What does Bill do?

Postal Services comes under List I of the Seventh Schedule meaning that the Union has the exclusive right to make laws on Postal Services. Postal Services are given through the famed Indiapost.

The Act provides an exclusive privilege to the Union Government to be the only body engaged in the service of delivering posts; however the new bill does not provide such privilege. However, the exclusive privilege of issuing postage stamps is with the Post Office.

The Bill, through Section 3, delegates the power to the Union Government to decide on the services that a Post Office can provide. This is not the only case in which the power to make further law is given to the Union Government. Section 5 of the Bill states that the Union Government has the power to prescribe standards for addressing on the items, address identifiers. The Bill also empowers the Director General of the Post Offices to make regulations for carrying out the prescribed actions under the Act, with the prior approval of the Central Government. 

Power to Intercept

The Bill has, via Section 9, given the Union government power to empower any officer to cause any item in course of transmission by the Post Office to be intercepted, opened or detained in the interest of security of the state, friendly relations with foreign states, public order, emergency, or public safety or upon the occurrence of any contravention of any of the provisions of the Bill or any other law for time being in force. 

Cause for Concern

Section 9 of the Bill is the cause for concern –expressed by citizens and among the Opposition –both of whom have argued that the right to privacy is seriously threatened due to the powers given to the government to empower any officer to intercept and detain a postal communication.

This power is not new to the extent that any officer of the state/Central government who is authorised to do so, can direct that any postal article or class or description of postal articles in course of transmission by post to be intercepted or detained, under the existing Indian Post Office Act, 1898. However, the similarity between the colonial era Post Office Act and the independent 21st Century India’s act and the upgrades in terms of arbitrary powers granted to the officers is concerning.

While the 1898 Act assigns reasons of public safety, tranquillity and emergency as the reasons for the interception- one more reason, “public order” has also been added via the bill. The traditional and widely accepted restrictions on fundamental rights – security of the state, friendly relations with the foreign states also apply.

Rajya Sabha members including Shaktisinh Gohil of the Indian National Congress, Sukhendu Sekhar Ray of the All-India Trinamool Congress, Santosh Kumar of the CPI argued that this could lead to a potential surveillance mechanism by the Government. The CPI(M), along with the Privacy critique, took a different route to criticise the Bill to say that only the Union Government has the power to intercept, and the state government does not![1]

The fact that a new age bill does not have more illustrative provisions which would not only make the law accessible to the common person but also immune to abuse by the government is indeed an issue. For example, the Union Government can empower the officer to intercept a postal transmission-a letter- in the interest of emergency. There is no provision to explain what the word ‘emergency’ means- whether it is the Emergency that is dealt with in the Constitution under Articles 352 and 356 or if it is an emergency for all the cases the government may deem urgently needing attention. 

Conclusion

These vague definitions of important clauses, coupled with the excessive delegated legislation, the Bill suffers from the very colonial nature that it seeks to replace. Section 10 of the Bill also sheds all liability of the Post Office except those that are to be prescribed by the government later on- meaning that there is no set liability within the act and government can change it whenever it wants to. The Post Office Bill, essentially, looks like a legislation that a government would want to bring when it wants to shed responsibility but wants to take over disproportionate amounts of power.

[1] PTI, 2023. New Post Office Bill infringes right to privacy, will make us surveilled country:Opposition in Rajya Sabha. Deccan Herald, https://www.deccanherald.com/india/delhi/new-post-office-bill-infringes-right-to-privacy-will-make-us-surveilled-country-opposition-in-rajya-sabha-2796328

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Exclusive privileges of the union government:  Prior to this bill, Section 4 of the Indian Post Office Act, 1898 stated that wherever the union government establishes posts, it will have the exclusive privilege of conveying letters by post, as well as incidental services such as receiving, collecting, sending, and delivering letters.

It is crucial to highlight here that this exclusivity of the Union government had already been lost by the 1980s, with the rise of private courier services. Since neither the Post Office Act of 1898 nor the Indian Post Office Rules, 1933 had defined the term “letter” anywhere, courier services bypassed the 1898 law by simply calling their couriers “documents” and “parcels”, rather than “letters.”

The present Bill has no such privileges and has not retained Section 4 of the Act. Rather, the 2023 bill deems to regulate the private courier services by bringing it under its ambit. While the government acknowledges its lack of exclusivity, it has widened the ambit of the law in order to intercept and detain any postal article, as opposed to just letters. In other words, the Union government has given itself more power of detention and interference through this provision of the bill. The Bill also states that India Post will have the exclusive privilege over issuing postage stamps. 

Services provided to be prescribed by the Union Government:  The 1898 Act specified the services that were going to be provided by India Post, which were: (i) delivery of postal articles including letters, postcards, and parcels, and (ii) money orders.  Now, the 2023 Bill provides that India Post will provide such services as may be prescribed by the union government.

Director General to make regulations regarding services: The Act, as well as the Bill, provides for the appointment of the Director General of Postal Services.  Under the Act, the Director General had powers to decide the time and manner of delivery of postal services while under the 2023 Bill, the Director General has been given the power to make regulations regarding any activity necessary to provide postal services.  As per the bill, the Director General may also make regulations regarding charges for services, and supply and sale of postage stamps and postal stationery.

Examination of postal articles prohibited under law or liable for duty:  Under the Act, an officer in charge may examine a postal article if that officer suspects that it contains goods which are prohibited, or are liable to be paid duty upon. While the present Bill removes the powers of examination, it grants blanket powers to the Union government in such cases to empower an officer of India Post to deliver the postal article to the customs authority or any other specified authority.  The authority will then be required to deal with the item in question.

