Freedom of Information: A Comparative Legal Survey - Federation of ...

The Law does not include any protections for good faith disclosures, either pursuant to the Law or under
the guise of whistleblowing.
Promotional Measures
The Law provides for few promotional measures. Certain public bodies, namely the fi rst set defi ned in
Article 3 – State bodies, their territorial units and local self-governance bodies – but apparently not others,
are required, as a result of the 2007 amendments, to appoint information offi cers with responsibility for
dealing with access requests. 173 It is not clear why this obligation has been limited in this way.
The Law does not include a number of other promotional measures found in many right to information
laws, such as an obligation to produce a guide for the public on how to exercise their right to information,
rules on record management, provision for training of public offi cials or reporting requirements to ensure
transparency about how the Law is being implemented.
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Introduction
The Constitution of India does not provide explicit protection for the right to know. In 1982, however, the
Supreme Court ruled that access to information held by public bodies was implicit in the general guarantee
of freedom of speech and expression, protected by Article 19 of the Constitution, and that secrecy was “an
exception justifi ed only where the strictest requirement of public interest so demands”. 174 Despite this
clear ruling, it was some time before right to information legislation was adopted.
A national Freedom of Information Act, 2002, 175 was passed in December 2002, after many years of public
debate and after right to information laws had been passed in a number of Indian States. 176 The law
was weak and subjected to widespread criticism, and it never came into force due to the failure of the
government to notify it in the Offi cial Gazette. A concerted campaign by civil society, along with a change in
government in 2004, lead to the adoption of the Right to Information Act, 2005 (RTI Law), 177 which received
Presidential assent in June of that year. In accordance with its own provisions, the Law was phased in but
all provisions were in force by October 2005.
The difference between the two laws is perhaps signalled by their names, the latter using a term which
is far more popular in India, particularly among those who had campaigned for the law, namely the right
to information. The 2005 Law is signifi cantly more progressive than its earlier counterpart. Important
differences include a far more developed regime of proactive publication, the addition of an independent
oversight body, the inclusion of strong promotional measures and a much narrower regime of exceptions.
There are, at the same time, still weaknesses with the Law, such as the near total exclusion from its ambit
of various intelligence and security bodies.
The Indian RTI Law is binding on both the national and state governments and this duality is refl ected in a
number of provisions. The Law provides, for example, for the appointment of both Central and State Public
Information Offi cers, as well as the establishment of both Central and State Information Commissioners,
the latter to be established in every state.
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