Freedom of Expression Writ in Bangladesh: Article 39, the Cyber Laws and Remedies in 2026

Freedom of expression writ: Article 39 and the High Court Division

A freedom of expression writ is a petition to the High Court Division under Article 102 of the Constitution to enforce the guarantee of speech, expression and press freedom in Article 39. It is the tool used to challenge a speech offence as unconstitutional, to stop an unlawful arrest or prosecution over an online post, and to test whether a restriction imposed by the State is genuinely reasonable. Since 2018 the litigation has centred on Bangladesh's digital laws, which have changed three times in seven years: the Digital Security Act 2018, the Cyber Security Act 2023 and the Cyber Protection Ordinance 2025, now carried into the 2026 statute book by an elected Parliament.

This guide sets out what Article 39 protects and permits, how writ challenges to the digital laws have fared, what the 2025 reforms removed and kept, the remedies available to a person arrested or charged over a post, and how to build a petition that the Court will hear. It is written for journalists, publishers, academics, platforms, activists and the lawyers who advise them, and it takes no side in the political debates that often surround these cases.

Summary: Article 39 guarantees freedom of thought and conscience absolutely and freedom of speech, expression and the press subject to reasonable restrictions imposed by law on eight listed grounds. A writ petition can challenge a law that goes beyond those grounds or is too vague to be reasonable, and can also be used, alongside bail and quashment, against an arrest or prosecution that does not follow the governing statute.

Key point: The Cyber Protection Ordinance 2025 abolished nine provisions of the Cyber Security Act 2023 and, through an October 2025 amendment, declared pending cases under sections 21, 24, 25, 26, 27, 28, 29 and 31 of the Digital Security Act 2018 void. Anyone still facing proceedings under those sections should check whether the case survives at all before arguing its merits.

At a glance

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Table of Contents

What Article 39 protects and permits

Article 39(1) states that freedom of thought and conscience is guaranteed. Article 39(2) guarantees every citizen's right to freedom of speech and expression and the freedom of the press, subject to reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.[1]

Three tests built into the text

Every freedom of expression writ ultimately asks three questions drawn from that wording. First, is the restriction imposed by law, meaning a statute or valid subordinate legislation rather than an executive instruction? Second, does it fall within one of the listed grounds? Third, is it reasonable, which requires it to be defined clearly enough that a citizen can know what is prohibited and proportionate to the interest it protects. Commentators have stressed that the right also includes the right to receive information, not only to speak.[2]

The absolute core

Freedom of thought and conscience under Article 39(1) carries no restriction clause at all, so no law may curtail it on any ground.[2] In practice the cases turn on expression rather than thought, but the distinction matters where a law appears to punish belief or opinion itself rather than any public act.

Where Article 39 sits in the writ jurisdiction

Article 39 is a fundamental right in Part III, so Article 44 guarantees the right to move the High Court Division under Article 102(1) for its enforcement, and Article 26 makes any law inconsistent with Part III void to that extent. That combination is what makes a constitutional challenge to a speech offence possible. Our overview of writ petitions in Bangladesh explains standing, the rule nisi and the hearing process.

Challenging the Digital Security Act 2018

The Digital Security Act 2018 generated the largest body of speech litigation in Bangladesh's history. In the first ten months of 2022 alone, ARTICLE 19 counted 100 cases naming 237 accused, 68 of them over social media expression and 33 for criticism of the prime minister, MPs or ruling party figures, with 51 journalists charged in 21 cases over their work.[2]

The 2020 rule on sections 25 and 31

On 19 January 2020 nine petitioners, including a journalist leader, Dhaka University teachers and Supreme Court lawyers, filed a writ petition challenging sections of the Act. On 24 February 2020 the High Court Division issued a rule asking why sections 25 and 31 should not be declared inconsistent with the Constitution, including Article 39.[4] Section 25 covered publishing offensive, false or threatening information online and carried up to three years; section 31 covered content inciting enmity or deteriorating law and order and carried up to seven years, rising to ten for a repeat offence. The petitioners' core argument was vagueness: neither "deterioration of law and order" nor "threatening" information was defined.[4]

Why the rule was never decided

By 2023 the rule remained unsettled after being listed and then removed from a bench's cause list.[4] The Act was then replaced, first by the Cyber Security Act 2023 and later by the 2025 ordinance, which overtook the challenge. The experience illustrates a recurring feature of a freedom of expression writ against a statute: the legislature often moves before the Court does, and petitioners must be ready to amend their pleadings to target the successor provision.

