The Information Technology & Communication Act, 2006 has been amended by an Ordinance on 20 August 2013, and subsequently passed as law on 9 October 2013 by the Parliament. With a few 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 had both regulatory as well as penal provisions but the procedure to be followed is the Code of Criminal Procedure Sec 70(1). Despite endorsing CrPC the Act lacked in many procedural aspects, such as Section 76(2) of the Act made all the penal sections to be non-cognizable which implied that the police or any other authorised person could not arrest a person without the permission of a Magistrate. The section further stated that the police could not lodge any case for a non-cognizable offence.
The regular procedure for dealing with a non-cognizable offence has been laid down in Section 155(2) of CrPC, 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 CrPC 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 shows otherwise. This major change gives unfettered power to the police and this will give them a free-hand to interfere in private-personal life of the citizens more frequently, one step ahead of creating controlled society. Where other democratic countries are trying to reduce police interference in private life to ensure the fundamental rights, this new police empowerment will definitely obstruct that effort.
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 there under. 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 authorised person, by the order of the tribunal or on its own initiative may reinvestigate the case. This is a clear violation of the express provisions of the CrPC. No criminal cases are allowed to be reinvestigated. 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 a few other cases of computer system hacking 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 interferes 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 sees, hears 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 2013 amendment has increased the term of imprisonment from 10 to 14 years.
If we consider Section 57(1) on its own, then we 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, the 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 sees, hears or reads 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 it on the intellect of the reader
The section further includes the scope of damaging the image of person and the State. But the nowhere in the Act, has the image of the State defined and how the image of a person would be determined. Depending on the social status, 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 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 cause to hurt the religious belief or instigate against any person or organisation. Again the section, surprisingly, failed to define what would amount to hurting 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 conform to 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 imprisonment with TK. 1.00 Crore fine. The section fails to address the issue of publishing 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.
Section 57 stresses 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 for the same offence.
The section further states the possibility of causing deterioration of the law and order 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 postings in the any internet. The number of internet users has not reached so high to consider it a threat which might cause the law and order in the country to deteriorate. Again, after the amendment, Police will decide whether a particular post in the internet will worsen 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 is really 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 taking revenge or victimizing a person. As Section 57 is not specific and covers a wide area of offences, there will be little chance to get acquittal from any charge.
In India, Section 66(A) of the ICT Act had similar provision of empowering the police to take cognizance of an offence but later it was 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 arbitrary exercise of police power will not only impose self-censorship but also jeopardise the whole idea of establishing a democratic state. Misuse of technology has been expanded to its optimum level and then arise the 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 those offences are that need to be controlled or regulated. The most common cyber offences in other countries which might creep 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.
The writer is Advocate, Supreme Court of Bangladesh.