Licensing the Code of Democracy: Open-Source Use in Indian Public Projects

“Code is law” in the context of the present governance, the phrase depicts the importance of the software and how the government performs its duties, exercises control and builds trust. With the increase in digitalisation, the Indian government has also moved towards E-governance and has adopted open-source software (OSS) as a strategic policy choice. OSS enables users to use, modify, and redistribute software with minimal or no cost, under specified license terms. All these traits make OSS an attractive tool for the government seeking to improve cost-efficiency, technological sovereignty, and citizen engagement.

On 1^st July 2025, India celebrated 10 years of the Digital India Policy, and over the past decade, India’s flagship digital projects, such as DigiLocker, Aarogya Setu, BHIM-UPI, and UMANG, have utilised open source technologies either wholly or partially^[1]. The government of India has taken significant steps and has developed its own open code-sharing repository, OpenForge, and has institutionalised open source, a centralised code repository platform operated by the central government, modelled in function after global platforms like GitHub^[2]. This was inaugurated by Prime Minister Narender Modi at the International Conference on the Theory and Practice of Electronic Governance (ICeGOV). 

It was built under MeitY’s 2015 Policy on Collaborative Application Development by Opening the Source Code of Government Applications, which was intended to promote transparency, innovation, and reuse in e-Governance software systems, and the main purpose of this code was to enable public collaboration and reuse of software across departments^[3]. However, the OSS is free from monetary cost, but it is not free from legal obligations. Every open-source licence operates within the framework of copyright law and contract law establishing the terms and conditions for enforcement, modification and redistribution^[4].

The Ministry of Electronics and Information Technology (MeitY) has recognised the importance of OSS and in 2015 adopted the “Policy on Adoption of Open Source Software for Government of India.” “Through OpenForge, the use of open-source software and sharing and reuse of e-governance-related source code is promoted.”^[5] The objective was to promote vendor neutrality, transparency, cost reduction and greater control over technological assets. The platform has grown steadily and, as of January 2023, had crossed 10,000 registered users, with 2,205 active projects hosted on it. These numbers were prominently cited in the 2023 Economic Survey, where OpenForge was held up as a key example of how digital technologies are enabling scalable, collaborative, and open infrastructure for governance. The Government e-Marketplace (GeM) has also started recognising and preferring software solutions developed using open standards and OSS^[6].

Under Indian laws, OSS is governed by the Indian Copyright Act 1957 (  “the act”), and as per section 2(o) of the act^[7], any “computer programmes, tables and compilations including computer” comes under the definition of literary work. The Information Technology Act 2000, does not directly address OSS, but it plays an ancillary role in determining data integrity, authenticity and electronic contracts in public digital services. More predominantly, the public pronouncement rules under General Financial Rules (herein referred to as “GFRs”) have been amended to allow and encourage the consideration of OSS in government tenders. However, even these laws and policies encourage the use of open source, but the legal rules around OSS are still not well understood and well defined under Indian laws.

The concept of OSS in Indian governance is a new concept. The administrative body of the country has given a strong policy push for OSS in the country, but the concept of OSS licensing has remained untouched from the hands of the judiciary within Indian Jurisdiction. In contrast, the United States court has given a landmark ruling in the case of Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)^[8], where the court interpreted that violating the terms of OSS licensing is not only a contractual breach but also copyright infringement.

Notably, in Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT (2021) 3 SCC 138^[9], the Supreme Court elucidated the essence of software licensing as the transfer of restricted rights under copyright law, demonstrating Indian courts' readiness to address such distinctions in the larger software context. Comparative case law is a useful tool for predicting how Indian courts might handle open-source licensing issues as the use of OSS in Indian governance grows. Future legal challenges or disputes may force the judiciary to address these issues directly.

It is necessary to understand the implications and OSS licensing. Broadly, OSS licenses fall into two categories: permissive and copyleft. Permissive licenses allow users to freely use, modify, and redistribute code, with minimal obligations like attribution or preservation of license text. Certain Permissive Licenses are MIT, Apache 2.0, and BSD^[10]. These licenses are particularly attractive in government contexts where integration with proprietary tools or commercialisation may be desirable. On the other hand, copyleft licenses such as the GNU General Public License (GPL) and Affero GPL require that any modified or derivative works also be released under the same license^[11]. While this ensures continued openness and public benefit, it can limit integration with other software and impose heavier compliance burdens.

The choice of an error-free license is significant for government projects as it can have both legal and operational consequences. If, for instance, the copyleft component is incorporated into a larger proprietary system, it would trigger the “viral licensing” effect, which may require the release of the entire system as open source, a rule that might conflict with the project's goals or agreements. Contrarily, the permissive licenses offer more flexibility and allow broader use but still impose conditions like attribution and non-removal of disclaimers, which, if violated, can lead to termination of license rights^[12].

