Report No. 38
56. Recommendation regarding destruction of obscene articles.-
We apprehend that, with reference to clause (a) of section 20 (obscene articles, etc.), the power to destroy the obscene article under section 23(3)(b) of the Act read with the rules,1 as exercisable under the existing procedure, may perhaps be invalid, as such a restriction may not be considered "reasonable" within Article 19(2) of the Constitution.
Reference has been separately made2 to the case law relating to analogous Acts and to comparable provisions in the Young Persons, etc., Act, the Cinematograph Act, etc., which provide for review or other suitable safeguards. Notice to the sender and to the addressee seems to the minimum safeguard which can be devised from the point of view of procedural reasonableness. We, therefore, recommend, that, before destruction of the obscene article under section 23(3)(b) read with section 20(a), notice should be given to the sender,3 and to the addressee.
We think that the new proviso should be confined to action under section 20(a).
1. Rule 217, Indian Post Office Rules, 1933.
2. See Appendix 4 (Constitutional aspects of certain sections).
3. Cf. section 24, Post Office Act.
57. In its comment on our draft Report, a State Government1 had stated:-
"From the point of view of an invasion of the sender's freedom of speech and expression, the two clauses of the section (section 20) stand on the same footing; and action, which may amount to destruction, can be taken under section 23(3)(b) in respect of article sent in contravention of clause (a). In the opinion of this Government, the proviso suggested to be inserted after section 23(3)(b) should refer to clause (b) of section 20 as well. The Postmaster-General is the sole and final judge whether an article comes within the mischief of section 19 or 19A. This Government, therefore, thinks that the proviso suggested by the Central Commission should be recast so as to make it a proviso to the whole of section 23(3) and to include in it a reference to all the sections concerned, namely, section 19, section 19A and both the clauses of section 20.".
A High Court2 had also suggested, that clause (b) of section 20 should be mentioned in the proviso to section 23(3)(b) as proposed to be added by us.
1. S. No. 170 (Comment of a State Government).
2. S. No. 167 (Comment of a High Court).
58. In our view, however, no such change is required.
Cases under section 19 and 19A would hardly raise questions of freedom of speech. As regards section 20(b), it is not necessary to provide for notice, etc., because section 20(b) relates to postal articles containing on the cover, etc., obscene, etc., writing, and the present procedure is not likely to be regarded as unreasonable.
59. The following suggestion1 relevant to proposed section 23(3)(b), was made in a comment on our draft Report:-
"As regards sections 24, 27 and 27B, in each case, it is a provision for a notice on the addressee and not on the sender. Of the three sections mentioned above, section 27B also provides for an opportunity for testing the validity of the action of the Postal authorities, for it gives a right to "any person interested in the article" to apply to the State Government for relief and if that application fails, to apply to the High Court.
Further, it is to be considered whether express provision should not be made for a right of the person notified to seek relief from other authorities. To this Government it seems that it will be better and more in conformity with the recognised method of amending statutes, to adhere to the scheme of the Act and frame the proposed proviso on the lines of section 27B(2) and (3).".
We have carefully considered the comment.
In our view, section 27B is too cumbersome, and need not be followed. Moreover, section 27B is meant for seditious articles, while section 23(3)(b), proviso (proposed) is intended for obscene articles.
1. S. No. 170 (Comment of a State Government).
60. With reference to proposed proviso to section 23(3)(b), the following comment has been made1 by the Department:
"The proviso to section 23 may be amended to prescribe a period of less than one month in respect of explosive or obnoxious or deleterious substances, as, for obvious reasons, it would not be possible or desirable to keep such substances in the post office up to a period of one month.".
It may, however, be pointed out, that the proposed proviso2 is not relevant for explosives, etc.
No change is, therefore, needed in the proposed proviso.
1. S. No. 169 (Comment of the Department).
2. Section 23(3)(b), proviso (As proposed).
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