The meaning of the history cannot be confined to the rise and fall of kings and wars around a territorial unit. The genesis of ideas and their rule over the civilization is significant history of mankind. For instance, the Great Britain has no written constitution, but declarations of Rights of Men and consequential developments constitute landmarks of legal history of Britain. The Magna Carta, meaning Great Charter first issued by King John of England in 1215 and 1689 Bill of Rights are two documents which influenced the legal history of that nation, US and several commonwealth countries like India. King was granting certain liberties to God, the Church and the free men of England.
Like love & pleasure, the knowledge increases on distribution defying the logic and mathematics, even Medical Science proved that the liver increases on distribution. In fact, “Information is the source of knowledge and empowerment”; we need to trace the origin of idea of empowering people with information.
When right to petition was first contemplated, the human rights as an idea or a provision of law was not known. In June2015, we have completed eight hundred years of Magna Carta; looking at the humanity from rights angle, this guarantees an individual’s right to something against the powers that be. Magna Carta was an agreement between an unpopular king and rebel barons which is supposed to be implemented by the council of 25 barons. It was a failure as was not agreed or implemented for hundreds of years, but that did not affect its landmark place in the history of law.
Eight hundred years ago, Magna Carta was a potent international rallying cry against the arbitrary use of power. Lord Denning called Magna Carta ‘the foundation of the freedom of the individual against the arbitrary authority of the despot’. Most of the 63 clauses of Magna Carta granted by King John dealt with specific grievances relating to his atrocious rule. The Magna Carta, which did not succeed in keeping peace and declared as not valid, from then to the recent RTI Act, drastically changed relationship between the citizens and the government. The people are no more subjects, grown as citizens.
In tune with the turbulent political upheavals, the Magna Carta of 1215was constantly being changed, some rights were deleted, some rewritten and most of them repealed; still it remains cornerstone of the British and American Constitutions, so also of the Indian Constitution.
After some deletions and changes, only three clauses of the 1225 Magna Carta remain on the statute book. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
Right to Petition in Clause 61, Magna Carta
It did not remain archaic relic, but gained immense importance, used by the revolutionaries against the absolute power. What right is essential in social living? Is it right to life? Do we get it without asking for it? How do we ask without any guaranteed right to ask? Right to ask is basic; right to petition is a basic need. If that is given as right, an individual can ask for life and for everything he needs.
Filing a petition or making a representation was also not allowed in certain regimes. It was almost impossible to complain or questioning the grievance. The petitioner or complainant was threatened by authorities. There were instances of complainants being jailed.
The petitioning is equated with the questioning or challenging the authority of Emperor, but for dictatorial Kings it was seditious libel. It’s a complaint against the royal rule. They looked down the seeker of something. The people are supposed to take whatever was given, should not ask. The right or demand was unimaginable in dictatorship regimes world over. People remained subjects- subjected to such atrocious rule of the kings.
In this context, permitting someone to file a petition itself will be a great relief. This right, as explained, can be traced back to the Magna Carta (1215), it was considered the Petition of Right (1628), then was part of the Basic Law for the Federal Republic of Germany, the Bill of Rights 1689, and the United Nations Declaration of Human Rights in 1948 followed by the listed Fundamental Rights in Indian Constitution. This right was included in the Article 44 of the Charter of Fundamental Rights of the European Union was finalized on 1st December, 2009.
The Magna Carta, Chapter 61 encompasses, among others, the right to redressal of grievance, it says.
“…the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we … or any one of our officers shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offence be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us and, laying the transgression before us, petition to have the transgression redressed without delay..”.
Time limit of 40 days: Redressal cannot wait eternally and should be resolved, within 40 days:
“…And if we have not corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of the five and twenty barons…”
Right to rebel: No law can grant a ‘right’ to rebel. It is difficult to believe that the consequential or auxiliary rights include even right to rebel, if grievance is not redressed, it says:
“…and those five and twenty barons shall together with the community of the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands, possessions and in any other way they can until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us…”
This charter of 1215 was a failure, as peace did not work out as planned; but it has resurrected under the Henry III government for drawing support away from the rebel factions. This was followed by Great Charter 1216 and Great Charter 1217 in the context of political changes. Magna Carta continued to be embedded into English political life during those years. To support Henry III to fight invasion of France Louis VIII, rebels demanded King to reissue the Magna Carta and the Charter of the Forest of 1225. The charters were changed and reaffirmed or reformed at least 45 times. In every regime of English Kings the Magna Carta continued to be a very important negotiating point and political tool. The Petition of Right in 1628 cited Magna Carta in it preamble, when Edward Coke supported bill in Parliament. The fighting between American colonists and Britain was to preserve liberties and rights enshrined in Magna Carta. The US Constitution Fifth Amendment guaranteed that ‘no person shall be deprived of life, liberty or property without due process of law. This phrase was derived from Magna Carta, which became fundamental law. Article 1 and Section 9 says “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. Though Magna Carta carries little legal weight now, it continues to reflect the historical development of law and rights in modern society, especially in the evolution of law in England and United States. John E Wolfgram, holder of J.D.Degree and founder of Constitutional Defender Association in 1989, wrote and fought for advancing the Petition Clause principles. He [JOHN E. WOLFGRAM, 31 U. WEST L.A. L. REV. (Summer 2000)] analysed:
The development of our common law understanding of the Right of Petition began, but didn't end with the Magna Carta. Over the next 450 years it became the cornerstone upon which the House of Commons built its relationship with the King. Then in 1669, Commons resolved with authority that every commoner in England had "the inherent right to prepare and present petitions" to Commons "in case of grievance" and for Commons to receive the same and judge its fitness.
