Media Laws in Bangladesh

Media Laws in Bangladesh: A Historical Perspective

When Europeans write on the history of the media, they refer to the Acta diurna of the Roman Empire as closely akin to the newspaper of today. In India the Rock Edicts of Emperor Ashok (c.273-236 BC) engraved on the rocks contain in abundance measures adopted and regulations issued by him. This is not very different from the news content of modern media. In that era when Ashok, the Great, used this technology for communicating his message throughout his vast empire, we do not find any reference to restrictions on communication imposed by law. However, the Arthashastra, written originally in the reign of Chandragupta Maurya (c. 324-300 BC), by Kautilya mentions punishment for spreading false rumours. The Arthashastra and the Rock Edicts also speak of spies and reporters. Uzbek scholar Al-Biruni (973-1049 AD) in his book Kitabu’1 Hind (1030 AD) wrote: The Hindus are not in the habit of writing on hides, like the Greeks in ancient times. Socrates, on being asked why he did not compose books, gave this reply, “I do not transfer knowledge from the living hearts of men to the dead hides of sheep. The Hindus have in the south of their country a slender tree like the date and coconut palm, bearing edible fruits and leaves of the length of one yard, and as broad as three fingers one put beside the other. They call these leaves tar and write on them.

They bind a book of these leaves together by a cord on which they are arranged, the cord going through all the leaves by a hole in the middle of each. In Central and Northern India people use the bark of the tuz tree one kind of which is used as a cover for bows. It is called bhurja.

They take a piece one yard long and as broad as outstretched fingers of the hand, or somewhat less, and prepare it in various ways. They oil and polish it so as to make it hard and smooth, and then they write on it. The proper order of the single leaves is marked by numbers. The whole book is wrapped up in a piece of cloth and fastened between two tablets of the same size.[1] And, to write Kitabu’l Hind Abu Raihan Muhammad ibn Ahmad Al-Biruni did not spare either trouble or money in collecting Sanskrit books.

In his memoirsii the first Mughul Emperor Zahirud-din Muhammad Babur Padshah Gazi writes about announcement of vows before his all-important battle with Rana Sanga, “I sent for scribes (munshilar) and ordered them to write for their newsletters (akhbar) the farman concerning two important acts that I have done. Sheikh Zain wrote the farman with his own elegance (inshahi bila) and fine letter (insha) was sent to all my dominions.” This farman is dated 20 of Jumada I, 933 AH (26 February 1527).

Akhbar is the word used for newspapers today in Hindi and Urdu languages and Babur mentions it in such a way as if it is something routine. It was meant to communicate an official announcement by Babur that a tax would be waived on all Muslims if he won the battle and he himself had given up drinking and banned liquor in his dominions. However, there is no reference to any regulation on akhbar. The earliest mention of pre-typographic newspapers is to be found in a contemporary historical work (Muntakhals-ul-Lubab by Khafi Khan)[2] of the later Mughul times. Colonel James Tod (1782-1835) sent hundreds of original manuscript newspapers of the court of Aurangzeb, sixth of the Great Mughuls to the Royal Asiatic Society in London. The size of these seventeenth-century papers, written in different hands, was 8 inches by 4½ inches.[3] These were considerably free and could report even personal affairs of the emperor. We have no record of any law governing these newspapers. Perhaps, there was neither pre-censorship nor licensing, both being Western institutions.[4] It was sheer accident, however, that brought printing press to India on 6 September 1556. Granting a request from Emperor of Abyssinia the King of Portugal dispatched in 1556 a printing press and technicians via the Cape route. But the patriarch accompanying the press halted en route at Goa from where his onward journey to Abyssinia was first delayed and later abandoned. He died on 22 December 1562. The press, intended for missionary work in Abyssinia never left Goa, instead, it printed literature for Abyssinia from Goa.[5] However, there was no press regulation until the British East India Company started ruling a part of India after the Battle of Plassey in 1757.

