The citizens of India elect an Opposition to make the government uncomfortable in Parliament by asking uncomfortable questions. This is because each MP represents his whole constituency despite some voters voting against him. But the government has thwarted this right to question by suspending 145 Opposition MPS en masse for alleged disorderly behavior in the house and silenced problematic journalists by jailing them under draconian laws like the Unlawful Activities Prevention Act. The government has kept mum on the attack on Parliament simply because the attackers got into Parliament through a ruling party MP.
Be that as it may, every government, whether it is a monarchy, republic, or communist, claims to pass laws for the people’s benefit when in reality, a few clauses perpetuate government surveillance of inconvenient citizens – be they journalists, MPs, judges, advocates or social activists. This is why the passing of the Post Office Bill, 2023, and the Telecommunications Bill, 2023 benefit the people but target dissenters. We are lucky because there is no privatisation of our post offices.
But the sections which comprise any law enacted by Parliament must be minutely dissected. ipso facto, although the Post Office Bill, 2023 which has repealed the obsolete 1898 Indian Post Office Act appears to be overall a piece of beneficial legislation, section 9 permits the Union government to “intercept, open or detain any item” in the interest of national security, friendly relations with foreign states, public order, emergency, public safety or contravention of any law.
These phrases are vague enough to empower any official from the post office to open any item of his choice and get away with it so long as he can claim it was “suspicious”. Hence, this blatantly flouts the right to privacy which is a synonym for the right to secrecy. It is this same section that empowers officials working in the post offices to hand over any packet or parcel posted within or from outside India to the customs authorities if they suspect it to contain banned items or if such items are liable for duty.
First, sophisticated scanners used in the airports and seaports are easily available for the use of our post offices so there is no need to use the word “suspect”. The contents of any parcel can be known in a jiffy but what needs further investigation is when tip-offs are given to the authorities that these parcels contain contraband prohibited for use in India. Hence, the assurance of Union Minister Ashwini Vaishnaw that this provision will not be misused is not convincing.
Second, section 10 absolves all post offices of any liability for any loss caused to the recipient for delivery to the wrong person, delay, or damage caused to the contents of any parcel during transit “except such liability as may be prescribed.” Now these two sections taken together added to another provision which declares that the authorities can recover from any user of postal services the arrears of unpaid dues in the same manner “as if it were an arrears of land revenue due” appear to be anti-people.
Several opposition MPs opposed this Post Office Bill, 2023 in its entirety while others opposed those parts discussed above which appear to be anti-people. In 1968, the Law Commission of India observed that the word “emergency” was not properly defined which has been remedied in the new law. But the alleged anti-people provisions remain.
Every law has its rules which are the machinery to implement the sections. These rules are yet to be finalised. However, not all provisions in this new law are bad because section 4 of the 1898 Act has been omitted. Section 4 gave a monopoly to the Union government to carry letters from one place to another within the country which stymied the private courier industry launched in the 1980s.
But the term “letter” was not defined in the 1898 law thereby allowing private courier companies to compete with the post offices by substituting the words “documents” and “parcels” for the word “letters.” It was plain shoddy drafting by the British in 1898 which allowed our domestic courier industry to flourish.
Next, the Telecommunications Bill, of 2023 has replaced The Indian Telegraph Act, of 1885, the Wireless Telegraphy Act, of 1933, and The Telegraph Wires (Unlawful Possession) Act, 1950 which complicated simple concepts instead of doing the converse which is what the new law tries to do.
Key provisions relating to surveillance and internet suspension, which impact our digital rights, have been replicated verbatim from the Telegraph Act of 1885. The 2023 bill has changed phrasing as compared to the 2022 version, but the licensing provision of the Telecom Bill, 2022, has been replaced, only in name, by a new concept of “authorisation”.
Using words like “public safety” and “national security” to allow the Modi government to temporarily take over, suspend, or intercept any telecommunication service or telecommunication network from an authorised entity was blindly copied from the 1885 “colonial” Act. Advanced scanners which have been innovated during the last decade enhance public safety and state security without the need to intercept messages.
To protect consumer interest, the bill mandates that sending advertisements needs the prior consent of users. This new law sets up an extensive dispute resolution mechanism to solve disputes between authorised entities and their users.
Clause 3(7) of the 2023 Bill is one such privacy-invading provision mandating the authorised entity to identify the person to whom it provides telecom services, through the use of any verifiable biometric-based identification “as may be prescribed”.
The Telegraph Act, of 1885 contained an identical provision for licensed entities, but with safeguards and specificity. Section 4(3)(a) lists the various modes of authentication that may be used by the licensee, including offline authentication, and also explicitly mentions alternative authentication modes to Aadhaar such as a passport. So, overall these laws look like old wine in glitzy bottles.
Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court
Legal Eagle: New laws are just old wine in glitzy bottles
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29.12.2023
The citizens of India elect an Opposition to make the government uncomfortable in Parliament by asking uncomfortable questions. This is because each MP represents his whole constituency despite some voters voting against him. But the government has thwarted this right to question by suspending 145 Opposition MPS en masse for alleged disorderly behavior in the house and silenced problematic journalists by jailing them under draconian laws like the Unlawful Activities Prevention Act. The government has kept mum on the attack on Parliament simply because the attackers got into Parliament through a ruling party MP.
Be that as it may, every government, whether it is a monarchy, republic, or communist, claims to pass laws for the people’s benefit when in reality, a few clauses perpetuate government surveillance of inconvenient citizens – be they journalists, MPs, judges, advocates or social activists. This is why the passing of the Post Office Bill, 2023, and the Telecommunications Bill, 2023 benefit the people but target dissenters. We are lucky because there is no privatisation of our post offices.
But the sections which comprise any law enacted by Parliament must be minutely dissected. ipso facto, although the Post Office Bill, 2023 which has repealed the obsolete 1898 Indian Post Office Act appears to be overall a piece of beneficial legislation, section 9 permits the Union government to “intercept, open or detain any item” in the interest of national security, friendly relations with foreign states, public order, emergency, public........
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