Twenty years later, after the "Glorious Revolution" Chapter 5 of the "Bill of Rights" of 1689 declared the Right of the Subjects to Petition the King directly, and "all commitments and prosecutions for such petitioning to be illegal.[ Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907)] "
He further says:
The Magna Carta's focus is almost entirely substantive: "And if we have not corrected the transgression within forty days," a state of moderate to severe war exists where the governed may lawfully ravage the government, and that continues "until redress has been obtained as they deem fit." It could hardly be more powerfully stated that substantive redress is the issue, and process is only the lubricant to obtain substantive justice.
Questioning or criticizing or even embarrassing the government was a crime. England has created a crime ‘seditious libel’17th Century:
“...communicating words, pictures, or signs that defamed, discredited, criticized, embarrassed, or questioned the government, its policies, or its officials. Filing a petition was considered as seditious libel. Not only that a citizen does not have a right to submit a petition but that also was a crime against state”
Unless legally recognized as specific right, a person filing a petition for redress would be prosecuted as a ‘criminal’. A mere mention of right to petition is of no use without guaranteeing protection of the criminal prosecution. There are several such auxiliary or consequential rights to ‘right to petition’ were discussed and provided. Those 14 supplementary or auxiliary rights are:
Challenging the rulers was never taken lightly and the kings used all their might to suppress dissent, questioning or demanding. Petitioning is also considered a crime. The essence of right does not lie in ‘right to petition’ itself, but in real terms, lies in immunity from being prosecuted for filing a petition. The criminalization of petitioning act was common during those days.
The English Bill of Rights of 1689 gave petitioning a special place by protecting petitioners from prosecution:
“That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal”
While petitions continued to be addressed to the King, Parliament had in reality taken over both accepting and addressing petitions. The tradition developed that Parliament would respond to petitions with investigation and legislation.
The Right to petition is the first ever human right perhaps recognized by Magna Carta. It was won after bitter fights and bloody revolutions. The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.
Right to consideration of the petition
After removing criminal consequences, the right to petition needs to have a positive consequence. Right to petition is fine, but what to do if that was not even considered? Over a period of time, the right to consideration of that petition has also emerged along with the right to petition. Colonial petitions addressed a wide range of public and private subjects including religion and the established church, slavery, relations with Great Britain, debt (public and private), taxes, government structure, divorce, appeals from judicial decisions, and naturalization. Petitions frequently set the legislative agenda in the colonies and resulted in laws being passed.
All persons did not have the vote right for centuries. Women children and slaves were not given the right to vote. Fortunately, the Right to Petition was not limited to voters. Petitions could be submitted by women, children and slaves also. The elected representatives and bodies of the colonies understood their duty was to entertain the petitions of all.
Right to rebel
The root of Petition Clause in Article 61 of the Magna Carta contains another significant right. Article 61 provided for the presentation of grievances to the king, and required the king to redress grievances within 40 days or risk rebellion. The Magna Carta’s Right to Petition includes, if the right is abridged, the right to wage whatever war against government needed to get just redress. The Magna Carta’s Petition Right included a Right to Rebel in the event that the Right to Petition were abridged, Right to rebel? It’s unimaginable.
American Colonies witnessed petitioning as method of submitting grievances to local legislative assemblies. Americans submitted a wide range of petitions to the locally elected houses of assembly by end of eighteenth century. Petitioning the lower assembly for relief enhanced local authority, and local authorities took petitions seriously.
Colonial assemblies entertained many types of grievances. Many colonial grievances could only be addressed by a response from the King and Parliament.
The opening of the original printing of the Declaration, printed on July 4, 1776 under Jefferson's supervision.
