(1) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh, 1997(9)SCC 199, when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration – every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”
Contrary to above, the experience is that the holders of public offices treat the authority in their hands, as one bestowing upon them, the status of a ruler rather than one in public service.
Statutory / Public authorities / Public officers, especially highly placed, soaked in arrogance of their powers, generally do not bother themselves to the complaints / representations of Citizens, and their replies sometimes are deliberately illogical and evasive. This essay seeks to engineer an effective answer to deal with this deep menace.
(2) We, the people of India have so many rights, under the Constitution, under various Statutes, and under the common law, and I thought let us contemplate one more right, which is “Right of Reply”. It is my case that Citizens’ and every person has a Sovereign right to receive proper reply, of the complaints / representations made to public / statutory authorities.
(3) In fact, in the case of Salem Advocates Bar Association, Tamilnadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court, among other things, said - Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State
In the above case strict duty is cast upon the Public authorities to make proper replies if they happen to receive any statutory notice, either under section 80 of CPC 1908, or under any other statute. I say, when a law recognizes a duty, correspondingly, law also recognizes a right.
(4) It is my case that Citizens’ / every person’s Right of “Reply” can be traced to preamble and to Article 14 of the Constitution of India and in numerous rulings made by our Constitutional courts. In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed that public authorities must exercise their discretionary powers in a reasoned and justified manner, failing to imminent and inescapable violence of Article 14 of the Constitution of India.
It is my case that Citizen’s / person’s “Right of Reply” is inherent in “Duty to reasoned exercise of discretion by Public authorities”, a duty which is consistently cast upon public / statutory authorities by our Constitutional Courts, in their series of judgments.
(5) It is my case that when the Courts, in their wealth of judgments, lay so much emphasize on recording of reasons by public authorities, in the discharge of their duties even when administrative in nature, the recording of reason in their decision itself presupposes the obligation of giving reply, and not only a mere reply but a reasoned reply. It cannot be said that – whereas authorities are under obligation to make reasoned reply but they are at liberty to not to make any reply.
(6) It is my case that in wealth of judgments, the Courts have insisted upon recording of reasons by administrative authorities on the premise that such a decision is subject to judicial review and the courts cannot exercise their duty of review unless courts are duly informed of the consideration of the public / statutory authorities underlying the action under review. A statement of reasons serves purposes other than judicial review, inasmuch as the reasons promote “thought” by the public / statutory authority and compel them to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
(7) When, in the case of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605, the Hon’ble Supreme Court held that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India, then, it is my case that non-reply of any complaint received by any public /statutory authority, is a positive act of omission, an arbitrary, unfair and unjustified decision of that public / statutory authority, to not to make a reply, thereby frustrating citizen’s fundamental right enshrined under Article 14.
(8) When, in the case of Srilekha Vidyarthi versus State of UP reported in AIR 1991 SC 537, it was held by the Hon'ble SC that in order to satisfy the test of Article 14, every State action must be informed by reasons and that an act uninformed by reasons, is arbitrary, and arbitrariness is the very negation of the Rule of Law, it is my case that non-reply of any complaint received by State, is an act of omission of the State not informed by reason and thus arbitrary, and thus does not pass the test of Article 14.
(9) When in the case of Dwarkadas Marfatia versus Port Trust Bombay, reported in AIR 1989 SC 1642, it was held by the Hon’ble SC that every action of public authorities must be subject to rule of law and must be informed by reason and when there is arbitrariness in their acts and omissions, Article 14 springs in and judicial review strikes it down and thus whatever be the activity of the public authority, it should meet the test of Article 14, it is my case that when a public authority does not reply to my complaint, I can safely allege that the said public authority is acting arbitrarily, and Article 14 springs in and gives me the locus of being aggrieved and confers safe jurisdiction to the High court under Article 226 to strike down that alleged act of arbitrariness, i.e. the act of “un-replied complaint / representation.
