Right To Information Act 2005 And Public Records Act 1993

This is another Document of the Series of Research Reports Published by Perry4Law and Perry4Law Techno Legal Base (PTLB) that establishes the relationship of National Archives of India (NAI), Public Records Act 1993 and other Departments, Initiatives and Legislations of India. Perry4Law and PTLB have already provided Research Reports pertaining to Information Technology Act 2000, Electronic Services Delivery Bill 2011, Digital Preservation In India, etc.

The Right to Information Act, 2005 (RTI Act, 2005) has provided for certain obligations that every “Public Authority” is required to fulfill. All Government Departments, including NAI, are Public Authorities within the meaning of Section 2(h) of the RTI Act, 2005.

Section 2(h) of the RTI Act, 2005 provides that "Public Authority" means any authority or body or institution of self-government established or constituted- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed or (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

This “Research Report” briefly outlines those responsibilities of NAI vis-à vis RTI Act, 2005.

Section 2 of the RTI Act, 2005 provides that unless the context otherwise requires-

(i) "Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

NAI would be required to provide “Information” to the information seekers who have made an RTI Application.

(ii) "Record" includes-

(a) Any document, manuscript and file;
(b) Any microfilm, microfiche and facsimile copy of a document;
(c) Any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) Any other material produced by a computer or any other device.

The definition of “Public Records” U/S 2(e) of Public Records Act, 1993 (PRA 1993) is almost identical with the definition of Records under the RTI Act 2005. These Records can be sough under the RTI Act, 2005 as “Information” through RTI Application.

(iii) "Right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

(i) Inspection of work, documents, records;
(ii) Taking notes, extracts or certified copies of documents or records;
(iii) Taking certified samples of material;
(iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

(iv) "Third party" means a person other than the citizen making a request for information and includes a public authority.

Section 3 of the RTI Act, 2005 provides that subject to the provisions of this Act, all citizens shall have the right to information.

Section 4(1) of the RTI Act, 2005 provides that every public authority shall-

(a) Maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

With laws like the proposed Electronic Services Delivery Bill, 2011 the requirements to computerise Records and Public Records of NAI would become almost mandatory. We at Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend initiation of Digitilisation and Digital Preservation Initiatives by NAI as soon as possible.

The provisions of Information Technology Act, 2000 would also apply to the initiatives of NAI. Further, provisions regarding Digitilisation and Digital Preservation must be incorporated in the proposed Amendments in the Public Records Act, 1993 itself.

(b) Publish within one hundred and twenty days from the enactment of this Act,-

(i) The particulars of its organisation, functions and duties;
(ii) The powers and duties of its officers and employees;
(iii) The procedure followed in the decision making process, including channels of supervision and accountability;
(iv) The norms set by it for the discharge of its functions;
(v) The rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
(vi) A statement of the categories of documents that are held by it or under its control;
(vii) The particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;
(viii) A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
(ix) A directory of its officers and employees;
(x) The monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
(xi) The budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
(xii) The manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
(xiii) Particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) Details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) The particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
(xvi) The names, designations and other particulars of the Public Information Officers;
(xvii) Such other information as may be prescribed; and thereafter update these publications every year.

These are very wide mandates especially the one created by clause (xiv) that requires NAI to provide details in respect of the information, available to or held by it, and reduced in an electronic form.

(c) Publish all relevant facts while formulating important policies or announcing the decisions which affect public;

(d) Provide reasons for its administrative or quasi-judicial decisions to affected persons. Section 4(2) of the RTI Act, 2005 provides that it shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

Again the desirability to adopt Digitilisation of Records and Public records by NAI is clear from Section 4(2) of RTI Act, 2005.

Section 4(3) of the RTI Act, 2005 provides that for the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

Section 4(4) of the RTI Act, 2005 provides that all materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State
Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.

The Explanation to Section 4 of RTI Act, 2005 provides that for the purposes of subsections (3) and (4), "disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.

Section 6 (1) of the RTI Act, 2005 provides that a person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in
English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to the appropriate officer.

An RTI Application can also be made through E-Mail, Fax or any other Electronic means. Thus, NAI must keep in place a “System” and “Procedure” for dealing with Electronic Records and Electronic RTI Applications.

