ICT cases and lack of justification for remand
When we talk about cases filed under the ICT Act, 2006, Section 57 of the Act crosses our mind almost instantly. Since its enactment in 2006, there were no charges under Section 57 until April 2013 when four bloggers were arrested for alleged incitement of religious hatred. There wasn't even a tribunal to try the cases, as the government had never felt the need to establish one until the end of 2013.
However, despite serious criticism, the law was amended in October 2013 empowering the police to register cases under the Act. This has resulted in a rise in the number of cases filed under Section 57 of the Act. Though it was initially targeted at writers and bloggers to curb dissent, it subsequently became the best weapon to silence all sorts of dissent and also the perfect tool to wage personal vendetta. Section 57 is so ambiguous that any online activity could be framed to have fallen within its ambit.
However, there have been some new developments in the use of Section 57 and the generalised use of this special law has now become a blunt weapon for repeated use and abuse. The new dimension is this: the police taking the accused on remand to get further information from him/her.
But if we consider the nature and character of an offence which might come under the definition of Section 57, then we see that before taking action against someone, the police or the informant must have "prior information" about the offence which has already been published online. The Section clearly reads: "if anyone publishes/broadcasts anything which is false…shall be an offence." It means that as soon as the matter is published or broadcast, the offence has been committed and the informant has all the information he/she needs to make the complaint. Then what is the justification for taking the accused in police custody to gather further information? For the sake of argument, even if a person had a very defamatory statement composed in his personal computer and a police officer finds it, it clearly does not come within the ambit of ICT law, as it has not been published yet. If the accused had published something which is the subject matter of the law, then it is a public document and can be accessed from any computer system or even from a smartphone. So what is the justification for taking a person on remand? What else can a police officer find other than the published statement?
In most of the recent cases, this trend of taking the accused on remand by the police has become a common phenomenon and Section 57 is being used without applying the judicial mind and proper understanding of the new ICT law. Remand of the accused for up to 10 to 12 days is being allowed! We can imagine there is a presumed justification for granting the prayer for remand in police custody in the name of extracting information from the accused. But we often forget that the Constitution clearly bars forcing someone to give evidence/statement against himself. Moreover, the Supreme Court of Bangladesh already amended the law that governs the provision of remand (Sec. 167 of the CrPC) in 2003 as it contradicts the fundamental rights ensured by our Constitution.
The Supreme Court gave a 15-point directive to all parties concerned in connection with the implementation of Section 54 (arrest without warrant) and 167 (remand) of the Code of Criminal Procedure, which has the force of law as per provisions of Article 111 of the Constitution. The Appellate Division in 2015 upheld the Judgment and Directives of the High Court Division with certain modifications, implementation of which remains a far cry till date.
In the meantime, a new law has also been enacted to provide protection to the citizens from being tortured or killed in police custody. The Nirjaton O Hefajote Mrityu (Nibaron) Ain (Torture and Custodial Death (Prevention) Act) 2013 apparently gives a new definition of torture which encompasses and recognises mental torture in police custody. This new law has made the old formula of extracting information through torture from an accused during remand in police custody almost impossible. The accused becomes a victim if there is an allegation of torture in any form in police custody and this new law puts a certain responsibility upon the magistrates and judges to take action against the officer who is responsible for inflicting torture upon any person. However, we have seen almost no application of the new provisions of the law since 2013. The misery of the victims continues. A good law does not do any good unless it is implemented to its fullest extent.
We must admit that application of the ICT law is new to us and there has not been enough training of the police and judges to deal with these matters efficiently and in accordance with the law. Due to this lack of knowledge and training, police are lodging cases even for private communication in Facebook Messenger or even for a post, which is positive in nature without any elements to attract any ICT provisions.
There has been another serious violation of the law in making arrest of an accused in most cases filed under the ICT Act. It is apparent from the FIRs lodged under Section 57 of the ICT Act in connection with the quota reform movement or safe road movement that the police secured arrests prior to registering the FIR. If the offence has already been committed online and the police as part of their routine monitoring work witnessed the offence to be committed, then their first duty was to register a proper case and then secure a warrant of arrest from the magistrate.
But in all the cases, they arrested the accused first then registered the cases. In a situation where there is no formal case against the accused, in order to secure arrest, police had to follow the provisions of Section 54 of the Code of Criminal Procedure. The Supreme Court of Bangladesh already modified the law in 2003 and it was subsequently upheld by the Appellate Division in 2015. Among the 15-point directive, the police were supposed to allow the accused within 12 hours of his/her arrest to contact his/her relatives or friends and consult his/her lawyer. But in most of the cases, this right of the accused has been denied and their family members were not even told the whereabouts of the accused. This is a clear violation of the mandatory directives of the Supreme Court.
Moreover, the police were supposed to maintain a diary, keeping note of the reasons for their suspicion and reasons for arrest and submit the said dairy to the magistrate along with a forwarding. Despite bringing the matter to notice several times, the magistrates failed to comply with the directives and also failed to take appropriate action against the police if he failed to comply with the directives.
The law cannot be allowed to be used selectively and on a whim. Until or unless someone is found guilty of an offence after trial, the fundamental rights guaranteed to him or her by the Constitution cannot be denied. The standard of the criminal justice system depicts how the people in power run a country. The good image of a country lies not on nicely phrased words but on how it treats its own people.
Barrister Jyotirmoy Barua is an Advocate at the Supreme Court of Bangladesh.