(10) Similarly, when, in the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836, the Hon’ble Supreme Court said – Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached, it is my case that non-reply of any complaint received by any public /statutory authority implies that although mind was applied to the complaint and arbitrary decision was taken by the administrative authority that no reply should be made.
(11) I further say that, it cannot be said that a person is left without a remedy to challenge any omission or inaction on the part of the public / statutory authority. It may be informed that in a case, reported in AIR 2003 SC 1115, relating to grievance of the Public servant, the Hon’ble SC held that the “inaction” on the part of the authority can be challenged in the High Court by filing a WP under Article 226 of the COI. The Court said - Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same.
(12) It is profitable to quote here the observation of Justice Lord Denning, one of the most celebrated Judge of England, in one landmark English case, popularly known as the Padfield Case [1968] AC 997. This is how Lord Denning dealt with the case before it. His Lordship said-
“It is plain to me that by these provisions parliament has provided machinery by which complaints of farmers can be investigated by a committee which is independent of the board and by which those complaints, if justified, can be remedied. No other machinery is provided. This case raises the important question: How far can the Minister reject the complaint out of hand ? Is the Minister at liberty in his unfettered discretion to withhold the matter from the committee of investigation and thus refuse the farmers a hearing by the committee ? And by refusing a hearing, refuse a remedy ? Mr Kemp, who appeared for the Milk Marketing Board, contended that the Minister need not consider the complaint at all. He could throw it into the waste paper basket without looking at it. The Solicitor General did not support this argument It is clearly untenable. The Minister is under a duty to consider every complaint so as to see whether it should be referred to the committee of investigation. I can well see that he may quite properly reject some of the complaints without more ado. They may be frivolous or wrong headed: or they may be repetitive of old complaint already disposed of. But there are others which he cannot properly reject. In my opinion every genuine complaint which is worthy of investigation by the committee of investigation should be referred to that committee. The Minster is not at liberty to refuse it on grounds which are arbitrary or capricious. Nor because he has a personal antipathy to the complainant or does not like his political views. Nor on any other irrelevant ground.
It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as he likes, regardless of right or wrong. Nor does it mean that courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievances should be remedied. When Parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have complaint investigated without good reason.
But it is said that Minister is not bound to give any reason at all. And that, if he gives no reason, his refusal cannot be questioned. So why does it matter if he gives bad reason ? I do not agree. This is the only remedy available to a person aggrieved. Save, of course, for Questions in the House which Parliament itself did not consider suitable. Else why did it set up a committee of investigation ? If the Minister is to deny the complainant a hearing- and a remedy- he should have at least good reason for his refusal: and when asked, he should give them. If he does not do so, the Court may infer that he has no good reason. If it appears to the Court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him- or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him – the court has power to interfere. It can issue a mandamus to compel him to consider the complaint properly.
(13) Discretion in reality means a power given to a person with the authority to choose between two or more alternatives or possibilities each of which is lawful and permissible. The concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike.
(14) Recording of reasons will show application of mind and probably this recording of reasons is the only remaining visible safeguard against possible misuse of powers conferred upon administrators of a nation.
(15) I say that our system of governance is founded on the lofty principle of rule of law, wherein the Nation’s power is divided amongst three chief organs, each under a duty to conduct itself in a manner that subserves the common good of all and achieve the objectives of a welfare State. The checks and balances were put as inherent safeguards designed to ensure compliance with the maxim “Be you ever so high, the law is above you”. The dicta of the Constitution is crystal clear; namely, the goal of good governance.
(16) I say that even our Constitution of India lay so much importance to the authority of people of India. In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme & fundamental governing volume.
This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the fathers of our Constitution intend to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA. This announcement is intelligent, designed and purposeful.
There are three chief organs outlined in the Governing volume called Constitution of India - they are Legislature, the Govt and the Judiciary, and all these three organs derive their origin and all powers from this peoples' governing volume.
