ICT Act violates fundamental rights
The government has made an amendment of the Information and Communication Technology (ICT) Act of 2006 which may cause a big threat to the freedom of expression as well as the fundamental rights of the citizens. The Act empowers law enforcers to arrest any person without warrant, and to increase the highest punishment to 14 years from minimum 7 years. The ICT Act, 2006 was termed by many as a repressive law though the offences were bailable, but in the amended Act the offences are non-bailable and there is much scope for harassment.
In this context it may become a draconian law and the government is going to get nothing out of it. The fundamental rights of the citizens will be violated and they will be the worst sufferers of this Act.
Article 39 of our constitution guaranteed a fundamental right named freedom of thought, conscience and of speech. Under the new ICT Act the Freedom of thought and conscience may not be exercised freely. Before writing anything in the social media like facebook, twiter, blog, skype etc. any person always remain in fear whether it will 'tend to deprave' or 'corrupt persons' or not as enacted in the new ICT Act. And he is in fear of at least 7 years punishment and highest may be 14 years. Thus it will hamper the free thinking and expression of thought. So, it may be liable to be contradictory to the constitution.
Among the various types and methods of communication, internet is a glorious example of the modern communication. Most people take the positives from it but there may be some equipped to use this dynamic means of communication for ulterior purposes. Consequently, some people may suffer and there may be noise and chaos in the society. To address this, there should be pragmatic policies that the state can enforce to control and regulate such disorder.
The question here is: what should be the way of controlling the negative aspects? Can the state frame any arbitrary law which may be a tool to suppress the voices of opposing views or ideologies, as the case may be? To be more precise, can the state make laws which denies the rights of the citizens in violation of the constitution?
The ICT (amendment) Act, 2013 provides for penal action in section 57 which reads that If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, 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 of his will be regarded as an offence.
The punishment for the aforesaid offence shall be imprisonment for a term which may not be less than seven years and more than fourteen years and with fine which may extend to Taka one crore. It also suggests that offences under sections 54, 56, 57, 61 are cognizable and non-bailable.
One may see that the wordings in the section 57(1) are totally vague, and may create scopes of misuse by the various quarters including the state machinery. What type of information will 'tend to deprave' or 'corrupt persons' has not been clearly spelt out in the Act. The law enforcing authority has been given unlimited power to arrest any person, alleged to be involved in the 'offence'. Unless proved innocent, the accused will not be released on bail.
The Right to Information Act, 2009 has recognised the freedom of expression as an important fundamental right of the citizens and it has made easy dissemination of information from any governmental and non-governmental institutions. But in the ICT Act, there is no clarity as regards 'publication of information' and the type of information that may deprave and corrupt others. So, being afraid of punishment, people will stay away from posting their views on the internet.
In conclusion it can be said that there is a considerable possibility that the law may be misused in the name of preventing cyber crimes. It may create confusion, which can cause problems to anyone, any time. It also eases the way of sending anyone to jail without any sufficient cause.
The Act is riddled with legal irregularities and it poses a serious threat to exercising the right to freedom of expression in the country. The government should consider the above matter seriously in order that the law does not conflict with the fundamental rights of citizens in a democracy.
The writer is a Research Assistant at Bangladesh Institute of Law and International Affairs (BILIA).