Report No. 38
86. Recommendation regarding section 26.-
A detailed note examining section 26 in the light of Article 19(1)(a) of the Constitution, and discussing other relevant aspects, is attached to this Report1.
The important points indicating our conclusion on the subject are:-
Point No. (1).-The expression "public emergency" in section 26(1), Post Office Act, may not be enough to make the power of interception of postal articles valid with reference to the freedom of expression, as it may embrace situations not falling under Article 19(2) of the Constitution.2
Point No. (2).-In order to bring section 26 into conformity with Article 19(2) of the Constitution, it is necessary to confine the section to the various heads given in Article 19(2) of the Constitution, so far as its operation in respect of letters, books, postcards and newspapers is concerned.
[Other postal articles would not ordinarily raise questions of freedom of expression, (when the articles are intercepted in post). Hence, it is not necessary to disturb the operation of the section in relation to them.]
Point No. (3).-Section 26(2), Post Office Act, may be omitted, as the legislature cannot bar judicial review of unconstitutional action taken under a section. The vires of an interference with the freedom of expression, when challenged, have to be examined on a consideration of the question whether, in point of fact the interference is attributable to a permissible source under Article 19(2) of the Constitution.
Point No. (4).-Section 26, sub-section (1) need not be disturbed. Our recommendation to bring it into conformity with Article 19(2) of the Constitution, recorded above3, should be implemented by adding a new sub-section in section 26, to the effect that the power of interception, etc., shall, in respect of letters, books, postcards, and newspapers, be exercised only in the interest of the security of the State, public order, friendly relations with foreign States or preventing incitement to commission of an offence. [Other heads of Article 19(2) will not, in practice, be important for the present purpose].
1. See Appendix 5.
2. See para. 83 also.
3. See Point No. (2), above.