(17) Also, it is my case that, when the Hon’ble Chief Justice of India Shri S H Kapadia on 15.05.2010 warned the PIL Petitioners that they must first issue notice to the Govt / Public authority before moving courts, and therefore, we the People expect, in principle and in equity, that if that public / statutory authority / govt, turn a blind eye to the notice / Complaint / representation, and if one has to move court for redressal, then this Hon'ble court will also find the occasion to direct that the Govt / Public authority to effectively deal with the issue raised in the complaint / notice / representation.
(18) I seek to recall an historic incident of Indian freedom struggle, occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year 1893, when in South Africa, while holding a First Class Compartment ticket and traveling in, Gandhi was thrown out of the train, for, in those times “Blacks” were not allowed to travel in the First Class Compartment, notwithstanding they hold a valid ticket. It was 9.00 in the chill night. That designated “Black” sent a Telegram to the General Manager of the Railways and registered his complaint. The Complaint of that designated “Black” was attended, forthwith. The General Manager instructed the Station master to secure that complainant reaches his destination safely. Complainant was accommodated in the very next morning train to his destination. And here, in the era of INDEPENDENCE and 21st Century of modern democracy, we have Citizens of Sovereign India, of whose complaint are ordinarily, attended with “denial” and sometimes with hostility.
(19) It is my case that grievance of the people must be promptly and properly attended instead of waiting and allowing for it to be translated into court litigation.
(20) It is my case that the giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
(21) It is my case that a complaint to any public / statutory authority is the most legitimate incident of a democracy.
(22) I / we also invite attention to the national Litigation Policy [For short NLP]. I am of view that Wednesday, the June 23rd, 2010, 14:14 Indian Standard Time, is one of a historic moment for India when Dr.M.Veerappa Moily, Minister of Law and Justice released a Document called National Litigation Policy. The principal aim of this Policy is to transform Government into an Efficient and Responsible litigant. “EFFICIENT LITIGANT” under the Policy is desired as focusing on the core issues involved in the litigation and addressing them squarely; and Managing and conducting litigation in a cohesive, coordinated and time-bound manner.
“RESPONSIBLE LITIGANT” under the Policy is desired as, which in my view is more important, that litigation will not be resorted to for the sake of litigating. This Policy, in point no. 2. of Chapter II of Vision / Mission exhorts that Government must cease to be a compulsive litigant. The easy approach, “Let the court decide,” must be eschewed and condemned. It is equally remarkable to note that when this policy, in the very first point of Vision / Mission reaffirms that it is the responsibility of the Government to protect the rights of citizens and those in charge should never forget this basic principle.
This Policy, in point no. 4(A) of Chapter II of Vision / Mission delves the responsibility on Heads of various Departments, Law Officers and Government Counsel, and individual officers to secure the strict implementation of this Policy.
In the light of this National Litigation Policy, the (Public authority) is empowered to take appropriate legal opinion about the merit of the submissions made by me / us in the background of facts of the case, so as to avoid unwarranted litigation in the court of law against the Government functionaries.
(23) It is finally my / our case that satisfactory replies to complaints are not of some importance but of fundamental importance in State Citizen relationship.
And therefore, it is necessary to trace the evolution and development of law, the emergence of concept of subject & the ruler, and trace the origin of today's concept of Citizens & the State.
At the advent of Human Civilization, ‘Men’ were Sovereign in their own, in the sense that, they were free and were not subject to or bound by any law. Then, men were Ruled by their own conscience and not by codified laws and were even free to the extent of inflicting violence at their will & strength, i.e. Might is right was the scene. Men were guided by own conscience and greed. An action not emanating from reason and the freedom to do as one pleases.
Great Philosopher Thomas Hobbes (1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.
With the great passage of time and centuries together, Codified laws evolved and were introduced in human life. Men came together, they voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the Rule of codified laws. The rule of codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alongwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.
Among various definitions of State given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE
Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He said- it is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose.
