No One Should Own the Law: Why India Needs Public Access to Government Standards

1. Historical Continuity

From Ashoka to Jan Vishwas: The Indian Legacy of Public Proclamations

The principle that rules governing public life must be widely accessible is deeply rooted in Indian history. Emperor Ashoka commanded that his edicts of government be broadly carved on stone pillars and disseminated throughout the land (such as the 7th Pillar Edict, now located in Delhi). The logic was simple: a citizenry cannot obey rules it cannot read. This historical precedent underpins the modern legal maxim, Ignorantia juris non excusat (ignorance of the law is no excuse). However, for this rule to be democratic, the state has a reciprocal duty to publish all legal mandates in an open, accessible manner.

Today, this logic is under stress due to the proliferation of subordinate legislation and technical standards. While primary legislation (Acts passed by Parliament) is readily accessible on platforms like the India Code portal, a vast ecosystem of binding rules remains hidden behind paywalls or lost in obscure departmental archives. For UPSC candidates, this represents a core challenge in administrative law: the struggle between administrative convenience and the citizen's constitutional right to information.

2. The Copyright Conflict

The Copyright Contradiction: Proprietary Control Over Binding Safety Regulations

A prime example of this conflict is the Indian Roads Congress (IRC) and the Bureau of Indian Standards (BIS). Ostensibly a non-profit association, the IRC is actually an arm of the government, with a governing council composed of government officials and maintained via the National Informatics Centre (NIC). The IRC publishes safety guidelines, signage rules, and dimension limits that are incorporated directly into subordinate legislation, such as the guidelines of the National Rural Infrastructure Development Agency and the Ministry of Road Transport and Highways.

Because these standards carry the force of law, non-compliance can lead to commercial penalties or criminal liability. Yet, the IRC recently issued a "takedown" notice to public transparency organizations, claiming that its road safety standards are proprietary works protected by copyright. When safety codes (such as motorcycle helmet standards, sewer system entry procedures, and building codes in typhoon-prone areas) are locked behind paywalls, it forces citizens to pay a private fee to read the laws that govern their safety. This represents a fundamental contradiction: a democratic state cannot outsource its lawmaking power to proprietary bodies and permit public laws to be owned as private property.

3. The BIS Litigation Case Study

The BIS Precedent: How Open Access Boosted Compliance and Revenue

This conflict was highlighted in a landmark Public Interest Litigation (PIL) filed in the Delhi High Court by transparency advocate Carl Malamud against the Bureau of Indian Standards (BIS). The litigation spanned seven years, contesting the copyright claims on standards that carry the force of law. During this period, the disputed standards were uploaded to public digital libraries for free access.

The outcome contradicted the conventional defense of standard-setting bodies: instead of losing revenue, the sales of printed standards by the BIS actually increased as public access raised awareness among engineers, contractors, and municipal authorities. Recognizing this, a senior official in the Ministry eventually directed that the standards be made freely available on the BIS website, leading the Delhi High Court to dispose of the matter. This case study demonstrates that open standards do not destroy revenue; rather, they expand compliance, reduce market friction, and protect lives by making safety instructions widely known.

4. Overcoming Shadow Instruments

Eliminating 'Shadow Instruments' Under the Jan Vishwas Act

To address this structural vulnerability, business leaders and legal scholars have proposed utilizing the framework of the Jan Vishwas (Amendment of Provisions) Act, 2023. The Jan Vishwas Act was enacted to "liberate governance from the steel cage" by decriminalizing minor offenses and streamlining business regulations. However, the steel cage of governance is not constructed solely of primary acts; it is built largely of "shadow instruments" — non-statutory instruments like circulars, advisories, office memoranda, guidelines, and departmental orders that carry the force of law but are hidden inside departmental archives.

To eliminate these compliance traps, experts suggest implementing a central publishing rule:

"All edicts of government in India must be posted on a central website, such as India Code, and any edict not publicly accessible there must be legally treated as null and void."

— Proposal under the Jan Vishwas Framework

This rule would extend to all public safety standards, ensuring that no citizen can be prosecuted under an unpublished or paywalled regulatory directive.

5. Comparative Law & Reforms

Global Best Practices: USA's Public Domain vs. UK's Crown Copyright

Looking internationally, other democracies have established clear rules regarding government copyright. In the United States, Section 105 of the Copyright Act explicitly states that "works of the government" are not eligible for copyright protection, placing them immediately in the public domain. Furthermore, US federal courts have repeatedly ruled that when a technical standard is incorporated into law by reference, it loses copyright protection and must be made freely readable by the public.

In the United Kingdom, the government maintains a "Crown Copyright" model but mitigates paywall issues through the Open Government Licence (OGL), which permits free reuse and reproduction of government-issued documents. In contrast, India's Copyright Act, 1957 retains government copyright under Section 28, but lacks an open license equivalent, creating a legal grey zone for standards incorporated into local bylaws.

Attribute	United States (USA)	United Kingdom (UK)	India (Proposed)
Legal Model	Public Domain (Sec. 105 Copyright Act)	Crown Copyright + Open Government License (OGL)	Jan Vishwas Centralized Publication Framework
Copyright Status	No copyright on government works	Copyright held by Crown, but freely licensed	Exempt mandatory safety/legal codes from copyright
Safety Standards Access	Mandatory codes must be free (US Court rulings)	Licensed freely; some third-party standards paid	All BIS/IRC codes freely accessible online
Unpublished Rules	Unenforceable under Federal Register Act	Subject to parliamentary/judicial invalidation	Deemed null, void, and of no legal effect

India needs to adopt a legislative amendment or executive policy that exempts mandatory safety, municipal, and technical codes from copyright protection. Making these documents freely copyable and distributable will enrich democratic participation, lower compliance costs for small enterprises, and ensure that public safety rules are universally known. Public law is a public resource, paid for by the taxpayer, and must remain in the public domain.

Frequently Asked Questions

What are "shadow instruments" in public administration?

Shadow instruments are non-statutory instruments—such as departmental circulars, notifications, advisories, office memoranda, guidelines, and departmental orders—that carry the force of law but are often not readily accessible to the general public. In Indian governance, they create compliance uncertainty because they are hidden behind administrative silos rather than being centrally published.

What is the relevance of the Jan Vishwas Act to government transparency?

The Jan Vishwas (Amendment of Provisions) Act, 2023 was enacted to simplify governance and ease of doing business by decriminalizing minor offenses. Public law experts propose implementing a central publishing rule under the Jan Vishwas framework where any government edict, circular, or standard not published on a central public repository (like India Code) is legally deemed null and void, removing hidden administrative traps.

Can government standards like BIS or IRC be protected by copyright?

No, legal edicts that govern public life and carry binding force (such as Bureau of Indian Standards safety codes or Indian Roads Congress signage rules) should not be subject to private or state copyright claims. Because these standards are incorporated into subordinate legislation and carry legal penalties for non-compliance, forcing citizens to pay to read them violates the constitutional principle that "no one should own the law."

How do the US and UK handle copyright on government standards?

Under Section 105 of the US Copyright Act, all "works of the government" are in the public domain and ineligible for copyright, and US courts have ruled that legally binding standards must be freely readable. In the UK, works are protected by Crown Copyright but are widely licensed under the Open Government Licence (OGL) for free public reuse.

Will the issue of public access to safety standards appear in UPSC Mains?

Yes, this topic is highly relevant for UPSC Mains GS Paper II under Governance (transparency, RTI, and regulatory reforms) and GS Paper III under Infrastructure and Ease of Doing Business. Candidates should understand the legal conflict between copyright and public access, the role of "shadow instruments," and the proposed central database solution.

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