From: Sandeep Jalan <sndpjalan@gmail.com>
Date: Sat, Apr 16, 2011 at 9:12 AM
Subject: Essay: The Constitution of India doesn't recognize autocrats
To: notsolearned@gmail.com
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I will begin with -
(1) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh 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 complaint of Citizens, and their replies sometimes are deliberately illogical and evasive. This essay seeks to engineer an effective answer to deal with this menace.
(2) We, the people of India have so many rights, under the Constitution and under various Statutes, and I thought let us contemplate one more right, that is "Right of Reply". It is my case that Citizens' have a right to receive proper reply, of the complaints 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' 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 which leads to inescapable violence to Article 14 of the Constitution of India.
It is my case that Citizen'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 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 underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote "thought" by the authority and compel it 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) 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.
(10) 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.
(11) 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.
(12) I say that even our Constitution of India give so much importance to the 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.
(13) 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 authority / govt turn a blind eye to the notice and if one has to move court for justice, 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.
(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 seeks 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 great disrespect and sometimes with hostility.
(16) 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.
(17) It is my case that the giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
(18) It is my case that a complaint to State is the most legitimate incident of a democracy.
(19) It is finally 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 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 alonwith 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.
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, 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 herein of their complaint dated 00.00.0000. The recording of reasons must not only be intelligible but which will also deal with the substantial points which has been raised therein in the 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.
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.
Pls find file attached of -
Format of Complaint which may be used;
Format of Writ Petition which may be used;
Relevant wealthy Judgments are discussed in format of Writ Petition.
http://commonlaw-sandeep.blogspot.com/2011/04/constitution-of-india-doesnt-recognize.html
Sandeep Jalan
Advocate
C/o Kalantaris
Botawala Building,
1st Floor,
73, Bombay Samachar Marg,
Mumbai - 400 023.
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Sandeep Jalan
Mumbai.
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Palash Biswas
Pl Read:
http://nandigramunited-banga.blogspot.com/
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