1. Citizens’ Charter in Jan Lokpal recognizes the “Right of Reply” and seeks an effective mechanism for redressal of Citizens’ complaints. The roots of proposed Citizens’ Charter can be traced to earliest period of human civilization. The essay is long, but may still deserves a full reading.
2. This essay seeks to unearth the deep roots of proposed Citizens’ Charter, the essential attributes of Citizens’ charter and historical relationship between State & Citizens; and general apathy of modern Indian State to deal with citizens’ complaints to them; also to engineer an effective answer to deal with this deep menace of unreplied complaints, till the Jan Lokpal Act comes into existence.
3. It is my 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 democracy, and trace the origin of today's concept of Citizens & the State.
4. 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 governance by codified laws. The governance by codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alonwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.
The conception of democracy is a sentiment which desires the well being of all men.
Laws were made so that the stronger might not in all things have his way. A law is something which must have a moral basis, so that there is a inner compelling force for every citizen to obey. The law is reason free from passion. Law is Summing up in legislative form of the moral judgment that the community has already reached.
Among various definitions of State given by Scholars of law and by Philosophers, this appears hereinafter 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.
A Sovereign State is one which is subordinate to no one and is supreme over the territory under its control. The word State connotes all three organs, namely- The Legislature, The Executive Government and The Judiciary.
Then Scholars of Law and Philosophers laid down the need for codification of laws, they stated what law is and in fact what should be the law. They generously advocated for codification of laws. They also outlined the ideals of good State.
Thomas Acqinas (1225-1274) He defined law as Ordinance of reason for the common good made by him who has the care of the community.
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.
Immanuel Kant (1724- 1804) pointed out that law to be acceptable to people should have within it an element of justness.
Jeremy Bentham (1748-1832) heralded a new era in the history of legal thought in England. He is considered to be the founder of positivism (codification of laws). He advocated that the law should be made exclusively by legislation which was suppose to remove inroads upon individual's freedom and provide him opportunities for development of the self. The proper end of every law is the promotion of the greatest happiness of the greatest number of people. According to Bentham, the task of governments is to promote, in general, the happiness in the society.
John Austin (1790-1859)- according to him, a law in its most comprehensive signification, is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.
Savigny of Germany is regarded as the founder of historical thought of school. He firmly believed that law is a product of general consciousness of the people and a manifestation of their spirit. According to him, every law has a national character and it develops like language and binds people into one whole. He says- law has a dual role – one as a regulator of general national life and second as a distinct discipline for study.
Puchta (1798-1856) said Self interest causes a conflict between individual will and general will. This brings out the idea of law and States comes into existence.
Scabelling (1775-1854) said that law is a means by which the individual will is harmonized with the general will of the community.
Kohler (1849-1919) In his book philosophy of law, he postulates vitalizing of culture or civilization and this end is sought to be achieved through the instrumentality of law.
Roscoe Pound (1870-1964) an American Jurist said Law is nothing but the very life of mankind in organized groups and the foundations which make peaceful co-existence of masses of individuals and of social groups.
Duguit (1859-1928) The only right which any man can possess is the right always to do his duty. Man has always lived in unity and in society and was never entirely independent.
Some of the roots of our enacted laws may be traced to or can be found in philosophies of ancient Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399 B.C.), Arsitotle (384-322 B.C.). Principles of justice and morality constitute the natural law. They said- entire universe in governed by reason. Man's reason is a part of the universal reason. Man is a part of nature in two ways- firstly, he is creation of god and secondly, he possesses insight and reason which enable him to articulate his action. Therefore, a man who lives according to reason, lives according to nature.
In 1897, Justice Holmes, an American Jurists issued a paper in which he put forward a novel way of looking at law. He says- if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things in deviation to established laws. It has become a tenet that a rule of law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.
Besides, Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering (1818-1892) significantly contributed to today's modern concept of codification of laws and emergence of State Citizenship relationship.
Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.
And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted from the State that-
(i) His Life & Property will be protected and his liberty will be secured;
(ii) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;
(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;
(iv) That others will not commit any intentional aggression upon him;
(v) That people with whom he deals will carry out their undertakings and will act in good faith;
(vi) That he will have security as a job holder;
(vii) That State will bear the risk of unforeseen misfortune;
(viii) That State will bear the burden of supporting him when he becomes aged;
(ix) That complaints made to “State” will be replied. Article 12 of Constitution of India define “State” as a every Public functionary, whether State Govt / Central Govt / Municipal body / Statutory bodies / Any instrumentality / Agency of the Govt etc.
