Explained: The Post Office Act, 2023 and concerns about privacy infringement

The provisions and concerns

Section 9 of the Act, 2023 allows the Union government to, by notification, empower any officer to “intercept, open or detain any item” in the interest of state security, friendly relations with foreign states, public order, emergency, public safety, or contravention of other laws. This provision gives unbridled powers to government authorities, leading to concerns about potential misuse and infringement of individual privacy.

The change from "public emergency" to just "emergency" in the present Act compared to the 1898 Act might seem like a minor difference but it has significant legal implications. In the 1898 Act, the term has a higher legal threshold as it implies a more serious situation that threatens national security or public safety on a large scale. However, in the new act, the term is much broader and less defined: It could be interpreted to encompass a wider range of situations, potentially including less serious events.

The Supreme Court in the Hukam Chand vs Union of India (1976) observed that the term ‘public emergency’ is not explicitly defined in the statute but its scope is inferred from the context of the section. The phrase ‘occurrence of any public emergency’ is connected with ‘public safety,’ wherein, these two phrases appear to take colour from each other and concern issues like the sovereignty and integrity of India, state security, foreign relations, public order, and preventing incitement to offences. The authority must form an opinion on the occurrence of a ‘public emergency’ considering these factors to take appropriate action.

The Supreme Court in The Communist Party of India (Marxist), Maharashtra Unit and Another vs Commissioner Of Police, Greater Bombay and Another (1994), while relying on the above-mentioned judicial pronouncement, held that the above decision of the top court would squarely apply to the interpretation of Section 26 of the 1878 Act. Similarly, the expression “in the interest of public safety or tranquillity” will take its colour from the expression “occurrence of public emergency.” The resort can also be had to the doctrine of ‘necittur a sociis’ (knowing with the association), which says that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. Under this doctrine, the meaning of questionable or doubtful words may be ascertained by reference to the other words or phrases associated with it.

In another case, the Supreme Court in PUCL vs Union of India (1996) observed that a just and fair procedure must exist to regulate the power of interception. In the absence of any procedure, it would not be possible to safeguard the citizen’s rights enshrined under Article 19(1)(a) as well as Article 21 of the Constitution of India.

Not only this, but Section 10 of the new act exempts the Post Office and its officer from “any liability by reason of any loss, misdelivery, delay, or damage in course of any service provided by the Post Office,” except such liability as may be prescribed. This section further limits the accountability of the postal service, leaving citizens with limited recourse in case of grievances.

In the case of Dr Ravi Agarwal v. Speed Post, Rajasthan University, (2019), the National Consumer Disputes Redressal Commission (NCDRC) observed that the person who sent a speed post is a consumer under the Consumer Protection Act, 1986 as he had paid the charges for the same. Section 6 of the Act, 1898 will not give immunity to the department or the employee if an employee is found delinquent in his duty if an inquiry is done, whereas in the present case, the department has not conducted any inquiry though it was possible to conduct such an inquiry as the complaint was received when the records were not weeded out.

Also, Section 6 of the 1898 Act specifies that its exemption does not apply when the Central Government has explicitly undertaken liability. In the case of speed post, the government assumes responsibility for timely delivery and refunds if items are not delivered, misdelivered, or delayed. Therefore, this section does not apply to issues related to the deficiency in the delivery of speed post articles.

As per Section 7(2) of the Act, 2023, “If any person refuses or neglects to pay the charges referred to in subsection (1), such amount shall be recoverable as if it were an arrear of land revenue due from him.” Despite the government's claims of improving citizen-centric services, the present Act appears to grant the Post Office broad powers to recover dues from users, even when the quality of service remains questionable.

Challenges

India Post's challenges are not limited to the draconian provisions of the Act, but also the lack of a clear regulatory framework to ensure fair competition, consumer protection, and data privacy in the evolving postal and courier services industry (Janakiraman, 2006). The Supreme Court in Justice K.S. Puttaswamy (Retd.) & Anr. vs Union of India & Ors. (2017) observed that the right to communication is a part of the right to privacy and thus, it is protected under Article 21 of the Constitution.

As highlighted by Bhandari and Sane in a paper titled “Towards a Privacy Framework for India in the Age of the Internet”(2016): “Concerns of privacy also exist in the private sector, with the advent of big data rendering obsolete many of the traditional methods of de-identification. These concerns assume an increased importance in light of the outsourcing industry in India, which makes it all the more important for companies to adopt privacy policies that focus on the security of the personal data.”

In conclusion, while the present Act aims to modernise India Post, the absence of robust safeguards and the retention of draconian provisions from the colonial era raise significant concerns. The lack of safeguards in the new Act could enable the government to conduct mass surveillance of citizens and undermine the right to privacy. The lack of specific criteria for invoking powers allows for subjective interpretations by authorities, potentially leading to misuse.

Consequently, citizens may be discouraged from using the postal system for fear of their communications being intercepted. Further, the Act does not specify procedures for interception or notification to the sender if their item is detained and lacks clear mechanisms to hold authorities accountable for misuse of these powers.

Addressing these issues and aligning the Act with the principles of privacy, accountability, and citizen-centricity will be crucial for ensuring the successful transformation of India's postal services.

Sanya Singh is a practising lawyer based out in New Delhi. She pursued a B.A. LL.B. (Hons.) from NUSRL, Ranchi and holds a keen interest in civil and commercial litigation.