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Asha Kanta Sharma

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RTI AND INTERNATIONAL LEGAL INSTRUMENTS

ashakantasharma

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RTI AND INTERNATIONAL LEGAL INSTRUMENTS

Various international instruments such as treaties, charters etc
have recognized RTI as right that ought to be available to the people.
All the citizens have a right to decide, either personally or by their
representatives, as to necessity of the public contribution, to grant
this freely, to know to what use fix the proportion, the mode of
assessment and of collection and the duration of taxes.

i) United Nations
The United Nations (UN) is an international organisation
whose stated aims are facilitating cooperation in international law,
international security, economic development, social progress, human
rights, and achievement of world peace. The UN was founded in
1945 after World War II to replace the League of Nations, to stop wars
between countries, and to provide a platform for dialogue. It contains
multiple subsidiary organizations to carry out its missions. There
are currently 192 member states, including every internationally
recognised sovereign state in the world but the Vatican City. From
its offices around the world, the UN and its specialized agencies
decide on substantive and administrative issues in regular meetings
held throughout the year. The organization has six principal organs:
the General Assembly (the main deliberative assembly); the Security
Council (for deciding certain resolutions for peace and security); the
Economic and Social Council (for assisting in promoting international
economic and social cooperation and development); the Secretariat
(for providing studies, information, and facilities needed by the UN).
United Nations accepted Right to Information right from its beginning
in 1946. The General Assembly resolved that: ―freedom of information
is a fundamental human right and the touchstone for all freedoms to
which the United Nations is consecrated.‖

ii) Universal Declaration of Human Rights, 1948
The Universal Declaration of Human Rights (UDHR) is a declaration
adopted by the United Nations General Assembly (10 December 1948,
Paris). The Declaration arose directly from the experience of the
Second World War and represents the first global expression of rights
to which all human beings are inherently entitled. It consists of 30
articles which have been elaborated in subsequent international
treaties, regional human rights instruments, national constitutions
and laws. The International Bill of Human Rights consists of the
Universal Declaration of Human Rights, the International Covenant
on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and its two Optional
Protocols. In 1966 the General Assembly adopted the two detailed
Covenants, which complete the International Bill of Human Rights;
and in 1976, after the Covenants had been ratified by a sufficient
number of individual nations, the Bill took on the force of
international law. 

Article 19 of the Universal declaration of Human Rights of
1948, states that, ―Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.‖

iii) International Covenant on Civil and Political Rights, 1968
The International Covenant on Civil and Political Rights (ICCPR)
is a multilateral treaty adopted by the United Nations General
Assembly on December 16, 1966, and in force from March 23, 1976.
It commits its parties to respect the civil and political rights of
individuals, including the right to life, freedom of religion, freedom of
speech, freedom of assembly, electoral rights and rights to due
process and a fair trial. As of December 2010, the Covenant had 72
signatories and 167 parties.

The ICCPR is part of the International Bill of Human Rights,
along with the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the Universal Declaration of Human
Rights (UDHR). The ICCPR is monitored by the Human Rights
Committee (a separate body to the Human Rights Council), which
reviews regular reports of States parties on how the rights are being
implemented. States must report initially one year after acceding to
the Covenant and then whenever the Committee requests (usually
every four years). The Committee meets in Geneva or New York and
normally holds three sessions per year.

Article 19 of the Covenant states as following:-
(1) Everyone shall have the right to hold opinions without
interference;
(2) Everyone shall have the right to freedom of expression, this
right shall include 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.

