HC-rule over sections 25, 31 of Digital Security Act yet to be settled

The High Court had ruled over sections 25 and 31 of the Digital Security Act (DSA) asking why these two sections should not be declared contradictory to some articles of the constitution, which is yet to be settled.

The section 25 of the DSA provides the offences and punishment for transmitting and publishing offensive, false, or threatening information through the internet or any other medium.

Section 31 of this act declares the offences and penalties for deteriorating law and order.

A total of nine people, including a newsperson, three teachers of the Dhaka University and five lawyers, filed the writ petition on 19 January 2020.

According to the statements of the writ petitioners, section 25 does not provide any clear definition of threatening or intimidating information. Similarly, section 31 does not provide any definition of deterioration of law and order or social instability.

According to the established principles of law, any law must define the offences clearly. However, those two sections of DSA do not define the offences clearly, which creates a chance of harassing anyone whimsically.

According to the writ petition states, sections 25 and 31 of the DSA contradict several articles of the constitution, including article 39.

Bangladesh Federal Union of Journalists (BFUJ) president M Abdullah, Supreme Court (SC) lawyers Asad Uddin, Jobaidur Rahman, Mahiuddin Molla, Mujahidul Islam and Dhaka University (DU) teachers Mohammad Ismail, Kamruzzaman and Rafiqul Islam were among the writ petitioners.

The High Court ruled over the petition on 24 February 2020 after the preliminary hearing and asked the law secretary and the ICT secretary to respond to the rule within four weeks.   

In response, the state said that the law was legislated to ensure digital security and to identify and prevent cybercrimes. Besides, this law will ensure people's right to privacy and information and will prevent spreading of false information or rumours.

The state further said in response to the high court rule that there was no specific law regarding offences like hacking and data breaches before the legislation of DSA. False news and propaganda had long been a weapon of the quarter against the liberation of the country.

The writ petition was raised for hearing at a dual bench of the HC lastly on 11 August last year. The hearing on the writ started in February. At one point, the dual bench of the HC excluded the writ from the cause list.

Deputy attorney general Sheikh Saifuzzaman presented the state in the hearing. Speaking to Prothom Alo, he said, at one point during the hearing, the court excluded the writ from the cause list expressing inability to hear it.

However, the state, in its response to the rule, said the law has been legislated in compliance with the constitution of the country.

Now the writ petitioners can take initiative for a rehearing of the writ before a different HC bench. The state is ready for that.

Section 25 (1) of the Digital Security Act states, “If any person, through any website or any other digital medium,  (a) intentionally or knowingly transmits, publishes or propagates any data-information which he knows to be offensive, false or threatening in order to annoy, insult, humiliate or malign a person; or (b)  publishes or propagates or abets to publish or propagate any information, as a whole or partly, which he knows to be propaganda or false, with an intention to affect the image or reputation of the country, or to spread confusion,  then such act of the person shall be an offence.”

Section 25 (2) and 25 (3) describes the punishments for the offences mentioned in sub-section 25 (1). Section 25 (2) states, “If any person commits an offence under sub-section (1), he shall be punished with imprisonment for a term not exceeding 3 (three) years, or with fine not exceeding Taka 3 (three) lac, or with both.”

On the other hand, subsection 31 (1) of the Digital Security act states, “If any person intentionally publishes or transmits anything in website or digital layout that creates enmity, hatred or hostility among different classes or communities of the society, or destroys communal harmony, or creates unrest or disorder, or deteriorates or advances to deteriorate the law and order situation, then such act of the person shall be an offence.”

The section 31 (2) states, “If any person commits an offence under sub-section (1), he shall be punished with imprisonment for a term not exceeding 7 (seven) years, or with fine not exceeding Taka 500,000, or with both.”

According to subsection 31 (3), “If any person commits the offence referred to in sub-section (1) for the second time or repeatedly, he shall be punished with imprisonment for a term not exceeding 10 (ten) years, or with fine not exceeding Tk 1 million, or with both.”

Lawyer Mohammad Shishir Monir, one of the petitioners of the writ filed over sections 25 and 31 of the Digital Security Act, told Prothom Alo, “The definition of offences in sections 25 and 31 of the DSA is not clear and specific which will give the law enforcers a chance to use the law to serve their own purpose. The writ was filed mainly from this context. The HC also ruled over the petition and a hearing was held before a HC bench. However, the writ was later excluded from the cause list for unwarranted reasons. This issue is directly connected with freedom of expression. The law is being misused. Therefore, the rule should be settled as soon as possible.”

Lawyer Mohammad Shishir Monir said the writ would be raised before a bench under the jurisdiction of the HC very soon.

“A speedy settlement of this issue will ensure people’s constitutional right to freedom of expression,” he added.

This report appeared in the print and online edition of Prothom Alo and has been rewritten in English by Ashish Basu