The Post Office Amendment Bill, 2023 was recently introduced in the Rajya Sabha during the special session of Parliament. The Bill proposes to replace the Indian Post Office Act of 1898, which was enacted to consolidate and amend laws relating to post offices in India, as over a period of time, postal services have been offering diversified services like financial and courier services.

The Bill provides that the Central government can empower a postal officer to intercept, open or detain any postal article on the grounds of security of State, friendly relations with foreign states, public order, emergency or public safety [Section 9 of the Bill]. The provision also states that post officers have the power to hand over postal articles received from domestic or international sources to customs authority on the ground of mere suspicion of duty evasion.

Further, the Bill provides an exemption to the postal officer from any liability that may arise by reason of loss, misdelivery, delay or damage unless it is proved that they have acted fraudulently or willfully caused the loss, delay or misdelivery [Section 10 of the Bill].

The potential implications of this Bill are concerning, as it allows the authority to arbitrarily scrutinize and seize postal articles without concrete evidence. Also, the exemption granted to postal officers from liability for any mishaps during the delivery process undermines the accountability and efficiency of the postal services. The Bill thus incites serious doubts with regard to the privacy of citizens and the efficiency of postal services.

Big Brother syndrome

The Bill fails to specify the procedure that has to be followed by postal officers to intercept, open or detain a postal article. The grounds specified for interception are so vague that the government can bring in anything and everything under the same. Thus, it confers unlimited power on the Central government and postal officers. Further, non-prescription of penalty for opening postal articles against the provisions of the Bill can have severe implications on the right to privacy of stakeholders. Hence, it is in clear violation of freedom of speech and expression [Article 19 (1) (a)], the right to privacy (Article 21) and subsequent violation of the right to equality (Article 14) under the Constitution of India. The Bill also doesn't specify any objective as such to intercept, open or detain it is thus arbitrary and unreasonable and can lead to discriminatory and arbitrary application.

Thus, the lack of transparency and accountability in the process of intercepting and opening communications raises concerns about potential misuse and abuse of power by authorities. Without clear guidelines and checks and balances, there is a risk of targeting individuals or groups based on personal or political biases. This not only undermines the principles of democracy, but also creates an environment of fear and surveillance, inhibiting the free exchange of ideas and opinions.

Absolute exemption

The Bill also exempts the liability for lapses of postal officers and confers the power to prescribe liability through rules framed by the Central government, which administers the postal department. This indeed can open the way for abuse as the party empowered to impose such rules is an interested party. Though it prescribes liability for postal officers who are acting fraudulently or willfully causing loss, delay or misdelivery, the consequence of such action is not provided in the Bill. This dilutes the provisions of the earlier Act of 1898 which prescribed for imprisonment, fine or both in the above cases.

The Bill, like the 1898 Act, exempts the application of the Consumer Protection Act, 2019. Further, there is no intelligible differentia between other commercial services like Railways which provides a mechanism for addressing complaints of those who avail of its services. This leads to further violation of Article 14 of the Constitution as the provision of the Bill with regard to liability is arbitrary and vague in nature.

This lack of clarity and consistency in the Bill's provisions raises concerns about its constitutionality.

Arbitrariness: An antithesis to the Rule of Law

In the landmark judgment of EP Royappa v. State of Tamil Nadu, the Supreme Court observed,

“...State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and is hit by Article 14…”

Further, in the case of DS Nakara v. Union of India, the apex court observed that even in the absence of any relation that can be drawn with a similar situation or person, an action that is per se arbitrary is violative of the second part of Article 14 of the Constitution of India. The Supreme Court, in the case of Maneka Gandhi v. Union of India, furthered the principle of non-arbitrariness wherein it held that the golden triangle - that is Articles 14, 19 and 21 of the Constitution - are inter-linked, as the principles of non-arbitrariness, reasonableness and due procedure of law are closely related to one another, and violation of one can lead to subsequent violation of others. Thus, it can be observed that non-arbitrariness is essential to ensure the rule of law and that the Bill is in violation of Articles 14, 19 and 21 of the Constitution of India.

Beyond reasonableness

While the primary objective of the Bill should have been in the interest of those who avail postal services, the Bill has failed to ensure the fundamental rights of freedom of speech and expression and right to privacy as it does not prescribe any standards for interference by the State. Further, making the Bill not applicable to private courier services is in clear violation of the right to equality.

The absence of clear standards for State interference in the Bill raises concerns about the potential misuse of power by the authorities. Without specific guidelines, there is a risk of arbitrary actions that could curtail citizens' freedom of speech and expression. Additionally, the lack of a liability framework for postal officers and the exclusion of private courier services from the scope undermines the principle of equality before the law. These flaws indicate that the Bill exceeds the reasonable restrictions allowed under the Constitution of India, jeopardizing the fundamental rights of citizens.

Arjun Philip George is a Research Scholar, Central University of Kerala and Assistant Professor, VIT School of Law, Chennai.