The Freedom of Information Act, 2002

Right to Information · Unit IV · Topic 13 of 16 · 5 min read

India's first national access law, enacted in January 2003 but never brought into force and repealed by section 31 of the RTI Act: its scheme, its exemptions and grounds of refusal, and a point-by-point comparison with the 2005 Act that explains why it was replaced.

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On this page

1. Enactment and fate
2. The scheme
3. Exemptions and refusals
4. Comparison with the RTI Act, 2005
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The 2002 Act is examined for one reason: to show why the 2005 Act was needed. Write its scheme briefly, then the comparison. The headline differences are four: no independent appellate body, no penalties, wider exemptions, and it never came into force. Section 31 of the RTI Act repealed it.

1. Enactment and fate

The Freedom of Information Act, 2002 (Act 5 of 2003) received the President’s assent on 6 January 2003. Section 1(3) provided that it would come into force on such date as the Central Government might notify. No notification was issued, so the Act never operated. In 2004 the National Advisory Council proposed amendments to make it effective; the Government chose instead to introduce a new Bill, and the Right to Information Act, 2005, by section 31, repealed the 2002 Act.

Its long title described it as an Act to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, to promote openness, transparency and accountability in administration. Like the first version of the RTI Act, it did not extend to Jammu and Kashmir.

2. The scheme

Definitions, section 2: “freedom of information” meant the right to obtain information from a public authority by inspection, extracts and notes, certified copies, and electronic copies. “Information” meant material relating to the administration, operations or decisions of a public authority — narrower than the 2005 definition, which includes information about private bodies accessible to the authority. “Public authority” covered bodies established under the Constitution or by law of the appropriate Government and bodies owned, controlled or substantially financed by it; there was no separate mention of non-Government organisations.
Right, section 3: all citizens have freedom of information, subject to the Act.
Obligations, section 4: maintain records catalogued and indexed; publish particulars of organisation, powers and duties, norms, rules and manuals, facilities for citizens and the name of the PIO, at prescribed intervals; publish facts about important decisions; give reasons for decisions; and, before starting a project, publish the facts that should be known to affected persons.
Public Information Officers, section 5, with a duty to render reasonable assistance.
Request and disposal, sections 6 and 7: request in writing or electronically; decision within thirty days, or forty-eight hours where life and liberty are concerned; reasons and appeal particulars on rejection; information in the form sought unless resources or preservation stand in the way.
Severability, section 10, and third party procedure, section 11 (notice within twenty-five days, representation within twenty days, decision within sixty days).
Appeals, section 12: a first appeal within thirty days to an authority to be prescribed, and a second appeal within thirty days to the Central Government, the State Government or the competent authority.
Good faith protection (section 13), overriding effect over the Official Secrets Act (section 14), bar of courts (section 15), and exclusion of intelligence and security organisations in the Schedule (section 16), with no exception for corruption or human rights.

3. Exemptions and refusals

Section 8(1) exempted information whose disclosure would prejudicially affect sovereignty, security, strategic, scientific or economic interests or international relations; public safety and order, detection and investigation of offences, or fair trial; Centre-State relations, including information exchanged in confidence between the Governments; cabinet papers; minutes or records of advice, including legal advice, opinions or recommendations made during the decision-making process before the decision; trade or commercial secrets, or information harming the legitimate economic interests or competitive position of a public authority or causing unfair gain or loss; and information that would breach legislative privilege or a court order. Section 8(2) opened most information after twenty-five years.

Section 9 added further grounds of refusal: requests too general or so voluminous that they would unreasonably divert resources; information due to be published within thirty days; information already published; and information that would cause unwarranted invasion of privacy.

There was no public interest override of the kind in section 8(2) of the 2005 Act.

4. Comparison with the RTI Act, 2005

In force. 2002: never notified. 2005: fully in force from 12 October 2005, with dates fixed in the Act itself (section 1(3)).
Appellate body. 2002: second appeal to the Government itself, the very party whose officers refused. 2005: independent Central and State Information Commissions with civil court powers (sections 12 to 19).
Penalties. 2002: none. 2005: Rs. 250 a day up to Rs. 25,000 on the defaulting PIO, and disciplinary action for persistent default (section 20).
Exemptions. 2002: wider, including advice and opinions in the decision-making process, Centre-State communications and “too general” requests. 2005: narrower, with a public interest override (section 8(2)) and disclosure of cabinet decisions after the matter is complete.
Old records. 2002: twenty-five years. 2005: twenty years (section 8(3)).
Third party. 2002: 25, 20 and 60 days. 2005: 5, 10 and 40 days.
Intelligence organisations. 2002: excluded outright. 2005: excluded except for allegations of corruption and human rights violations (section 24).
Proactive disclosure. 2002: six categories. 2005: seventeen categories, including remuneration of officers, budgets, subsidy beneficiaries and recipients of concessions (section 4(1)(b)).
Fees and deemed refusal. 2002: no free supply on delay and no deemed refusal. 2005: deemed refusal on silence (section 7(2)), information free if the time limit is missed (section 7(6)), and no fee for persons below the poverty line (section 7(5)).
Private bodies. 2002: no reference. 2005: information about private bodies that a public authority can access under law is included (section 2(f)); substantially financed NGOs are public authorities (section 2(h)).

Write the conclusion plainly. The 2002 Act recognised the right but gave no means of enforcing it against an unwilling department. The 2005 Act added the two things that make a right of this kind work: an independent adjudicator and a personal penalty on the officer who defaults.

How this is examined

“Write a note on the Freedom of Information Act, 2002” (November 2021, 16 marks). Give section 1 and its fate, the scheme in a page, the exemptions, and then the comparison list; the comparison is where the marks are. The Act also appears as one step in the historical development question in Unit I.

Now try the real questions: Right to Information past question papers.