The Declaration of Independence listed 27 grievances against King George and “others”. The Declaration detailed the colonists’ petitions and the King’s response:
“In every stage of these Oppressions, we have petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”
The Magna Carta outlined the response when Petitions for Redress were ignored. This also includes about rebellion. The Right to Rebellion defined in 1215 was exercised in 1776 and explained in the Declaration.
Gandhi picking up the salt in defiance of Salt Satyagraha
Right to disobey the law and rebel are practically established by Mahatma Gandhi during the independence struggle and salt satyagraha is the apt example.
Right to Response
This was the history in America as the First Amendment was drafted. The Right to Petition inherently includes the Right to a Response, and a government failure to respond triggers a Right to Rebellion. Till now, unfortunately the Right to Petition remained the least known and certainly least understood guarantee of the Bill of Rights. The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of one's government, without fear of punishment or reprisals is also recognized in Europe.
As a constitutional right:
The First Amendment of the Bill of Rights (United States of America) addresses five rights. The limits on government interference with religion, speech and the press took shape of first amendment rights. The right to peaceable assembly was a needed protection to exercise these first three. The Right to Petition was central to constitutional law and politics in the early United States:
“Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.”
This prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances.This is how the First Amendment’s Right to Petition the Government for Redress of Grievances grew from the history in US. This Petition Clause does not say Congress, the President or the Judiciary. This Clause includes all branches. The Petition Clause use of the term government acknowledges an individual’s right to invoke government’s “powers” by way of a petition for redress of grievances. The clause thus affirms the right to invoke the government’s “judicial power” by petition for redress. With the Petition Clause comes a right to petition the judicial branch for redress of grievances against the government. The Petition Clause created a constitutional right. Since less than one percent of Americans even know the Clause exists, it is not surprising that the right has been ignored by the government and largely trumped by the judicially adopted concept of “sovereign immunity”.
The concept of sovereign immunity is that citizen cannot sue the Government in its own courts. This is an obsolete concept. Involving in so many public related activities and state is frequently interfering with public life, it must answer questions of illegality and damage to the rights of citizen. “King can do no wrong” is an archaic idea to deny the rights of citizen against the state. It does not have any Constitutional basis. The Petition Clause gives a citizen a right to sue the government for redress of grievances, but Sovereign Immunity says the government has to consent to such a suit. The idea of such immunity is inconsistent with both a republic and the Constitution itself.
Right to sue the Government
Thus another auxiliary right that emerges out of right to petition is the right to sue if petition is not answered. Whenever a citizen sued government for remedy or compensation, he was stonewalled with the argument of sovereign immunity or maxim of ‘king can do no wrong’. Instead of this, the "sovereign immunity" was the rule for a long time, as it was thought that the government can only be sued according to its consent. Such immunity abridges the right to redress grievances with government and freedom of citizen to question etc.
As the rights based approach progressed in emerging democracies, examples of waivers of sovereign immunity such as the Federal Tort Claims Act were visible and the courts have allowed other kinds of suits that are actually against the government by naming as defendants government officers in their official capacity.
Several case law in India that developed with judicial activism, demonstrated that sovereign immunity is archaic, unconstitutional and irrational. The right to petition government for redress and governmental immunity from redress are direct contradictions. The former is the First Amendment in US, fundamental right in India. The latter is the progressive result of Supreme Court decisions both in India and the US.
The History of the Right to Sue Government again dates to 1215 A.D. and the signing of the Magna Carta. Where petition rights would dispose of government of essentials, government has a right to condemn what it needs, but it must pay a just compensation for it. What they want to protect is government's "right" to take property without just compensation is considered theft.
Chief Justice P B Gajendragadkar
In Kasturilal Ralia Ram v State of UP case, a merchant was suspected to be a thief and his gold & silver was confiscated. That was stolen from Malkhana of police station by a head constable who fled to Pakistan. Kasturilal sued UP State for return of his gold & silver. The Supreme Court bench consisting of Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Dayal, Raghubar, Mudholkar, J.R. agreed with the contention of government that it had sovereign immunity for that sovereign act and thus not liable. Age old maxim of ‘king can do no wrong’ was resurrected with the judgement, which infringed the right to sue the government for its servant’s wrongs. Fortunately the apex court later reversed this position and replaced immunity with state liability. Eventually this gave rise to right to compensation too, as that was significant development of Magna Carta’s right to petition.
Right to compensation
For a long time the controversy of Petition Clause vs. Sovereign Immunity continued leading to evolution of state liability. What sovereign immunity allows government to wrongfully injure its citizens, their liberty and property, without just compensation? The democratic government has a duty to evolve mechanism for compensating the victims of wrongs of the sovereign acts and disclosed the same under their pro-active disclosure obligations as envisaged in RTI Act, 2005. Information about the right, enables citizen to realize that right.