William Bolts, an ex-employee of the British East India Company attempted to start the first newspaper in India in 1766 but was deported. Later a collection of papers on the affairs of India “particularly respecting the state of Bengal and its dependencies” was published in 1773 by J. Almon, London as “Considerations on Indian Affairs” in two volumes with maps and survey reports. In this publication he has been identified as former Judge of the Mayor’s Court of Calcutta.[6] The typographic media began in India with James Augustus Hicky’s Bengal Gazette or Calcutta General Advertiser, the first issue of which came out of the press on 29 January 1780. When Hickey started to unmask Warren Hasting (the Great Moghul’) and East India Company’s ruling clique (the ‘Nabobs’) there was no law, which could restrict him. Hicky’s Gazette put on record “the strictly private arrangement by which Mrs. Imhoff became the wife of the first governor-general in India”. Hicky’s courage gave birth to the first government order against freedom of the press. “Fort William, November 14, 1780. Public notice is given that a weekly newspaper called the Bengal Gazette or Calcutta General Adviser, printed by J. A. Hicky, has lately been found to contain several improper paragraphs tending to vilify private characters and to disturb the peace of the settlement. It is no longer permitted to be circulated through the channel of the General Post Office”. Libel suits resulting in heavy fines

and imprisonments ultimately crushed Hicky. He had to sell his press and pass rest of his life in poverty.

When newspapers in India were published by only Europeans expulsion of the editor (printer) was ultimate penalty. The Supreme Court of Judicature upheld this power. Every foreigner was required to obtain a licence for his residence in the territories of the Company and if any one incurred the displeasure of the officials by writing or publishing some thing which was not palatable to them, the licence was cancelled.

William Duane (1760-1835), American journalist, born near Lake

Champlain, N.Y., of Irish parentage. He learned the printer’s trade in Ireland and in 1787 went to Calcutta, where he edited the Indian World. On December 27, 1794 Duane was invited by Acting Governor-General Sir John Shore (1746-1794) for breakfast and when he reached there he was handcuffed and after detention for three days deported to England on an armed ship ‘Indiaman’. On his arrival in England he was set free without a word of apology or explanation. His Calcutta property worth 50,000 dollars was confiscated and his paper banned forever.[7]

These were stories from Calcutta. Madras was no different. The first

newspaper in Madras, The Madras Courier (October 1785) also had trouble with the authorities. Pre-censorship was first introduced in Madras (now Chennai) as in 1795. Madras Gazette agreed to submit all general orders of the Government for scrutiny by the Military Secretary before their publication. In May 1799 Marquis of Wellesley [8]legalised this system by issuing the regulation for the control of newspapers. According to these the censor was instructed to prevent publication of matter relating to the following subjects: “Public credit and revenues or the finances of East India Company, military operations and intelligence, conduct of government officers, private scandal or libel of individuals, probability of war and peace between the East India Company and any of the Indian powers, information useful to the enemy and the observations likely to excite alarm or commotion.” The penal for infringement of the law was deportation, as till then the mischief of running a newspaper was confined to Europeans. This punishment was in fact legalised what was done arbitrarily to William Duane.

It appears that growing importance of the Fourth Estate in England and the desire of missionaries to start newspapers in India ultimately led to abolition of pre-censorship in 1818 by Lord Hastings[9] as missionaries of Serampore started the first Indian language journal Samachar Darpan on 23 May 1818. It became bilingual carrying news in Bengali and English in parallel columns in 1829.

Like censorship, licensing was also a European institution to control the press. It was introduced in Bengal in 1823 through Adam’s regulations.

The East India Company also issued instruction that no servant of the company should have any connection with a newspaper. This decision was the result of an incident in Bombay (now Mumbai) where a member of the Council of the Governor owned a newspaper. Licensing regulations were replaced by Metcalfe’ Act[10] which was applicable to entire territory of the East India Company and required that the printer and publisher of every newspaper declare the location of the premises of its publication.

Licensing was, however, reintroduced in 1857 by Lord Canning and was applied to all kinds of publications. This was the year when Indians fought their war of independence against the East India Company after which the British Crown took over the territories of the Company.

In 1860 Indian Penal Code was passed as a general law but laid down offences which any writer, editor or publisher must avoid – the offences of defamation and obscenity. The next important event in the field of media laws was the enactment of the Press and Registration of Books Act (25 of 1867). This Act is still in force, of course with amendments from time to time. The object of this Act was to provide for the regulation of the printing presses and of periodical containing news, for the preservation of copies of books and for the registration of books. It contains rules for the registration of books. It contains rules for the making of declaration by the keepers of presses and publishers of newspapers (part II); rules regulations for the delivery of books (Part III); penalties (Part IV); registration of book (Part V). Part VI of this Act gave powers to the government to make rules and to exempt books or newspapers from the provisions of this Act. The Act 55 of 1955 added PartVA to provide for appointment of Registrar of Newspapers.

