Analysing the Post Office Bill, 2023 (GS Paper 2, Governance)
Why in news?
- Recently, the Parliament passed the Post Office Bill, 2023, that seeks to replace the colonial-era Indian Post Office Act, 1898.
- 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.
What are the key features of the Bill?
- The Post Office Bill, 2023 allows the interception of articles transmitted via post on grounds such as the security of the state, friendly relations with foreign states, public order, emergency, public safety, or contravention of the provisions of the Bill or any other laws.
- The officer-in-charge appointed by the Union 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 a manner it deems appropriate.
- The Union government by notification can also 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 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.
- There are also 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 contained 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.
Key Issues and Analysis:
- The Bill does not specify procedural safeguards for interception of articles transmitted through India Post. Lack of safeguards may violate freedom of speech and expression, and right to privacy of individuals.
- The grounds for interception include ‘emergency’, which may be beyond reasonable restrictions under the Constitution.
- The Bill exempts India Post from liability for lapses in postal services. Liability may be prescribed through Rules by the central government, which also administers India Post. This may lead to conflict of interest
- The Bill does not specify any offences and penalties. For instance, there are no consequences for unauthorised opening of postal articles by a postal officer. This may have adverse implications for the right to privacy of consumers.
What has been the history of the Bill?
- Similar to the ground of ‘emergency’ under the Bill, the 1898 Act permits interception on grounds 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 highlighted that a state of public emergency must be 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.
Permitting interception:
- A provision permitting interception was introduced earlier in the Indian Post Office (Amendment) Bill, 1986.
- It empowered the Union 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.
- While the Bill was passed by both Houses, former President Zail Singh neither assented nor returned the Bill to the Parliament for reconsideration (he demitted office in July 1987).
- As a result, the legislation remained in limbo and was withdrawn by the Vajpayee government in 2002.
What are the relevant Supreme Court rulings?
- In the People’s Union for Civil Liberties (PUCL) versus 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, it is not possible to safeguard the rights of citizens under Articles 19(1)(a) and Article 21.
Right to privacy:
- In the landmark verdict Justice KS Puttaswamy versus 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
- legality, the measure is authorised by statute;
- legitimate goal, the measure pursues a proper purpose;
- suitability, the measure takes meaningful steps towards achieving the proper purpose;
- necessity, the measure is the least rights-restrictive measure amongst equally effective alternatives; proportionality, the measure does not disproportionately impact individual rights; and
- procedural safeguards, the measure incorporates meaningful guardrails against possible abuse.
- Additionally, the Court had opined with respect to the Pegasus spyware scandal 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.”
Criticism:
- Several members of the Opposition have vociferously criticised the Bill, saying that despite promising to update the Colonial law, it keeps the most draconian provisions that it contained.
