Editorial of the Day (22nd Jan): Post Office Act, its Unbridled Powers of Interception

Context: The newly enacted Act does not make any provision for procedural safeguards to dispel fears of misuse of the substantive provision on interception.

Key Issues Related To The Post Office Act

• Lack of Procedural Safeguards in New Legislation: The Telecommunications Bill, 2023, which replaces the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933, does not sufficiently address procedural safeguards for the interception of communications. This omission raises concerns about potential misuse and infringement on privacy rights.
• Broader Interception Scope: Compared to the Telegraph Act, the Post Office Act removes the requirements of “public emergency” or “public safety” for interception, potentially broadening the scope for unjustified interference.
• International obligations: India is a signatory to the International Covenant on Civil and Political Rights, which prohibits arbitrary interference with privacy and correspondence (Article 17)
  • Directive Principle 51(c) of the Constitution: The international conventions must be respected unless they are in conflict with domestic laws.
  • Lack of safeguards in the Post Office Act could conflict with this international obligation.
• Delayed Implementation of Safeguards: Historically, there has been a significant delay in notifying rules that provide procedural safeguards for interception under various acts, leaving periods where interception could occur without adequate oversight.

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Supreme Court Verdicts related to Post Office Act

• PUCL vs Union of India (1996): The Supreme Court mandated procedural safeguards to prevent arbitrary use of interception powers under the Telegraph Act. It emphasised that phone tapping infringes on the right to freedom of speech and expression (Article 19) and the right to privacy (Article 21).
• Registrar & Collector, Hyderabad vs Canara Bank (2005): The Court held that the right to privacy is not forfeited when confidential documents are entrusted to a third party like a bank, implying a similar right when using postal services.
• Justice K.S. Puttaswamy (Retd.) vs Union of India (2017): This landmark judgement recognized the right to privacy as a fundamental right under the Constitution, extending it to include the right to communication.

Consequences Of Unauthorised Interception

• Limited Deterrent Effect: The absence of consequences for misuse by competent authorities weakens the deterrent effect of legal penalties for unauthorised interception. This creates a risk of abuse of power and undermines public trust in the system.
• Lack of Transparency: The destruction of interception documents after a specific timeframe hinders transparency and accountability. Without proper records, it becomes difficult to track and investigate potential misuse, making it easier for authorities to escape responsibility.
• Ineffectiveness of Review Committees: The limited powers of review committees, mainly focusing on setting aside orders and destroying records, do not effectively address the issue of misuse. They lack the authority to recommend or impose disciplinary actions against the competent authority, allowing potential wrongdoing to go unpunished.
• Burden on Constitutional Courts: The absence of effective internal accountability mechanisms places a significant burden on constitutional courts to address grievances regarding interception and privacy violations. This can lead to delays, increased litigation costs, and inefficient resolution of cases.
• Erosion of Trust and Public Confidence: The lack of accountability for misuse can erode public trust in law enforcement and government agencies. Citizens may feel vulnerable and less protected when their privacy rights are not adequately safeguarded from potential abuse by authorities.

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