Laws and reality against free press in Bangladesh

Seraj pramanik: Free press is essentially the essence of democracy that guarantees transparency and accountability, protects basic human rights, empowers citizens to make informed decisions, fosters public discourse, and acts as a check on power. In Bangladesh, this freedom is enshrined in Article 39 of the Constitution, which guarantees freedom of thought, conscience, speech, and the press, subject to “reasonable restrictions”. In practice, however, these possibilities for freedom of the press are invariably circumscribed by conflicting and often contradictory legal provisions emanating from both colonial-era laws as well as restrictive modern legislation.

The legal environment of the press in Bangladesh is thus actually represented by a mix of century-old laws such as the Official Secrets Act, 1923, along with newer statutes like the Digital Security Act, 2018. Whereas these laws are ostensibly designed to preserve public order, national security, and morality, often-vague and broad wordings of the legal provisions facilitate abuses that lead to censorship, self-censorship, and suppression of dissent. For instance, more than 200 journalists in Bangladesh were prosecuted under the Digital Security Act from 2018 to 2022 alone-a clear indication of how the law chilled freedom of the press.

During this time, digital media have come to reshape the press landscape. While online platforms opened up avenues for broader access to information and a proliferation of voices, they also opened up new challenges: increased government surveillance and application of restrictive laws to regulate digital content. These developments point to the urgency of legal reforms that would balance state interests with the basic right to freedom of expression.

The paper critically analyses the legal regime that regulates the press in Bangladesh. Though the paper initiates its discussion from constitutional provisions and then laws enacted during colonial rule, it goes on to discuss post-independence and current legislations. Further, the paper assesses Bangladeshi international obligations under the UDHR and ICCPR and discusses testing of press freedom by these laws. Finally, recommendations for reform are put forward to ensure protection and promotion of press freedom in Bangladesh.

Press and media laws make the skeleton of a democratic society for the protection of freedom of expression and to keep the press independent. In Bangladesh, these are shaped by constitutional guarantees, colonial-era legislation, modern statutory provisions, and international human rights commitments. However, the practical realization of press freedom often collides with restrictive laws, ambiguous judicial interpretations, and governmental overreach.

The legal framework governing the press in Bangladesh has its roots in colonial laws such as the Press and Registration of Books Act, 1867, and the Official Secrets Act, 1923. Although these laws were enacted to control dissent and protect colonial interests, they still influence press regulation in modern Bangladesh. In fact, post-independence laws such as the Special Powers Act, 1974, and the Printing Presses and Publications Act, 1973, introduced fresh layers of curbs, mostly at the discretion of the state.

Modern legislations like the Digital Security Act, 2018, have created a high impact on press freedom in Bangladesh. Although aimed at fighting cyber crime, the Act criminalizes such ill-defined offenses as “hurting religious sentiments” and “anti-state propaganda”. This has drawn widespread condemnation from human rights organizations and media advocates. Moreover, the application of the Penal Code, 1860, and the Contempt of Court Act, 1926 against journalists very often complicates further the operational independence of the press.

Article 39 of the Constitution of Bangladesh provides for freedom of thought, expression, and the press, subject to “reasonable restrictions” with respect to state security, public order, and morality. But the wide interpretation of such restrictions has often allowed the governments to suppress dissent in the name of national security.

Bangladesh is a signatory to international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. These agreements call for the state to protect freedom of expression and limit restrictions to those that are necessary and proportionate. Yet, despite these commitments, the country’s legal framework often falls short of meeting international standards, according to organizations such as Reporters without Borders and Amnesty International.

The press and media laws in Bangladesh have a very long and convoluted history, reflecting its colonial legacy, post-independence struggles, and modern challenges. This section discusses the evolution of such laws with an emphasis on the historical background and implication of these laws relating to press freedom.

The general legal framework in Bangladesh for regulating the press thus originated in colonial India. British colonial rulers introduced a number of laws controlling dissent and regulating publication, many of which continue to have an impact on the media environment of modern Bangladesh.

The Official Secrets Act, 1923

• Desired to protect state information, the law criminalized possession or disclosure of information prejudicial to the state. Its broad provisions were used to suppress investigative journalism and whistle blowing.

Sedition Laws

• Section 124A of the Indian Penal Code (1860), which criminalized sedition, was a key instrument for suppressing freedom of expression during the colonial era. Many journalists and editors were prosecuted under this provision for publishing content critical of the British administration.

These colonial laws established a precedent for media control, emphasizing state security over press freedom.

Following Bangladesh’s independence in 1971, the country inherited the colonial-era legal framework. While the new Constitution promised freedom of speech and the press, many restrictive laws remained in force.

The Constitution of Bangladesh, 1972

• Article 39 of the Constitution guarantees freedom of thought, conscience, and expression, subject to reasonable restrictions. However, the application of these restrictions often mirrored the authoritarian tendencies of successive governments.

Special Powers Act, 1974

• This Act allowed the government to detain individuals and suppress publications deemed a threat to state security. It was frequently used to target opposition media and silence dissent.
• For instance, several newspapers were banned during the 1970s under the pretext of national security.

Printing Presses and Publications Act, 1973

• This law retained many provisions of the 1867 Act but introduced additional licensing requirements. It gave authorities wide discretionary powers to deny or revoke press licenses.

In this digital age, press freedom in Bangladesh faces new opportunities and challenges. While the emergence of social media and online journalism has enlarged the scope for disseminating information, it also brings in strict regulations.

It is important to define legal terminologies and key concepts for a proper understanding of the regulatory framework under which freedom of press in Bangladesh operates. The following are definitions of some key terms used in this chapter, appropriately referenced and supported with relevant footnotes.

Freedom of the press refers to the right of media organizations and journalists to publish information, opinions, and news without undue interference or restrictions from the government or other entities. This includes the ability to criticize public figures and policies while adhering to the law.

Reasonable restrictions refer to limitations imposed by law on fundamental rights, such as freedom of speech and press, which are deemed necessary to protect public interest, morality, or state security.

The writer is a lawyer at Bangladesh Supreme Court, PhD researcher.