The Digital Security Act (DSA) 2018 aims to ensure digital security by punishing offences committed through digital media. It was certainly necessary to prevent computer related crimes and deter online offences by making a law; however, it is not in any way justifiable to curb freedom of expression in the name of guaranteeing digital security. A close reading of the DSA reveals that the Act contains few provisions that are contradictory with freedom of expression as well as freedom of the press guaranteed by the Constitution of Bangladesh.
Article 39 of Bangladesh Constitution expressly recognises and guarantees freedom of thought, conscience, speech and freedom of the press. This constitutional provision is basically intended to ensure citizen's right to access to information, the denial of which amounts to the denial of the freedom guaranteed under the Constitution. Though the DSA refers to the applicability of the Right to Information Act 2009, the provision relating to the breach of the Official Secrets Act 1923 raises serious concern regarding the free flow of information. The relevant provision reads as follows: “If any person commits or abets to commit an offence under the Official Secrets Act 1923 through any computer, digital device, computer network, digital network or any other digital media, then he shall be punished with maximum 14 years imprisonment, or maximum 25 lac taka fine, or with both.” This provision not only intimidates the journalists in terms of collecting and disseminating information but also threatens the principles of accountability and transparency which are the reinforcing pillars of good governance and people's empowerment.
The Act criminalises any activities that propagate or publicise something through digital media against the Liberation War of Bangladesh, Spirit of the Liberation War, Father of the Nation, National Anthem or National Flag. It is undeniable that in the age of digital age there remains possibility to distort the Spirit of the Liberation War and to unduly defame the image of the State. Even we do not expect any attack upon the Spirit of the Liberation War and the very integrity of the Father of the Nation or the idea of our Statehood. But at the same time, it is reasonably deduced that the aforesaid vague and undefined terms without having any marginal line, might be used to harass and exploit people. The punishment of maximum ten years imprisonment for the aforesaid offence is also disproportionate in comparison with the nature of the offence. It is to be noted that if the degree of punishment becomes disproportionate and excessive in comparison with the degree of penal activities, then it might aggravate rather than mitigate the grievance of the offender. The Act has also provided for its extra-territorial application and has gone on to say that if any offence defined under DSA is committed outside the territory of Bangladesh, the same shall be treated in a way as if it had been committed within the territory of Bangladesh.
The extreme criminalisation of information becomes evident when the DSA penalises the transmission and publication of any activities that creates hostility, hatred or acrimony among different classes or communities of people or destroys communal harmony or creates instability or chaos or deteriorates law and order situation or is likely to cause deterioration in law and order. Since the parameter of term 'deterioration of law and order' is uncertain and mostly exercised based on the subjective interpretation of the law enforcing agencies, there remains much room to frighten people and thereby hinder online free speech.
The power of the police officer to arrest a person without warrant, even if there is only suspicion of crimes, raises serious concern. This provision poses threat to the principle of natural justice of the concerned individual and also jeopardises the due process of law. The wholesale permission of arrest without warrant by the police, provides ample scope of abuse without having any accountability measures and thereby restricts freedom of speech and of the press. It is apparent that the abusive power of the police may curtail the constitutionally guaranteed rights to equality before law and to equal protection of law, right to be treated in accordance with law, right to life and personal liberty, right to protection against arbitrary arrest and detention, and right to fair trial in case of criminal prosecution.
The purpose of a law is to reflect the rising concerns of the society while upholding the spirit of the supreme law of the land which is the Constitution. A law should carry the conducive elements of expressing freedom rather than holding intimidating tools that ultimately make the people insecure.
- FROM LAW DESK.