Publication Without Obligation: Section 4 of the Right to Information Act, 2005, the Open Government Data Policy and the Limits of Proactive Disclosure in India

Abstract

Indian transparency law rests on two distinct mechanisms. The first is reactive: a citizen files a request and a public authority answers. The second is proactive: the authority publishes without being asked. Section 4 of the Right to Information Act, 2005 was drafted to make the second mechanism dominant, and expressly declares the objective of minimising resort to the request procedure. Two decades later, the reactive mechanism carries almost the entire burden of the statute, while the proactive mechanism has migrated without legislative authority and 
without justiciable entitlement into a layer of executive policy comprising the National Data Sharing and Accessibility Policy, 2012, the Open Government Data Platform, and the emerging national data governance 
framework. This article argues that the migration has produced an accountability deficit of a specific kind. Volume of published data has risen while explanatory transparency has fallen, because the datasets released are selected by the disclosing authority rather than demanded by the citizen, because no remedy attaches to non-release, and because the fastest-growing category of governmental decision-making automated and semi-automated determinations made within digital public infrastructure generates records that the open-data layer does not publish and that the reactive layer struggles to reach.