Report No. 38
82. Section 26.-
Section 26 of the Act provides, that on the occurrence of any public emergency or in the interests of the public safety or tranquility, the Central Government or a State Government or any authorised officer may, by order in writing, direct that any postal article or class of description of postal articles in course of transmission by post shall be intercepted or detained or disposed of in such manner as the authority issuing the order may direct.
83. Section 26, thus, imposes a restriction on the right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution, and the question has to be considered whether the restriction would be valid. The permissible heads of restriction under Article 19(2) of the Constitution (so far as is relevant) are-"security of the State", "public order", incitement to the commission of an offence, and friendly relations with foreign States. It would be desirable to bring the language of the section in line with the permissible heads of restriction. The expression "public emergency" in section 26 appears to be very wide, because, if the "emergency" is not of such a nature as to affect the security of the State or public order, the provision would travel beyond the permissible heads of restriction.
84. It may be of interest to know the history of section 26. In the Bill which led to the Act, in the notes on clauses1, it was merely stated, that the clause was based on the analogy of the Indian Telegraph Act, 1885 (obviously, the reference was to section 5 of that Act). When, however, leave to introduce the Bill was sought for, Sir James Westland explained, that "in this respect we copy the English law". Referring to a Bill which had been introduced in Parliament two years earlier, he said, that the English Bill did not directly make any special provision of this kind, but it implied it in imposing penalty upon a Post Office officer, who delayed or intercepted any article otherwise than by direction of the State.
In the Report of the Select Committee2, Shri P. Ananda Charlu, in his note of dissent, said, that after action is taken under the clause, the grounds for it should be published; to hush up an affair was, he said, bad policy, while to give publicity would be a tangible warning to similar offenders. He stated, that the balance of advantage to the public, for whose protection the power was being taken, was to place even the Government under the reign of law.
1. Gazette of India, November 6, 1967, p. 386.
2. Gazette of India, March 12, 1898, Pt. V, p. 212.
85. When the Report of the Select Committee was discussed in the Council1, Shri P. Ananda Charlu repeated his objection to the clause. He said, "a strong and just Government, above all others, must not shrink from daylight. The power in question is one which, it seems to me, must be as abhorrent to good Governments as to the public, and good Governments should themselves provide effectual checks and safeguards to render it impossible for bad Government readily to resort to arbitrary or high-handed proceedings."
Shri Bishambar Nath also pointed out, that without due publicity about the occurrence of any "public emergency"; the power may be regarded as arbitrary. The clause was, however, passed without amendment.
1. Gazette of India, March 26, 1898, Pt. V, pp. 285 to 287.