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Mahesh

22/01/24 07:14 AM IST

Post Office Act, its unbridled powers of interception

In News
  • Recently,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.
Interception under central Acts
  • 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.
Supreme court Judgement
  • 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’.
  • 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.
  • 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’.
Constitutional provisions
  • 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.
  • 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 & way forward
  • 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.
Source- The Hindu

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