Right to an effective remedy
The view of assembly, where UN Universal Declaration of Human Rights was made.
The Universal Declaration of Human Rights, Art. 8, states the essence of our Petition Clause, as to all governments:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by constitution or by law.
Let us see the words "right to an effective remedy." What is an "effective remedy" for rights violations if it is not the right to sue government for just redress under law? That is a founding treaty of the United States with the United Nations forbidding our government from exercising immunity from its citizens for its violations of Constitutional Rights. It is clear that the right to an effective remedy is a substantive right.
The International Covenant of Civil and Political Rights, 1966, Article II, §§ 2 and 3 declares it is the duty to provide effective remedies to rights:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy [Lonergan v. United States, 303 U.S. 33 (1938)];
Constitutional Right to Remedy: Constitution of India provided right to remedy as a fundamental right, a unique feature. A citizen, whose fundamental right is violated, can straight away go to state High Court or Supreme Court of India seeking remedy in the form of a writ, a direction or order to the public authority. However, locus standi was an essential requirement for seeking remedy, i.e., only the victim of rights should seek remedy. If victim is poor or unreachable because of distance, or if dead, the wrongdoer’s liability is automatically removed. If the state is wrongdoer, none could question it. From this situation emerged the ‘judicial activism’ and Public Interest Litigation. The constitutional courts, in fact, have effectively provided tortuous remedies which should have been ordinarily available in lower courts nearer to the people under law of torts.
Effective Right is the Hallmark of Civilization:
The Right of Petition includes the right of use the compulsory process of law against government to redress grievances with it. It does not depend on any particular idea of the common law or of history. All this means that government is accountable under the law for the wrongs that it does to the people. That is a fundamental concept of civilization. This is later known as ‘state liability’.
If rights are not enforceable or there is no mechanism to give effect the statutory provisions, the citizens will be frustrated, which might lead to serious consequences including ‘violence’. If civilized methods do not work people might resort to barbarian methods using bombs and guns. An effective and compulsory process of law, judicial remedy, and executive liability are needed. Both the estates- Judiciary and Executive have a duty to tell how they made it effective.
Right to freedom of expression
Right to petition is all the more important today during these modern days of democratic rule of law. It is part of freedom of speech and expression guaranteed by First Amendment to US Constitution and under Article 19 of Indian Constitution. In the ‘petition’, a citizen freely expresses his views and criticises the policy as ‘unconstitutional’. Right to petition emanates from this basic right and also reflect it when used.
Right to dissent:
The writ petitions or PILs before Judiciary or ordinary petition before Government bodies reflects the dissent, dissatisfaction or criticism of the policies or decisions taken up by the Government. Right to petition embraces the right to express dissent since it reflects the spirit of liberty. It cannot be denied and its denial will be considered as degradation.
Right to lobbying
In January 2007, the US Senate considered "ethics reform" bill, including a provision (Section 220) to establish federal regulation of certain efforts to encourage "grassroots lobbying". The bill said that "'grassroots lobbying' means the voluntary efforts of members of the general public to communicate their own views on an issue to Federal officials or to encourage other members of the general public to do the same". Civil Society of US criticized it.
In American society, there are ongoing conflicts between organizations that wish to impose greater restrictions on citizen's attempts to influence or "lobby" policymakers, and groups that argue that such restrictions infringe on the constitutionally protected right to sue the government and the right of individuals, groups, and corporations (via corporate personhood), to lobby the government.
Right to transparency
Another controversial draft law is being considered. Proposed Executive Branch Reform Act, require over 8,000 Executive Branch officials to report into a public database nearly any "significant contact" from any "private party", a term that the bill defines to include almost all persons other than government officials. The bill defines "significant contact" to be any "oral or written communication (including electronic communication) . . . in which the private party seeks to influence official action by any officer or employee of the executive branch of the United States."
This covers all forms of communication, one way or two ways, including letters, faxes, e-mails, phone messages, and petitions. The bill is supported by some organizations as an expansion of "government in the sunshine", but other groups oppose it as an infringing on the right to petition by making it impossible for citizens to communicate their views on controversial issues to government officials without those communications becoming a matter of public record. Under the law of transparency (RTI Act, 2005), the public authority should disclose norms to discharge the duties. The department of law and individual courts have to explain how the duty of providing effective remedy will be discharged.
Right to services
What happened to such a crucial right to petition in these 800 years since? Right to petition to get redressal of grievances is yet to be granted in comprehensive manner. This became substantive right to good governance including ‘development’. This is the new human right the universe is languishing for.
