2004 freedominfo.org Global Survey Results - India
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

The Supreme Court ruled in 1982 that access to government information was an essential part of the fundamental right to freedom of speech and expression. (1) The Court ruled in 2002 that voters have a right to know information about candidates for elected offices and ordered the Election Commission to make candidates publish information about criminal records, assets, liabilities and educational qualifications. (2)

The Freedom of Information Act was approved in January 2003 but has not yet been implemented. (3) Under the Act, all Indian citizens will have a right to ask to ask for information from public authorities. The public authority must respond in thirty days (48 hours if it concerns dangers to the life or liberty of a person).

The act does not apply to intelligence and security agencies. There are mandatory exemptions for information that would harm national security, public safety and order or international relations; information that would harm centre-state relations; cabinet papers; advice in policy making prior to decision; trade or commercial secrets; or would result in a breach of parliamentary privileges or a court order. Most of the information cannot be exempted if it relates to an event that is over 25 years old. There are also discretionary exemptions if the request is too vague or large a request; information that is about to be published; has already been published; or would be an unwarranted invasion of privacy.

Appeals are to the authority. A second appeal is to the central or state government. The lower courts cannot hear appeals but appeals can be made to the High Court and the Supreme Court.

Public authorities must appoint public information officers. They must also publish information on their structure, duties, all relevant facts concerning important decisions and policies, give reasons for its decisions to those affected by them, and publish facts about any project before initiating any project.

The Department of Personnel and Training (DoPT) is in charge of implementing the Act. The Secretary of the DoPT said in August 2003 that they have not set a timetable for it to come into force because of the number of decisions about the rules need to be made. (4)

The Official Secrets Act, 1923 is based on the 1911 UK OSA. (5) It prohibits the unauthorized collection or disclosure of information and is frequently used against the media. (6)

The Public Records Act, 1993 sets a thirty year rule for access to archives. (7)

Many of the states in India have enacted Right to Information Acts since 1997 due to pressure from activists fighting corruption. These include Goa, Tamil Nadu, Madhya Pradesh, Karnataka, Maharashtra, New Delhi and Rajasthan. Uttar Pradesh has adopted a Code of Practice on Access to Information. The Maharashtra Government's Right to Information Act was adopted (replacing a 2002 Ordinance) in August 2003 after activist Anna Hazare went on a hunger strike. According to the DoPT, the national law will take precedence once it comes into force but this is unclear as several state governments have enacted laws with the permission of the centre since the adoption of the national law.

Notes

1. S.P. Gupta vs. Union of India (AIR 1982 SC 149); See Government of India, Report of the Working Group on Right to Information and Promotion of Open and Transparent Government, May 1997. For a detailed review of the situation of freedom of information in India until 2001, See Article 19, Global Trends on the Right to Information: A Survey of South Asia, July 2001. Available at http://www.article19.org/

2. Union of India v. Association For Democratic Reforms. Civil Appeal No 7178 of 2001. http://www.privacyinternational.org/countries/india/india-v-adr-foia-502.pdf

3. Freedom of Information Act 2002, Act No. 5 of 2003, January 6, 2003.

4. Don't be too happy, too soon, access to file can still take yrs, The Indian Express, August 12, 2003.

5. The Official Secrets Act, 1923, Act no. 19 of 1923. http://www.indialawinfo.com/bareacts/OSA.html

6. See Govt still not clear on what's a secret, Times of India, January 8, 2003.

7. Public Records Act, 1993. No. 69 OF 1993 (22nd December, 1993). http://nationalarchives.nic.in/public_record93.html