Preserving Constitutional Balance: The Imperative of Procedural Safeguards in Exercising the Powers of Interception

The Parliament of India on 18th December, 2023 passed the The Post Office Act, 2023 (the Act) repealing the colonial era Indian Post Office Act, 1898 (the Old Act). Section 9 of the act gives the Central government unfettered power to intercept any item transmitted through India Post (the Central Government-operated postal service). This blog post argues that there is a need to clarify the definitions, place adequate procedural safeguards, and prescribe explicit rules in the act to achieve its purpose and prevent arbitrary interceptions and disposal of articles.

Parliament of India. Photo: PTI.

Ramifications on fundamental rights

 

Section 9 lacks procedural safeguards because it does not define the rank of the officer authorized to intercept, open, or detain any item/article in the course of transmission. The term ‘any officer’ is vague and a duly authorised officer should be specifically mentioned. Further, the grounds mentioned for the same don’t comprehensively define what constitutes “security of the State, friendly relations with foreign states, public order, emergency, or public safety or upon the occurrence of any contravention of any of the provisions of this Act or any other law for the time being in force”. It does not stipulate what constitutes as an “emergency” and the other grounds are also wide enough to easily allow interception of any item that is against Article 19(1)(a) (freedom of speech and expression) and Article 21 (right to privacy under the ambit of the Protection of life and personal liberty).

The Hon’ble Supreme Court in  PUCL v. The Union of India held that it is necessary to lay procedural safeguards like a just, fair, and reasonable procedure to regulate the powers of interception. The court laid down safeguards like getting authorization from high-ranking officials, ensuring other means have been exhausted to acquire information, establishing necessity and limiting the validity of the interception orders, and maintaining a record of interception disclosed by intercepting communication. In the case of Shreya Singhal v. Union of India, the Supreme Court reiterated its stance by striking down a provision as unconstitutional which it found to be arbitrary, excessive, and disproportionate for restricting the fundamental right of speech and expression.

Moreover, this section also breaches the right to privacy, recognized as a fundamental right under Article 21 of the Indian constitution by the Apex Court in the  K.S. Puttaswamy and another v. Union of India case. The Court established comprehensive guidelines stipulating that interference with the right to privacy is permissible only when grounded in legality, pursuit of a legitimate goal, sustainability, necessity, proportionality, and the incorporation of procedural safeguards. Section 9 fails on the front of proportionality and incorporation of procedural safeguards like lacking a basic requirement of recording reasons in writing by the authorized officer when intercepting any item which was present under Section 26 of the Old Act which also dealt with interception of items.

Section 9(2) also gives the Central government power to dispose of any item “in such manner as it deems appropriate.” The manner prescribed is very ambiguous and needs to be specified and a notice should be given to both the receiver and the sender about their item being disposed of because failing to do so violates principles of natural justice and due process of law.

Under Section 10, the Officers shall not incur any liability in furtherance of any action with regards to any service provided by the Post office, as may be prescribed {by the Rules} or unless the Officer has acted fraudulently or has wilfully caused loss, delay, or mis-delivery of service. There is a clear conflict of interest in the Central government deciding the rules prescribing liability. And in cases of misconduct, no offences and penalties have been specified. This inaction will encourage rampant misuse of powers by the Officers.

Thus, there is a need to provide procedural safeguards in matters relating to interception and disposing of items/articles. The Act should specify the restrictions on the powers of the Officers. There also needs to be a grievance redressal mechanism for citizens where they can appeal actions of interception. The lack of such requirements will reduce the trust the common people have in the century-old Indian Postal Services.