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The Digital Security Act (DSA), 2018 was preceded by the controversial Information and Communication Technology (ICT) Act 2006 (later amended in 2013). According to Human Rights Watch, Bangladeshi police filed nearly 1,300 charges from 2013 to April 2018 under the ICT Act most of which were filed under Section 57 of the act. Even though the DSA was enacted to ensure digital security and identification, suppression and trial of offences committed through digital devices, various provisions of the Act bring a chilling effect on the freedom of expression thereby causing a violation of human rights.   

Freedom of expression has been guaranteed as a fundamental right under Article 39 of the Constitution of the People’s Republic of Bangladesh. Even though the provision imposes a number of restrictions on free expression, such restrictions must be reasonable and subjected to judicial review. The right to freedom of expression has also been guaranteed under Article 19 of the UDHR and ICCPR. In the Sunday Times v UK, the court opined that freedom of expression constitutes one of the essential foundations of a democratic society. 

According to a study conducted by the Center for Governance Studies (CGS), out of the 22 sections of the DSA dealing with offences and penalties, four were most widely used: Sections 25, 29, 31 and 35 which requires a thorough discussion.

Section 8 of the DSA empowers the Director General of the Digital Security Agency and law enforcing agencies to block or remove information in digital media if it threatens ‘digital security’ which is a vague term and this creates censorship for the independent press. Section 21 of the DSA states that if any person is involved in making any kind of propaganda or campaign against liberation war, spirit of liberation, national anthem or national flag such person shall be punished with imprisonment for a term not exceeding 10 years and if it is done repeatedly, shall be punished with imprisonment for life or a fine of Tk 3 crore. These are not only vague terms imposing content-based restrictions but also providing disproportionate penalties. 

Section 25 of the DSA criminalises the transmission and publication of any offensive, false or threatening information with an intention to affect the image or reputation of the country or to spread confusion which again is too wide to be justified by any domestic or international standard. Section 28 of the Act criminalises expressions that hurt religious sentiments. Section 31 again criminalises intentionally publishing or broadcasting any digital format which will destroy ‘communal harmony’. A combined reading of these sections render that these are restrictions on ideological contents which is in stark contrast with the idea of secularism, one of the guiding principles of our Constitution. Moreover, these vague and wide terms bring a chilling effect on the freedom of expression on matters of public concern. It also creates scope for misuse of the said provisions. 

Excessive criminalisation is another unique feature of the DSA. Section 53 provides that offences specified in Sections 17, 19, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33 and 34 shall be cognizable and non-bailable. This gross criminalisation violates the right to liberty guaranteed under Article 9 of the ICCPR which protects the right to liberty and security of a person and provides that ‘it shall not be a general rule that persons awaiting trial shall be kept in custody.’ At the same time, it undermines the presumption of innocence. Article 9(3) of the ICCPR allows pre-trial detention as an exception but in the DSA, pre-trial detention has been widely approved. 

Some of the recent DSA cases show that the accused was first forcibly disappeared and then shown arrested under the Act which is a clear violation of the instructions given by the Supreme Court of Bangladesh in the Blast and Others v Bangladesh & Others case (Writ Petition No. 3806 of 1998) and clear violations of the Torture and Custodial Death (Prevention) Act- 2013. 

In Douglas v Jeanette, 319 US 157 case, the Supreme Court of the United States opined that freedom of speech and expression is not confined to any particular field of human interest, but guarantees the broadest exercise of the right for religious, political, economic, scientific or informational ends. In Schacht v US, 398 US 58, the court found that the right to discuss public affairs includes the right to criticise the government including its defence policy and the conduct of the Armed Forces. In Hector v AG of Antigua and Barbuda, [1990] 2 All ER 103, 106 in the words of Lord Bridge of Harwich, ‘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.’

In the case of the State of Bihar v Sailabala, AIR 1952 SC 329 it is mentioned that advocacy of a certain political ideology cannot be restricted on the ground of security of state unless it is accompanied by the use, or threat, of violence. In Farid Ahmad v West Pakistan, PLD 1965 Lah 135, the court opined that without freedom of speech there cannot be any democracy. In  Liberty Fashion Wears Ltd v Bangladesh Accord Foundation and others (2016), the High Court Division held that a plain reading of article 102(1) of the Constitution empowers the court to give directions or orders to any person irrespective of whether he is in the service of the Republic or acting merely in private capacity for the enforcement of any aggrieved person's fundamental rights. Thus, a writ petition may be moved to the HCD to declare the provisions unconstitutional. In Reno v ACLU 521 US 488 (1997), the 1996 Communications Decency Act was ruled unconstitutional as it was overly broad and vague in its regulation of speech transmitted on the internet including indecent speech which the First Amendment protected. Similarly, in Virginia v Black 538 US 343 (2003) it was held that, a blanket ban on cross-burning was an unconstitutional content-based restriction on free speech. 

In Begum Arjumand Ara Chowdhury v Government of Bangladesh, the High court held that an order passed by the Government purporting to cancel the declaration of a weekly magazine was without lawful authority. In Hamidul Huq Chowdhury v Bangladesh 34 DLR 190 (1982) The Government Owned Newspaper (Management) Act of 1975 was declared to have been enacted and made in violation of Article 27 and 39(2)(b) of the Constitution and accordingly two items in the schedule of the Act had been struck down. 

Therefore, the DSA is not only limited to criminal charges and detentions but also violates the implementation of many fundamental rights, including freedom of movement, freedom of thought, conscience, and opinion, right to life, freedom of religion and belief, and freedom of movement. Thus, certain provisions of the Act violate civil and political rights of the citizens and are hindrance towards Good Governance and Democracy. The government must amend these provisions to uphold the democratic spirit of the Constitution. 

The writer is a Research Intern at the Center for Governance Studies (CGS)