Transfer Of Sovereignity As The Consequence Of Social Contract
By Sandeep Jalan
22 April, 2010
Countercurrents.org
This Article seeks to unearth historical relationship between State & Citizens; and general apathy of modern State to deal with citizens’ recording complaints to them; and probable solution to deal with this menace are provided in the end of this Article.
I take the liberty to presume that in our India, Complaints of Citizens, ordinarily, are not attended with. However, they are but attended, but like I maintain my personal gmail account. Therein I have complete liberty. I can open only mails when I want to read. I have liberty not to reply to mails received. I have even liberty to delete all mails received. I have liberty not to even open mails received and put them in near suspension.
In modern democracies, wide powers vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinafter. The authorities in charge may be disproportionately rude if you happen to be in even minor fault. The Scent of power is immense.
The Public Servants / Officials were heard saying – one may also call it various forms of passionate corruption--
(1)As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner;
(2) As an Authority of Public Power- I may so act as to favour some and disfavour others;
(3) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
(4) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
(5) As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
(6) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
(7) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
(8) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction.
Nevertheless, the satisfactory replies to complaints is not of some importance but of fundamental importance in State Citizen relationship, in the backdrop of ancient Social contract. And therefore, our knowledge of ancient past may be of some help to be assertive in the present.
And whereas the Government people, ordinarily, in their regular course of business, do not bother themselves to the complaint of a subject (Citizens), I sense that it may be of importance, to dig this land holding forest of laws and legislation, and discover the historical past of human civilization and 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, in the backdrop of present concept of rule of law.
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.
The outstanding fact of society is interdependence of men. This has always existed and became more and more widespread as life grows more complex. Even from the earliest times, man has found great need for State, for without association and unity, men could not find strength, protection and progress. A State was not only necessary but was thought to be highly beneficial.
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 translated 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.
The word State has derived from Latin word Status which means standing, that is to say, position of a person or body of persons. 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. Sovereignty is one of the chief attributes of Statehood. A Sovereign State is one which is subordinate to no one and is supreme over the territory under its control. The word State connotes all three organs, namely- The Legislature, The Executive Government and The Judiciary.
The then Scholars of Law and Philosophers, laid down the need for codification of laws, they stated what is law and in fact what should be the law. They generously advocated for codification of laws. They also outlined the ideals of good State.
Jeremy Bentham (1748-1832) heralded a new era in the history of legal thought in England. He is considered to be the founder of positivism (codification of laws). He advocated that the law should be made exclusively by legislation which was suppose to remove inroads upon individual's freedom and provide him opportunities for development of the self. The proper end of every law is the promotion of the greatest happiness of the greatest number of people. According to Bentham, the task of governments is to promote, in general, the happiness in the society.
John Austin (1790-1859) according to him, a law in its most comprehensive signification, is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.
Savigny of Germany is regarded as the founder of historical thought of school. He firmly believed that law is a product of general consciousness of the people and a manifestation of their spirit. According to him, every law has a national character and it develops like language and binds people into one whole. He says- law has a dual role – one as a regulator of general national life and second as a distinct discipline for study.
Puchta (1798-1856) said Self interest causes a conflict between individual will and general will. This brings out the idea of law and States comes into existence.
Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He said- it is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose.
Immanuel Kant (1724- 1804) pointed out that law to be acceptable to people should have within it an element of justness.
Scabelling (1775-1854) said that law is a means by which the individual will is harmonized with the general will of the community.
Kohler (1849-1919) In his book philosophy of law, he postulates vitalizing of culture or civilization and this end is sought to be achieved through the instrumentality of law.
Roscoe Pound (1870-1964) American Jurist. Law is nothing but the very life of mankind in organized groups and the foundations which makes peaceful co-existence of masses of individuals and of social groups.
Some of the roots of our enacted laws may be traced to or can be found in philosophies of ancient Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399 B.C.), Arsitotle (384-322 B.C.). Principles of justice and morality constitute the natural law. They said- entire universe in governed by reason. Man's reason is a part of the universal reason. Man is a part of nature in two ways- firstly, he is creation of god and secondly, he possesses insight and reason which enable him to articulate his action. Therefore, a man who lives according to reason, lives according to nature.
Thomas Acqinas ( 1225-1274) He defined law as Ordinance of reason for the common good made by him who has the care of the community.
Duguit (1859-1928) The only right which any man can possess is the right always to do his duty. Man has always lived in unity and in society and was never entirely independent.
In 1897, Justice Holmes, an American Jurists issues a paper in which he put forward a novel way of looking at law. He says- if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. It has become a tenet that a rule of law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.
Besides, Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering (1818-1892) significantly contributed to today's modern concept of codification of laws and emergence of State Citizenship relationship.
Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.