The Citizen Charters – Duty to serve: The Citizens charters are supposed to be declarations of public authority to serve the taxpaying citizen. The governors owe a duty to serve them. Something like issuing caste certificate or certifying income or giving permission to build a house as per building bylaws, etc. Charter should declare time-bound delivery of services to the citizen. It should have been done without somebody making a law about it, but as not being done, the law is needed. Some of the states gave citizen an entitlement to service as a right through ‘service’ right legislation. Some have limited it with mere charters. There are several legislative drafts before Centre and some states to guarantee the remedies for non-compliance of the ‘charter’ promised to citizen.
Though right to petition the government for redress of grievances is a significant right, but this right did not become statutory right as the Governments are still hesitating to provide. Right to Service legislation, which are supposed to reduce corruption among the government officials and increase transparency and public accountability. The Madhya Pradesh enacted Right to Service Act on 18 August 2010 and Bihar was the second to enact this bill on 25 July 2011. Several other states Bihar, Delhi, Punjab, Rajasthan, Himachal Pradesh Kerala, Uttarakhand, Haryana, Uttar Pradesh, and Jharkhand have introduced similar legislation for effectuating the right to service to the citizen.
These laws commonly grant of "right to public services", which are to be provided to the public by the designated official within the stipulated time frame. Some of the common public services which are to be provided within the fixed time frame as a right under the Acts, includes issuing caste, birth, marriage and domicile certificates, electric connections, voter’s card, ration cards, copies of land records, etc. Similar to RTI Act, this law also provide for aggrieved to approach first appeal authority and then Second Appellate Authority.
Origin of public service right is in right to petition as contemplated in Magna Carta 1215. The Article 44 of the Charter of Fundamental Rights of the European Union ensures the right to petition to the European Parliament.Thus this right can be traced back to the Basic Law for the Federal Republic of Germany the Bill of Rights 1689 and the Petition of Right (1628).
Right to redressal of grievance
Without any system of redressal of grievance either of employees or of the citizen, the state cannot boast of governance, let alone ‘good governance’. The political leadership and the bureaucracy under the guidance of political governors have almost forgotten the obligation of offering governance to the people who are paying taxes and cast their vote to rule them. In the days of no governance or bad governance, information is important tool for a citizen. Informed citizen alone could be a vibrant citizen, without whom there cannot be any purposeful democracy.
Administrative ethics and law demand accountable administration. Accountability is possible only through transparency. Transparency is, for the first time provided by Section 4 of Right to Information Act 2005. In fact, it is revolution in governance, but the weakness of the law is that it remained a recommendation, not mandatory at all. The law does not even prescribe consequences for ignoring this ‘recommendation’ in suo moto disclosure clause. However, there is an alternative; if a citizen seeks the information under Sections 3,6 and 7 as a matter of right, it should be delivered unless hit by any of exception under Sections 8 and 9. If the information requested is that which the public authority has to disclose on its own, it becomes mandatory and denial shall lead to penal proceedings. Hence, we cannot say that section 4 is not enforceable at all. The information to be disclosed has to be shared when demanded, without even asking for identity of seeker, his address or the purpose.
Some of the bureaucrats and administrators say that the RTI should not be used for redressal of grievance and they even say its misuse. Nevertheless, the social activists rightly observe the usage of RTI for solving their complaints or seeking action on their representations is a creative use.
Grievance and Terrorism: Leaving serious issues of dissatisfaction, unattended and unaddressed leads to serious violence and disturbance, including Terrorism, both international and domestic. All kinds of terrorism anywhere have a common motive, i.e., whoever is behind it believes that he has unredressed grievances with the government at which the terrorism is directed, and he can convince others that his perception is correct.
Every civilized, so called, country should have open and fluid systems by which all grievances with government, real or imagined, can freely be addressed and justly redressed. Every government in all of its functions should be accountable to the governed in every way that it may create grievances with them, and that means that no government functionary can have immunity from just redress of grievances with it.
Right to seek compensation under RTI
The Right to information also has almost all those facets of the ‘right to petition’ discussed above, with a few more additions like right against non-receipt of application, right to reasonable assistance, right against rejection, right to response within 30 days and right to deem that as rejected, right to complain and right to appeal, right to compensation and right to sue. Once it is recognized as ‘right’ it should have consequential remedies. One can indirectly seek redressal of grievance through an RTI request for action on his/her complaint or memorandum and can question inaction or reasons for the policy. Besides, the duty of disclosure on the public authority makes the RTI Act to include various facets of principles of good governance that once thought to be the components of right to petition and were demanded by political forces from the age of Magna Carta. Right to service needs a consequential remedy for getting damages for not rendering that service. If the citizen charter mandates issuance of permission or certificate, within 10 days (for example), the citizen is entitled to get it or compensation for loss suffered. The citizen charter should also contain a clause that if the authority fails to render service it will pay a particular amount to citizen or would promise to compensate the loss established. It is a tortuous liability of authority falling under the ‘state liability’ principle that was evolved over a period, and in general, Tort is a civil wrong. State has liability to compensate citizen for causing damage or committing civil wrong towards that citizen. In these cases of tortuous liability also the state immunity or sovereign immunity was pleaded for a long time, but ultimately the judiciary ruled out the archaic principle of immunity and rendered state liable for damage resulting to citizen from the actions and omissions including negligence of the state, its agencies and employees. Such an action, omission or negligence could be a crime also depending on circumstances and facts of each case.