iv) The Commonwealth
The Commonwealth of Nations, normally referred to as the
Commonwealth and formerly known as the British Commonwealth, is
an intergovernmental organisation of fifty-four independent member
states. All but two (Mozambique and Rwanda) of these countries
were formerly part of the British Empire, out of which it developed.
The member states cooperate within a framework of common values
and goals as outlined in the Singapore Declaration. These include the
promotion of democracy, human rights, good governance, the rule of
law, individual liberty, egalitarianism, free trade, multilateralism, and
world peace. The Commonwealth is not a political union, but an
intergovernmental organisation through which countries with diverse
social, political, and economic backgrounds are regarded as equal in
status. Its activities are carried out through the permanent
Commonwealth Secretariat, headed by the Secretary-General, and
biennial meetings between Commonwealth Heads of Government. The
symbol of their free association is the Head of the Commonwealth,
which is a ceremonial position currently held by Queen Elizabeth II.
Elizabeth II is also monarch, separately and independently, of sixteen
Commonwealth members, which are known as the "Commonwealth
realms". The Commonwealth is a forum for a number of nongovernmental organisations, collectively known as the Commonwealth
Family, which are fostered through the intergovernmental
Commonwealth Foundation. The Commonwealth Games, the
Commonwealth's most visible activity, are a product of one of these
organisations. These organisations strengthen the shared culture of
the Commonwealth, which extends through common sports, literary
heritage, and political and legal practices. Due to this, Commonwealth
countries are not considered to be "foreign" to one another. Reflecting
this, diplomatic missions between Commonwealth countries are
designated as High Commissions rather than embassies.
The Commonwealth- association of 54 countries- affirmed the
existence of RTI by emphasizing the participation of people in the
government processes. The law ministers of the Commonwealth at
their meeting held in Barbados in year 1980 stated that ‗public
participation in the democratic and government process would be
most meaningful when citizens had adequate access to official
information‘

v) The Rio Declaration on Environment and Development,
1992 and Access to Information
Principle 10 of the Rio Declaration on Environment and
Development, 1992 first recognized the fact that access to information
on the environment, including information held by public authorities,
is the key to sustainable development and effective public
participation in environmental governance. Agenda 21, the ‗Blueprint
for Sustainable Development‘, the companion implementation
document to the Rio Declaration, states: ―Individuals, groups and
organizations should have access to information relevant to
environment and development held by national authorities, including
information on products and activities that have or are likely to have a
significant impact on the environment, and information protection
measures.‖ At the national level, several countries have laws which
codify, at least inpart, Article 10 of the Rio Declaration. In Columbia,
for example, Law 99 of 1993 on Public Participation in Environmental
Matters includes provisions on the right to request information.
Likewise, in the Czech Republic, there is a constitutional right to
obtain information about the state of the environment, which has
been implemented in the number of environmental protection laws. In
1998, as a follow up to the Rio Declaration and Agenda 21, member
statesof the United Nations Economic Commission for Europe
(UNECE) and the European Union signed the legally binding
Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (the Aarhus
Convention). The Aarhus Convention(named after the Danish city
where it was adopted) recognizes access to information as a part of
the right to live in a healthy environment rather than as a freestanding right. However, it does impose a number of obligations on
States which are consistent with the international standards, for
example, it requires States to adopt broad definitions of
‗Environmental Information‘ and ‗Public Authority‘, exceptions must
be subject to a public interest test, and an independent body with a
power to review a refusal of request for information must be
established. Forty European and Central Asian countries that
ratified this convention have put in place legislative and
administrative mechanisms to provide environmental-related
information to public. Further, The United Nations Secretary-General
Kofi Annan (1997-2006) had said that although regional in scope, the
significance of the Aarhus Convention is global. It is by far the most
impressive elaboration of principle 10 of the Rio Declaration, which
stresses the need for citizens' participation in environmental issues
and for access to information on the environment held by public
authorities. As such, it is the most ambitious venture in the area of
environmental democracy so far undertaken under the auspices of the
United Nations. The influence of the Aarhus Convention also extends
beyond the environmental field. At the Second Internet Governance
Forum, held in Rio de Janeiro on 12-15 May 2007, the Convention
was presented as a model of public participation and transparency in
the operation of international forums.