And therefore, in the backdrop of ancient social contract, every Society & every Individual has certain basic assumptions to take it for granted that-
(1) His Life & Property will be protected and his liberty will be secured;
(2) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;
(3) That others will act with due care and will not cast upon him an unreasonable risk of injury;
(4) That others will not commit any intentional aggression upon him;
(5) That people with whom he deals will carry out their undertakings and will act in good faith;
(6) That he will have security as a job holder;
(7) That State will bear the risk of unforeseen misfortune;
(8) That State will bear the burden of supporting him when he becomes aged;
I also seek to recall an historic incident of Indian freedom struggle, occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year 1893, when in South Africa, while holding a First Class Compartment ticket and traveling in, Gandhi was thrown out of the train, for in those times “Blacks” were not allowed to travel in the First Class Compartment, notwithstanding they hold a valid ticket. It was 9.00 in the chill night. That designated “Black” sent a Telegram to the General Manager of the Railways and registered his complaint. The Complaint of that designated “Black” was attended, forthwith, the General Manager instructed the Station master to secure that complainant reaches his destination safely. Complainant was accommodated in the very next morning train to his destination.
And here, in the era of INDEPENDENCE and 21st Century of modern democracy, we have Citizens of Sovereign India, of whose complaint are ordinarily, attended with great disrespect and hostility.
Even I am witness to some cases where the office of Prime Minister of India decides not to take note of complaints received of citizens. In that, I wish to say to Prime Minister of India that- “The Office of Prime Minister is probably most trusted among other public offices, may be because the Prime Minister is a face of our geographical nation. Traditionally, the Prime Minister, on occasions on matters of public importance, also on Independence day and on Republic day, addresses the Nation. This address, though one side interaction, of Prime Minister however generate confidence among the nationals and whenever they are victim of annoying illegal acts of public officers, they tend to record complaint to this highest and respected office of the country. Imagine, if the Citizens are shown the door at this highest executive Constitutional office, the other branches will find the occasion to deal “firmly” with complainant citizens.”
I am impelled to produce some classical observation of Apex Court.
(1) They said - “……….They have developed an utter disregard for law, nay – a contempt for it; the feeling that the law is meant for lesser mortals and not for them. The Courts in this country have been trying to combat this trend with some success as the recent events show. But how many matters we can handle ? How many of such matters are still there ? The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals. Can the courts alone do it ? Even so, to what extent, in the prevailing state of affairs ? Not that we wish to launch a diatribe against anyone in particular, but judges of this country are also permitted, we presume, to ask in anguish, “What have we made of our country in less then fifty years ? Where has the respect and regard for law gone ? And who is responsible for it ? DDA Vs Skipper Construction Co. (1996) 4 SCC 622, 645, 646.
(2) In Vineet Narain Vs Union of India, the apex court went on to emphasize that when it comes to corruption, as it exists at different levels, proves to be both powerful and stubborn to stall any real or superficial moves in that direction. In other words – politico bureaucratic wall proves to be impregnable against all possible onslaught against corruption. Judicial response has been slow and varied but that is the only response available at the moment. There is no premium on honesty. Everything is a matter of manipulation. Being a soft State – everything is circumvented and manipulated. In the name of eliminating corruption we see shadow boxing.
(3) 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. ...”
(4) The Supreme Court Bench in Aug.2008, hearing an issue of unauthorised occupation of official Bunglows by some member of Parliaments , during arguments, Justice Agrawal said: “The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don’t apply their mind, rather they don’t have a mind. They don’t have guts to differ with the opinion of the clerks We are fed up with this government. There is no accountability and nobody bothers about laws or guidelines. Nobody in the government works and the whole government has become non-functional. That is why PILs are filed.”
Justice Singhvi intervened to say: “God alone will have to help this country.” Justice Agrawal said, “Even God will not be able to help this country. God is a mute spectator as he also feels helpless. Our country’s character has gone. We are helpless.”
In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where life decisions are taken in closed chambers of Ministers & Bureaucrats.
To oppose or challenge the illegal acts & omissions of government does not mean you are against the country or the people that the government supposedly represents. Such opposition should be called what it really is: democracy, or democratic dissent, or having a critical perspective about what our leaders are doing. Either we have the right to democratic dissent and criticism of these acts & omissions or we all lie down and let the leader do what is best, while we follow uncritically, and obey whatever he commands. That's just what the Germans did with Hitler, and look where he got them.
I produce here one landmark English case of Complaint to Minister – The padfield Case [1968] AC 997, decided by one of the most celebrated Judge of England- Lord Denning. This is how Lord Denning dealt with the case before it. His Lordship said-
http://commonlaw-sandeep.blogspot.com/2010/03/discretion-of-ministers-reasonable-read.html
As soon as a complaint is filed before any public authority, the principles of natural justice, invariably emerge.
http://commonlaw-sandeep.blogspot.com/2009/10/some-authoritative-views-on-fair.html
http://commonlaw-sandeep.blogspot.com/2009/08/rtipil-to-nail-all-annoying-decision-of.html
Solution to deal with this menace of unattended complaints: Click link below:
http://commonlaw-sandeep.blogspot.com/2009/09/resolve-public-officials-negligence.html
http://commonlaw-sandeep.blogspot.com/2009/04/how-to-file-writ-petition-or-pil-writ.html
Supporting / Supplementing Note:
http://commonlaw-sandeep.blogspot.com/2009/11/can-citizenry-seek-damages.html
I am not sure if this long note is of functional utility to the reader. But it will, if given a patient reading to all links.
Sandeep Jalan (Advocate)
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West, Mumbai . He blogs at http://commonlaw-sandeep.blogspot.com
