Right To Response And Its Relevance As A Legal Right In Indian Democratic System

  • Right To Response And Its Relevance As A Legal Right In Indian Democratic System

    “Democracy, like liberty, justice and other social and political rights are not given. They are earned through courage, resolution and sacrifice”.

    The contents of democracy are not cast in stone. The structures and processes that add up to make (or keep) a nation democratic is not static. It could be seen as a function of what is practicable at the moment – given the social, political and even technological capabilities of the state. Nations anoint themselves as democratic and often leave the power in a...

    The contents of democracy are not cast in stone. The structures and processes that add up to make (or keep) a nation democratic is not static. It could be seen as a function of what is practicable at the moment – given the social, political and even technological capabilities of the state.

    Nations anoint themselves as democratic and often leave the power in a representational structure to define the details. In the context of India, even a non-representational entity like the Judiciary has been instrumental in defining the contours of the institutions of governance – defining what is acceptable, preferable and aspired for.

    In all of this, the unstated expectation is that the Constitution and the legal framework would be kept vibrant for "We, the People" – to be of service to them, in affording them the widest latitude that is possible to pursue happiness and dignity. It is in this context that there is a need to think about the "Right to Response" being made available to the citizens. The citizen has entered into a contract with the State, in which one of the pre-conditions is that the dignity of the citizen would be kept. For this, it is important for the State to respond!

    The 'welfare state'
    [1] has come a long way. As times have changed since the inception of Indian constitution, the requirements of a citizen have also changed. There is a long way to go to fulfill the requirements of citizens and to make India a state of transparency and accountability.[2]

    A constitutionally guaranteed right to response would ensure that the citizens have a legal right to get a response from the government offices regarding their communications to the State authorities. This would be difficult to implement at the policy level with even silence being viewed as a stated policy. It is therefore suggested that the same be made applicable at least at the level of administration - to render a response according to the stated policy of the State. To be able to do this, each interaction with the Government will need to be uniquely tracked irrespective of the level at which it is made.

    2. Right to Response – A Legal Right

    A) Meaning and Its Need in Indian Democratic Structure

    'Right to response' would entail that a citizen has a right to get a response to the communication that it is making with the government. The response could be positive or negative. It could be that the citizen is asking for something that is not legally possible. It could be that there is no policy of the government in which the request can be accommodated. In these situations, the reply is bound to be negative. Even so, it would qualify as a response.

    It is quite possible that the administrative system requires some time to positively complete the service as requested by the citizen. It could have procedural formalities that need to be fulfilled. In these situations, it would require time for the completed response to be given. In this context the initial response could be that a conclusive reply would be given by a particular date stating the procedure that needs to be followed.

    Presently, for a competent authority it is not mandatory to dispose of the representation unless there is a writ of mandamus that has been issued by the Courts
    [3]. To get a writ of such nature, involves cost. Again, the courts are found to be disposing off most of their cases with directions to respondents to decide the case as per rules. Such judgements make it a right only for those who move the courts to get a response. This is, in practice, a curious situation where a right is being created outside the legislature.

    The State in India is pervasive in its presence and there is a huge dependency on the State as far as the common man is concerned. Certainly, there is a need to think of governance structures
    [4] whereby the need to access the authorities is reduced. In any case, if the access is required, it cannot be healthy to leave the access asymmetric. It is in this context that a defined right to response is required.

    B) What is included in Right to Response?

    The Right to Response would contain statutory provisions to ensure time-bound delivery of responses to communications made to public officials by the citizens. It would also define the mechanism to penalize delinquent public officials if they fail to deliver the requested response within a stipulated time. The Right to Response would be one of the most effective ways to reduce corruption
    [5], enhance transparency in public sector operations and provide public accountability.

    The responses could be

    1. The matter requested for by the citizen is genuine and has been done
    2. The matter requested for by the citizen is genuine and will be done by <<date>> as <<procedure>> is involved
    3. The matter requested for by the citizen is not genuine according to <<law>> and hence is filed.

    The right would also define an appeal mechanism in which a higher authority can look into the responses given by a lower authority. This is akin the Right to Services Act, only difference being that the 'Right to Response' would be wider, without a requirement for a notification of a service. It is akin to the "Right to Information Act", the difference being that it will be deeper, with a requirement to give response rather than just give information about the status of the matter.