Section 8 (1) of the RTI Act, 2005 provides that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) Information received in confidence from foreign Government;
(g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Section 8(1) of the RTI Act, 2005 outlines the “Grounds” on which NAI can “Refuse” to give Information about Records and Public Records to an RTI Applicant. By virtue of Section 22 of the RTI Act, 2005, these are the “Only Grounds” subject to which NAI can refuse information to RTI Applicants.

The grounds mentioned in the Public Records Act, 1993 would no more be relevant after the passing of the RTI Act, 2005. The proposed amendments in the Public Records Act, 1993 must add the “Grounds and Exemptions” that NAI wishes to add in addition to the one mentioned by RTI Act, 2005.

Section 8 (2) of the RTI Act, 2005 provides that notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

Section 8 (3) of the RTI Act, 2005 provides that subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under Section 6 shall be provided to any person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.

The 20 years period is in conformity with the proposed amendments suggested by the Consultation Committee of NAI formulated to suggest Amendments in the PRA 1993.

Section 9 of the RTI Act, 2005 provides that without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of Copyright subsisting in a person other than the State.

Section 10(1) of the RTI Act, 2005 provides that where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.

NAI can provide “Partial Access” to its Records and Public Records.

Section 10 (2) of the RTI Act, 2005 provides that where access is granted to a part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a notice to the applicant, informing-

(a) That only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;
(b) The reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;
(c) The name and designation of the person giving the decision;
(d) The details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and
(e) His or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access.

Section 11(1) of the RTI Act, 2005 provides that where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

NAI receives many Archives, Records, Books, etc by way of Gifts and otherwise by Third Parties. Such Records, etc must be given subject to the provisions of this Clause or to the Terms and Conditions subject to which they have been given to the NAI by such Third Parties. .

Section 11(2) of the RTI Act, 2005 provides that where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

Section 11(3) of the RTI Act, 2005 provides that notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

Section 11(4) of the RTI Act, 2005 provides that a notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.

Third Party Relationships of NAI must be suitably regulated. A sound and practical Procedure or Guidelines in this regard is desirable on the part of NAI.

Section 22 of the RTI Act, 2005 provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

The RTI Act, 2005 would “Override” the provisions of Public Records Act, 1993 and its Rules by virtue of this section.

Section 24 (1) of the RTI Act, 2005 provides that nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government:

Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:

Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request.

Section 24 (2) of the RTI Act, 2005 provides that the Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule.

Public Records Act 1993 And IT Act 2000 Mandates

Information Technology Act, 2000 (IT Act, 2000) is the sole Cyber Law of India. It deals with E-Commerce, E-Governance, Cyber Crimes, etc. It also provides a “Digital Framework” for ensuring Digitilisation, Electronic Documents Creation and their use in Government Departments. This “Research Report” of Perry4Law and Perry4Law Techno Legal Base (PTLB) is briefly analysing the relationship between IT Act, 2000 and Public Records Act, 1993 (PRA 1993).

Section 2 of IT Act, 200 deals with definitions that are relevant for PRA 1993 purposes. Section 2(1) provides that in this Act, unless the context otherwise requires:

(i) "Access" with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.

(ii) "Affixing Electronic Signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of Electronic Signature.

If documents are issued by NIA in electronic form, they have to be authenticated by using electronic signatures. Unauthenticated electronic documents would not create any right or liability either under the IT Act, 2000 or under the PRA 1993.

(iii) "Asymmetric Crypto System" means a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature.

Digital Signatures are based upon Asymmetric Crypto System and they can be used for “Authentication Purposes” by NAI.

(iv) "Computer" means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.

(v) "Cyber Security" means protecting information, equipment, devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or destruction.

Cyber Security is an issue that is of “Paramount Importance” for the NAI. When Digitilisation and Digital Preservation would be adopted by NAI, Electronic Documents and Digital Resources would be required to be protected from Cyber Attacks. A Techno Legal Strategy must be formulated by NAI in this regard.

(vi) "Data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

(vii) "Digital Signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3.

(viii) "Electronic Form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device.

(ix) "Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

(x) "Electronic signature" means authentication of any electronic record by a subscriber by means of the electronic technique specified in the second schedule and includes digital signature.