vi) The African Union and Right to Information
The African Union (AU) consists of 53 states. The only African
nations with a law implementing the right to information are Angola,
South Africa, Uganda and Zimbabwe. In Zimbabwe, the Access to
Information and Protection of Privacy Act, 2002, in effect restricts the
flow of information instead of facilitating transparency in government
bodies. However, Article 9(1) of the African (Banjul) Charter on
Human and Peoples‘ Rights, explicitly recognizes the right of people
to seek and receive information and says that ―Every individual shall
have the right to receive information. In 2002, the African
Commission on Human and Peoples‘ Rights reinforced the view that:
―public bodies hold information not for themselves but as custodians
of the public good and everyone has a right to access this
information‖. The African Union‘s Declaration of Principles on
Freedom of Expression in Africa, 2002 also recognizes that
everyone has a right to access information held not only by public
bodies, but also by private bodies when this information is necessary
for the exercise or protection of a human right. Though not binding,
the aforesaid Declaration has considerable persuasive force as it
represents the will of a sizeable section of the African population. The
Declaration lays down the following principles: Everyone has the right
to access information held by public bodies. Everyone has the right to
access information held by private bodies which is necessary for the
exercise or protection of any right. Any refusal to disclose information
shall be subject to appeal to an independent body and/or the courts.
Public bodies shall be required, even in the absence of a request, to
actively publish important information of significant public interest.

No one shall be subject to any sanction for releasing in good faith
information on wrongdoing, or information which would disclose a
serious threat to health, safety or the environment. Secrecy laws shall
be amended as necessary to comply with freedom of information
principles. The African Union‘s Convention on Preventing and
Combating Corruption, 2003 further recognizes the role that access to
information can play in facilitating social, political and cultural
stability.37 For this reason, Article 9 requires that every State adopt:
―legislative and other measures to give effect to the right of access to
any information that is required to assist in the fight against
corruption and related offences‖.

vii) Organization of American States
The Organization of American States (OAS), or, as it is known
in the three other official languages, is a regional international
organization headquartered in Washington, D.C., United States. Its
members are the thirty-five independent states of the American
Continent. American Convention on Human Rights was adopted by
the Organization of American States (OAS) in 1969. This international
treaty is legally binding in nature.

Article 13 of the convention reads as follows;-
(1) Everyone has the right to freedom of thought and
expression. This right shall include freedom to work, receive and
impart information and ideas, of all kinds, regardless of frontiers,
either orally, in writing, in print, in the form of art, or through any
other medium of one‘s choice.

Clause 2 states that exercise of such right may sometimes be
subject to liabilities or restrictions if it compromises the national
security or contravenes the right available to others.

viii) European Convention on Human Rights
The European Convention on Human Rights (ECHR) (formally
the Convention for the Protection of Human Rights and Fundamental
Freedoms) is an international treaty to protect human rights and
fundamental freedoms in Europe, drafted in 1950 by the then newly
formed Council of Europe, the convention entered into force on 3
September 1953. All Council of Europe member states are party to
the Convention and new members are expected to ratify the
convention at the earliest opportunity.

The Convention established the European Court of Human
Rights. Any person who feels his or her rights have been violated
under the Convention by a state party can take a case to the Court.
Judgements finding violations are binding on the States concerned
and they are obliged to execute them. The Committee of Ministers
of the Council of Europe monitors the execution of judgements,
particularly to ensure payment of the amounts awarded by the Court
to the applicants in compensation for the damage they have
sustained. The establishment of a Court to protect individuals from
human rights violations is an innovative feature for an international
convention on human rights, as it gives the individual an active role
on the international arena (traditionally, only states are considered
actors in international law). The European Convention is still the only
international human rights agreement providing such a high degree of
individual protection. State parties can also take cases against other
state parties to the Court, although this power is rarely used.The
Convention has several protocols. For example, Protocol 13 prohibits
the death penalty. The protocols accepted vary from State Party to
State Party, though it is understood that state parties should be party
to as many protocols as possible.

