On December 24, 2023, the President of India gave assent to the Submit Workplace Invoice, 2023 which is able to change the colonial-era Indian Submit Workplace Act, 1898, as and when a notification to this impact is issued by the central authorities. Throughout the debate within the Parliament, the Opposition expressed fears in regards to the provision on unchecked powers of interception of any merchandise by the publish workplace authorities, together with the circumstances of such interception, i.e., (prevalence of any) ‘emergency’ which isn’t outlined beneath the Act. One other level is that there are additionally no procedural safeguards within the Act to verify arbitrary use by the authorities or any legal responsibility in case the ability of interception is misused.
Interception beneath central Acts
On December 24, the Telecommunications Invoice, 2023 additionally obtained the President’s assent which is able to change two Central acts specifically; the Indian Telegraph Act, 1885 and the Indian Wi-fi Telegraphy Act, 1933. The Telecommunication Act has a provision, i.e., part 20(2) on interception of messages, which is analogous to part 5(2) of the Telegraph Act of 1885 besides that the contents of part 7(2)(b) of the Act of 1885 which empower the central authorities to inform guidelines on the precautions to be taken for stopping the improper interception or disclosure of messages are actually included in part 20(2). Apparently, except such process and safeguards are prescribed, part 20(2) can’t be introduced into operation. That is important as a result of although the 1885 Act offered for making guidelines, the related rule (part 419A) was notified solely in March 2007.
Part 69(1) of the Data and Expertise (IT) Act, 2000 additionally supplies for interception of any data by any pc supply, although the mandatory requirement doesn’t name for the prevalence of ‘any public emergency’ or any demand in ‘the curiosity of public security’ as offered for within the Telegraph Act or within the Telecommunication Act. Thus, the scope of interception beneath the IT Act is wider. Although the Act supplies for ‘the process and safeguards’ to be prescribed by the central authorities, the mandatory guidelines have been notified solely in October 2009.
The interception of telephones beneath the Telegraph Act continued with none procedural safeguards in place until the Supreme Court docket of India, in Individuals’s Union for Civil Liberties (PUCL) vs Union of India (1996), laid down the process and safeguards to verify arbitrariness and a misuse of powers by authorities. The Court docket held that telephonic conversations are sometimes of an intimate and confidential character and, since cellphone tapping is an infringement of the proper to freedom of speech and expression beneath Article 19 of the Structure, it’s permissible provided that it comes throughout the grounds of restrictions beneath Article 19(2). The Court docket additionally held that for the reason that proper to privateness is part of the proper to life and private liberty, beneath Article 21 of the Structure, it can’t be curtailed ‘besides in accordance with process established by regulation’. Additionally, ‘the process itself should be simply, honest and affordable’ ‘to rule out something arbitrary, freakish or weird’.
Since no guidelines have been notified by the central authorities beneath part 7(2)(b) of the Telegraph Act by then, the Court docket laid down procedural safeguards which remained in operation until March 2007 when the central authorities amended the Telegraph Guidelines, 1951 and notified Rule 419A. This rule not solely changed the Court docket’s directives but additionally made some area for interception in ‘emergent circumstances’ (in distant areas or for operational causes) as much as a most seven days when acquiring prior instructions for interception shouldn’t be possible; thus, there was an extra delegation of the powers of interception to the regulation enforcement businesses, resembling to the ranks not beneath the Inspector Common of Police on the State degree.
The Court docket additionally elaborated upon parameters to grasp the prevalence of ‘public emergency’ and ‘public security’, and clarified that except considered one of these two circumstances is met, interception can’t be resorted to, regardless of howsoever vital or expedient it is perhaps within the pursuits of the sovereignty and integrity of India, the safety of the state, pleasant relations with international states or public order or for stopping incitement to the fee of an offence. The central authorities additionally prescribed comparable process and safeguards for interception beneath the Data Expertise (Process and Safeguards for Interception, Monitoring and Decryption of Data) Guidelines, 2009.
Apprehensions about interception
Whereas Rule 419A is more likely to be replicated beneath the brand new Telecommunication Guidelines, the newly enacted Submit Workplace Act doesn’t make any provision for the procedural safeguards to dispel the fears of misuse of the substantive provision on interception.