5. Further roots of Citizens Charter can be traced in the Constitution of India, and, in particularly in Article 14 of it. In vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA came into existence on 26th January 1950, is the supreme & fundamental Governing Volume.
This epic Governing Volume makes a categorical announcement in its introductory passage that PEOPLE OF INDIA are the architect of this Volume. This announcement is intelligent, designed and purposeful. The announcement assumes significance because by this announcement, the framers of our Constitution intended to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their life for the independence of INDIA.
There are three chief organs outlined in this Governing Volume - they are Legislature, the Govt and the Judiciary; and all these three organs derive their origin and all their powers from this peoples' Governing Volume. The dicta of the Constitution is crystal clear; namely, the goal of good governance.
6. Good governance signifies the way an administration ameliorates the standard of living of the members of its society by creating, and making available, the basic amenities of life; providing its people security and the opportunity to better their lot; instills hope in their hearts for a promising future; providing, on an equal & equitable basis, access to opportunities for personal growth; affording participation and capacity to influence, in the decision-making in public affairs; sustaining a responsive judicial system which dispenses justice on merits in a fair, unbiased and meaningful manner; and maintaining accountability and honesty in each wing or functionary of the Government.
7. Yet, forms of accountability may differ but the basic idea remains the same that the holders of Public Office must be publicly able to justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people.
8. The Constitution of India, apart from being an embodiment of Governance Directives, recognizes certain “fundamental” rights upon the Citizens of India. Among all fundamental rights, in my view, Article 14 is the most charismatic and dynamic.
If one makes a casual glance over the Articles in the arena of Fundamental Rights chapter of our Constitution, then he can generalize the fact that the realm of fundamental rights starts from Article 14. This is because, both the Articles 12 and 13 are only preface to the text of fundamental rights.
Article 14 derives its source from American and Irish Constitutions and directly links with plenary provisions enshrined in the Preamble of our Constitution, which speaks the equality of status and of opportunity and simultaneously gives effect to the principles in the whole text of the Constitution and 12 Schedules appended to it.
If we move in the pages of Indian history, in a sense the demand for equality which is the main intent of Article 14, is linked with the freedom movement in India. The Indians wanted the same rights and privileges that their British masters enjoyed in India and the desire for civil rights was implicit in the formation of the Indian National Congress in 1885.
Equality is a dynamic concept with many aspects and dimensions. In respect of content and reach of the great equalizing principle enunciated in Article 14, there can be no doubt that it is a founding faith of the Constitution. It is a pillar on which, the foundation of our Democratic Republic rests. Hence the Courts in our country do not subject this Article to a narrow approach.
A very fascinating aspect of Article 14 which the courts in India have developed over the time is that Art.14 embodies “a guarantee against arbitrariness”. A man acting without reason is acting arbitrarily. Any action that is arbitrary must necessarily involve the negation of equality. Abuse of power is hit by Art.14. AIR 1974 SC 555; AIR 2005 SC 2021.
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 which inescapable violence to Article 14 is imminent.
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.
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.
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 may be subject to judicial scrutiny / 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 scrutiny / review, inasmuch as the reasons promote “thought” by the public / statutory authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
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, 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.
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, then, 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.
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, then, 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 jurisdiction to the High court under Article 226 to strike down that alleged act of arbitrariness, i.e. the act of “un-replied compliant”.
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, then, 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.
Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same. It cannot be said that a person is left without a remedy to challenge any omission or inaction on the part of the 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.
SOME OTHER IMPORTANT OBSERVATIONS ABOUT ARTICLE 14
Whenever there is arbitrariness in State action, Art.14 springs into action and the courts strike down such action. AIR 2000 SC 205.
Equality is one of the magnificent corner stone of Indian Democracy. Justice Thommes in Indira Sawhney versus UOI AIR 1993 SC 477.
Equality is the basic feature of the Constitution. Reasonableness and fairness is the heart and soul of Article 14 of the Constitution of India. Delhi Development Authority versus Joint Action Committee, Allottes of SFS Flats (2008) 2 SCC 672, 692 (para 43).
The most accepted methodology of governmental working ought always to be fair and in the event of its absent, law courts would be within their jurisdiction to deal with the matter appropriately. Anil Ratan Sarkar versus Hirak Ghosh, (2002) 4 SCC 21, 25 (para 1)
Whereas when one grant a facility to one and refuse to others similarly situated, practice discrimination, and thereby infringe and frustrate the spirit of Article 14 of the Constitution of India. Union of India versus R P Yadav (2000) 5 SCC 325 (para 70)
An act which is discriminatory is liable to be labelled as arbitrary. State of A.P. Versus McDowell & Co. (1996) 3 SCC 709 (para 44)
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.