Right to information
In addition to several auxiliary rights to right to petition as explained above, right to information is added as a significant necessity of civilized society. Right to information is basic to any democracy. A vibrant citizenry is a pre-requisite for survival of democratic society and good governance. It is not possible to have a rightful expression as a right without the right to information which is basis to freedom of speech. The quality of life in a civilized society depends upon the quality of exchange of information about governance and related aspects. The struggle between human rights and Government by secrecy should not go on forever. A citizen cannot afford to reconcile to the strong trend that government might run only on secrecy and human right is only a dream. It is not possible for any democratic Government to survive without accountability, which can be realized only when the people have information about the functioning of the Government. The whole effort must be to make democracy a really effective participatory democracy. The representative rulers should allow the real sovereigns, i.e., the people to decide, and the people have to decide or take part in every decision making process.
Freedom of Information
The United Nations General Assembly (UNGA), in its every first session in 1946, adopted Resolution 59(1), which states:
Freedom of information is a fundamental human right and…. the touchstone of all the freedoms to which the United Nations (UN) is consecrated.
Fundamental Human Right
Article 19 of the "Universal Declaration of Human Rights "recognizes Freedom of Expression (FOE) including Freedom of Information and Free Press as a Fundamental Human Right.
Article 19(2) of the ICCPR1966 states:
Everyone shall have the right to Freedom of Expression; (which) shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice [Article 19(2) of the "International Covenant on Civil and Political Rights (ICCPR)].
Article I UNESCO declaration on `Fundamental Principles concerning Contribution of Mass Media to Strengthening Peace and International Understanding, to promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to war' (1978) states:
The strengthening of peace and international understanding, the promotion of human rights and the countering of racialism, apartheid and incitement to war demand a free flow and a wider and better balanced dissemination of information [Article I of the UN Educational, Scientific and Cultural Organisation (UNESCO)].
Article-II of the UNESCO Declaration states:
… the exercise of freedom of opinion, expression and information, recognized as integral part of human rights and fundamental freedoms, is a vital factor in the strengthening of peace and international understanding…[ Article II of the UN Educational, Scientific and Cultural Organisation (UNESCO)]
Article 13 of the "UN Convention against Corruption" identifies:
(i) effective access to information for public
(ii) undertaking public information activities contributing to non-tolerance of corruption (including conducting public education programmes) and
(iii) respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption…' as important measures to be taken by Government for ensuring the participation of society in governance'[UN Convention against Corruption" `adoption by UNGA on 31 October 2003].
Article 10 of the UN Convention against Corruption states:
… to combat corruption, each (member State) shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organisation, functioning and decision-making processes and take (certain) measures (for adopting procedures/regulations, simplifying administrative procedures and publishing information…)[ Article 10 of the UN Convention against Corruption]
Freedom of Expression and Information has been adopted as a ‘Fundamental Human Right' by Regional Human Right Treaties from time to time e.g. the European Convention of Human Rights, 1950, the African Charter on Human and Peoples' Rights 1981, the Inter-American Declaration of Principles of Freedom of Expression 2000 and Declaration of the Principle of Freedom of Expression in Africa 2002. These conventions have reiterated Article 19 of the Universal Declaration of Human Rights.
African Declaration of Principles of Freedom of Expression says:
Public bodies hold information not for themselves, but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.
Principle III of the Recommendations on Access to Official Documents adopted by the Committee of Ministers of the Council of Europe in October 2002 provides:
Member states should guarantee the right to everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.
Freedom of Information Laws
Realising the importance of the freedom of speech and expression including the freedom to receive and impart information, many countries around the world such as—Sweden, the United States of America, Finland, Netherland, Australia, Canada, the United Kingdom, Japan, South Korea, Jamaica, Israel, South Africa, Thailand, India, etc.—have enacted Freedom of Right to Information Acts. The objective behind these enactments is to ensure that governmental activity is transparent, fair and open.
