KM Ashbarul Bari, Nusrat Jahan
The Supreme Court of India has recently given a judgment upholding the status of the right to free speech and expression. It repealed Section 66A of the Information Technology (IT) Act holding the same as unconstitutional as it stroke the very root of the constitutionally guaranteed freedom of expression.
Section 66A reads: “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”
The petitioner contended that the Section 66A infringes upon the fundamental human rights of freedom of expression and is not covered by any of the eight exceptions provided by Article 19(2) of the Constitution of India. The words of the Section are not defined which leaves scope for arbitrary use by anyone. The enforcement of the said section would be an insidious form of censorship which impairs a core value contained in Article 19(1)(a) that talks of freedom of expression.
Though it was argued that the government would not use the section arbitrarily, there was no guarantee that successive governments would not misuse it. The petitioners also contended that this section would have a chilling effect on the freedom of speech and expression. It is also violative of Article 14 and 21 of the Indian Constitution on grounds of discrimination as it punishes a person just because he is using a particular mode of communication.
Although the defence argued by contending that mere possibility of abuse does not render a particular provision unconstitutional, the court declared the section unconstitutional considering a number of issues, eg ambit of public order, chilling effect on freedom of speech and expression, reasonable restriction and so on.
The court held that the section does not specify the distinction between mere discussion, advocacy to a particular view and an incitement. Moreover, whether a particular act is offensive or not varies from person to person. Moreover, as the section has a wide amplitude, it takes in the innocent as well as guilty. It creates a ban on all sorts of demonstrations even if it is innocent and thus endangers public tranquility. As there is ample opportunity for it to be used for purposes not sanctioned by the constitution, the same is unconstitutional.
In Bangladesh, we have a similar provision, ie Section 57 of the Information and Communication Technology (ICT) Act, 2006 which makes it an offence if any person deliberately publishes fake and obscene things, things that may induce a person to do immoral acts, causes defamation, deteriorates law and order, tarnishes the image of the state or a person or hurts religious sentiment of the people, on a website or on other electronic form.
The punishment provided for the aforesaid offence is imprisonment for a period of maximum 14 years and minimum seven years. Moreover, the offence is non-bailable which means court will generally not give bail unless the accused can satisfy the court that there is no reasonable case against him. Additionally, police may arrest a person accused of committing the crime under this section any time without obtaining an arrest warrant from the magistrate.
Section 57 of our ICT Act restricts the freedom of expression which is guaranteed in Article 39 of the Constitution of Bangladesh. Words and phrases of the section are not well defined so as to leave room for the law enforces to abuse the provision. All these make this provision even more draconian than that of section 66A of the IT Act of India which the Indian Supreme Court has declared as null and void. Will we learn from our neighbour?
KM Ashbarul Bari And Nusrat Jahan are LLM students, Department of Law, University of Dhaka.
See more at: http://www.dhakatribune.com/juris/2015/apr/04/freedom-expression-myth-or-right#sthash.0lUwp2oN.dpuf