From the Cyber Security Act 2023 to the Cyber Protection Ordinance 2025

The Cyber Security Act 2023 was passed in September 2023 amid domestic protest and international criticism, but retained much of its predecessor, including a warrantless arrest power based on reasonable suspicion in section 42(1)(d) and criminal defamation in section 29.[6]

The 2025 ordinance

On 6 May 2025 the interim government's Council of Advisers approved the draft Cyber Protection Ordinance 2025. The Law Adviser told reporters that it abolished nine provisions which, in his words, accounted for about 95 per cent of cases filed in the past, including the offence of propaganda against the Liberation War and related offences concerning national figures, the anthem and the flag, and that cases under those provisions would be withdrawn automatically.[5] The ordinance was promulgated on 21 May 2025 and replaced the 2023 Act.[6]

What critics said remained

ARTICLE 19 and partner organisations, commenting on the drafts in February 2025, warned that undefined offences, a broad definition of cyber terrorism carrying up to ten years, interception on a low threshold and warrantless entry and search could still be used against expression.[8] Commentary after promulgation noted that a version of the warrantless arrest power survived in section 35(1)(d) for cyber terrorism and national security grounds, now with a post-arrest judicial review proviso, and that the ordinance requires courts to review government content removals after the event.[6]

Clearing old Digital Security Act cases

In October 2025 the Advisory Council approved a further amendment adding a sub-section to section 50 of the ordinance, declaring ongoing cases and investigations under sections 21, 24, 25, 26, 27, 28, 29 and 31 of the Digital Security Act 2018 null and void and annulling sentences and fines already imposed under them.[7] For many defendants this did what years of litigation had not. Anyone still listed in such a case should obtain a certified order recording its termination rather than assume it has ended.

The 2026 position under an elected Parliament

Ordinances made while Parliament is dissolved must be laid before the new Parliament to continue in force, and the cyber law was taken up after the February 2026 election. On 30 June 2026 Parliament passed the Cyber Security (Amendment) Bill 2026, tabled by the Posts, Telecommunications and IT Minister, which removed section 20 on online gambling following the passage of a separate gambling law. Opposition members used the debate to warn against using the law to suppress dissent.[9]

Early 2026 cases

Complaints under the new regime are already being contested. In April 2026 a Bogura editor was arrested over reporting on alleged corruption, and a content creator was arrested over a cartoon of a senior parliamentarian on a complaint filed by a third party under sections 25 and 27. One of the ordinance's drafters has argued publicly that such complaints breach section 40, which limits who may file a complaint to the injured person, an authorised representative or the police, and that searches require a magistrate's warrant under section 34.[10] Those are precisely the kinds of statutory defects a court can examine quickly.

The wider climate

Ain o Salish Kendra recorded 381 incidents of abuse and harassment of journalists in 2025, including 118 attacks while reporting and 23 incidents involving law enforcement agencies.[12] Not every such incident gives rise to a writ, but a pattern of harassment can support a petition for protective directions where the State fails to act.

Grounds for a freedom of expression writ

A freedom of expression writ can be framed in two ways: against the law itself, or against what officials have done under it. The grounds differ.

Attacking the law

• Outside the listed grounds: a restriction that protects something other than the eight interests in Article 39(2), such as the image of the State or an official, is open to challenge.
• Vagueness: an offence defined in terms a citizen cannot apply, such as undefined "propaganda" or "deterioration of law and order", is not a reasonable restriction.
• Disproportion: heavy imprisonment for low-harm speech, or warrantless arrest for non-violent publication, goes beyond what the protected interest requires.
• Article 27 and 31: arbitrary or discriminatory application, and action not in accordance with law, reinforce the Article 39 ground.

Attacking the action

Many cases do not require striking down any law. A complaint filed by a person with no standing under the statute, an arrest without the required warrant, a search without judicial authority, or the use of a repealed or voided section are all illegalities that can be cured by certiorari or by quashment. Reviewing the governing section before pleading anything constitutional often produces the faster result.

Lessons from the contempt cases

The High Court Division has shown it will strike down a speech-related statute. In Asaduzzaman Siddiqui it declared the Contempt of Courts Act 2013 unconstitutional, holding sections 4, 5, 6, 7, 9, 10, 11 and 13(2) ultra vires Articles 26(1), 27 and 108. Academic commentary has argued that the Court should have given Article 39(2) a broader reading in that case, which shows how much turns on how the free expression ground is argued.[11]

Who can file and when

Standing is rarely the obstacle. A person who has been charged, a publisher instructed to remove content, a journalist whose work is chilled by a provision and an organisation acting in the public interest have all brought petitions under Article 102. The 2020 challenge to the Digital Security Act was brought by journalists, university teachers and lawyers who had not themselves been prosecuted under the impugned sections.[4]

Timing matters more. A freedom of expression writ against a provision is strongest when filed while that provision is actually being used, with concrete examples of its application, and weakest when filed in the abstract or after the provision has been replaced. Petitioners should also be ready to show that no equally effective alternative remedy exists, which is usually straightforward where the complaint is about the validity of the law itself rather than the facts of a single case.