(xi) "Information" includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.

(xii) "Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

(xiii) "Key Pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key.

(xiv) "Private Key" means the key of a key pair used to create a digital signature.

(xv) "Public Key" means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate.

(xvi) "Secure System" means computer hardware, software, and procedure that-

(a) Are reasonably secure from unauthorised access and misuse;

(b) Provide a reasonable level of reliability and correct operation;

(c) Are reasonably suited to performing the intended functions; and

(d) Adhere to generally accepted security procedures.

(xvii) "Security Procedure" means the security procedure prescribed under section 16 by the Central Government.

(xviii) "Verify" in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions means to determine whether:

(a) The initial electronic record was affixed with the digital signature by the use of private key corresponding to the public key of the subscriber;

(b) The initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.

Section 2 (2) of the IT Act, 2000 provides that any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

Section 4 of the IT Act, 2000 provides Legal Recognition to Electronic Records. It says that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is

(a) Rendered or made available in an electronic form; and

(b) Accessible so as to be usable for a subsequent reference

Section 5 of the IT Act, 2000 provides legal recognition to Electronic Signature. It says that where any law provides that information or any other matter shall be authenticated by affixing the signature or any document should be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.

Explanation to section 5 provides that for the purposes of this section, "Signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "Signature" shall be construed accordingly.

Section 6 of the IT Act, 2000 deals with use of Electronic Records and Electronic Signature in Government and its agencies. Section 6(1) of the Act provides that where any law provides for

(a) The filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner;

(b) The issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner;

(c) The receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.

Section 6(2) of the Act provides that the appropriate Government may, for the purposes of sub-section (1), by rules, prescribe -

(a) The manner and format in which such electronic records shall be filed, created or issued;

(b) The manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause (a).

Section 6A (1) of the IT Act, 2000 provides that the appropriate Government may, for the purposes of this Chapter and for efficient delivery of services to the public through electronic means authorise, by order, any service provider to set up, maintain and upgrade the computerised facilities and perform such other services as it may specify, by notification in the Official Gazette.

The Explanation to Section 6A (1) of the IT Act, 2000 provides that for the purposes of this section, service provider so authorised includes any individual, private agency, private company, partnership firm, sole proprietor form or any such other body or agency which has been granted permission by the appropriate Government to offer services through electronic means in accordance with the policy governing such service sector.

Section 6A of the IT Act, 2000 reflects the intention of Indian Government to provide Electronic Services Delivery in India. In fact, Electronic Services Delivery Bill, 2011 has already been proposed and if implemented would ensure many Electronic Services to Indians.

NAI must start working in the direction of providing its Service Online, if not already done. Even the non-service related matters and matters pertaining to the NAI are already required to be provided online in an Electronic Form as per the requirements of Section 4(1) of the RTI Act, 2005.

Section 7 of the IT Act, 2000 deals with retention of electronic records. Section 7(1) of the Act provides that where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-

(a) The information contained therein remains accessible so as to be usable for a subsequent reference;

(b) The electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;

(c) The details which will facilitate the identification of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record.

The Proviso to Section 7 (1) provides that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be dispatched or received.

NAI can convert its Records and Public Records into Electronic Form. Digital Preservation of Records or Public Records can also be done by NAI. While current records can be digitilised non current records can be digitilised and made available to public and researchers as the Electronic Services by NAI.

Section 7(2) of the Act provides that nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records.

For instance, the RTI Act, 2005 provides for creating of many records in digital form and available to the public in an online environment. Similarly, the proposed Electronic Services Delivery Bill 2011 also requires providing of Services in online environment. This would also require digitilisation of Records and Public Records by NAI.

Section 7A of the IT Act, 2000 provides that where in any law for the time being in force, there is a provision for audit of documents, records or information, that provision shall also be applicable for audit of documents, records or information processed and maintained in electronic form.

Audit of Electronic Documents would also be undertaken in future. Just like NAI has to maintain proper paper based documents, it would be required to main proper Electronic Records as well.

Section 8 of the IT Act, 2000 provides that where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette.

The proviso to section 8 provides that where any rule, regulation, order, bye-law, notification or any other matters published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.

NAI can publish its Rules, Regulations, etc in Electronic Gazette.

