A Black Law
When the Information and Communication Technology Act 2006 was
amended in 2013, the mainstream media, social media, journalist
community and the civil society vehemently criticised the new amendments
as going against freedom of thought, freedom of speech and freedom of
press. The offending section was section 57 of the Act (as amended),
which imposed a maximum 14 years and minimum seven years imprisonment
upon an accused being found guilty. The main concern was that actions
against individuals may be taken in a 'pick and choose' manner with
political bias and ulterior motive to stop dissenting voices or critics
of the government.
The speculations at that point of time was justified as the Act
failed to explain with sufficient clarity the meaning and scope of the
named offences , for example, “hurting religious sentiment” or
“tarnishing image of the state or person” or “induce a person to immoral
and corrupt act.”, “defamation” etc. The threshold for commission of
the offense is not clearly defined. In a newspaper column I wrote at
that time, I speculated what may be the case if hypothetically speaking,
someone criticises the act of the government in very strong language or
even goes further to call a minister or prime minister by indecent
names? In the couple years following the amendment, the answer to my
earlier speculations are self-evident in light of subsequent
developments. A journalist was recently arrested on account of Facebook
message he wrote incriminating certain influential individuals.
Earlier a Jahangirnagar University teacher was found guilty and
imprisoned for 3 years for another Facebook message wishing the death of
the PM. Indeed it reminded me of the rule of Henry VIII of England, a
time when thinking about the King's death was an offence punishable by
death. I completely fail to understand how expressing oneself in an
informal social media like Facebook can give rise to an offence
punishable by minimum seven year's imprisonment. I have heard some media
personalities defend the action of the government on the round of 'rule
of law' meaning , if it's an offence under the law then one should
refrain from making such remarks. But this argument is hollow to its
core, rule of law cannot be applied in a 'pick and choose' manner. A
society is governed by the rule of law or it is governed by the rule of
powerful men, there are no grey areas here.
In an age of online news portals, the ICT Act can be seen as a threat
to journalists and thereby a slap upon freedom of press. The Act and
section 57 in particular is liable to be struck down by the courts on
grounds of unconstitutionality. First there is the vagueness and lack of
certainty in defining the offences which provides opportunity for
applying the law in a 'pick and choose' manner. Second, it is certainly
arguable that the punishment is not proportionate to the offence
committed. A person making vulgar comments about a minister can hardly
be judged in the same category as someone organising a terrorist outfit.
Yet both will get a minimum of 7 year imprisonment if found guilty.
Third, there it is inconsistency with other laws dealing with same
offences. For example the offence of defamation under penal code has
been rendered useless by this Act, the former only provides for a
maximum sentence of two years. To add insult to injury the offences as
listedare non-bailable, which means an innocent man may rot in the
prison cell for a long time, only because someone filed a wrongful case
to harass him.
It is imperative in the interest of free speech, democracy and
ultimately rule of law that we continue to condemn this piece of
legislation which is nothing but a 'black law' waiting to be struck down
by our Hon'ble Supreme Court or repealed by the parliament when good
sense prevails.