The role of the press during the Wahabi Conspiracy of 1869-70 led to the amendment of the Indian Penal Code (27 of 1870) to incorporate a section on sedition (124-A). This dealt with a person who “excites or attempts to excite feeling of disaffection to the government established by law in British India.” It came handy to send many freedom fighters to jail for their writings in newspapers. Some of them were deported to Burma or Andamans and kept in prison there. Some of them were deported to Andamans[11] between 1908 to 1910 for contributing to or editing Swarajya, Inquilab and Yugantar. They were Govind Ram- Hotilal Verma (age 20years) and Hari Ram (age 22) in 1908- Ram Charan Lal (age 24) in 1909 and Ladha Ram (age 21) and Nandgopal (age25) in 1910. There were more celebrated cases of sedition for writing in newspapers against political heavyweights like Lokmanya Bal Gangadhar Tilak and Mahatma Gandhi.

Shortly afterwards, the restrictions imposed by the East India Company prior to 1841 returned to the government officers, though in a milder tone.

In 1875, the government passed orders that no officer in the service of the government should be permitted without previous sanction to become the proprietor of any periodical or to edit or manage a periodical. Officers were advised to remain within the limits of ‘temperate and reasonable’ discussion. No document or information should be revealed to the press, which they might come to posses in their official capacity. In cases where doubts, may arise as to whether any engagements of officers with the press were consistent with the discharge of their duties to the government, the decision to that effect would lie with the government.

For the purpose of ascertaining the character of any intended public dramatic performance the Dramatic Performances Act (19 of 1876) was passed as it was suspected that such performances may provoke people against the Government.

When the Indian language press became very bold the Vernacular Press Act 1878 was introduced. It was comprehensive and rigorous, aimed at “better control” of the language press. It empowered any magistrate of a district or a commissioner of police in a presidency town to call upon the printer and publisher of a newspaper to enter into a bond undertaking not to publish certain kind of material, to demand security, and to forfeit, if it was thought fit, such presses and confiscate any printed matter as it deemed objectionable. No printer or publisher against whom such action had been taken could have recourse to a court of law. It was particularly meant to crush Amrit Bazar Patrika, which was bilingual before this Act. But the smart owner foiled this attempt by turning it into an English language paper overnight.

The main role in persuading Lord Lytton[12] for the Vernacular Press Act was played by Sir Ashley Eden (1831-1887), the then Lieutenant Governor of Bengal. He was in a fit to crush the Amrita Bazar Patrika. Sir Ashley called the editor of the Amrita Bazar Patrika, Babu Shishir Kumar, and offered: “Let us three, I, you and Kristo Das, govern the province. Kriso Das has agreed to conduct his paper according to my direction… You will have to do the same thing. I shall contribute to your paper as I do to the Hindoo Patriot. And when you write an article criticizing the government you will have to submit the manuscript to me before publication. In return the government will subscribe to a considerable number of your paper and I shall consult you as I consult Kristo Das in carrying on the administration of province.” Babu Shishir Kumar thanked him and quietly remarked, “Your Honor, there ought to be at least one honest journalist in the land”. Sir Ashley himself remarked, “If there had been only one week’s delay on the part of the proprietors to convert the Patrika into English we would have dealt a deadly blow at it by demanding a heavy bail-bond from them.”

When Gladstone, who had criticized the Vernacular Press Act, became the prime minister and Lord Ripon[13] the governor-general, and even before the retirement of Sir Ashley Eden the repeal of Vernacular Press Act had become a foregone conclusion. The repealing bill was passed without discussion, on December 7, 1881.

In India telegraph was introduced in 1851 and was very useful to East India Company during 1857. However, the Indian Telegraph Act was passed in 1885. The Government had exclusive privilege under this Act in respect of telegraph and power to grant licenses. The definition of telegraph in this Act is very wide as it later covered all other means of communication depending on electromagnetic waves, thus including teleprinter, telephone, fax, radio and television. It provides for interception of messages and takeover of licensed establishments by the Government in any public emergency or in the interest of public safety.

Lord Dufferin[14] succeeded Lord Ripon in 1884, The Amrita Bazar Patrika published certain facts about the administration of Bhopal and commented adversely on the conduct of Sir Lepel Griffin(1838-1908), the agent to the governor general for Central India. Sir Lepel appealed to the government for action. The proposal was turned down on the ground that legal proceedings would draw greater publicity to the matter under dispute. In 1889, during Lord Lansdowne’sxvii regime, The Amrita Bazar Patrika published what was purported to be a confidential Foreign Office document. It said that the Maharaja of Kashmir was deposed not because he resigned or oppressed his people, but because Gilgit was wanted for strategic purposes by the British government. No action was taken against The Amrita Bazar Patrika, but the Indian Official Secrets Act modeled on a similar Act of the British Parliament, was passed on October 17, 1889. It provided a penalty of imprisonment for one to two years and/or a fine according to the nature of the offence.