Section 9 of the IT Act, 2000 provides that Sections 6, 7 and 8 would not to confer right to insist document should be accepted in electronic form. Section 9 says that nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

This is a real “Disabling Provision” that is preventing the actual accomplishment of Electronic Services Delivery in India. By making it “Discretionary” India Government has kept at bay for long the Electronic Delivery of Services to Indians. The latest proposed Electronic Services Delivery Bill 2011 addresses a very small and insignificant portion of the Electronic Delivery of Services in India and till now Electronic Services cannot be claimed as a “Matter of Right”.

However, by virtue of RTI Act, 2005 “Providing Information” about Governmental Departments in Electronic Form has been made “Compulsory”. But till now there is no Law or Provision that makes Delivery of Electronic Services Mandatory in India. This is a “Serious Issue” that must be resolved as soon as possible.

Section 11 of the IT Act, 2000 deals with attribution of Electronic Records. Section 11 says that an electronic record shall be attributed to the originator

(a) If it was sent by the originator himself;

(b) By a person who had the authority to act on behalf of the originator in respect of that electronic record; or

(c) By an information system programmed by or on behalf of the originator to operate automatically.

There may be other provisions of IT Act, 2000 that may be relevant for NAI and PRA 1993 purposes. But for the time being, they are not mandatory in nature. We hope this “Research Report” by Perry4Law and PTLB would be useful for Government Departments in general and national archives of India in particular.

Electronic Services Delivery And Public Records Act 1993

The Electronic Services Delivery Bill 2011(ESDB 2011) is a very recent Bill proposed by the Ministry of Communication and Information Technology (MCIT). The Bill has been revised twice and it may still not be the final Bill. However, sooner or later ESDB 2011 would be made an “Enforceable Law” and various “Stakeholders” would be required to comply with the same.

One such Stakeholder is the National Archives of India (NAI), a Department attached to the Ministry of Culture. Once the ESDB 2011 comes into force, NAI and similar Departments/Institutions would be required to adjust their functioning as per the mandates of the Bill. This is not an easy task and it would require great foresight and planning to shift to an Electronic Frontier and an early planning and execution is strongly recommended by Perry4Law and Perry4Law Techno Legal Base (PTLB).

Many National Archives and Public Records related Services would be required to be provided in an “Online Environment” and through “Electronic Means” in future. This is more so due to the applicability of Public Records Act, 1993 (PRA), Information Technology Act, 2000, Digital Preservation Requirements and Electronic Services Delivery by NAI.

For instance, Section 4 of the PRA 1993 prohibits taking out of India any public record without the prior approval of Central Government. Section 9 punishes the violations under section 4 with imprisonment upto 5 years or with fine upto Rs. ten thousand rupees or with both. When Public records would be converted into “Electronic Form”, they can be easily transferred from one nation to another. NAI needs to take care of this issue through Legal and Technical means, i.e., in a Techno Legal Manner.

Further, NAI may be required to make available Public records U/S 11(2) or any record creating agency may be required to provide access to the same U/S 12(2) of the PRA 1993. These services can be provided in “Electronic Form” for larger efficiency and meeting the requirements of any “Mandatory” Electronic Services Delivery.

NAI would also be required to ensure Digitilisation and Digital Preservation due to the requirements of this Bill. Till now, Section 9 of the IT Act, 2000 was preventing Citizens of India from demanding Electronic Services as a matter of Right. Now things would be changed and Electronic Services Delivery would be demanded by Indian citizens.

We recommend that NAI and other Government Departments must pay sufficient attention towards Digital Preservation and maintenance of Electronic Records in their respective Departments.

Public Records Keeping Framework In India

Public Records keeping is a very important aspect though it is often not considered to be very important by the National Policies of a nation. Public Records keeping may be a voluntary exercise or a requirement of one or more Laws.

Although there are many “Statutory Laws” in India that required Companies, Individuals and Government Departments to keep Public Records for public scrutiny or general use yet the Public Records Act 1993 (PRA 1993) of India is a “Specilaised Law” for keeping the “Non-Current Records” of Indian Government and its Departments and Agencies etc.