Arrests and prosecutions over posts

For an individual facing a case over a post, a cartoon, a news report or a broadcast, three remedies operate together, and the choice between them depends on the stage of the case.

Bail

Bail is the immediate priority after arrest. Where an offence is bailable or the evidence is weak, the lower court is the first stop, with the High Court Division available on refusal. Our guide to High Court bail in Bangladesh covers the procedure.

Quashment

Where the complaint discloses no offence on its face, was filed by someone the statute does not authorise, or relies on a section that has been repealed or voided, an application under section 561A of the Code of Criminal Procedure asks the High Court Division to quash the proceedings. See our criminal quashment practice.

The writ petition

A writ petition is the right vehicle where the challenge is to the validity of the provision itself, to a pattern of executive action, or to a step outside the criminal process, such as a blocking order or an instruction to a publisher. It can be filed alongside a quashment application, and a freedom of expression writ that attacks the provision often supports the quashment by showing the offence was never validly constituted.

Judicial attitudes to speech about officials

Practitioners should be realistic about judicial attitudes. In Md Anamul Kabir Emon v Bangladesh (Writ Petition No 1839 of 2021) a bench criticised a documentary and described comments on it as demeaning the dignity of the head of state, and a 2023 Appellate Division order in a case against a student host attracted criticism for attributing liability for an interviewee's words.[3] Petitions that rely on clear statutory defects tend to fare better than those that ask the Court to endorse the content of contested speech.

Building a freedom of expression writ petition

A well-prepared freedom of expression writ tells the Court exactly which provision or action is challenged, why it fails each of the Article 39 tests, and what relief is sought. The sequence below reflects how we prepare these matters.

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Two practical points apply throughout. Preserve the original content, with metadata and screenshots that show date, platform and reach, because the Court will want to see exactly what was said. And keep the criminal defence and the constitutional challenge coordinated, so that a concession made in one does not undermine the other.

Freedom of expression writ or another remedy?

The table below compares the routes available when speech is restricted or punished. On a phone, scroll it sideways.

Where the restriction takes the form of a network or platform shutdown rather than a prosecution, the analysis shifts to the telecommunications law; our sibling guide to the internet shutdown writ addresses that route.

Practical guidance for publishers and individuals

Before publication

Media organisations and high-profile individuals should review content that names identifiable persons against the remaining offences and the civil law of defamation. Our analysis of defamation law in Bangladesh and cyber law in Bangladesh covers the current exposure.

After a complaint

Obtain the complaint, the first information report and any remand application immediately. Check who filed it, under which section, and whether that section still exists. Many recent complaints cite provisions that have been repealed or voided, or are filed by people the statute does not authorise.[7] [10]

When to file a writ

File a freedom of expression writ where the defect lies in the law itself, where the same provision is being used repeatedly against a class of speakers, or where executive action falls outside the criminal process. Our constitutional and writ litigation practice advises on the choice of route and drafts petitions that anticipate the State's reasonableness arguments.

Frequently asked questions

What does Article 39 of the Constitution protect?

It guarantees freedom of thought and conscience, and every citizen's freedom of speech and expression and freedom of the press, the latter subject to reasonable restrictions imposed by law.[1]

On what grounds can speech be restricted?

Security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offence.[1]

Can the High Court Division strike down a speech offence?

Yes. Under Articles 26, 44 and 102 a law inconsistent with Article 39 is void to that extent. The Court has struck down provisions of the Contempt of Courts Act 2013.[11]

What happened to the challenge to sections 25 and 31 of the DSA?

A rule was issued on 24 February 2020 but remained unsettled, and the Act was later replaced by the Cyber Security Act 2023 and the Cyber Protection Ordinance 2025.[4] [6]

Are old Digital Security Act cases still alive?

An October 2025 amendment declared pending cases under sections 21, 24, 25, 26, 27, 28, 29 and 31 of the DSA null and void. Obtain a court record confirming termination.[7]

What did the Cyber Protection Ordinance 2025 remove?

Nine provisions of the Cyber Security Act 2023, including the offence of propaganda against the Liberation War and related offences, which the Law Adviser said covered about 95 per cent of past cases.[5]

Can anyone file a complaint over my post?

Under the current regime, section 40 limits complaints to the injured person, an authorised representative or the police, according to commentary by one of the drafters. A complaint by an unrelated third party may be challenged.[10]

Should I file a writ or a quashment application?

Quashment under section 561A suits a defective prosecution; a writ suits a challenge to the law itself or to executive action outside the criminal process. They can run together.

Does Article 39 protect the right to receive information?

Commentators read the guarantee as covering the right to read and be informed, not only the right to speak.[2]

Did Parliament change the cyber law in 2026?

Yes. On 30 June 2026 Parliament passed the Cyber Security (Amendment) Bill 2026, which removed the online gambling provision in section 20.[9]