On December 24, 2023, the President of India gave assent to the Post Office Bill, 2023 which will replace the colonial-era Indian Post Office Act, 1898, as and when a notification to this effect is issued by the central government. During the debate in the Parliament, the Opposition expressed fears about the provision on unchecked powers of interception of any item by the post office authorities, including the conditions of such interception, i.e., (occurrence of any) ‘emergency’ which is not defined under the Act. Another point is that there are also no procedural safeguards in the Act to check arbitrary use by the authorities or any liability in case the power of interception is misused.
Interception under central Acts
On December 24, the Telecommunications Bill, 2023 also received the President’s assent which will replace two Central acts namely; the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933. The Telecommunication Act has a provision, i.e., section 20(2) on interception of messages, which is similar to section 5(2) of the Telegraph Act of 1885 except that the contents of section 7(2)(b) of the Act of 1885 which empower the central government to notify rules on the precautions to be taken for preventing the improper interception or disclosure of messages are now included in section 20(2). Apparently, unless such procedure and safeguards are prescribed, section 20(2) cannot be brought into operation. This is significant because though the 1885 Act provided for making rules, the relevant rule (section 419A) was notified only in March 2007.
Section 69(1) of the Information and Technology (IT) Act, 2000 also provides for interception of any information through any computer source, though the necessary requirement does not call for the occurrence of ‘any public emergency’ or any demand in ‘the interest of public safety’ as provided for in the Telegraph Act or in the Telecommunication Act. Thus, the scope of interception under the IT Act is wider. Though the Act provides for ‘the procedure and safeguards’ to be prescribed by the central government, the necessary rules were notified only in October 2009.
The interception of phones under the Telegraph Act continued without any procedural safeguards in place till the Supreme Court of India, in People’s Union for Civil Liberties (PUCL) vs Union of India (1996), laid down the procedure and safeguards to check arbitrariness and a misuse of powers by authorities. The Court held that telephonic conversations are often of an intimate and confidential character and, since phone tapping is an infringement of the right to freedom of speech and expression under Article 19 of the Constitution, it is permissible only if it comes within the grounds of restrictions under Article 19(2). The Court also held that since the right to privacy is a part of the right to life and personal liberty, under Article 21 of the Constitution, it cannot be curtailed ‘except according to procedure established by law’. Also, ‘the procedure itself must be just, fair and reasonable’ ‘to rule out anything arbitrary, freakish or bizarre’.
Since no rules were notified by the central government under section 7(2)(b) of the Telegraph Act by then, the Court laid down procedural safeguards which remained in operation till March 2007 when the central government amended the Telegraph Rules, 1951 and notified Rule 419A. This rule not only replaced the Court’s directives but also made some space for interception in ‘emergent cases’ (in remote areas or for operational reasons) up to a maximum seven days when obtaining prior directions for interception is not feasible; thus, there was a further delegation of the powers of interception to the law enforcement agencies, such as to the ranks not below the Inspector General of Police at the State level.
The Court also elaborated upon parameters to comprehend the occurrence of ‘public emergency’ and ‘public safety’, and clarified that unless one of these two conditions is met, interception cannot be resorted to, no matter howsoever necessary or expedient it might be in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence. The central government also prescribed similar procedure and safeguards for interception under the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
Apprehensions about interception
While Rule 419A is likely to be replicated under the new Telecommunication Rules, the newly enacted Post Office Act does not make any provision for the procedural safeguards to dispel the fears of misuse of the substantive provision on interception.
The fact remains that the post office mostly transports items such as letters and postcards which are essentially of confidential nature. The Supreme Court in District Registrar and Collector, Hyderabad versus Cana Bank (2005) held that the right to privacy is not lost as a result of confidential documents or information being parted with by the customer to the custody of a bank. Therefore, the right to privacy is not lost if some personal items are entrusted to the post office for correspondence. The Court has also held in many judgments that the right to privacy imposes a requirement of a written recording of reasons before a search is and seizer could be carried out. More specifically, the Bombay High Court in Communist Party of India (Marxist), Maharashtra Unit vs Commissioner of Police, Greater Bombay (1995) held that though section 26 of the Indian Post Office Act, 1898 does not in explicit terms require recording of reasons by Central Government or State Government or the specially authorised officer, such a requirement is implicit in it view of the nature of the power conferred by it to remain as a minimal safeguard against arbitrary exercise of this drastic power. This directive was issued by the Court despite the fact that the constitutionality of section 26 was not under challenge.
In Justice K.S. Puttaswamy (Retd.) & Anr. vs Union of India & Ors. (2017), the right to communication has been held to be a part of the right to privacy and thus protected under Article 21 of the Constitution. Article 17 of the International Covenant on Civil and Political Rights, 1966, to which India is a party, says that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence nor to unlawful attacks on his honour and reputation’. According to Directive Principle 51(c) of the Constitution, international conventions must be respected unless they are in conflict with domestic laws.
In fact, ‘the right of every citizen to the secrecy of his correspondence’ was included in (clause 9(d)) of the draft report of the Sub-committee on fundamental rights. But this clause was eventually dropped on the ground that this might lead to practical difficulties in administration of the Posts and Telegraph Department and the relevant laws (the Indian Post Office Act, 1898 and the Indian Telegraph Act, 1885) permit interception of communication sent through post, telegraph or telephone only in specified circumstances. Similar was the fate of another clause 10 on searches and seizure also. But the Supreme Court, in Puttaswamy, observed that the Constituent Assembly had not expressly resolved to reject the notion of the right to privacy as an integral element of the liberty and freedoms guaranteed by the fundamental rights.
Therefore, the fears of misuse must be allayed by the central government with regard to the Post Office Act to circumvent intervention by the constitutional courts in future. This Act has made the interception provision more liberal by removing the two major conditions, namely ‘the occurrence of public emergency’ and ‘in the interest of the public safety’ which are specifically mentioned in the Act of 1898. As there is no provision with regard to procedural safeguards, any interception of items by the post office intrudes into the privacy of an individual and, therefore, must be backed by a just, fair and reasonable procedure. Also, the term ‘emergency’ being vague, it must draw inference from rule 419A of the Telegraph Rules or the IT Rules which clarify what constitutes the ‘emergent’ cases.
Consequences of unauthorised interception
Second, though a telegraph officer may be punished for any unauthorised interception under section 26 of the Telegraph Act, there is no provision for taking any action if the competent authority exceeds or misuses his powers of interception. This seems problematic because the interception documents are destroyed after a certain period of time. Similarly, though unauthorised interception is punishable under the Telecommunication Act, review committees are not bound even to recommend any disciplinary action for misuse of powers by the competent authority. The review committee may only set aside the order of interception and may issue orders for destruction of records. Therefore, the competent authority needs to be held accountable for any wilful misuse of interception powers, without the ‘good faith’ clause coming to their rescue. Otherwise, in case of infraction of the right to privacy under these statutes, relief (including compensation) could only be sought from the constitutional courts.
R.K. Vij is a former Indian Police Service officer. The views expressed are personal