    C) General Procedure under Right to Response Guarantee Act

    To operationalize the right, it would be required to uniquely identify each and every interaction that a citizen makes with the State irrespective of the level at which it is made. In the present technological age, it would not be required of the citizen to physically visit a particular office to make a request. It should be possible for the person to register the request in the virtual account of any of the offices, say in a district, directly on the internet. Just as the Aadhar uniquely identifies an individual, the interaction with the government should be uniquely identified for future reference

    This would require that digital instances of all offices be created online so that the citizens can access the same 24*7. The credentials of the citizen can be verified using Aadhar or mechanisms like OTP sent to the mobile number of the person registering the communication. There should be a facility to give an instant receipt to the citizen via the mobile device registered. An instant intimation about the request should also be given to the official who is to give the reply. It could be so programmed that the contact details of the person making the request is also sent immediately to the official who needs to make the reply. This would enable prompt communication to know the details of the request, if need be.

    There would be a need to link the online software application accepting the request to other government databases like land records, resident data bases, databases of infrastructure, GIS based maps etc so that proper referencing can be done about the requests with clarity on what is asked for by the citizen.

    In case an application gets registered at a location where the original jurisdiction to attend to the same is not available, it should be possible to forward the same with a trail. The intimation should go to the citizen also so that the movement of the matter in this regard is transparently recorded and communicated.

    D) Advantages

    India accepts right to life as a fundamental right that is granted constitutionally. It has been brought out clearly that right to life implies right to live with dignity
    [7] and not just animal existence. When citizens make a communication with the State, and the State just does not respond, their dignity gets affected. It is akin to a stone walled conversation. Thus to give a life of dignity to individuals, it is important to have a right to response!

    One cannot enforce this right against other fellow citizens as it would be beyond the capability of any one citizen to be responding to all the stimuli that is received from other fellow citizens. However, this would be required of a State which swears by transparency and responsiveness. Thus, right to response can be seen to be an integral part of right to life apart from good governance.

    Advantages Detailed

    The regime of right to response has some advantages to all stake holders. The note below is briefly attempting to explain the same –

    For the Citizen: This would be the most obvious part. The citizens would have a much more meaningful and dignified life. The social contract that was made would be more amenable to perception with a continued dialogue between the partners in the contract.

    The citizen would be able to access facilities according to the stated policies and programs of the State. There would be a clearer picture regarding the responsiveness of Government/administration. This would enable better governance.

    There would be more symmetry in access. In the present state of affairs, it is not unusual to find citizens jostling to thrust a paper into the hands of a District Magistrate or a visiting minister. With a system which assures receipt and response, the undignified wait that common citizens have to make would be rendered unnecessary.

    The system also envisages sharing reasons with the citizen. This enables the citizen to transparently see the responses given to others similarly placed. This makes the administration much more transparent.

    For Senior Civil Servants: In public service, the work is often so different and distributed that it is not easy to get data on what is the level of pendency in different offices. It is also not easy to reallocate staff for want of information regarding the required numbers at different levels and locations at different times. With each communication being tracked it would be possible to identify the locations that need more administrative support. Reallocation of resources can be accordingly made. Capacity augmentation of staff as per dynamic requirement would also be possible in this scenario.

    The unique tracking of applications and responses to applications enables administrators to quickly access the details of a case if and when there is an occasion to. Many times, precious time is lost in getting the required details of a case and in the process genuine things do not get done. Accessing information to realize that a particular request is not genuine would also be important to prevent the clogging of the system. With the interactions tracked digitally, it would be possible to bring out similar applications made in the past by the individual by going into the data even if the citizen does not make the information regarding previous applications available.

    On many occasions, pendency regarding a matter that has been brought to the attention of an office determines the credibility of an office/officer. This could be helpful especially in situations when credibility is of utmost importance like that of a law and order situation. If the officer is able to access details regarding a past application in such situations, it could be of value.

    With the data regarding interaction with Government available online, it would be possible for officers to monitor and analyze work of the subordinate offices in a more meaningful manner. The analytics that is possible with the online data would be crucial in providing good governance.

