Remembering Anna Chandy, J. –The Iron Lady Of Kerala Judiciary

(By Aparna Sanjay, III Year B.A., LLB. (Hons.),
National Law School of India University, Bangalore)

By the late 19^th and early 20^th century, the British had established control over large parts of the Indian Subcontinent. In the south, the Kingdom of Thiruvithamkoor (Travancore) became a princely State under the British Empire and continued to be ruled by the members of the Travancore Royal Family. Women outnumbered men in every taluk (in every religion) of the State as per the 1891 census of India¹.However, the society was entrenched with patriarchy and women were restricted to the domestic sphere and expected to live as slaves to the men of their households. It was unacceptable for a woman to enter the public sphere let alone pursue higher education and obtain employment. It was under such circumstances that Ms. Anna Chandy, a Syrian Christian woman, not only became the first woman lawyer of the region, but also an advocate of women’s rights challenging societal norms. She was the first woman Judge (at any court in India) and subsequently the first woman High Court Judge in India. She was also one of the earliest women representatives in any form of legislature – the Sree Mulam Popular Assembly. A champion of women’s rights, she strongly believed in educating women from all class, caste and religious backgrounds to empower them to lead an independent life devoid of male patronage. She faced massive opposition right from her college days, being the first woman law graduate from Travancore, and moreover being a mother while pursuing her degree. The same continued throughout her participation in the movement for women’s rights, the election to the Assembly, her elevation to the judiciary and subsequent membership of the Law Commission of India. However, she openly challenged some of the gender norms of the period and demanded equality of opportunity to bring women at par with men. The familial and social background of Mrs. Chandy had its impact on her views and actions as one of the earliest feminists from the region, a legislator, as a Judge of the High Court of Kerala and subsequently as a member of the Fifth Law Commission of India.

2. Anna Chandy was born on April 5, 1905² in a Syrian Christian family in Aleppey, in the princely State of Travancore. Her father Dr.M.J.Jacob was a well-known local allopathic doctor and her mother Sarah Jacob³, a primary school teacher. She also has a younger sister, Sarah Varkey. The family was very religious and had close ties to the church. Having lost her father at the age of five, the family sold off their property in their hometown and moved to Thiruvananthapuram, which according to her mother, would be a better place to enable the children to have a bright future. Her mother bought a piece of land (with a building on it) and built a small house next to it – the family lived in the house and survived by renting out the building and from her mother’s salary. According to Mrs. Anna Chandy, her mother’s disciplinarian nature and fierce independence influenced her greatly and shaped the kind of individual she went on to become⁴. Anna Chandy did her primary education at Maha Raja’s Girls High School and subsequently in Holy Angels Convent, Thiruvananthapuram⁵ and was trained in Carnatic music from a very young age⁶. She subsequently completed her intermediate classes at Maharaja’s Women’s College and secured a scholarship to study at Queen Mary’s College, Madras⁷. However, owing to her mother’s insistence, she gave up the same and joined Maharaja’s Arts College, Thiruvananthapuram for the History (Hons.)⁸ course instead. While pursuing her degree, in 1925, she married Mr.P. C.Chandy⁹, a Prosecuting Inspector in the Kerala Police, who at the time was a widower with a 7 year old daughter, Baby. Her friends, family and teachers discouraged her from marrying him. However, she decided to go ahead with the marriage. The following year, she gave birth¹⁰ to their son, Babu. Despite her hesitation, it was at her husband’s instance that she joined the Thiruvananthapuram Law College in 1927¹¹. A man who believed strongly that women must be educated to empower them and improve their standard of living, Mr. Chandy even got a job transfer effected from Kazhakoottam to Thiruvananthapuram to facilitate her studies. He also convinced a friend to permit his daughter to join the law college with Anna. Both women faced a lot of hostility and humiliation from their peers, an all-male community; especially Anna, who at the time was mother to a toddler. It was unheard of, a woman joining a professional course, let alone law which was a man’s domain – women were discouraged from working altogether, and if it all they were involved in employment, it was to be restricted to school teachers, social workers and other jobs that required their “womanly” traits of caring and serving. It was here, she faced her first opposition. Men around her were uncomfortable with her achievements and claimed that she did well owing to professor’s liking towards the female student and not because of her hard work and intelligence – a criticism that followed through even during her career as an advocate. Despite completing her law degree with flying colours as the first female law graduate from what constitutes present-day Kerala¹², entry into the legal profession was a very rough journey. Men all around the world were barring women’s entry and even courts (male Judges) placed obstacles before women by proclaiming that “women are generally unfit for the duties of the legal profession”¹³. Indian courts also interpreted the Legal Practitioner’s Act, 1879 to mean that women shall not be permitted to practice (as there are no traces in Hindu, Buddhist or Islamic law of women lawyers¹⁴). However, with the enactment of the Sex Disabilities Removal Act, 1919 and the Legal Practitioners (Women’s) Act, 1923, women’s entry into the legal sphere was achieved. She practiced before the Kottayam District Court for a year before shifting her practice to the High Court in 1930¹⁵.

