The story so far: The Rajya Sabha on December 4 passed the Post Office Bill, 2023, that seeks to replace the colonial-era Indian Post Office Act, 1898. According to the government, the legislation is an attempt to ensure the effective functioning of the Postal Department as a messenger service and as a provider of banking facilities.
Initiating the discussion on the Bill in the Lok Sabha on December 13, Congress MP Shashi Tharoor raised concerns that the provision in the Bill that allows the Centre to intercept, open, or detain any postal item lacks safeguards and is centered around an “ambiguous definition”. Other Opposition leaders also opposed the Bill for violating the right to privacy and encouraging state surveillance.
While introducing the Bill in the Rajya Sabha, Ashwini Vaishnaw, Union Minister of Communications and Information and Broadcasting, said: “There was a time when it was thought that the 125-year-old institution would become irrelevant, especially during the time of the UPA government. Over the last nine years, however, the way the institution has been revived is reflected in this new Bill. The institution has been transformed from just mail delivery to service delivery.” While 660 post offices were closed earlier, around 5,000 offices were opened between 2014 and 2023, and about 5,746 new ones are in the process of being opened, he added.
Key features
Grounds for interception: The Bill allows the interception of articles transmitted via post on grounds such as the security of state, friendly relations with foreign states, public order, emergency, public safety, or contravention of the provisions of the Bill or any other laws.
Powers of interception: The officer-in-charge appointed by the Central government is empowered to ‘intercept, open or detain’ any postal article on the aforementioned grounds. Such an item can also be disposed of by the government in such a manner as it deems appropriate.
Delivery of suspected postal article to customs authority: The Central government by notification can empower any officer of the Post Office to deliver a postal article suspected of containing any prohibited item to the customs authority or any other specified authority. The customs authority will then deal with such an item in accordance with the provisions of law for the time being in force.
Exemption from liability: The Bill exempts the Post Office from incurring any liability pertaining to its services. It specifically stipulates that no officer shall incur any liability unless the officer has acted fraudulently, or wilfully caused any loss, delay, or mis-delivery of service.
Removal of offences and penalties: There are no offences and penalties specified under the Bill except one: amounts not paid by a user will be recoverable as arrears of land revenue. The 1898 Act contains offences such as theft, misappropriation, or destruction of postal articles which are punishable with imprisonment up to seven years and a fine. However, such offences and penalties were subsequently removed by the Jan Vishwas (Amendment of Provisions) Act, 2023.
Concerns raised by MPs
Violation of the right to privacy
Shaktisinh Gohil of the Indian National Congress (INC) said that the Bill violates the fundamental right to privacy. “Right to Privacy is a fundamental right. I know that security is important and that you’re doing this to protect people. But in the name of security, we have all seen recently how a company renowned globally for its hard-to-intercept software warned that ‘state-sponsored hackers are trying to hack your mobile.’ We MPs also got this message. Where are we headed?” he said. The parliamentarian was referring to the recent email alerts received by several Opposition leaders and journalists from U.S.-based tech giant Apple informing them that their digital devices were being targeted by “state-sponsored attackers.”
‘Emergency’ not defined, gives unbriddled powers to authorities
The Opposition leaders also pointed out that the law does not clarify the grounds for interception. For instance, it does not stipulate what would qualify as an ‘emergency’ — a ground for interception under Section 9(i) of the Bill. Sukhendu Sekhar Ray of the All India Trinamool Congress (AITC) called the clause “absolutely vague” and pointed out that it gives unbridled powers to the authorities concerned. Echoing similar concerns, Sandosh Kumar P of the Communist Party of India (CPI) remarked: “The interest of the security of the nation is a concept which can be misused....Please leave these poor post offices (out) from the scope of operation of this concept.”
No clarity on the authority in-charge
Referring to the provision stating that ‘interceptions may be carried out by the Central Government, State Governments, or any officer specially authorised by them’, several ministers raised concerns that it does not provide clarity on how these officers will be selected, especially since they have been empowered to ‘open and detain’ any intercepted shipment.
