The new law has been criticised by legal experts and parliamentarians for being “very vague” and ‘bolstering’ the government’s interception powers. President of India Droupadi Murmu gave her assent to the new Post Office Bill, 2023 on 24 December 2023. This Act, they say, can be used for surveillance of citizens since it allows the central government to empower officers to intercept, open or detain any item sent via India Post in the interest of public safety or national security.
The new Act aims to regulate the functioning of post offices under the government’s Department of Post. This includes India Post, which provides services such as delivery of mail, banking, and insurance. Since the bill is now an act, the Centre will frame rules for its implementation.
The Post Office Bill, 2023, seeking to replace the more than a century-old Indian Post Office Act, 1898, was introduced in the parliament earlier this year in August. The Rajya Sabha passed it on December 4, and the Lok Sabha two weeks later amid record suspension of Opposition MPs in both houses. To date, at least 146 parliamentarians, a record, have been suspended in this winter session amid escalating tension in the house.
This winter session saw the government introduce and pass laws like the Telecommunications Act, key reforms to criminal laws and the Post Office Act which has a significant impact on citizens’ lives. Opposition MPs termed the record suspension a “murder of democracy”, as the BJP, the ruling party at the Centre, pushed ahead with contentious legislations that have caused alarm among sections of society.
BOOM spoke to legal experts who raised concerns over provisions dealing with interception in the Post Office Act, 2023.
“It sort of opens avenues to quell free speech,” advocate Arjun D’Souza, Legal Counsel at SFLC.in, said while referring to the provisions on interception and disposal of post in the Act.
Vague grounds for interception
Aam Aadmi Party (AAP) MP Raghav Chadha said the grounds for interception that are listed in the new law are “very vague”. This can be used for surveilling citizens, he said.
D’Souza said the Act allows the Central government to empower officers to open up and check any postal message that is transmitted on grounds like national security, friendly relations with foreign states, public order, emergency etc.
It is pertinent to point out that interception laws were there in the old Act as well.
Congress MP Shashi Tharoor said, “These are strikingly vague grounds and can be construed to cover anything that our government doesn't like”. Through this, he said, the government could get “arbitrary powers to spy on Indians by rummaging through their private correspondence and their shipments”.
Grounds on which interception can be done include things like ‘in the interest of public order’, which are “very wide words but they have also been interpreted in various (court) judgements,” said advocate Anirban Sen, while speaking to Boom. “If the rules for interception become too wide, they would allow for arbitrariness,” he added.
Does the new Act violate privacy?
The provisions of the new Post Office Act ignite a debate on security vs privacy raising questions as to what extent is government interference in terms of interception and surveillance acceptable in the name of security.
YSRC MP Dr. B. Venkata Satyavathi supported the new law saying that the government’s interception powers will help in “countering illicit smuggling and unauthorised transportation of drugs and contraband products”. Sen, though pointing out that the law could allow for arbitrariness, agreed that interception powers are needed by the government to a certain extent.
Lalit Panda told BOOM that “actually the Bill (now an Act) doesn't itself interfere with privacy i.e. it does not itself cause the information to be collected/accessed.”
“[But] On a facial reading, it looks like it is an inadequate implementation of the Puttaswamy test, which requires that measures interfering with informational privacy be "necessary and proportionate" to a legitimate aim,” Panda, a Senior Resident Fellow (Charkha) with Vidhi Centre for Legal Policy, said.
Panda also said that “purpose specification” is required for interception in modern data protection laws. If the purpose of interception is not clearly specified, then access obtained for one purpose (eg. in the interest of national security) can be used to collect evidence for another purpose (eg. money laundering), he explained.
D’Souza said, “The clauses relating to interception can cause an infringement of the right to privacy as stipulated by the court in Puttaswamy.”
It is important to note that such interception provisions have surfaced in the recent legislations governing communication and broadcasting as well. (See Telecommunications Bill, 2023 (now an Act) and the draft Broadcasting Services (Regulation) Bill, 2023).
Missing provision for penalties “problematic”
Advocate Anirban Sen said the fact that penalties are missing in the new Act is “problematic”.
“The old Act had a bit of a balance in terms of when you could open and inspect it (postal articles), and when you could not. There were various reasons for which you could do it, and if you went out of those reasons, a penalty was there and it was statutorily prescribed”, Sen told BOOM.
Tharoor said that the “colonial law was far more accountable to the Indian people than this new law which is presented to us”.
Tharoor said, “The illegal opening of postal articles by a postal officer was punishable with imprisonment for up to 2 years or a fine or both (in the older law). In stark contrast – under this bill (now an Act)…, there's no repercussion for such a flagrant violation of our right to privacy”.
Transgressions like ‘theft, misappropriation, destruction of postal articles by an employee of India Post’ were also punishable offences in the older law, Tharoor added.
It is important to note that several such punishments under the older law were omitted by The Jan Vishwas (Amendment of Provisions) Act, 2023, according to PRS Legislative Research.
D’Souza highlighted how under the new Act, the liability of officers of the post office has been limited to only those acts that are ‘fraudulent or willfully causing delay or loss or misdelivery’ while Tharoor pointed out that “the people of India are not entitled to compensation should they incur any loss or damage owing to the post office's negligence (under the new Act).”
Interception Process: No mention of a requirement for a written order
“Critique of the Post Office Bill, 2023 (now an Act) is indeed deserving for the removal of the requirement of a written order to inspect, intercept and detain items as is at present contained under Section 26 of the Indian Post Office Act, 1898,” Advocate Apar Gupta said on X (formerly Twitter).
Union Minister of Communications, and Information and Technology Ashwini Vaishnaw told the parliament that the procedure on how interceptions would be carried out will be introduced through the rules, which will be submitted in the house. He also said that it will be “very fair and transparent”.
Gupta pointed out that the older law was spread over 77 sections and the new law contains merely 16 sections. “How has this feat been managed? Simply, by shifting all the legislative text to rulemaking that can be done by the executive branch. This would be fine, but there is the lack of any anchoring criteria in the Post Office Bill, 2023 (now an Act),” he said.
Sen says “Anything which goes into the fundamental rights of the citizens, I believe, should definitely be a part of the Act and the rules must be very specific to that extent”.
During the debate in the Parliament, Tharoor said the Supreme Court laid down several safeguards to regulate powers of interception which include guidelines like: “establish the necessity for interception, limit the validity of interception orders, authorization is required from high ranking officials, and (...) interception orders are to be examined by a Review Committee.”
Government’s powers to dispose of postal articles
The Central Government may cause intercepted items “to be disposed of in such manner as it deems appropriate,” the new Act says.
This essentially gives the central government room to “dispose of such items as they wish to,” D’Souza said. “We do not know how the central government may cause this item to be disposed of, what is the meaning of disposed of, and who is the authority that will be carrying this out,” he added.
Sen said that the words “as it deems appropriate” could have been replaced with “as may be prescribed”, so a clear procedure is established in the future.
According to Tharoor, this could empower the central government to dispose of items that have “fallen foul of their ambiguous definition of what constitutes a threat to India's interest.” “This clause bolsters our government's power to intercept, detain or destroy our postal articles without being in any way accountable to the people of India,” he added.
No grievance redressal mechanism
“It (the new Act) also does not provide for any mechanism whereby the concerned citizen can even be informed of their correspondence or consignment having been intercepted and whereby they can contest India Post's decision to intercept, detain or destroy,” Tharoor said. “There is simply no grievance redressal mechanism in the bill (now an Act).”