And therefore, in the backdrop of this ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that complaints made to State will be replied.
(24) And where public / statutory authorities don’t reply to complaints / notice / representations, or reply in interplay of words and in genius pretence, than, in my view, the appropriate approach may be, if at all the aggrieved person wishes to move the court of law, to only request said High Court to direct that public / statutory authority to make a “Reasoned reply” to the Petitioners complaint dated 00.00.0000, and the recording of reasons by said Public / statutory authority must not only be intelligible but which will also deal with the substantial points which has been raised therein in the said complaint and cover other relevant points; and eschew irrelevancies and reply which demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public / statutory authority on the issue raised in the said complaint have been reached according to law.
(25) The most important advantages is that if Writ is filed for this limited purpose, than it may be disposed off in the first hearing, because for passing this order, the Court may not even hear the concerned Public / Statutory authority and may straight away pass order. Secondly, if any such order is passed, than that public / statutory authority is bound to make a reasoned and proper reply, in a time bound manner.
(26) It may be stated here that all persons, aggrieved by the acts and omissions of public authorities, may not have easy access to High Court. In that condition, a Civil Suit for Injunction may be filed before the District Court, seeking necessary reliefs. But before filing Suit, one is obliged to give notice under section 80 of CPC, 1908, to the concerned Public authority.
The Citizens' “Right to Reply” has its roots in democracy of nations and Sovereignty to Rule of Law and stands on a higher footing than the fundamental rights conferred to the people of India under the Constitution of India, and therefore, the Principal Civil Courts, subordinate to High Court, shall have the jurisdiction to grant relief claimed, and may direct the public / statutory authority to give proper and reasoned reply as discussed hereinbefore.
I am aware of two judgments which says that (1) Civil Suit can be filed if the Statutory authorities act in violation of the rules or Act, or abuse its authority or acts in violation of the rules of judicial procedure A 1991 Cal 120, 122, 123; (2) Civil Suit for mandatory injunction for directing local body to discharge its statutory duties would be maintainable. A 2000 Bom 444, 452 (DB).
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Sandeep Jalan
Advocate
Mumbai.
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Comments
Please keep posting them frequently.
I have a clarification to seek.
In Para (1) you have given a citation "Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh" but the case No. or the reporter reference is not given.
It will be so kind of you if the same is conveyed.
I have been receiving your articles, which carry informantion relevantAND ALSO ADD to our knowledge on law and it help me and others to use in our writings
regards
Dr. JN Sharma
ADVOCATE/HUMANRIGHTS ACTIVIST
Also, what are your plans here? Are you planning to file a petition with a HC or SC on this? Many courts simply directs the authorities to act on the complaint even though the authority sits on the complaint for years without action, instead of taking action against them for not acting... I will do anything to change this status quo...
Keep writing more articles.
The problem with govt. functionaries is that they do not reply to letters and applications which leads to a lot of avoidable litigation.
And they do not follow the decisions of various courts including the Supreme Court.
They simply ignore them. The remedy is that where the courts find that decisions have been side tracked or ignored, they should levy damages on the persons concerned.
This would make officials a little more responsible and accountable.
May god bless u..
Param
Kudos to you. You have given hope to many citizens who are living lives of helplessness due to the whims and fancies of Managing Committees, especially in cities like Mumbai.
I request you to kindly write about the latest fancy of Mumbai Societies to BAN bachelors/singles from taking flats on Leave Licence & as Paying Guests. Reason given is incidents like Palande Murders, suicides by Girls living alone or young boys having dinner get-to-gathers. Are these bachelors supposed to live like sages or saints? And the members of the societies themselves have all the liberty to create noisy late night parties and ugly fights.
There are widows and old people who depend on rental incomes and it is not possible to find families who are seeking flats on rent. It is only bachelors who are migrating in search of jobs. Can you please voice your opinions with court judgements on this subject as this practice is now taking the form of an epidemic.