“Such interceptions may be carried out by Central, State governments or any officer specially authorised by them. Why don’t you specify which level of officer?”, Congress MP Shaktisinh Gohil enquired.
Procedure for interception not specified
Mr. Ray also pointed out that the Bill fails to specify the procedure for interception, thus making it arbitrary in nature. Highlighting that the Supreme Court in the past has held that arbitrariness in executive action violates the rule of law, he remarked, “About national security, every citizen of this country is concerned and we are also concerned. Had there been any provision, based on the information received from central agencies which is dealing with the national security point, then also, we could have agreed to this provision. But, on the basis of even suspicion, can the authorized officer intercept, open, destroy or do anything which he wants to do? This is arbitrary.”
Furthers state surveillance
P. Wilson of the Dravida Munnetra Kazhagam (DMK) underscored that the Bill, in the absence of guidelines, encourages state surveillance and violates Articles 14, 19(1)(a), and Article 21 of the Constitution. He also flagged how a post officer can be empowered to exercise search and seizure powers.
“By granting such powers, the privacy of all the citizens who use the services of Indian Post is severely compromised since there is no provision in the Bill which injuncts the officer from leaking any contents of the intercepted postal articles,” Mr. Wilson said.
Similarly, Raghav Chaddha of the Aam Admi Party (AAP) said that the Bill suffers from the “Big Brother syndrome” and allows the government to monitor citizens.
Exemption from liability
Section 10(2) of the Bill exempts officers in the post office from incurring any liability ‘with regard to a service provided by the Post Office, unless the Officer acted fraudulently or wilfully caused loss, delay or mis-delivery of service.’ Mr. Ray pointed out that although the revoked Act penalised the faulting authority with imprisonment of up to two years, the absence of any penalties in the new Bill is concerning. However, the central government may prescribe liability with regard to a service in the proposed Rules.
No grievance redressal mechanism
Congress MP Shashi Tharoor pointed out in the Lok Sabha that the Bill does not provide any grievance redressal mechanism to citizens despite relieving post officers of any liability with regard to the services offered. Referring to section 9 of the Bill that permits interception, Mr. Tharoor underscored that there is no clause in the legislation asking the government to inform a citizen about such actions, and thus a citizen will be unable to raise concerns of interception or contest in the action. This violates “every principle of natural justice and due process of law”, he added.
Government’s response
Mr. Vaishnaw underscored that owing to India’s complex and diverse society, it is “very important that interception is done and this kind of a provision is kept in the law for purposes of national security.” He also clarified that the government will soon frame rules containing the procedure for interception and that such a procedure will be fair and transparent.
“The way constitutional provisions are framed — there a right is given but there are certain carve-outs — similarly in this law, very clearly laid out carve-outs have been kept,” he added.
Law Commission’s recommendations
Similar to the ground of ‘emergency’ under the Bill, the 1898 Act permits interception on the ground of ‘public emergency’. While examining the Act, the Law Commission of India in its 38th report pointed out that since the term ‘emergency’ has not been explicitly defined, it provides a wide ground for interception. It also flagged that since the term has not been defined in the Constitution, it cannot serve as a reasonable ground for suspension of fundamental rights under Article 19(1). The Commission also highlighted that a state of public emergency must be of such that it is not secretive and is apparent to a reasonable man. Accordingly, it recommended that the legislature should amend the existing laws relating to interception to ensure that they adhere to the Constitution. This led to the enactment of the Telegraph (Amendment) Act of 1981.
Legislative history
A provision permitting interception was earlier introduced in the Indian Post Office (Amendment) Bill, 1986. It empowered the Central Government or the State Government or any authorised officer to ‘intercept or detain’ any postal article on the following grounds — public safety or tranquillity, the sovereignty, and integrity of India, the security of the state, friendly relations with foreign states, public order, for preventing incitement to the commission of any offence, or on the occurrence of any public emergency.
The Bill was passed by both Houses of the Parliament and then sent to former President Zail Singh for his assent in December 1986. However, due to his reservations regarding the proposed interception powers, he neither assented nor returned the Bill to the Parliament for reconsideration until he demitted office in July 1987. As a result, the legislation remained in limbo until it was withdrawn by the Vajpayee government in 2002.
