Report No. 275
- Constitutional Position
4.11 While some countries recognise right to Information explicitly in their Constitutions, in others the judiciary has interpreted the Right to freedom of speech and expression to include the Right to Information. Though the 'right to information' has not been explicitly recognised in the Constitution of India, the Apex Court has interpreted through several decisions that this right is a part of the 'right to freedom of speech and expression' under Article 19(1)(a). In addition, the Supreme Court of India has gone on to say that the 'right to know' is an integral part of the 'right to life', and unless one has the 'right to information', the 'right to life' cannot be enjoyed meaningfully.
4.12 The right to information under international law has its roots in Article 19 of the Universal Declaration of Human Rights (UDHR) and in Article 19 of the ICCPR, where it is provided that everyone enjoys the "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".
The UN Human Rights Committee (UNHRC) has provided a clear enunciation of what the right involves, emphasizing that Article 19 "embraces a right of access to information held by public bodies". "Such information", the Committee noted, "includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production".51
4.13 From the early days of their mandate', Special Rapporteurs, appointed by Economic and Social Council (ECOSOC), have elaborated on the right to information. In the second Report of the mandate, the Special Rapporteur highlighted the "vitally important" roles served by the right to information.52
4.14 In 1998, the Report of Special Rapporteur, submitted to the UN Commission on Human Rights underscored the importance of right to information as follows:53
The right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its own...the right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by the Government in all types of storage and retrieval systems...
4.15 In 2013, the Report of Special Rapporteur, gave a full rationale for a robust right to information:
....public authorities act as representatives of the public, fulfilling a public good; therefore, in principle, their decisions and actions should be transparent. A culture of secrecy is acceptable only in very exceptional cases, when confidentiality may be essential for the effectiveness of their work. There is consequently a strong public interest in the disclosure of some types of information. Moreover, access to certain types of information can affect the enjoyment by individuals of other rights. In such cases, information can be withheld only in very exceptional circumstances, if at all.54
4.16 Access to information has become a standard element of several human rights treaties,55 and has been widely adopted in various international agreements pertaining to sustainable development, the environment, food and agriculture and corruption, among other substantive areas.56 Freedom of opinion and freedom of expression are recognised as indispensable conditions for the full development of the person. They are essential for any society.57 ICCPR designates the freedom of expression as a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.58
4.17 Recognising the significance of right to freedom of information, Sustainable Development Goal (SDG) 16 of "Peace Justice and Strong Institutions", links access to information to good governance, human rights and accountability; and calls on all Member States to adopt and implement public access to information laws and policies.59
4.18 Human rights law also recognizes the connection between right to freedom of expression as contained in Article 19 of ICCPR and other rights. The right to information is also closely connected to Article 25 (1) of ICCPR, which grants every citizen the right and opportunity to "take part in the conduct of public affairs". The Human Rights Committee has emphasized the importance of freedom of information to public participation "without censorship".60
The Office of the High Commissioner for Human Rights (OHCHR) reiterated and expanded this point inter alia in its 2015 Report on the Promotion, Protection and Implementation of the Right to Participate in Public Affairs in the context of the existing human rights law:
best practices, experiences, challenges and ways to overcome them.61Additionally, over a hundred countries have been identified as having Constitutional provisions which either specifically recognize the right to information or include it through case law as a fundamental aspect of freedom of expression.62
4.19 It is in this complex information landscape, that the United Nations agreed in 2015 on a new comprehensive framework: the 2030 Sustainable Development Agenda to end poverty, protect the planet, and ensure prosperity for all.
To achieve these aims, the Agenda outlines seventeen SDGs in areas including poverty, health, agriculture, gender equality, innovation, and youth employment, with specific targets for each Goal, and one hundred and sixty-nine targets in total. Within the SDGs framework, access to information and communication technologies underpins the achievement of the development goals. Eleven targets present access to information as a key tenet for achieving their aims.
The Agenda differs dramatically from its predecessor, the Millennium Development Goals, in that it takes a rights-based approach to sustainable development. It acknowledges that sustainable development is multifaceted and all its constitutive components are interrelated. Therefore, to address development challenges, it requires addressing all types of rights; social, economic, cultural, political, civil, and informational.63