Retention of regulations distinctly government postal services and courier services: The 1898 provided distinct frameworks for regulation of similar postal services by public and private sectors.  The Indian Post Office Act, 1898 established the monopoly of the union government over conveying letters whereas the private courier services were not being governed under any specific legislation, which led to certain key differences regarding regulations government both the section.  For instance, the 1898 Act provides a framework for interception of articles transmitted through India Post while there is no such provision for private courier services.  Another key difference is in the application of the consumer protection framework.  The 1898 Act exempted the government from liability for any lapses in the services, except where such liability is undertaken in express terms.  The Consumer Protection Act, 2019 does not apply to services by India Post, but it applies to private courier services. Ironically, the Post Office Bill, 2023, seeking to replace the 1898 Act, retains these provisions. The said issue has been discussed below.

Powers to intercept postal articles: The 1899 Act allowed interception of an article being transmitted through post on certain specific grounds. As per the Act, an interception may be carried out on the occurrence of any public emergency, or in the interest of public safety or tranquillity. Furthermore, such interceptions may be carried out by the union government, state governments, or any officer specially authorised by them.  An intercepted shipment can be detained or disposed of by the officer in charge.  The officer also has powers to open, detain, or destroy shipments carrying items prohibited under the Act or any other law.

The 2023 Bill deems to widen the grounds on which interception of an article being transmitted through post may be carried out, which are: (i) the security of the state, (ii) friendly relations with foreign states, (iii) public order, (iv) emergency, (v) public safety, or (vi) contravention of the provisions of the Bill or any other laws. While the bill provides that an officer empowered by the union government through a notification may carry out interception, there is an absence of specific procedural safeguards for interception of articles transmitted through India Post.   This is crucial and worrisome as lack of safeguards may result in the violation of freedom of speech and expression, and right to privacy of individuals. It is also pertinent to note that the Bill does not specify any offences and penalties that will be imposed on officers in contravention to the grounds available.  For instance, there are no consequences for unauthorised opening of postal articles by a postal officer, which may have adverse implications for the right to privacy of consumers.

Exemption from liability for lapses in services:  The Act exempted the government from any liability related to the loss, mis-delivery, delay, or damage to a postal article, not applying where the liability is undertaken by the union government in express terms.  The Act also exempted the officers exempt from such liability unless they have acted fraudulently or wilfully. However, the union government was empowered to prescribe liability with regard to a service through Rules. While examining the application of the 1898 Act, the National Consumer Dispute Redressal Commission (2023) had held that the liabilities provided under Consumer Protection Act, 2019 will not apply to postal services offered by the government. The Bill retains the provisions regarding liability under the 1898 Act. Clause 10 of the Bill states that notwithstanding any other law in force, India Post will not incur any liability with regard to a service provided by India Post.  Since the 2023 Bill itself does not provide for liability, it is again raises the question of lack of efficient protection of the rights of consumers of postal services from India Post.  Liability may be prescribed through Rules by the union government, which also administers India Post.

Removal of all offences and penalties: The Jan Vishwas (Amendment of Provisions) Act, 2023 removed all offences and penalties under the 1898 Act. These included various offences committed by officers of the post office, such as the illegal opening of postal articles by a postal officer, which was punishable with imprisonment up to two years, a fine, or both.  In addition to this, persons other than postal officers were also penalised for opening a mail bag. However, the 2023 Bill took does not provide for any offences and penalties, which has been criticised by concerned citizens. In contrast to the Act, no penalties or liabilities have been specified against such actions under the Bill, which may adversely impact the right to privacy of individuals. It is crucial to highlight here that violations specific to postal services have not been covered under other criminal laws, such as the Indian Penal Code (IPC).  The IPC only punishes such offences when accompanied by theft or misappropriation (Section 403 and 461).

Criticisms furthered by the Opposition:

Several members of the opposition parties had vociferously criticised the said 2023 Bill, emphasising that under the disguise of shedding the colonial nature of the Act, the said Bill contains most of the draconian provisions from the Act. Opening the debate on the Bill, Congress MP Shashi Tharoor said, “Over the past decade we have often seen this Government, in the guise of decolonising our minds and updating colonial era lore, bringing in legislation that is equally if not more arbitrary and unreasonable, and that more often than not encroaches upon the fundamental rights of countless Indians,”

As per the report in The Indian Express, Tharoor further argued that “Even as it seeks to revise a colonial Bill, this Bill retains its draconian and colonial provisions, that too while eliminating the burden of accountability which a governmental enterprise like India Post ought constitutionally to shoulder. Sadly, it offers no new ideas to bring our post offices into the 21st Century.” Particularly, Tharoor raised the concern that the provision in the Bill that allows the Centre to intercept, open, or detain any postal item lacks safeguards and is centred on an “ambiguous definition”. Similar criticisms, of violating the right to privacy and encouraging state surveillance, were also raised by other opposition leaders in the Parliament while opposing the passing of the said bill.

It is noteworthy that even though the memorandum stated that no expenditure would be incurred for the bill from the Consolidated Fund of India, more than 1 lakh crores of rupees of budgetary support has been granted to the department of posts in the last five years.

Can this be called a move away from colonial legislation? 

The Post Office Bill, 2023, though purporting to modernize the outdated Indian Post Office Act of 1898, falls short in safeguarding individual rights and ensuring government accountability. The removal of exclusivity, interception powers, and liability exemptions raise serious concerns about privacy violations and lack of consequences for unauthorized actions by postal officers. Despite claims of no expenditure from the Consolidated Fund of India, the history of budgetary support to the Department of Posts over the last five years prompts uncertainty. The Bill, criticized by opposition members for retaining archaic provisions without adequate measures for 21st-century alignment, appears to prioritize state authority over citizen rights, necessitating urgent revisions to uphold individual privacy and ensure accountability in postal services.

The full bill can be read here:

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