3. Anna Chandy was appointed as a Munsif in Travancore from 1937¹⁶ (the first woman in India to achieve the feat)by the then Dewan Sir. C.P.Ramaswami Iyer and subsequently, in 1949, she was appointed as District and Sessions Judge of Mavelikkara¹⁷. After spending 22 years in the lower judiciary, she was elevated to the High Court of Kerala on February 9, 1959¹⁸. She held the post for a period of 8 years till April 5, 1967¹⁹. Owing to her prowess in criminal law, most matters heard and judgements delivered by her pertain to this area of law. The Division Bench consisting of her and Sri.Govinda Menon have often been appreciated for their in-tune and well-reasoned judgments²⁰.

4. Although after she was elevated to the judiciary, she was not as actively involved in women’s rights movements as she had been earlier, her ideology continues to be reflected in the judgments passed by her during her judgeship. She did not shy away from expressing dissent from her male counterparts who continued to bring their patronizing attitude towards women to the table. An example for the same is the matter of Pallasanna Haneefa v. State of Kerala²¹. Her brother Judge in the Bench that heard this matter was of the opinion that a woman who had been beaten up by her husband and also having a small child, would not, within two days of the incident get intimate with another man as she is not in such frame of mind. He was of the opinion that if at all such an event had occurred, the neighbour might have forced himself upon the poor, naïve woman who didn’t know any better. In my opinion, by doing so, the Judge has taken away the agency of the woman and has reduced her to merely an object that can be manipulated to the whims and fancies of the men around her. In fact, Justice Anna Chandy takes a similar view in this case. She writes that it cannot be said conclusively that the woman wouldn’t get involved with another man, or that she had no choice but to submit to him if he forced himself upon her and expresses disdain towards the portrayal of the woman as powerless. And as has been pointed out by Linda Gordon, just because women are less powerful as compared to their male counterparts that does not render them powerless²². By taking such a stand, Justice Anna Chandy in fact reads in agency of the woman in question. A point to be noted here is that she has delivered very few judgments during her tenure as a High Court judge. These instances have been the rare occasions wherein it was a Single Bench or when she had a dissenting opinion. In all other circumstances, wherein she has been accompanied by male members on the Bench, the judgments have been delivered by them – despite her prowess in both English and Malayalam languages.

5. Subsequent to her retiring from the Bench, she was a member of the Fifth Law Commission of India²³ under the Chairmanship of Retd. Chief Election Commissioner Sri. K.V.K Sundaram. The Commission functioned between 1968 and 1971 and presented six reports²⁴, all in matters relating to criminal law, particularly amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898. Some of the recommendations of the committee included raising the age of culpability from 7 years to 10 years and also decriminalizing attempt to commit suicide²⁵. However, it was with regards to the recommendations on abortion that she expressed dissent from the rest of her committee. While her earlier actions such as demanding equal opportunities for women and her emphasis on equality are reminiscent of liberal feminism, the stand taken by her on this regard is in stark contrast with the same (as the liberal feminists believe in the individual’s right to his/her body and therefore the right to choose an abortion). The entire committee, barring her, sought to amend Section 312 of the Indian Penal Code that criminalized causing miscarriage, in order to permit abortion of a foetus, less than 3 months old, by a registered medical practitioner with the consent of the mother²⁶. She did not agree to the same and was of the opinion that this would leave the provision open to a very loose interpretation making abortion a matter of convenience. She was in agreement with the report submitted in 1964 by the committee under the Chairmanship of Sri. Shantilal Shah²⁷, the then Minister of Health, Government of Maharashtra. The report sought to permit such abortion in the event that

a) Continuance of such pregnancy involves serious risk to life or health of the woman.

b) There is a substantial risk that such child may be born with physical or mental abnormalities.

c) The pregnancy is a result of rape, intercourse with girl under 16 years of age, or a mentally unstable woman.

She opined that these conditions were the maximum limit up to which norms on abortion could be liberalized within the framework of social and cultural values²⁸(which she does admit, changes with time). Abortion according to her could only be permitted if the above conditions were satisfied and the amendment suggested by the rest of the members on the Commission was unacceptable in the current societal set up²⁹. However, this takes away the woman’s agency and her right to choose. The reasons behind a woman wanting to carry out an abortion may be other social or economic reasons outside of what is listed above, and by restricting her so, the State would in fact be making the choice for her. Such a stance may be considered to be a result of her beliefs in (Syrian)Christianity and strong affiliation with the patriarchal Church that considered abortion a moral evil and co-operation in aborting a foetus, a grave offence³⁰.