Section 19 of the Sea Customs Act 1878 gave power to the central government of prohibit or restrict the importation or exportation of goods into or out of India. Section 5 of the Telegraph Act 1885 gave power to the central government or provincial governments of an official specially authorized by the government to take possession of licensed telegraphs and to order interception of telegraphic messages which include as per section3 (1) of the Act telephone messages also. Section 25 of the Indian Post Office Act 1898 confers power on an officer of the post office to intercept during transmission by post goods which have been notified under section 19 of the Sea Customs Act or the import or export of which is otherwise prohibited. Section 26 of the Post Office Act provides power of interception of postal articles on the same lines as section 5 of the Telegraph Act. Thus by the turn of the century the government had wide ranging powers to intercept anything anywhere along all the possible channels.

With Swadeshi Movement and partition of Bengal the opposition of the

Government reached its zenith, both in the press and the public. In June 1908 the government passed the Newspaper (Incitement to Offences) Act, which gave power to local authorities to take judicial action against the editor of any newspaper, which indulges in writings calculated to incite rebellion. Nine prosecutions were instituted under this Act and as a result seven presses were confiscated. Then came the Press Act of 1910, which empowered the government to demand security from any newspaper, a provision similar to what existed in the Vernacular Press Act.

British Parliament passed the Copyright Act in 1911. Similar provisions came to India by Indian Copyright Act, 1914 (3 of 1914). It was replaced by a comprehensive legislation only in 1957 by the new Copyright Act (14 of 1957).

In 1918 Government passed the Cinematograph Act (2 of 1918), which was replaced by the Cinematograph Act, 1952 (37 of 1952).[15]

In 1921, the government appointed a committee, with Sir Tej Bahadur Sapru (1875-1949) as chairman, to look into the then existing press laws. The committee unanimously recommended the repeal of the Newspaper (Incitement of Offences) Act 1908 and the India Press Act 1910.xix In regard to the Press and Registration of Books Act, the committee recommended that the name of the editor should be inscribed on every issue of the newspaper and the editor should be subjected to the same liabilities as the printer and publisher as regards criminal and civic responsibility, that a person registering under this Act should be a major, that the term of imprisonment in part IV of the Act should be reduced from two years to six months, and that provision should be made for delivery to government of copies of newspapers printed in British India. The committee advocated the retention of powers to seize and confiscated seditious leaflets and literature. It recommended that the ancillary powers of preventing importation and postal transmission of such literature should be retained.

The requisite amendments were carried out by the Press Law (Repeal and Amendment) Act of 1922 (14 of 1922).

In 1922, on the request of the Chamber of Princes, the Princes Protection Bill was introduced in the Legislative Assembly. The Assembly rejected the bill. But the Governor-General, invoking treaty obligations and exercising his special powers under section 67B of the Government of India Act 1919, certified the Bill which became the Indian States (Protection against Disaffection) Act 1922. This Act provided punishment of imprisonment up to 5 years for any person editing, printing or publishing any document which brings into hatred or contempt or excites disaffection towards any prince or chief of a state in India, or the government or administration established in any such state. For material of this nature, the powers of forfeiture under sections 99-A to 99-C of the Criminal

Procedure Code and of postal interception under sections 27-B to 27-D of the Indian Post Offices Act were made applicable.

In 1923 the Official Secrets Act was passed in order to update and consolidate the existing provisions of Indian Official Secrets Act of 1889, along the lines of the British Acts of 1911 and 1920. The earlier Act was repealed. Section 5 of this Act, which affects the Press, deals with “official secrets” and relates to “wrongful communication of information.”

To meet the situation posed by the civil disobedience movement of 1930, the government promulgated the Indian Press Ordinance to provide for “better control of the press”. This revived the stringent provisions of the repealed Press Act of 1910. Some 130 newspapers had to deposit securities, nine refused to do so and suspended publications. In 1931, the Indian Press (Emergency Powers) Act was passed. The operative clause of section 4(1) of this Act reads as follows: “Words, signs or visible representations which (a) incite to or encourage or tend to incite to or to encourage, the commission of any offence of murder or any cognizable offence involving violence or (b) directly or indirectly express approval or admiration of any such offence of any person, real or fictitious, who has committed or is alleged or represented to have committed such offence.” Under the, original sub-section (3) of section 1 the Act was to remain in force for one year only and ;the government were given the power to extend this period by another year. The operation of the Act was extended from time to time and ultimately sub-section (3) of section was repealed by the Criminal Law (amendment) Act 1935 making this a part of permanent law of the land.