    For Functionaries: For lower level functionaries, there is often no secretarial or clerical support. This makes their offices very inefficient in chronicling or making communications with the public. Many offices at the lowest administrative level have only one single person. An automated system to track applications and responses helps them to keep a track of the communications and automatically formulates a "To Do" list for them which they can use to deliver responses and services.

    It also makes the functioning of the office more transparent obviating incorrect and motivated allegations of corruption and nepotism. Having a transparent mechanism to see the number of cases pending before an individual for attention would help in avoiding action on politically motivated complaints.

    For Judiciary: A lot of judicial time is consumed by applications in which they merely direct the concerned authority to consider the application. If it is defined as a right and a practical regime is set up, each communication with the Government would be trackable. This would enable the Judiciary to have a closer view of the administrative response before exercising judicial powers entertaining the application. In a way, it gives a right of response to administration before proceedings in a judicial court. This would be an instance of natural justice for the administration too.

    E) Disadvantages(?)

    The provision of a legal right to response has many disadvantages or difficulties – the way you look at it. The sheer scale of administrative capacity needed to respond in a time bound manner to any and every communication that might be made by the citizens would be very high. It is vulnerable to misuse by citizens by raising non-issues. Many times, responding specifically to a question by one of the citizens would be politically inconvenient to the Government as it would stand exposed on a particular issue.

    Response to Disadvantages

    With the present administrative structure and processes, it would be difficult, if not impossible, to deliver on right to response. It is, therefore, necessary to set up a practical regime which can deliver this right. To start with, the right could be made applicable at the non-policy level or the administrative level. This would mean that a response according to the existing policy is given within a time frame.

    The reply could be that the particular communication has been positively addressed. It could be that the action cannot be legally or 'as per policy' done as asked for in the communication. Again, the reply could be a time limit which is committed to the citizen in which the particular action will be done. This would be easier to realize at the administrative level as it is concerned only with implementation of policy and not the framing of a new policy. This would obviate the need to move the Judiciary for a prerogative writ as detailed in the previous section. All of that cost can be saved for the society if there is a defined right. The judiciary or any other agency could get involved when there is an explicit violation of that right. Not defining this right would mean that there is a very high entry barrier to be able to access the same. A market mechanism for preferential access is a famous definition for corruption.
    [9] Not making it a right, makes the enforced chance to response available only to a class of citizens who can move the court.

    The difficulty of the Government stance on a matter being exposed is a problem for the Government and may be a solution for the people. Even if one is to take a more compassionate stance for the Government, it would only take a question in the legislature to make the Government take a stance. In a way, the right to response, places the right that is now the exclusive purview of legislature and judiciary into the hands of the people.

    This would be administratively challenging in terms of the capacity of the Government to deliver. A practical regime in this sense can only be achieved by having a systemic use of information technology as a force multiplier. It would have been difficult to conceptualize of a government which is able to efficiently reply and communicate replies to its citizens in the pre-internet days. With the present state of the internet and the computing capacity available with Governments, such a right granted to citizens is eminently possible. This has been done to a limited extent in the right to services. Here it would be a broadening of the scope of the responsiveness of the State to other areas or services which are not notified.

    The practical implementation of the right to response would mean that the inward/outward register of each government office, irrespective of the level, should be available for public view. The inward register should be open to public access for 'writing in' the communication to be made to the office. Often, it is found that the functional levels of administration are bypassed by citizens in an attempt to directly reach the more visible person/office
    [10]. This happens as the citizens are not confident of a reply forthcoming from other levels. They are often unsure if their application is registered. For a practical regime, all levels of Governments should be available for direct transparent public access, so that all communications and responses can be tracked and monitored[11].

    3. Right to Response versus Right to Information

    Under the Right to Information Act (RTI), right has been given to citizen to get information from the public authorities. However, this is still in the form of giving information regarding the status of an application. There is no mandate for a response to be made. The information regarding the application could be that it is pending for consideration, which does not add value to the citizen.

    4. Right to Response versus Right to Service

    Many States provide the right to services as a legal right to their citizens. This however, is restricted to notified services. Mostly, services are in the nature of certification which is certifying an already existing fact related to the citizen
    [12]. Thus, the right is not extended to all services. It is not applicable to a matter in which the response of the State is not in the form of a service to an individual. Thus, such a right is not applicable to many of the public services. Developed nations with good administrative culture, do respond to communications in a time bound manner as a matter of good practice. But it is often not defined as a right which is legally enforceable.

