Post Office Act, its unbridled powers of interception

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CategoryPolity

Last Updated23/01/2024

Recently, the President of India gave assent to the Post Office Bill, 2023 replacing the colonial-era Indian Post Office Act, 1898.
The opposition expressed concerns, particularly about unchecked powers of interception by post office authorities.

The Telecommunications Act, 2023, replacing the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933.
The Act includes a provision (section 20(2)) on interception of messages, similar to the Telegraph Act 1885.
- Section 7(2)(b) of the 1885 Act empowers the central government to notify rules for preventing improper interception or disclosure of messages.
- It is now incorporated into section 20(2) of the Telecommunication Act.
There are concerns about the lack of prescribed procedures and safeguards for interception.

Section 69(1) of the Information Technology (IT) Act, 2000, also provides for interception (through any computer source) but with a broader scope compared to other acts.
- It does not mandate the occurrence of 'any public emergency' or any demand 'in the interest of public safety' as prerequisites for interception.
People’s Union for Civil Liberties (PUCL) vs Union of India (1996) case
The Supreme Court emphasized that phone tapping infringes on the right to freedom of speech and expression under Article 19 of the Constitution.
Legal Basis: Phone tapping is permissible only if it falls within the grounds of restrictions under Article 19(2).
Right to Privacy: The right to privacy, as part of the right to life and personal liberty under Article 21, cannot be curtailed except according to a just, fair, and reasonable procedure established by law.
Procedural Safeguards: In the absence of rules notified by the central government under section 7(2)(b) of the Telegraph Act, the Supreme Court laid down procedural safeguards.
Procedural safeguards were later included in the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

The Central government's amendment of the Telegraph Rules in 2007 introduced Rule 419A, which replaced the Court's directives.
Rule 419A allowed interception in 'emergent cases' in remote areas or for operational reasons, for a maximum of seven days, when obtaining prior directions for interception was not feasible.
Powers of interception were further delegated to law enforcement agencies, with authority given to ranks not below the Inspector General of Police at the State level.

The Court elaborated on parameters to determine the occurrence of 'public emergency' and 'public safety.'
Interception could only be resorted to if one of the conditions was met, irrespective of the perceived necessity or expediency for reasons such as sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, or prevention of incitement to the commission of an offence.

Lack of Safeguards
- The new Post Office Act lacks procedural safeguards, raising concerns about potential misuse of interception powers.
- The provisions regarding 'emergency' need clarification.
Right to Privacy
- Interception of confidential items like letters and postcards by the post office raises privacy concerns.
- The right to privacy, upheld by courts, imposes a need for just, fair, and reasonable procedures.
Accountability
- The competent authority needs to be held accountable for any misuse of interception powers.
- Existing legislation may not offer adequate remedies for individuals affected by privacy infringements.
Telegraph Act Amendments: While Rule 419A addressed procedural safeguards under the Telegraph Act, concerns persist about potential misuse.

The right to privacy must be respected, and a balance should be struck between security measures and individual liberties.
Clarifications on 'emergency' and procedural safeguards are crucial.
Accountability measures for competent authorities, without reliance on 'good faith' clauses, are necessary.