9. Having said all sounding phenomenal, Statutory / Public authorities / Public officers, especially highly placed, soaked in arrogance of their powers, generally do not bother themselves to the complaint of Citizens, and their replies, most of times, are deliberately illogical and evasive.
10. 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.
11. The Public Servants / Officials, in the spirit of lawlessness, were often heard saying, (one may also call it various forms of passionate corruption) in the words of extremely Legal learned - Professor Upendra Baxi--
• As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner;
• As an Authority of Public Power- I may so act as to favour some and disfavour others;
• As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
• As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
• As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
• As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
• As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
• As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction.
In modern democracies, wide powers vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinabove.
12. It is my case that the giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
13. It is my case that a complaint to any public / statutory authority is the most legitimate incident of a democracy.
14. 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.
15. I 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.
16. 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.
17. In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where life decisions are taken in closed chambers of Ministers & Bureaucrats.
18. To oppose or challenge the illegal acts & omissions of government does not mean you are against the country or the people that the government supposedly represents. Such opposition should be called what it really is: democracy, or democratic dissent, or having a critical perspective about what our leaders are doing. Either we have the right to democratic dissent and criticism of these acts & omissions or we all lie down and let the leader do what they want; while we follow uncritically and obey whatever they command. That's just what the Germans did with Hitler, and look where he got them.
19. FINALLY, 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.
20. 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 annoyance and sometimes with hostility.
21. And where public / statutory authorities don’t reply to complaints, or reply in interplay of words and in genius pretence, than, in my view, the appropriate approach may be, to record a “Strong Notice”. It is presumed that after receiving of said strong notice, the recipient public authority will certainly make a reasoned reply.
22. And, in case, if the concerned public authority choose to remain silent on the received complaint, then, a simple Writ / Civil Suit may be filed, praying therein for the concerned Court , to direct the concerned Public authority to make a reasoned reply in a time bound manner. The concerned shall also direct to the respective Public authority that recording of reasons in the “reply” must not only be intelligible but which will also deal with the substantial points which has been raised therein in the complaint, will cover other relevant points, 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.
23. In case, if anybody is interested to have the copy of sample Strong Notice and concerned sample Writ / Civil Suit, may mail me at legallyspeaking.jalan@gmail.com, for it.
Sandeep Jalan
Advocate
Mumbai.
POST SCRIPT
Whereas the Govt of India is opposed to the idea of including Citizens’ Charter in Lokpal, some quarters of intelligentsia in “Civil society” are also opposing the inclusion of Citizens’ Charter in Lokpal Act (proposed). They are arguing that this will very heavily burden the Investigative Agency of the Lokpal, and the Lokpal may itself collapse. In this context, I argue a small story which highlights the whole idea of having penal laws.
I will begin with the words of Sir Lionel Fox, an acclaimed Penologist of England. He quotes the example of an 18th Century Judge who passed sentence of death saying, “You are to be hanged not because you have stolen a sheep, but in order that others may not steal.” He continued, “Executions are intended to draw spectators, and if they don’t, Executions do not serve their purposes.”
The whole purpose of having penal laws is that they may not be applied at all, by creating atmosphere of deterrence in the mind of potential offender.
The present justice dispensation machinery is a scarecrow in the field that doesn’t scare the crows anymore and the crows are sitting on the arms and cawing their contemptuous defiance. The lawyers, with honourable exceptions, have, sadly, lengthened simple justice into trade.
The moment “independent” Lokpal starts punishing the erring Public officials, the message will go to all Public officials and will create an atmosphere of restraint and will cause obedience to letter of the law. Then, there may be few complaints that will be filed before Lokpal.
In this mutually complex interactive Socio-economic-political settings of our flat earth, and the oceans of legislations, along with the theory of “guilt”, justice dispensation in any system of governance seems bound to be inherently procedurally complex and thus time consuming; and only way I could imagine to have a very efficient administration of justice is to secure that let there be least cases for courts to decide. And this may become the reality of day if Judges begin to take a serious view of those who take law of the land for granted and cause them to earn the wages of reformatory prison institutions. The sounds of Justice must be alarming. Everything else is a bad idea.
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