The Council of Europe (COE) is an intergovernmental
organisation, composed of 43 Member States. It is devoted to
promoting human rights, education and culture. One of its
foundational documents is the European Convention on Human
Rights (ECHR), which guarantees freedom of expression and
information as a fundamental human right. Clause 1 of Article 10 of
the Convention states that, ‗Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions, and to
receive and impart information and ideas without interference by
public authority and irrespective of frontiers‘. However, clause 2
provides that such right is subjected to such formalities, conditions,
restrictions or such penalties as are prescribed by law, and are
necessary in a democratic society, and if it harms the national
interest or territorial integrity. However European Court of Human
Rights interpreted Article 10 strictly That is to say it was held that
freedom to information prohibited the Government from restricting a
person from receiving information. But, at the same time it does not
provide any positive right to a person for obtaining the information.
This interpretation was based on the difference between ‗freedom‘ and
‗right‘ Most of the above discussed international instruments do not
deal with RTI directly. Their role however is not diminished at all by
this fact. Like a first step they showed the world community a
direction to be explored in order to materialize the democratic value of
RTI, thereby making the systems transparent and world more
amicable for the people.

ix) The Asia-Pacific and the Right to Information
The Asia-Pacific nations with a specific and functional law
implementing the right to information are Australia, Azerbaijan,
Georgia, India, Israel, Japan, New Zealand, Pakistan, South Korea,
Tajikistan, Thailand and Uzbekistan. Neither Asia nor the Pacific has
an over-arching regional body that sets or monitors human rights
standards in the regions. However, this does not mean that there is
no recognition of the people‘s right to information – it just comes from
different fora. Rather than being recognized in human rights related
treaties, the Asian and Pacific countries have generally recognized the
importance of the right to information in other agreements. One
human rights charter in the region that includes the right to
information is the revised Arab Charter on Human Rights which
was adopted at the Summit Meeting of Heads of State of the members
of the League of Arab States at their meeting in Tunisia in May, 2004.

The Charter includes a specific right to information provision in
Article 32(1) which states: ―The present charter guarantees the right
to information and to freedom of opinion and expression, as well as
the right to seek, receive and impart information and ideas through
and medium, regardless of geographical boundaries.‖ Although the
Charter has been signed by a number of countries, it has not received
the required number of ratifications to come into force. The
Association of South East Asian Nations‘ (ASEAN) 1967 Bangkok
Declaration states in its aims and purposes that it adheres to the
principles of the United Nations Charter, including Article 19 of the
Universal Declaration of Human Rights which includes the right to
information. The Asia Development Bank - Organisation for Economic
Cooperation and Development (ADB-OECD) Anti-Corruption Initiative
Action Plan, sets out members states‘ commitment to freedom of
information in order to: ―ensure that the general public and the media
have freedom to receive and impart public information and in
particular information on corruption matters in accordance with
domestic law and in a manner that would not compromise the
operational effectiveness of the administration or, in any other way, be
detrimental to the interest of governmental agencies and individuals.
The Pacific Plan, endorsed by leaders of 16 Pacific Island nations,
has a good governance pillar which includes the requirement that
states develop freedom of information mechanism. Recognizing the
importance of sharing information, the Pacific Islands Forum
Secretariat is in the process of developing its own internal
disclosure policy which will provide people access to the information it
holds.

CONCLUSION
The access to information is lifeline of a progressive society. Our
Constitution provides for freedom of expression and this freedom is
directly connected with access to information. Even after more than
66 years of Independence, the people of India are largely living in the
darker side of the governance of the Country and are often
uninformed about the public affairs affecting their life and survival.
Though, India a late starter in introducing transparency, yet this bold
initiative needs appreciation. Right to Information Act symbolizes a
revolution, not so much in the way of working, but in the way of
thinking. If implemented successfully, democracy as an idea will
attain a new height and will go in a long way for achieving the
Constitution goals.



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