Supreme Court rulings
In People’s Union for Civil Liberties (PUCL) v. Union of India (1996), the constitutionality of Section 5(2) of the Telegraph Act was challenged for permitting telephonic interception without any due process guarantees. The Supreme Court acknowledged that telephone tapping infringed upon the fundamental right to privacy, and created safeguards against arbitrariness in the exercise of the state’s surveillance powers. It underscored that in the absence of a just and fair procedure to regulate the powers of interception of communication, it is not possible to safeguard the rights of citizens under Articles 19(1)(a) and Article 21.
Extensive guidelines were also issued to regulate interception orders — i) orders for telephone tapping may only be issued by the Home Secretary of the Central government or a State government. In an emergency, this power may be delegated to an officer of the Home Department of the Central or State government, and a copy of the order must be sent to the concerned Review Committee within one week. ii) The authority making the order must consider whether the information that is considered necessary to acquire could reasonably be acquired by other means. iii) The authority issuing the interception order must maintain records of the intercepted communications; the extent to which material is disclosed; the number of persons to whom the material is disclosed and their identity. These guidelines were largely codified in 1999 by the Union Government when it added Rule 419A to the Indian Telegraph Rules.
In the landmark verdict Justice KS Puttaswamy v. Union of India (2017), the Supreme Court unanimously declared the right to privacy to be a fundamental right of all Indians. The verdict stipulated that any state measure that proposes to interfere with the right to privacy must satisfy certain requirements — (i) legality, the measure is authorised by statute; (ii) legitimate goal, the measure pursues a proper purpose; (iii) suitability, the measure takes meaningful steps towards achieving the proper purpose; (iv) necessity, the measure is the least rights-restrictive measure amongst equally effective alternatives; (v) proportionality, the measure does not disproportionately impact individual rights; and (vi) procedural safeguards, the measure incorporates meaningful guardrails against possible abuse.
The Court also recognised that informational privacy included an “interest in preventing information about the self from being disseminated and controlling the extent of access to information.” Justice Kaul in his concurring opinion raised concerns over state possession and control over personal data and how this can enable the creation of a ‘Big Brother’ state that exercises excessive control over its citizens. Thus, the state was urged to ensure that surveillance measures are balanced against the right to privacy.
In October 2021, a Supreme Court bench headed by former Chief Justice of India N.V. Ramana appointed an expert technical committee overseen by former Supreme Court judge, Justice R.V. Raveendran, to examine allegations that the Centre used Israeli software Pegasus to spy on citizens. Stressing that the power of the state to snoop into the ‘sacred private space’ of individuals in the name of national security is not absolute, the Court pointed out that the gnawing fear of being spied on can affect the way an individual decides to exercise his or her rights resulting in self-censorship.
The Court also highlighted how the government had refused to take a clear stand regarding the allegations citing national security concerns. Castigating such a defense, the Court opined that the state did not get “a free pass every time the spectre of national security is raised… National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.”
Expert speaks
“There is an absolute lack of safeguards under this Bill. It is not as if the central government cannot have the power to notify a person to inspect, intercept, open, or detain a postal item. The issue is that there is a lack of the usual requirements that accompany such interception orders such as reasons to be recorded in writing — why is it being done? There needs to be a justifiable reason”, says Apar Gupta, lawyer and founding director of Internet Freedom Foundation (IFF).
Mr. Gupta points out that these kinds of safeguards are present under Rule 419A of the Indian Telegraph Rules, 1951 which governs the interception of electronic telecommunication. He adds that such interception orders also have to satisfy the requirements of necessity and proportionality propounded in the Puttaswamy judgment.
Highlighting how the Bill encourages state surveillance, he asserts, “We must also remember that the issue is that the interception provision is tied to the provision of services and these services include citizen delivery services. For instance, people who need to enroll for electoral cards or obtain police verification will avail of such postal services. So there is a possibility of state surveillance because there are no safeguards at all — even orders in writing are not needed any longer.”