In 1932 the Foreign Relations Act was passed with the object of providing against the publication of statements likely to prejudice the maintenance of friendly relations between the British government and the governments of certain foreign states. The powers of forfeiture under sections 99A-99G of the Criminal Procedure Code and the postal interception under sections 27B-27D of the Indian Post Offices Act were extended by section 3 of this Act to documents containing matter defamatory of such ruler or his consort of son or principal minister of a state outside but adjoining India. Indian States (Protection) Act was passed in 1934 to protect the administrations of states in India, which were under the suzerainty of the British crown from activities, which tended to subvert or excite disaffection towards or to obstruct such administration. Section 3 of this Act extended to Press Emergency Act Powers 1931 to protect these states.

The Government of India Act was passed in 1935. In 1937 autonomous popular governments came to power in eight of the eleven provinces. They could do without using any special legislation against the press until they resigned in October 1939. In April 1946 popular governments returned to power in the states and a popular Interim Government came to power at the Centre in September 1939. On 30 September 1946 the wide powers for the control of the press, which were available under the Defence of India Rules, came to an end. To meet the grave communal situation the central and provincial governments promulgated ordinances during 1946- 47 to be replaced in due course by emergency legislations. The provisions affecting the press related to imposition of censorship, control of publications, import, possession or conveyance of documents of objectionable nature.

Before Independence, the Interim Government appointed the Press Laws Enquiry Committee in March 1947 to examine the press laws. The Committee gave its report on 22 May 1948 after Independence and partition of India. Ganga Nath, Mohan Lal Saxena, Tushar Kanti Ghosh, Diwan Chaman Lall, Mohd. Ismail Khan, Sri Narayan Mehta, S.A. Brelvi, Kasturi Srinivasan and G. V.Bedekar signed the report.

It recommended some minor amendments in the Press and Registration of Books Act; repeal of the Indian States (Protection Against Disaffection) Act 1922, and the Indian Press (Emergency Powers) Act 1931; modifications of Section 124-A of the Indian Penal Code and exclusion by explanation of the application of Section 153-A of the Advocacy of Peaceful Change of the Socio-economic order; and exclusion of Section 144 of the Criminal Procedure Code from application to the press. The Committee also recommended the repeal of the Foreign Relations Act and recommended another more comprehensive legislation to take its place in the changing circumstances. It suggested amendment of the Telegraph Act and the Post Office Act to provide for review by responsible ministers of the government of the actions and orders of subordinate officers. It suggested that all action taken against the press in the exercise of the emergency powers should be preceded by consultation between the provincial governments and the Press Advisory Committee or similar body.

After the report of this committee the Act of 1931 was replaced by Press (Objectionable Matter) Act 1951. However, the mood was so much for freedom of press that it was allowed to lapse in February 1956 and was repealed in 1957. The Indian Constitution gives every citizen fundamental right to freedom of speech and expression and the courts have interpreted that it includes freedom of the press.

On 23 September 1952 the Government of India appointed a Press Commission to enquire into the state of the press and to indicate the lines of its development in the future. Its recommendations resulted in establishment of the Press Council[16] and a law to regulate working conditions of journalists,[17] which provides for appointment of a Wage

Board[18], periodically.

Major setback to the freedom of press in India was when Emergency was imposed in June 1975 and censorship was introduced.[19] However, after the defeat of the then ruling party in 1977 General Elections it has not been possible for anybody to follow the example.[20] Press Council advised the Government not to put curbs on the press even in disturbed areas like Jammu and Kashmir. This policy appears to be better than the curbs on the press by Government.

Liberal ethos reinforced after 1977 has affected broadcasting as well. While demand for autonomous corporation to control All India Radio and Doordarshan was accepted and finally Prasar Bharti, an autonomous corporation came into existence from 15 September 1997 after the notification of the Prasar Bharti Act. It has not been possible to come up with a regulator for broadcasting content despite several bills that came to Parliament over the years and private satellite and cable channels are having a field day enjoying more freedom than in any other part of the world.

Though the Government has not allowed news on private radio outfits yet, freedom of print and television channels make Bangladesh one of the most liberal countries in the world as far as the freedom of media goes. Right to Information Act 2009 has been implemented and this has further extended freedom of media in Bangladesh.