Most enactments are based on the paradigm that except in matters of defence, atomic energy and matters concerning the security of a country, there is no room for secrecy in the affairs of the Government. Whether it is a matter of taking a decision affecting the people or whether it is transaction involving purchase or sale of government property or whether the matter relates to entering into contracts—in all these matters, the Government should act in a transparent manner. This means that every citizen who wishes to obtain any information with respect to any of those matters should be entitled to receive it.
The impact of the Freedom of Information laws has varied across different countries, but the trend towards an access regime is fostering greater Government accountability, and more dramatic headlines.
Voter’s right to personal information of contestants
The Right to information in the context of the voter's right to know the details of contesting candidates and the right of the media and others to enlighten the voter was recognized by the Supreme Court.
Supreme Court of India, New Delhi
In the Union of India v. Association for Democratic Reforms' Case, the petitioner challenged the constitutional validity of Amendments to Representation of Peoples Act invalidating the Supreme Court's May 2, 2002 judgment, that the right to know about the candidate standing for election has been brought within the sweep of the Article 19(1)(a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in the Article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Supreme Court had not traversed a beaten track, but took a fresh path. It must be noted that the right to information evolved by this Court in the above-mentioned case is qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though to a certain extent, there may be overlapping. Nonetheless, first, the right to information of the voter/citizen is sought to be enforced against an individual who intends to become a public figure and the information relates to his personal matters. Secondly, that right cannot materialize without State's intervention. The State or its instrumentality has to compel a subject to make the information available to public, by means of legislation or orders having the force of law.
Objective of RTI
The objectives of the Right to Information Act, 2005, are as under:
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.
It is stated further more that:
Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
The aim and purposes of the transparency law are:
(i) Greater Transparency in functioning of the public authorities.
(ii) Improvement in accountability and performance of the Government.
(iii) Promotion of partnership between citizens and the Government in decision making process; and
(iv) Reduction in corruption in the Government departments.
Under Right to Information Act of 2005 the right to information includes following rights:
Disclosure is the duty of any decision maker in a democratic society. It is reflected in fundamental rights such as right to know as part of right to life and right to free speech and expression wherein the administrative authorities are constitutionally obliged to inform the people.
Right to notice is an essential component of principles of natural justice. Absence of bias and hearing the other side are the principles which constitute the underlying theme of procedural laws—codes of civil and criminal procedure. Open hearing is the mechanism through which the courts of law offer the information in a transparent manner.
Accused has right to know the charges and evidence adduced against him. Similarly, arrested has right to information about grounds of his arrest and right to inform his friend or relative about the arrest and place of detention, etc. These rights were initially interpreted by the Supreme Court in several cases and finally they were incorporated through in 2008 amendments to Code of Criminal Procedure.
Section 4 of the Right to Information Act, 2005 mandates that every public authority shall maintain all its records duly catalogued and indexed in a manner and in a form which facilitate the access to information granted as a right to all citizens. It requires every public authority to ensure that all records that may be computerised and/or provided within a reasonable time and subject to availability of resources are computerized and connected through network all over the country on electronic systems so that access to such record is facilitated [Section 4(1)(a) Right to Information Act, 2005.] . All this is essential to facilitate the Right to Information.
The Public authority is also mandated to publish details within 120 days from the enactment of this Act about its functionaries and the procedure that the functionaries had to follow in order to discharge their public function. It is also obligatory to publish facts affecting people while formulating important policies or announcing the decisions. It also mandates every public authority to publish all relevant facts while formulating important policies or announcing the decision which affect people in general. Likewise, every public authority is obliged to provide reasons for its administrative or quasi-judicial decision to affected person.
Section 4(1)(b) lists 17 categories of information which have to be declared suo motu by public authorities. However, most organisations only provide only sketchy details. This is one of the very essential provisions of the Act which is of great help to the people in general. For example, the CM's Relief Fund is available to individuals also, but no information has been posted on the government website about how the citizen can go about applying for it. Those who know wield the influence and take their kith and kin to the legislators or officers who are close to CMO. Similarly, details of several social welfare and poverty alleviation schemes should be posted on government websites. In fact, the Adarsh housing society scam would not have been possible if the government had implemented Section 4 of the Right to Information (RTI) Act.
The Act mandates that the routine information must be put in public domain suo motu to the public at regular intervals through various means of communications including Internet. Experience shows that the more the information is put in public domain the lesser number of applications will be made by the citizens. However, Considering the fact that the information requested is unarguably must in the public domain and that its range and volume is such that it would attract provisions of Section 7(9) of the Act, it is not possible to authorize its disclosure in the form in which the appellant had requested as it would disproportionately divert the resources of the authority.
The Act mandates that each information shall be disseminated widely and in such form and manner so that information is easily accessible to the public. This can be done by publications of information of interest to the public through various modes such as newspapers, public announcements, media broadcasts, notice boards, the internet or any other means.
