PUCL Bulletin, June 1982

Mail and Telephone Censorship

One of the manifestations of the government's insecurity in relation to voices of dissent has been the increasing surveillance over citizens' mail and telephones. A vigilant section of the press has exposed the facts of the infringement and erosion of liberty. The Bangalore edition of the Indian Express published on June 6, 1981, a photocopy of an order seeking interception of a citizen's mail in Shimoga Districtt. Indian Today in a series of investigative stories thereafter published lists of citizen whose mail was being intercepted in Delhi.

Jagmohan, when he was Lt. Governor of Delhi, had in fact recommended the interception of mail and telephonic communications of political opponents of the present regime. This was resisted by the Secretary (Law and Judicial) of Delhi Administration, who questioned the legal validity of such a move. The Law Secretary was immediately transferred and a more pliant bureaucrat was brought in who gave a "favourable opinion" to the move.

In November 1980, mail interception in Delhi covered 172 persons including 12 MPs. The present Lt. Governor, S. L. Khurana, expanded the list to 312 persons including 26 MPs. In such an action valid? The earlier order of Jagmohan was extended for another six months. Though the original list of 172 persons who extended to 312, no special reason was given, in the case of the additional 140 persons now included as to why their mail should be intercepted.

The provisions of Section 5(2) of the Indian Telegraphic Act and hose of Section 26 (1) of the Indian Post Offices Act empower the Centre or State Governments to intercept telegraphic and postal communications on the occurrence of public emergency, or in the interest of public safety. The two acts were enacted in 1883 and 1898 respectively. But even these draconian laws, allow interception only in the event of a public emergency or when necessitated, in the interest of public safety. The activities of persons so affected must have a direct relationship to such a public emergency or public safety. Detailed reasons have to be specified. It is clear that in the case of the 140 persons, even these stipulations were discarded. No reasons were given. There was just a simple statement that the order of mail interception passed earlier was being extended to 312 persons. In fact, or there was no initial orders for the 140 persons, there is obviously no question of any valid extension.

The list has now been exposed. It indicates the gross misuse of the provisions of the law. Among others, it covers advocates, journalists, political workers, judges and government officials. Obviously, the activities of these listed could have no nexus either in the context of "public emergency" or in relation to "public safety".

In response to these violations, the PUCL presented a petition to both houses of parliament on March 28, 1982 demanding the repeal of these draconian provisions. Carrying placards and banners protesting against this erosion of a citizen's liberty and privacy, PUCL members marched to the Boat Club Lawns in New Delhi where a protest rally was organised. Bhai Mahavir, Surendra Mohan and Inder Mohan were amongst those who addressed the rally.

These legislations were enacted to suit colonial interests. Since then administrative law has undergone a change. Legally, an order affecting the liberty of a citizen could not be passed without ensuring a hearing and the subsequent process of natural justice. This process has to be "just", "fair" and "reasonable". Not only does Section 5 of the Telegraphic Act and Section 26 of the Post Office Act, not meet the test of a just, fair and reasonable process, it also does not define what "public emergency" or "public safety" means.

The "public emergency" envisaged in these Acts differs from the emergency envisaged in Article 352 of the Constitution, which stipulates preconditions of either a threat of external aggression or internal disturbances. The Cabinet must then confer with the President who would sign the proclamation. The proclamation has to be ratified subsequently by Parliament. It is only after the declaration of emergency that a Presidential notification under Article 359 can suspend fundamental rights.

The Janata Government introduced the 44th Amendment which made Article 21 non-suspendable. However, under the Post Office Act and the Telegraphic Act, the liberty of a citizen which is now protected during an emergency, can be eroded by the officer empowered by a state or the Central government under these Acts. A certificate from the concerned officer is conclusive proof. There are no guidelines for the declaration of this "public emergency" and the power of the officer is unguarded and completely arbitrary.

The Acts clearly violate Article 21 (as they impose an unfair procedure of depriving a citizen's liberty), Article 14 (as they give arbitrary and unbridled authority which is liable to be misused) and Article 19(1) (a) (since they constitute an unreasonable restriction on a citizen's expression). Another crucial question is the right of privacy under the Indian laws.

Speaking for the majority in Kharak Singh Vs. State of U.P. (A.I.R.1963 SC. 1295) Justice Ayyangar said, "As already pointed out, the right of privacy is not a guaranteed right under our constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which his privacy is invaded, is not an infringement of a fundamental right guaranteed by Part III."

However, Justices Subba Rao and Shah speaking for the minority in Kharak Singh's case said, "Further, the right to personal liberty takes in not only a right to be free from restrictions places on his movements, but also free from encroachments on his private life. It is a fact that the Constitution does not expressly declare the right of privacy as a fundamental right, but this right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life, it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, in his castle, it is his rampart against encroachment on his personal liberty."

The Court, however, struck down surveillance by domiciliary visits (raiding the house at night) as violative of Article 19 (1) (d).

The Supreme Court again went into the question of a right of privacy in Govind Vs. state of M.P. (AIR 1975 SC 1378). The Court speaking through Justice Mathew held, "The right of privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, assuming that the right to personal liberty, the right to move freely throughout the territory of India and freedom of speech create an independent right of privacy which one can characterise as a fundamental right, we do not think that the right is absolute".

The Supreme Court further held in 'Francis Mullain vs. Union Territory of Delhi' (AIR 1981 SC 746) that the right of privacy includes the right to live with personal dignity. The right of life is not merely the converse of animal existence.

These precedents in Indian jurisprudence clearly indicate that the right of life and personal liberty has been greatly expanded. After the liberal interpretation to liberty in Maneka Gandhi's case, there is little doubt that ears-dropping telephonic communications or interception of mail adversely affect the right of privacy and personal dignity.

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