PUCL Bulletin, May 1987
to Free Communication in Peril
Dr. George Mathew
By returning the Indian Post Office (Amendment) Bill 1898 to the Law Ministry for clarifications the President has added an edge to the vehement launched by Human Rights and Civil Liberties organisations, Opposition parties, intellectuals and news papers that the Bill was yet another infringement of freedom of citizens by the present government. The Opposition in the Rajya Sabha had staged a walk out towards the flag end of winter session when the ruling party's steam rolling majority passed the Bill. While the President gave his assent to the Bill providing for enhancement of postal rates, he has been delaying his signature to legalise interception of citizen's mail and he has finally withheld his assent. It was reported that the President considered this Bill as amoral because the Indian National Congress before Independence had opposed the British measure. President's action has made history for, it is the first time that a Bill has been sent back from Rashtrapati Bhawan for re-consideration. Certainly this will give a fillip to the ongoing debate on shrinking civil liberties and fundamental rights of citizen.
It is well known that Intelligence Bureau and Government officials used to snoop into the mail of selected individuals and organisations. The practice of mail censorship in our country had been exposed from time to time in the Parliament and outside. A former Member of the Posts and Telegraphs Boards, V. B. Arunachalam, had written in 1984 that a 'Postal Research Centre' has been functioning in Delhi. Even senior postal officials had no idea of the goings on there. This Centre carries out mail censorship with impunity under the control of the Intelligence Bureau.
The British being alien rulers had a basic mistrust of Indians. Therefore, it was natural that in those days when communication was mainly confined to correspondence, they incorporated the following provision, Section 26 of the 1989 Act:
"On the occurrence
of any public emergency, or in the interest of the public safety or tranquility,
the Central Government, or a State Government, or any officer specially authorized,
may, by order in writing direct that any postal article or class or description
of postal articles in course of transmission by post shall be intercepted or
detained or shall be disposed of in such manner as the authority issuing the
order may direct.
"(2) If any doubt arises as to the existence" of public emergency, or as to whether any act done under subsection (1) was in the interest of the public safety or tranquility, a certificate of the Central Government shall be conclusive proof on the point."
The present Bill modified this Clause legalising interception of mail by Independent India's government and enlarged scope of interception.
Concerned citizens had justifiably expressed regret that the government of free India had to bring forth a legislation to make British look more liberal. The present provision is that "the Central Government or the State Government or any officer specially authorised in this behalf by the Central or the State Government, may if satisfied that it is necessary ro expedient so to do in the interests of public safety or tranquillity, the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any offence, or on the occurrence of any public emergency, by order in writing, direct that any postal article or class or description of postal articles in the course of transmission by post, shall be intercepted or detained or shall be disposed of in such manner as the authority issuing the order, may direct".
There was a touch of comedy to the debate in the Rajya Sabha when the Bill was taken up on December 10, 1`986. The Minister of State in the Ministry of Communications, Shri Santosh Mohan Dev, introducing the Bill made a special mention of the Section 26 and said that it had been the endeavour of the government to completely modify this section so that it is more in conformity with the Fundamental Rights enshrined in Article 19 (2) of our Constitution. According to Shri Dev, in the old Act there was no safeguard against the arbitrary use of the power to intercept mail by State authority. If the present amendment is effected, then the arbitrary power can be made justicable and thereby the court of Law can review any such decision on the part of the authorities delegated with "socially and politically important powers'.
Shri Atal Bihari Vajpayee had introduced a private member's bill to amend Section 26 in 1981. While discussing the bill the late Shri C. M. Stephen had given an assurance in the Lok Sabha in 1982 that a new bill would be brought by the Government incorporating Vajpayee's proposals. When Shri Mohan Dev told the Rajya Sabha: "I am now happy to say that this assurance the Bill by this House", it came as a shock to many and to Vajpayee himself for, the said Bill was diametrically opposed to the present one. In the statement of objects and reasons of 1981 Bill Mr. Vajpayee had stated that "in a democracy, liberty of an individual or an association of persons to express or exchange views or messages amongst themselves freely is inherent. Similarly, in a democratic society right of privacy is also respected and honoured. Section 26 of the Indian Post Office Act, 1898 was enacted in the nineteenth century by alien to out down civil liberties for its own designs. Instances of misuse of this provision still continue in free India."
Mr. Vajpayee quoted the instance of Mr. Gundu Rao government in Karnataka in 1981 using these provisions against certain political opponents, journalists and advocates. Besides, the mail of MPs, that of jounralists, and advocates, in the capital was also intercepted. The above practice runs counter to our concept of democracy, hence the Bill was introduced, says Vajpayee.
Mr. Vajpayee's Bill had provided for a panel of Retired High Court Judges presided over by a sitting Judge of a High Court to be satisfied beforehand the interception of mail of an individual or institution or association. And if any person is found to tamper with the mail, the Bill had provided for imprisonment for a period of six months. It was a strong logic to say that the Bill passed by the Parliament in December 1986 had fulfilled Mr. Vajpayee's wishes.
Opposition in the Parliament did put up a brave right. Prof. C. Lakshmana characterised the provision of intercepting letters as "the most obnoxious system". For L. K. Advani the amendment is continuation of Britisher's mistrust of Indian people and he could not divest it from the tapping of telephonic conversations. The observation of the Press Commission in 1980 that "tapping of telephones is a serious invasion of privacy; it is a variety of technological eavesdropping' was cited by him. For Dr. Bapu Kaldate it rang bells of emergency days.
Such a Bill has several consequences which have far reaching effect on Indian psyche and polity. Common people will lose faith in Government when they know that there is a possibility that their letters could be 'legally' opened by the Government. Many with sinister motives might look for alternative channels of communication in this age of communication revolution through technological wonders. Expression like interests of public safety or tranquillity, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order for preventing incitement to the commission of any offence, on the occurrence of any public emergency, have seemingly lost their meaning for people because they now know that these are invoked at the convenience of rulers and party in power for their own interest. Members of the Parliament had rightly raised the question: How can the integrity of the country be preserved by intercepting mailed inland letters when the present danger to country's integrity stems from far serious maladies.
The rise of terrorism and threats to the country's unity are seen as immediate causes for bringing this Bill. But it is part of good governance to realise that by merely passing draconian laws normalcy cannot be restored in crisis situations. If that were the case the various laws against terrorism and extremism would have led us to the garden of peace. Stringent laws are no substitute for political vision, Statesmanship and faith in our own people. Moreover, all governments have a tendency to misuse laws to contain politcal opponents and curtail democratic freedom. Questions are asked as to whether our society will gain in any way by giving more and more powers to intelligence agencies, police and departmental officials.
Right to free communication is central to all democracies and citizen's privacy is considered sacred. It should be impossible to tamper with this basic right. President Nixon had to give up his office for snooping into Democratic Party's headquarters for the purpose of getting information. In the Federal Republic of Germany the Basic Law of 1949 says "privacy of Posts and Telecommunications shall be inviolable". There are severe constraints t0o restrict this basic right.
India being a signatory to the International Covenant on Civil and Political Right we would have lost face before the U. N. Committee, which reviews implementation of the Covenant, had this bill become a law.
Article 17 of the Covenant says "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Interference with private
correspondence by any government is a crime. For the time being, at least we
are saved from the disgrace of being branded along with totalitarian regimes.
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