    5. Right to Response versus Grievance Redressal

    Many states have put in place grievance redressal mechanism which has unique identification of the complaints made. There are some important distinctions between 'Right to Response' and an online grievance redressal mechanism

    1. This framework seeks to register the application or first point of interaction rather than a grievance. In this manner, this is one level before the grievance redressal mechanism.
    2. The fact that the original application and not the related grievance is being captured by the system changes the attitude of the office which is involved in the redressal of the grievance. There is a no bias to justify action that has been taken (or not taken) in the earlier interaction which provides for more positive governance
    3. In the grievance redressal mechanisms, mostly the grievances are centrally registered and then sent to a decentralized agency for resolution. This could have the following issues
      1. Bonafide incorrect marking of the complaint: -The citizen knows where the complaint belongs. However, this is left to the intelligence and interest of the operator in a centralized control room which often leads to improper forwarding of applications.
      2. The grievance redressal mechanism often do not add on to the capacity at the lowest operative level whereby they are able to respond to complaints

    6. Conclusion

    Right to Response can provide a strong support to democracy and promote good governance, by empowering the citizen to participate effectively and hold government officials accountable. In this manner, it will redefine democracy.

    Tackling corruption through individual centric interventions like Lokpal might lead to problems that undermine the democratic structure itself. A solution could be worse than the problem. The right to response would involve a paradigm shift. This would make the citizen a dignified partner in the social contract. Access would be more seamless and meaningful. The society would be more transparent. This would force more accountability in the governance system and force practices of good governance in all fields, including decentralizing decision making structures and processes to appropriate levels. Certainly, it would have its own set of difficulties. To have a meaningful implementation of the right to response, it has to be introduced in a calibrated and planned manner.

    Mr. Raghuraj Rajendran is Deputy Director in LBSNAA, Mussoorrie, raghurajmr@ias.nic.in and Ms. Rinky Dixit is a  Teaching Associate (Law) in LBSNAA, Mussoorrie, dixitrinki11@gmail.com

    [1] By welfare state, it is not intended to mean a state spending on social welfare directly. It is only to suggest a state which positions itself to be in public interest, irrespective of mode of delivery.

    [2] Aishwarya Deb and Prithwish Roy Chowdhary, "A Decade of the Right to Information Act, 2005 – Critical Exploration of the Scope and Impact of the Act" 2.2 IJLPP 93 -103 (2015).

    [3] M.P. Jain, Indian Constitutional Law (Wadhwa & Co, Nagpur, 4th edition 1987)

    [4]Constitutional Democracy and Government in India, (Atlantic Publishers and Distributors Pvt Ltd, New Delhi, 2017)

    [5] Defined as market mechanism for privileged access in 'The profit at the bottom of the pyramid' by CK Prahlad

    [6] In the event of using Uttara.nic.in, it will be the Uttara id of the interaction. A similar unique identification would be required for the infrastructure being created by the government funds at local level like roads and wells to avoid duplication – within and across schemes.

    [7] Justice KS Puttaswamy (Retd.) Vs. Union of India, AIR 2018 SC 494

    [8] This would have the disadvantage of a political decision in the interest of specific circumstances of the case being made difficult. Here the administration would be needing other political instruments/institutions whereby such decisions can be made where there is an allocation of resources which is not strictly according to the stated policy in the interest of justice. Here the decentralized governance structures who can transparently make such political decisions will be seen to be of value.

    [9] C. K. Prahalad, The fortune at the bottom of the pyramid (Wharton School Publishing, Upper Saddle River, NJ, 2005)

    [10] A typical case in point is the office of the DM, CM, PM

    [11] A practical attempt in this regard is www.uttara.nic.in made in the Madhya Pradesh state of India, whereby all offices in the district were made available for public access. There was no legislative backing for the effort. Administratively, it did not sustain. UTTARA expands as Universal Transparent Tracking of Applications and Responses to Applications. Uttara, in Hindi, means answer.

    [12] This should have been done through a resident data base, which automatically certifies a person's caste and other details without need for an application from the citizen and subsequent exertion by the machinery

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