The actual fact stays that the publish workplace principally transports objects resembling letters and postcards that are primarily of confidential nature. The Supreme Court docket in District Registrar and Collector, Hyderabad versus Cana Financial institution (2005) held that the proper to privateness shouldn’t be misplaced on account of confidential paperwork or data being parted with by the client to the custody of a financial institution. Subsequently, the proper to privateness shouldn’t be misplaced if some private objects are entrusted to the publish workplace for correspondence. The Court docket has additionally held in lots of judgments that the proper to privateness imposes a requirement of a written recording of causes earlier than a search is and seizer could possibly be carried out. Extra particularly, the Bombay Excessive Court docket in Communist Celebration of India (Marxist), Maharashtra Unit vs Commissioner of Police, Better Bombay (1995) held that although part 26 of the Indian Submit Workplace Act, 1898 doesn’t in specific phrases require recording of causes by Central Authorities or State Authorities or the specifically authorised officer, such a requirement is implicit in it view of the character of the ability conferred by it to stay as a minimal safeguard in opposition to arbitrary train of this drastic energy. This directive was issued by the Court docket even if the constitutionality of part 26 was not beneath problem.
In Justice Okay.S. Puttaswamy (Retd.) & Anr. vs Union of India & Ors. (2017), the proper to communication has been held to be part of the proper to privateness and thus protected beneath Article 21 of the Structure. Article 17 of the Worldwide Covenant on Civil and Political Rights, 1966, to which India is a celebration, says that ‘nobody shall be subjected to arbitrary or illegal interference along with his privateness, household, dwelling and correspondence nor to illegal assaults on his honour and repute’. In keeping with Directive Precept 51(c) of the Structure, worldwide conventions should be revered except they’re in battle with home legal guidelines.
In actual fact, ‘the proper of each citizen to the secrecy of his correspondence’ was included in (clause 9(d)) of the draft report of the Sub-committee on elementary rights. However this clause was finally dropped on the bottom that this would possibly result in sensible difficulties in administration of the Posts and Telegraph Division and the related legal guidelines (the Indian Submit Workplace Act, 1898 and the Indian Telegraph Act, 1885) allow interception of communication despatched by publish, telegraph or phone solely in specified circumstances. Comparable was the destiny of one other clause 10 on searches and seizure additionally. However the Supreme Court docket, in Puttaswamy, noticed that the Constituent Meeting had not expressly resolved to reject the notion of the proper to privateness as an integral ingredient of the freedom and freedoms assured by the basic rights.
Subsequently, the fears of misuse should be allayed by the central authorities with regard to the Submit Workplace Act to avoid intervention by the constitutional courts in future. This Act has made the interception provision extra liberal by eradicating the 2 main circumstances, specifically ‘the prevalence of public emergency’ and ‘within the curiosity of the general public security’ that are particularly talked about within the Act of 1898. As there isn’t a provision with regard to procedural safeguards, any interception of things by the publish workplace intrudes into the privateness of a person and, subsequently, should be backed by a simply, honest and affordable process. Additionally, the time period ‘emergency’ being imprecise, it should draw inference from rule 419A of the Telegraph Guidelines or the IT Guidelines which make clear what constitutes the ‘emergent’ circumstances.
Penalties of unauthorised interception
Second, although a telegraph officer could also be punished for any unauthorised interception beneath part 26 of the Telegraph Act, there isn’t a provision for taking any motion if the competent authority exceeds or misuses his powers of interception. This appears problematic as a result of the interception paperwork are destroyed after a sure time frame. Equally, although unauthorised interception is punishable beneath the Telecommunication Act, evaluate committees aren’t certain even to advocate any disciplinary motion for misuse of powers by the competent authority. The evaluate committee could solely put aside the order of interception and should subject orders for destruction of information. Subsequently, the competent authority must be held accountable for any wilful misuse of interception powers, with out the ‘good religion’ clause coming to their rescue. In any other case, in case of infraction of the proper to privateness beneath these statutes, aid (together with compensation) might solely be sought from the constitutional courts.
R.Okay. Vij is a former Indian Police Service officer. The views expressed are private
