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'It does two things that even our erstwhile colonial masters did not deem fit for their subjects: The Bill does away with any checks or balances on the exercise of interception and surveillance powers, including any penalty whatsoever for unauthorised interception, opening, scrutiny, or destruction of postal materials.'
The recent passing of the Post Office Bill, 2023 in the Rajya Sabha, and it being brought to the Lok Sabha for consideration, has raised many eyebrows for its provisions.
While it seeks to repeal the 125-year-old Indian Post Office Act of 1898, it allows the Centre to intercept, open, or detain any item during emergency or in the interest of public safety.
Chander Uday Singh, a Senior Advocate in the Supreme Court, and the counsel for organisations such as Lawyers Collective and Citizens of Justice and Peace, tells Rediff.com Contributor Shobha John that the Post Office Bill 2023 falls foul of the law on Article 19(1)(a) and Article 21 as laid down by the Supreme Court.
The Rajya Sabha recently passed the Post Office Bill, and one of its provisions is that the central government can empower any officer to intercept, open or detain any item in the interest of the security of the State, etc.
This has raised concerns about the infringement of the Fundamental Right to Privacy.
Can this Bill be misused?
Section 9 of the Post Office Bill, 2023 as passed by the Rajya Sabha on December 4, 2023, makes provisions for interception, opening, detention and disposal of any item in the course of transmission by the Post Office.
The sweeping powers conferred by this Section go even further than the Indian Post Office Act, 1898, and are fraught with not just the possibility, but the certainty of misuse.
The government wants to repeal colonial-era laws. The Indian Post Office Act, 1898, is one of them. Can the changes therefore be justified?
The 1898 Act prescribed in Sections 19 and 20 diverse prohibitions on transmission by Post, including noxious and poisonous substances, obscene, indecent, seditious, scurrilous or threatening materials.
The Act conferred the power to frame Rules under Section 21 specifying other articles that might not be transmitted by Post.
Sections 22 to 25 empower detention or opening of articles suspected of containing prohibited articles or contraband or of evading customs duty, and the like.
Being a law imposed upon India by a colonial power whose primary interest was surveillance of its colonial subjects, Section 26 permitted interception of postal articles for 'public good', which could be triggered 'on the occurrence of any public emergency, or in the interest of public safety and tranquility'.
Significantly, however, this power could only be exercised by the central or a state government, or a specially authorised officer by issuing an order in writing directing that a postal article, or class or description of postal articles, shall be intercepted or detained or disposed of in accordance with the written directions.
However, Section 53 of the 1898 Act operated as a further check on interception and surveillance, prescribing a prison sentence of up to two years for unauthorised detention or opening of postal articles except in accordance with an authorisation in writing under the Act.
By contrast, Section 9 of the 2023 Bill permits general empowerment of any officer by notification, to cause any item in the course of transmission by a Post Office to be intercepted, opened or detained, (i) in the interest of the security of the State, friendly relations with foreign states, and public order; (ii) on account of any undefined emergency; (iii) in the interest of public safety; (iv) upon the occurrence of any contravention of any provisions of the Postal Act, 2023; and (v) upon the occurrence of any contravention of 'any other law for the time being in force'.
Point (v) is especially vague as it opens itself to gross misuse and abuse.
Are there significant changes in the Post Office Bill 2023 as compared to the Post Office Bill of 1898?
It is readily apparent that the new Bill confers sweeping powers upon officers notified by the central government, and that there is no minimum rank or status prescribed in respect of who may be notified.
The Bill does away with the need for an order in writing authorising interception of particular articles or classes of articles.
It does two things that even our erstwhile colonial masters did not deem fit for their subjects: The Bill does away with any checks or balances on the exercise of interception and surveillance powers, including any penalty whatsoever for unauthorised interception, opening, scrutiny, or destruction of postal materials.
Moreover, Section 10 confers statutory immunity to post offices and postal officers.
Does this Bill violate provisions of the Constitution and thereby, various court judgments?
Congress MP Shashi Tharoor has termed the Post Office Bill 2023 as arbitrary and unreasonable, and encroaching on the fundamental rights of countless Indians.
There is no doubt that the Bill falls foul of the law on Article 19(1)(a) and Article 21 as laid down by the Supreme Court, including PUCL (1997), Shreya Singhal (2015), Puttaswamy (2017), and a host of other judgments.
Amazingly, the unbridled and all-pervasive scope of interception and surveillance not only goes far beyond the 1898 Act, but also comes in an era during which the Supreme Court of India has clearly limited the extent to which invasions of privacy might be tolerated, and the checks and balances that are essential for protection of the Fundamental Right to Free Speech and Expression guaranteed by Article 19(1)(a) of the Constitution, and the Fundamental Right To Privacy, which was elevated to be part of the right to life and liberty under Article 21 by a 9-Judge bench in Justice K S Puttaswamy (2017).
On interception of telephone conversations or phone-tapping, the Supreme Court in Peoples Union for Civil Liberties (1997) laid down strict conditions for scrutiny and review of interception under Section 5(2) of the Telegraph Act, 1885.
It is important to note that Section 5(2) was far narrower and less empowering than Section 9 of the 2023 Bill.
The PUCL judgment ultimately led to Rule 419A under the Telegraph Act, 1885, and very protective rules for interception under the Information Technology Act, 2000.
Yet, all these protections have been thrown to the wind in the Post Office Bill 2023.
Feature Presentation: Aslam Hunani/Rediff.com