PUCL Bulletin July 1981

Know Your Rights
If Your Mail is Intercepted

In Orwell's "1984", Big Brother is forever snooping on the private citizen, following him, tapping his telephone or opening his mail. This can happen in a totalitarian State. But should we expect it in a democracy like India in 1981? And should the citizen accept government encroachment into his privacy and freedoms? These are no longer abstract questions.

On June 23, 1981, the Bangalore edition of the Indian Express published a copy of a secret communication dated March 16, 1981 from the D.I.G. (Intelligence) of Karnataka to all postmasters and sub-postmasters. This circular instructed them to intercept the mail of 35 persons in the state under the powers conferred by section 5(1) of the Indian Telegraphic Act of 1885, and section 26(1) of the Indian Post Office Act of 1893. It ordered that "in the interest of public safety all postal articles addressed to or by any of the thirty five persons whose names are contained in a list enclosed, or the telegraphic communication of such persons be intercepted or detained and disclosed or delivered to any officer authorised by the D.I,G. (Intelligence)".

The Karnataka Chief Minister, Mr. Gundu Rao, threatened to prosecute the Indian Express staff under the Official Secrets Act. Mr. G.M. Stephen, the Union Communications Minister, felt that mail interception was not only in order but a "Constitutional obligation on us."

The Delhi Administration has also passed similar orders against certain political activists. That other states have also passed similar instructions cannot be ruled out.

Though the order of the Karnataka Government is purported to have been passed under Section 5(1) of the Indian Telegraph Act, it deals only with the power of the Centre or the State Government to take possession of any telegraph. Section 5(2) of the Act, however, enables the Centre or a state government to act when any public emergency occurs or in the interest of public safety if it is necessary, in the interests of the sovereignty and integrity of India, for the security of State, to maintain friendly relations with foreign states or to preserve public order, or for preventing the incitement to commit an offence.

The reasons have to be recorded in writing. The order relates to specific categories: "any message or class of messages" to or from any person or class of persons, or "relating to a particular subject". Only these shall not be transmitted, or shall be intercepted or detained by the officer concerned and disclosed to the government.

Section 26(1) of the Indian Post Office Act also gives to the Centre or state governments the power to intercept only particular postal article or a class of postal articles.

It is, therefore, clear from an examination of the two provisions, under which the Karnataka Government has acted, that a general order under which all telegraphic or postal communications of certain persons are intercepted, is on the face of it without jurisdiction and authority of law.
It is also apparent that the order can be passed only during unusual times such as a Public Emergency or in unusual circumstances when there is a threat to public safety, used in the interest of the sovereignty and integrity of India, security of State, public order, friendly relations with foreign states or to prevent the incitement of the commission of any offence.

The decision of the officer of the Centre or the state government must be based on some real and substantive information about the alleged prejudicial activities of a person posing a threat to public safety. The two acts do not define the phrase "public safety". But the Post Office Act does state that if the concerned government certifies that it ordered the interception of mail in the interest of public safety, no further grounds are required.
A person's right of life and liberty guaranteed by Article 21 of the Constitution of India can only be deprived by a fair, just and reasonable process. Since Section 5 of the Telegraphic Act and Section 26 of the Post Office Act do not define the exact circumstances under which a person's mail can be opened, the power of interception by the government becomes arbitrary, making the process unfair, unjust and unreasonable. This violates Article 21.

Similarly, the interception of a person's telegraphic or postal communication violates his freedom of expression guaranteed by Article l9(1)(a). Since everyone's mail is not uniformly intercepted, it discriminates against him, which cannot be done under Article 14 of the Indian Constitution

Before the order is passed, the person whose mail is to be intercepted is neither given an opportunity to explain nor is he informed of the order and the reasons for it once it is passed. Even if the order is ex-facia illegal, without jurisdiction and without any basis, a person is not likely to know that such an order has been passed against him. A deprivation of liberty by an unfair process is therefore likely to continue. Since "public safety" is not defined or described, there is ample scope for the misuse of the provision. This renders it inconsistent with the requirements of "due process".

On the basis of the above points, an order so passed can be challenged. It can also be challenged on the grounds that it is not based on any objective and relevant materials, or based on non existent materials, or that the grounds mentioned are nowhere near covered by the Act. The fact that a person is a member of an opposition party or an organisation which does not agree with the policies of the party in power cannot make the person a threat to public safety. The order can be challenged on the basis of malafides.

We may, therefore, be unaware of the fact that our postal or telegraphic communications are being intercepted. If, however, a person suspects such a tampering or interception of his mail, then the remedy before him would be to file a petition under Article 226 or Article 32 of the Constitution, seeking a mandamus against the government to disclose in court if such an order exists against the person, to disclose the basis of such an order and to seek a writ in the nature of Certiorari to quash such an order.

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