Archives and archival practice occupy a peculiar place among law, regulation and policy in India. Archives of all kinds have existed in India for decades. Besides the National Archives and various state archives administered by governments, there are organisational archives of corporations, scientific labs, newspapers or even individuals and families. But they have received scant attention from lawmakers, policymakers or the legal academy, as an institution that deserves specific legislative or policy consideration. Despite their significance as institutions of historical and political importance, archives and archival practice in India remain unacknowledged and understudied as an object of legal enquiry, as well as a subject of public policy. Yet, despite this conspicuous absence of ‘The Archive’ as a distinct subject of regulation, archival practice intersects with the law and regulation of property, media and information in distinct ways.
Archival practices of accessioning, curating, acquiring, preserving, referencing and providing access to archival records raise a whole host of legal issues. What are the requirements for conducting a proper acquisition of records as a gift or a purchase? What kinds of activities in relation to such records are archives permitted to do by virtue of their distinct function as preserving records of enduring value? Do archives, as institutions with a particular structure and function of preserving records of persevering value, have distinct rights and duties under Indian law? More broadly, how do legal rules around property ownership, copyright, media regulation, privacy, and public access to knowledge shape archival practice and the particular institutional and organisational forms that archives take in India?
The consideration of the development, role and legal status of archives has, however, remained limited to archives as government institutions, specifically to the National Archives of India, and in some cases, to state archives, established as institutions for the preservation of the ‘public record’. The activities of archives in preserving and providing access to records of enduring value – carried out today by a plethora of non-government actors and institutions, including corporations, universities, private societies or communities – has received almost no attention as a matter of legal policy, or from the legal academy.
This lack of legal comprehension among archivists has serious implications for their practice – for understanding what their potential responsibilities and liabilities might be when providing access to records for researchers, for example, or in using the various rights that might be available to archives for fulfilling their functions of providing access to archival records. More importantly, legal uncertainty and ambiguity prevents archives from fulfilling mandates to ensure more open and equitable access to archives, in a manner that respects legal rights as well as ethical principles and commitments to making the archives more accessible.
This guidebook is an effort to bridge this gap in comprehending how law and ethics intersects with archival practice. Based on interviews and workshops with archivists, as well as original research on the intersection of archival practice and legal regulation, it aims to provide a concise reference for archivists to understand and navigate the legal implications of various kinds of archival functions – from accessioning to disposal – in providing access and references services, or in preserving archival records.
Please note that this guidebook does not constitute legal advice, and in many cases, archives may require the assistance of legal professionals. However, it is an attempt to consolidate information about the kinds of legal considerations that might apply to archival practice. It is intended to act as a point of reference not only for archivists, but for other stakeholders having an interest in how archives might be managed or regulated under the law, including donors, researchers, and policymakers. In particular, its intention is to allow archives to understand and navigate legal hurdles that prevent them from providing equitable access to their records and collections.
How to read the guidebook
In addition to the previous section on the making of this guidebook and this introduction, this guidebook is divided into eight chapters, and an appendix each for glossary terms, and resources for further reading. The chapters open with a brief sentence outlining broad topics that the chapter covers. They also often have a section titled ‘scenario’ that outlines a potential situation faced by an archive. This section either gives a short response to a query that an archive might have, or the rest of the contents of the chapter will help readers flesh out the scenario better. If a page has a reference, readers can find a quick pointer in the footnotes with further links. Full citations for any references within these footnotes are also listed in the Appendix: Further Reading and Resources, which is arranged thematically. Within each theme, references are listed in alphabetical order. Individual citations in the appendix follow APA Style 6th edition, except for citations about legislation, which follow APA Style 7th edition.
Chapter 1 covers the law relating to accessioning and acquisition of records, including the forms that acquisitions of both tangible and intangible properties commonly take, and the considerations that archives should pay heed to in accessioning and acquiring records.
Chapter 2 covers copyright and related considerations in reproducing or publishing records, including the limitations and exceptions in copyright law and defamation law that archives should be aware of.
Chapter 3 covers data protection and privacy law concerns in archival practice, such as making personal data available in referencing, or making available records that contain personally identifiable information to the public.
Chapter 4 covers the law of ‘public records’, including the central Public Records Act, as well as the Right to Information Act, and the considerations that archives should be aware of, including when they might fall under the scope of such legislations.
Chapter 5 deals with specific legal considerations that arise in the creation of ‘digital archives’, as archives look to use digital technologies and the Internet to broaden access to archives or preserve archival records through digitisation.
Chapter 6 deals with ethical considerations in archival practice, including consideration for privacy, accessibility and sharing of archival materials. It lays out a code that was developed by the working group on ethics. It covers all aspects of the archival workflow and also addresses the ethics of the archive as a workplace and the responsibilities of the archivist to the profession and society.
Chapter 7 expands on the code of ethics with commentary to underpin the positions in the code of ethics. It is followed by a series of questions and potential ethical positions that would apply to specific scenarios based on global literature on ethics along with a common understanding of ethics as they have developed in India over the last several years.
Chapter 8 follows with frequently asked questions raised during workshops with archivists in India. It addresses common questions on ethics and ethical positions to consider when making decisions on them.