Right to rebel is 800 year old!

When right to petition was thought of in Magna Carta, it included a significant right, right to rebel if grievance is not redressed. 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.

One might be free to file a petition, but unless it is legally recognised as specific right, petitioner faces the risk of being prosecuted for sedition, libel or seditious libel. Jailing a petitioner for requesting something is atrocious. A mere mention of Right to petition is of no use without guaranteeing protection from the criminal prosecution. There are several such auxiliary or consequential rights to ‘right to petition’ were debated, discussed and gained. There are 14 supplementary rights:

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 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.

Giving immunity from prosecution is fine, but right to petition is useless without a positive consequence. What to do if that was not even considered? Over a period of time 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 naturalisation. Petitions frequently set the legislative agenda in the colonies and resulted in laws being passed.

All persons did not have vote right for centuries. Women, children and slaves were not given 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.

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 18th 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 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.

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 recognised in Europe.

Thus another auxiliary right that emerges out of right to petition: 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 a right, "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 the Supreme Court decisions both in India and the US.

The History of the Right to Sue Government 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.

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 Universal Declaration, Article 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. Rulers should understand that the right to an effective remedy is a substantive right. Indian Constitution provided right to remedy under Articles 32 and 226.

Professor Madabhushi Sridhar is a Columnist, Media Law Researcher and Central Information Commissioner.

Read his earlier Column on LiveLaw here.