Principle of Maximum Disclosure.—Section 4 disclosure should be exhaustive and illustrative. If the principle of maximum disclosure is properly followed, the need for seeking information under the RTI Act would not arise. Once the information is brought into the public domain it is excluded from the purview of the RTI Act and, the right to access this category of information shall be on the basis of whether the public authority discloses it free, or at such cost of the medium or the print cost as may be prescribed. The public authorities are expected to disclose the directory of its officers and employees and their wave-and-emolument-related information.
All citizens shall have the right to information, subject to the provisions of the Act.
As a result of increased Government's accountability in delivery of services, rural to urban migration has accelerated as widely reported in the media. This is also corroborated by the findings of a national level survey, jointly conducted by the Transparency International and the Centre for Media Studies. The survey has revealed that, in the opinions of 40 per cent of respondent (all below the poverty line), corruption and malpractices in implementation of poverty alleviation programmes have declined due to RTI induced accountability of the Government and its functionaries at various levels.
The RTI Act provides a framework for promotion of citizen-government partnership in carrying out the programmes for welfare of the people is not only the ultimate beneficiaries of development, but also the agents of development.
Lack of transparency and accountability encourage the government officials to indulge in corrupt practices, which result in lower investments due to misuse or diversion of funds for private purposes. As a result, the government's social spending yields no worthwhile benefits, because, for instance, the teachers do not teach, doctors and nurses do not attend health centres, ration card holders do not receive subsidized food grains and the promised jobs are not provided to the people. In the process, it perpetuates poverty and harms the poor. It creates an environment of distrust between the people and the government, which impinge upon the development and jeopardize democratic governance.
Section 20 of the RTI Act provides for penalties for withholding information or denying it for illegal defences. The Information Commission also has an authority to summon records, grant compensation for any loss.
Though the RTI Act mandates that public interest should be driving force in seeking information, most of the RTI requests are for seeking remedies to their grievances. Substantive number of applications is asking for action taken reports on the petitions, memoranda, or representations given earlier or on complaints filed by himself or by someone else, or action on recommendations of a committee or judicial order, etc.
Right to petition is supported with legal guarantees and other consequences including the ‘compensation’ to be demanded for the delay or denial in delivery of information.
RTI: Value addition to Right to petition
Right to petition is important even today during these modern days of democratic rule of law. Most appropriately the right to information is an added value to that eight hundred year old right to petition. A just born child cries to say something; might be a demand perhaps. Mother, father or doctor or somebody around have a duty and need to respond to that cry. Cry of the society of the day is right to information, which is a human right. In a nutshell, it means right to empower oneself.
In the days of no governance or bad governance, “information” is the only important/essential tool for a citizen. Informed citizen alone could be a vibrant citizen, without whom there cannot be any purposeful democracy.
The right to petition, recognized eight hundred years ago has a new enforceable additional force, the right to information. File a petition, give reasonable gap and ask for action taken report under the RTI Act. The authorities are under obligation to inform the action taken or not taken, within 30 days. Magna Carta’s Right to petition of 13th century is strengthened with 21st century’s RTI!
This conceptual evolution of right to petition into right to information and other auxiliary rights leads to an inference that we cannot see the right to information in isolation. It is inseparable from right to redressal or the complaints-related mechanism or the demand for compensation or a policy or norms to discharge of statutory functions. The provisions of the RTI Act 2005 need to be understood in its completeness and historical context. Fragmented approach to this law or its provisions will not help realisation of the rights. With RTI people should evolve from subjects to ‘citizens’ – vibrant members of public and the Republic.
If a citizen uses the RTI for redressing the grievance, it is innovative use, not abuse. If the governance systems generate huge number of complaints out of ‘service’, but not an effective system of their redressal, it is a problem with potency to transform into a crisis. When the RTI emerged as a mechanism from the crisis in governance, why not it helps the redressal too?
The RTI is the result of revolutions and evolutions passing through political turbulences leading to establishment of democratic rule. It cannot be sacrificed by the misuse by authorities of power of discretion provided by law. Its people’s precision right that need to be protected by themselves. It should not be allowed to die with strategic but illegal defences like ‘missing file’ or ‘records not traceable’, or misuse of discretion to decide disclosure. The provisions of RTI law need to be liberally interpreted and the scope of exceptions should be realistic. The exception has to be decided in the context of exemptions or provisos prescribed under the same provision with reference to the objectives of the Act.
Prof. Madabhishi Sridhar is Central Information Commissioner (since 2013) and former professor in law, who presented this paper at Eleventh Annual Convention of Right to Information in New Delhi, on 8.11.2016.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.