Law Watch
One Mushtaq and the nuances of ‘bail’
In May, 2020, puzzling charges were brought under the Digital Security Act (DSA) 2018 against 11 persons, including writer Mushtaq Ahmed, who died on 25 February while in jail. Charges had been brought under four sections of the DSA- Section 21, Section 25(1)(b), Section 31 and Section 35. The provisions are vague and ambiguous, open to interpretation and prone to abuse. The drafting of such provisions grossly falls short on the certainty required from criminal laws in order for them to comply with the criminal justice and human rights standards. Mushtaq was denied bail six times, as per record. This incident has brought to the forefront the procedural issues too, in connection with the uncertainties embedded in the substantive provisions defining offences under the DSA.
Section 21 of the law criminalises propaganda or campaign, 'against the Liberation War of Bangladesh, the cognition of the Liberation War, Father of the Nation, National Anthem or National Flag.' Section 25(1) (b) criminalises acts that tarnish the image of the nation or spread confusions; Section 31 criminalises the publication or transmission of any digital content that 'create hostility, hatred or adversity among people or destroy any communal harmony or create unrest or disorder or deteriorates or threatens to deteriorate law and order.' Finally, Section 35 refers to support offence: offence of 'aiding' anyone in the above-mentioned offences.
While Sections 21 and 31 are non-bailable, section 25 is bailable. Within the criminal justice scheme of Bangladesh, getting bail in bailable offences is considered a right of an accused and non-granting of bail amounts to wrongful confinement. For non-bailable offences, granting of bail is not obligatory as such however, the judge does have a margin of discretion in this regard. In this respect, Section 497(1) says that when any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
The proviso to the Section says that [..] the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
The Section necessitates that there be reasonable, prudent, and judicious exercise of discretion, with due regard to the nuances involved in a case. The current incident, alongside ripping open the draconian nature of the DSA, poses a pertinent question regarding the 'judicious' interpretation of laws and prudent analysis of questions of facts too, both in connection with DSA and otherwise.
Law Desk, The Daily Star.