Case Summary and Outcome

In August 2019, the Supreme Court of Bangladesh upheld the order of the High Court division of the Supreme Court of Bangladesh (High Court), in which the High Court had ordered a stay on the investigation of photojournalist and human rights activist Dr. Shahidul Alam, under the (now repealed) Section 57 of the Information and Communication and Technology Act, 2006 (ICT).  The journalist was being investigated for a live video he posted on Facebook and comments he made in an interview about protests by Bangladeshi students against the Government. Section 57(2) provided for punishment for “publishing fake, obscene or defaming information in electronic form”, and was punishable with imprisonment for a term of ten years. Dr. Alam allegedly made false and malicious comments and statements on the facebook live video and an interview regarding the protests against the death of two students who had died due to lack of road safety mechanisms and traffic mismanagement by the Government. He was arrested on August 5, 2018 and released on bail by order of the High Court on November 15, 2018. In March 2019, Dr. Alam filed a writ petition challenging the legality of charges against him. The High Court suspended the investigation of him and issued a ruling asking the government why the investigation against him should not be declared illegal and contrary to the Constitution of Bangladesh and the Digital Security Act, 2018. The High Court’s order of stay was challenged, and in appeal, four judges of the appellate division of the Supreme Court upheld the stay order of the High Court and directed the High Court to dispose of the case in a time bound manner. 

Facts

On August 5, 2018, at 10pm, Dr. Shahidul Alam was forcefully picked up from his residence and detained by several men from the Dhaka police, in connection with his allegedly false and malicious comments and statements against the Government. In an interview to Al-Jazeera and a  facebook live video, Dr. Alam had made comments regarding the protests that had broken out in Dhaka against the death of two students who had died due to lack of road safety mechanisms and traffic mismanagement by the Government. The police also seized 3 mobile phones from his possession. 

Dr. Alam had posted a 4 minute facebook live video on his facebook profile, in which he was reporting on the protest, showing pictures on the attacks by police authority on the students and allegedly making statements against the government. Prior to the Facebook live video, he also gave an interview to Al Jazeera where he made critical statements against the government in the context of the on-going student protests. In his interview, he spoke of the larger factors behind the student protests and the dissatisfaction of the people with the ruling party, their misdeeds such as their gag on the media, financial mismanagement and role in extrajudicial killings. The police said that the false and malicious statements broadcast on electronic media by Dr. Alam about the student protests caused the deterioration of law and order and hurt the image of the state of Bangladesh. 

The protests by students against the government for their mismanagement of roads and lack of road safety measures turned violent as more than 100 protestors were hurt by police who were firing rubber bullets at demonstrators. Reporters without Borders reported that at least 23 reporters covering the protests were injured in attacks by members of the ruling party, the Awami League and its student wing, the Bangladesh Chhatra League. They were armed with sticks, steel bars and machetes. In his facebook live video, Dr. Alam displayed photographs and made statements about the attack. In his video, Dr. Alam also alleged that he was attacked while taking a video, he had been attacked by the Bangladesh Chhatra League. He later uploaded a photo of his vandalised camera on facebook.

For his comments and video, Dr. Alam was charged with the (now repealed) Section 57 of the Information and Communication and Technology Act, 2006 (ICT) for spreading false information and making provocative statements. Section 57 of the ICT penalises the publication of any material that 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.” Section 57(2) provides for punishment with imprisonment for a term of ten years.

After his arrest, Dr. Alam moved a bail application, and was given bail by the High Court division of the Supreme Court of Bangladesh (High Court) on November 15, 2018, 102 days after his arrest.  When he appeared in court, he was unable to walk without assistance. His friends informed the media that he had been assaulted and tortured by police authorities while he was in custody. 

Thereafter, in March 2019, Dr. Alam filed a Writ Petition before the High Court challenging the legality of charges brought against him and for medical treatment in view of his alleged torture in custody. On March 14, 2019, the High Court division of the Supreme Court of Bangladesh  stayed the investigation. Further, on May 25, 2019, the High Court issued the order of stay and directed the police  to explain why the investigation against Alam should not be held contrary to the Digital Security Act 2018 and the Constitution of Bangladesh. The High Court also directed that he be taken to a hospital for medical treatment. 

The State preferred an appeal before the Supreme Court of Bangladesh, against the High Court’s order of stay.

Decision Overview

Chief Justice Hossain of the Appellate Division  of the Supreme Court delivered the judgement of the Court. 

The main issue before the Supreme Court was whether the High Court was correct in staying the investigation against Dr. Alam, during the pendency of the proceedings before it. 

Reportedly, Dr. Alam’s lawyer argued that the investigation violated his fundamental rights and amounted to an abuse of law. Additionally, there were several procedural issues with the investigation and arrest of Dr. Alam. 

The Supreme Court upheld the order passed by the High Court and extended the stay on the investigation against Dr. Alam. They also asked the High Court bench led by Justice Chowdhury to hear and dispose of the writ petition in a time bound manner, i.e. by December 18, 2021.