frequently, one step ahead of creating a police state. Where other democratic countries are trying to reduce the Police interference in private life to ensure the fundamental rights, this new police empowerment will definitely drag us down in achieving that.
The provisions of Section 29 of the ICT Act, which remained unchanged, states that the Controller or any officer authorized by him in this behalf shall take up for investigation of any contravention of the provisions of this Act, rules or regulations made thereunder. Section 28 of the same Act further empowers the Controller to delegate his power in writing to the Deputy Controller, Assistant Controller or any other officer to exercise any of the powers of the Controller. The Police are not in the list of those who may exercise the power of the Controller. It may be noted that Section 76(1)(Kha) makes certain penal provisions cognizable but the sections 28 and 29 remains the same without including Police as an authorised office who could exercise the power of the Controller. Thus in almost all the recent cases, the police have exceeded their jurisdictions in undertaking the investigation. This contradictory provision has made the Act more complex and unworkable. Furthermore, section 69(6) of the Act empowers the Police or any other authosied person, by the order of the tribunal or on its own initiative may re-investigate the case. This is a clear violation of the express provisions of the Code of Criminal Procedure. No criminal cases are allowed to be re-investigated. Police may conduct further investigation by the order of the court and definitely not on own initiative. This clearly undermines the usual legal process and sets up contradictory standards.
Most of the cases until now were filed under Section 57 of the Act. There are few other cases for hacking the computer system and publishing obscene materials on the internet coupled with the Pornography Act. This frequent use of Section 57 raised concern among the writers, journalists, bloggers and human rights activists as it directly interfere with the Freedom of Expression and right to Privacy as guaranteed by Articles 39 and 43. Section 57(1) of the Act very loosely defines the offence which reads as follows:
“If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in any other electronic form any material which is false and obscene and if anyone see, hear or reads it having regard to all relevant circumstances, its effect is such as to influence the reader to become dishonest or corrupt, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization, then this activity will be regarded as an offence.”
Section 57(2) of the Act contains the punishment for committing offence under sub-section 1 of section 57 as imprisonment for 14 years or fine for an amount of TK.1.00 Crore or both. The amendment of 2013 has increased the duration of imprisonment from 10 years to 14 years.
If we consider the Section 57(1) on its own, then we may see that the section failed to state specific offences: such as, it does not say the age group who will see, hear or read the material. The level of understanding may not be the same of a minor compared to an adult. Moreover, after the recent changes, most likely person to see, hear or read is the Police officer. As discussed earlier, the Police with his educational background might not be able to form logical explanation of what he see, hear or read on the internet. The section also denotes the possibility of being dishonest or corrupt after reading the content published in the internet. Now this is a basic question of morale. It varies from person to person. By seeing, hearing or reading any content in the internet one might not react or take it as seriously to become dishonest or corrupt and on the flip side another person might think as the section states. This makes the section uncertain and leaves on the whims of the reader. The section further includes the scope of damaging the image of person and the State. But the nowhere in the Act, it was defined what would be considered as the Image of the State and how the image of a person would be determined. Depending on the social status, a person’s image might vary from person to person. Moreover, how the image of a person and the State comes on the same footing? Section 505 and 505A of the Penal Code covers the offence of defamation and the punishment under the aforesaid sections is only 2 years or fine or both. But the section 3 of the ICT Act states that the provisions of ICT Act shall prevail over any other laws. Now that the section 57(2) provides for 14 years of imprisonment with TK. 1.00 crore fine then who on earth would file a case under the Penal Code? The section further goes on to include the possibility of hurting or causes to hurt the religious belief or instigate against any person or organisation. Again the section surprisingly failed to define what would amount to hurt of one’s religious belief and why would instigation against any person and organisation be embodied in one single section? The concept of religious belief is age-old and there are non-believers too. The Constitution of the country ensures the right of choosing the religious belief. This definitely includes the choice not to believe in any religious belief and remain free. This interpretation has always been problematic. Due to socio-political pressure, the liberal interpretation did not get its way far enough. Therefore there is always scope to victimise someone who doesn’t believe in any religious belief. The other State laws don’t also give any space for the non-believers. Moreover, Section 205 of the Penal Code defines provision for punishment for publishing any material either in the form of a book or leaflet hurting one’s religious belief then he will be imprisoned for 2 years. If the same is published in the internet then it will be 14 years of imprisonment with TK. 1.00 Crore fine. The section fails to address the issue of having published a false or obscene material by impersonation to victimise another person. Anyone can get a fake ID in the facebook and can post false and obscene materials pretending to be another person. In that case the credentials supplied to open the account will direct the investigating officer to the person it was opened for and there is no way to find out actually who opened the account.
The section 57 heavily stress upon defaming any person. This is also defined by the Penal Code of Bangladesh where the punishment is only 2 years. But the ICT Act, 2013 provides for 14 years of imprisonment or fine of TK. 1.00 Crore or with both. In that case, if someone publishes any materials (other than in the internet) defaming any person then he will still be charged with the provisions of the Penal Code and if someone does the same in the internet, say in his blog or facebook account the he will be charged under section 57 and the punishment will be 10 times higher than the Penal Code. There is no explanation why this discrimination in inflicting punishment for same offence except the medium of publication. The section further states the possibility of deteriorating the law and order situation due to publication of any false and obscene material in the internet. This is completely a new concept that the law and order situation might deteriorate due to any internet publication. The number of internet user has not reached so far to consider it as a threat which might cause to deteriorate the law and order situation of the country. Again, after the amendment, Police will decide whether a particular post in the internet will deteriorate the law and order situation or not. If a Police Officer in the rank of Sub-Inspector is left to decide a comment or argument posted in the internet by a University graduate or a renowned teacher of a University, then the future of our freedom of expression, needless to say is at stake.
The Act unnecessarily imposed extreme punishment provision without any legal basis. The bail provision makes the Act monstrous and it will influence people to use it more frequently than other regular legal provisions when it comes to take revenge or victimise any opponent or enemy. As the section 57 is not specific and cover a wide area of offences, there will be little chances to get acquittal from any charges.
In India, Section 66(A) of the ICT Act had the similar provision of empowering the Police to take cognizance of an offence but later it has been modified. Now, if it is in a city then the Inspector General of Police and in case of village, the Deputy Commissioner has been given authority to take cognizance. Where other democratic states are decreasing police power, we are increasing it in the name of control. The arbitrarily exercise of police power will not only impose self-censorship but also jeopardise the whole idea of establishing a democratic country. The misuse of technology has been expanded to its optimum level and then arises a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect technological advancement. But first of all, we need to know what are those offences needed to be controlled or regulated. The most common cyber offences in other countries which might pave in gradually in our country have not yet been addressed by this ICT Act. It remains a tool for oppression and it is anticipated that the next government will not modify or repeal the Act, as it gives the perfect tool for oppression.
Published at The Daily Star on 1 January 2014.