To avoid legal issues and ensure legal safety, government entities must adopt a structured and compliant framework, which includes, but is not limited to using FOSSology and ScanCode Toolkit to scan and check the licenses of all third-party software used in a project. Keeping up a detailed record through “Software Bill of Materials” (SBOM) for each project can help track dependencies and license obligations^[13]. In a collaborative project, when multiple people or organisations are involved to contribute to the project, it is necessary to sign Contributor License Agreements (CLAs) to make sure intellectual property rights are clearly transferred or licensed. Procurement contracts should include all the mandatory clauses requiring software vendors to disclose all OSS used, comply with licensing conditions, and provide indemnities for violations. Legal teams of the ministries must also be trained in OSS laws and in conducting risk assessment at both the procurement and deployment stages^[14].

Despite the best practice, the government still faces common issues when it comes to OSS, like using software with a conflicting license, failing to give proper credit, using outdated and insecure code or unclear ownership to contribution can lead to legal trouble^[15]. To prevent this Indian Government should take proactive steps by establishing Open-Source Program Offices (OSPOs) in key departments to handle audits, licensing, and contributor management. MeitY should also create clear national guidelines and a license registry. Standard rules for software contracts and better legal training for officials will help ensure open source is used correctly and safely.

In conclusion, the increasing adoption of open-source software in India is a welcome step towards digital sovereignty, transparency, and innovation. However, open source should not be misunderstood as unregulated or informal software. Non-compliance with their conditions by the government will risk not only legal liability but also the loss of public trust. As India has taken a step towards a digital India, it is to be ensured that the openness is matched by a commitment to legal diligence, institutional safeguards, and policy clarity.

Author: Shreya Singh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Press Information Bureau, Cabinet Approves National Policy on Biofuels – 2018, GOV’T OF INDIA (May 16, 2018, 1:31 PM), https://www.pib.gov.in/PressNoteDetails.aspx?NoteId=154788&ModuleId=3.

[2] Jagmeet Singh, OpenForge Debuts as India’s GitHub for e-Governance Projects, Open Source For You (Mar. 7, 2017), https://www.opensourceforu.com/2017/03/openforge-debuts-indias-github-e-governance-projects/ 

[3] Santosh Kumar, Sarla Meena, Abhishek K S & Anchal Patiyal, Ten Years of Digital Progress: Building an Inclusive and Future-Ready India (Backgrounder ID 154788), Press Info. Bureau, Gov’t of India (June 30, 2025, 10:16 AM), https://www.pib.gov.in/PressNoteDetails.aspx?NoteId=154788&ModuleId=3

[4] Akarshit Anand & Lakshmi Priya Vinjamuri, From Proprietary to Open Source: Legal Dimensions of Software Licensing in India, INT’L J. RES. PUB. & REVS., (last visited July 9, 2025).

[5] The Economic Survey of India (2022–23)

[6] Govt Announces Open-Source Software Policy, ECON. TIMES (Mar. 30, 2015, 8:38 PM IST), https://economictimes.indiatimes.com/news/economy/policy/govt-announces-open-source-software-policy/articleshow/46748012.cms. 

[7] The Copyright Act, 1957, No. 14, Acts of Parliament, 1957, § 2(o) (India)

[8] Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)

[9] Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT, (2021) 3 S.C.C. 138 (India).

[10] Cory Altheide & Harlan Carvey, Chapter 1 – Digital Forensics with Open Source Tools, in DIGITAL FORENSICS WITH OPEN SOURCE TOOLS 1, 1–8 (Cory Altheide & Harlan Carvey eds., Syngress 2011), https://doi.org/10.1016/B978-1-59749-586-8.00001-7 

[11] Discover the Most Common Open Source Licenses in 2023, Montague Law (June 2023), https://montague.law/blog/discover-the-most-common-open-source-licenses-in-2023/

[12] Peter S. Menell, Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software, 31 Harv. J.L. & Tech. (Special Issue Spring 2018).

[13] Timo Tuunanen & Jussi Koskinen, Automated Software License Analysis, 16 AUTOMATED SOFTWARE ENGINEERING 455 (2009), https://doi.org/10.1007/s10515-009-0054-z.

[14] What You Should Know About Contributor License Agreements in Open Source Projects, Mondaq (last visited July 9, 2025), https://www.mondaq.com/unitedstates/intellectual-property/807444/what-you-should-know-about-contributor-license-agreements-in-open-source-projects.

[15] Legal Issues and Compliance Pertaining to Open Source Software, Mondaq (May 2025), https://www.mondaq.com/india/copyright/769398/legal-issues-and-compliance-pertaining-to-open-source-software.