It is an Act to regulate the Management, Administration and Preservation of Public Records of the Central Government, Union Territory Administrations, Public Sector Undertakings (PSUs), Statutory Bodies and Corporations, Commissions and Committees constituted by the Central Government or a Union Territory Administration and matters connected therewith or incidental thereto.

Section 2(e) of the PRA 1993 says a “Public Record” includes (i) Any document, manuscript and file; (ii) Any microfilm, microfiche and facsimile copy of a document; (iii) Any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (iv) Any other material produced by a computer or by any other device, of any records creating agency. The definition of “Public record” is very wide and it covers both traditional Paper based as well as contemporary Electronic Records.

Section 4 of the PRA 1993 provides that no person shall take or cause to be taken out of India any Public Records without the prior approval of the Central Government. However, such approval is not required if any Public Records are taken or sent out of India for any official purpose.

Section 8(1) of the PRA 1993 provides that save as otherwise provided in any law for the time being in force, no Public Record shall be destroyed or otherwise disposed of excepts in such manner and subject to such conditions as may be prescribed. Section 8(1) provides that no record created before the year 1892 shall be destroyed except where in the opinion of the Director General or, as the case may be, the head of the Archives, it is so defaced or is in such condition that it cannot be put to any archival use.

Section 9 of the Act provides that whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to ten thousand rupees or with both.

The PRA 1993 must be applied keeping in mind the “contemporary technological advances”. For instance, Digital Preservation in India is an issue that has not yet been taken seriously by Government Departments. Of course, Public Records Keeping Framework of Reserve Bank of India (RBI) is an exception to this apathy. Let us hope the Techno Legal issues of Public Records would be taken care of by Indian Government in general and Ministry of Culture in particular.

Digital Preservation In India

Digital preservation is the process where traditional records and data as well as contemporary records are managed and preserved in a manner so that the information can be accessible by our future generations.

The importance of digital preservation cannot be underestimated as many valuable documents and archives of various societies have been lost forever in the absence of digital preservation. If those documents and archives could have been preserved in electronic form, they would have been available toady.

Digital preservation has also assumed significance due to the extensive adoption of Internet and networking technologies. Individuals and organisations are producing vast amount and diverse nature of digital information that if not preserved would be lost forever. Digital preservation is a trustworthy solution ensuring long-term access to the past and contemporary digital information form future references.

Digital preservation in India is in its infancy stage. Although some discussions in this regard have been undertaken by some departments of Indian government yet they are far from satisfactory. Even a national digital preservation programme (NDPP) of India has been launched but it has been lying dormant for many years. Of course, some institutions like Reserve Bank of India (RBI) have good public records keeping framework.

Presently, India has no well defined legal framework for digital preservation in India. Neither the technical nor the legal issues have been resolved by India in this regard so far. According to experts, digital preservation framework in India is missing as we do not have a “dedicated” techno legal digital preservation laws in India. However, laws like Public Records Act, 1993, Right to Information Act, 2005, proposed Electronic Services Delivery Bill 2011 (Bill), etc mandates digital preservation and digitilisation of records in “Electronic Form”.

Digital preservation issues in India are going to be more complicated with the enactment of laws like digital millennium copyright act (DMCA). Efforts are in the pipeline for adoption of an efficient digital rights management (DRM) system in India. Intellectual property rights (IPRs) are commonly found conflicting with digital preservation initiatives. Technological issues of IPRs would also pose great challenges before the digital preservation initiatives of India. We also need to change form of various IPRs protected works from one form to another. This sometimes results in IPRs violations.

Further, technological challenges have also to be managed by India in this regard. With the rapid advancement of technology day by day, old applications and methods are becoming obsolete. We need to upgrade them from time to time. Recent traditional knowledge digital library (TKDL) of India is one of the most innovative and much needed initiatives undertaken by Indian government. Being a digital library it must ensure digitalisation of contents as well as their digital preservation.

In short, digital preservation initiatives of India need urgent reforms. The task is really difficult unless good experts are involved in this much needed project. For the time being, digital preservation initiatives of India are falling well short of the desired actions. It would be a better strategy if the Indian government starts working in the direction of enacting a suitable techno legal framework for digital preservation in Indian as soon as possible.

Indian government in general and ministry of culture in particular must pay special attention to digital preservation requirements as in future the culture ministry would be the one that would require it most.