6. Much has been written about the status of women in Travancore during the late 19^th and early 20^th century. Kalikutty Assatty, a woman activist who was instrumental in the setting up of the Vanitha Samajam wrote, “Women were slaves. They had no education, they could not walk on the roads, they were not supposed to look at their men’s faces nor speak with others. They were mere child-bearing machines.”³¹However, during Justice Anna Chandy’s formative years, the State had begun interfering in women’s education specifically. Between 1984-1900, the State abolished fees for girls in schools at all levels and a number of vernacular girls school were opened³². Fr.Kuriakose Elias Chavara, a well-known Syrian Catholic priest of the time, is also said to have encouraged a system of setting up schools along with every church so as to make education accessible to people of all classes³³ (the concept of ‘pallikkoodam’). Also, women in the Travancore State had begun to mobilise themselves. The structural changes in society and economy brought about by colonization and the rise of an educated middle class led to tensions within the existing social structures. This in turn led to the growth of a political consciousness, especially among women which was the result of the varied impact of colonization on various castes which determined the form of social reform movements that arose within them³⁴. Within the movements against the caste system, women began organizing themselves in attempts to establish their autonomy within the social and economic structures that have brought about their subordination. Conducting of inter-caste dining programmes by women activists in Alleppey was an example of one such attempt³⁵.

7. Simultaneously, questions about the rights of women and their autonomy and identity were discussed in the literature of time, including novels and poems by the well-known male intelligentsia in what constitutes the State of Kerala today. The novel ‘Indulekha’ by Chandu Menon (1889) portrayed the titular character as being an ‘enlightened’ woman whose education enabled her to exercise her agency and right to choice in marriage and sexuality³⁶. Notable author Kumaran Asan in his work Chintavishtayaya Sita (1919) embodied Sita as a symbol of women’s rights and not an epitome of passivity and living under the protection of her husband as she is usually portrayed³⁷.

8. By the 1930s, these movements had gained momentum. Various conferences were held across the State presided over and attended by women but it must be noted that the demands put forth in these conferences and the issues raised were well within the limits of patriarchy. Patriarchal norms and male authority were not challenged and women more or less did conform to the gender roles assigned to them. These women activists aimed to blur the public-private divide and justifying women’s participation in institutions such as schools and hospitals wherein their “womanly” qualities³⁸ could be put to use, thereby furthering the gender constructs of the feminine and the masculine. The justification given to promote employment for women was a rise in income in the family leading to a rise in standard of living. Further, her experience in worldly matters and development of individuality (which would be controlled by the man later), according to some, would make her a more desirable companion³⁹ which was again reinforcing her role of serving her husband and his needs. They argued that education was necessary to “improve the character and happiness of their domestic life”⁴⁰.Anna Chandy’s beliefs were in stark contrast to this. While presiding over the All Communities Conference, 1931 held at Aleppey, her call was for women to play a greater role in social activities and also a critique of the purdah system. She pleaded for education for all women so that they may take up employment and lead independent lives⁴¹. She also believed that women be given the same freedom and opportunities in all spheres just as men were⁴². An excellent example of her views is the speech rendered by her at a public meeting to discuss the Government’s decision to employ few women. She barged into the meeting while T.K Velu Pillai, a well-known intellectual in Travancore, and incidentally her professor at the law college, was speaking in support of the Government’s stand and delivered what later became her most well-known address. Her speech not only refuted the arguments posed by but is also testimony of the feminist ideals she stood for. She argued that a woman’s role is not restricted to the confines of her domestic life. She also questioned the bringing in of “Western” lady teachers – referring to white women being brought in – thereby taking away employment opportunities of the indigenous population while there existed a large number of women graduates in the region⁴³ who were restricted to the confines of the home following marriage. Unlike other women activists of the time, her concerns were not limited to any one religion, class or caste. This is evident from the following, an excerpt from her speech referred to above:

“Antarjanams, who are confined to the inner quarters...; Muslim sisters who suffer eternal hell in purdah...; brahmin girls trapped in wedlock at an age when one plays at mud-pie making; Christian women forever cursed by the harshness of dowry - all these are slaves who live in Keralam.”⁴⁴

She sought for the politicization of “women” as a category that has faced oppression (without disregarding the differences in experiences owing to context) and demanded greater representation of women in the legislature and other institutions as well as reservation in government employment⁴⁵.

9. By the 1930s, with a rise in the number of women attending colleges, there was notion that the educated middle class woman would be a threat to the existing social order. Further, educated women began to seek space in the public sphere and the same was looked down upon - periodicals such as Rasikan, Navarasan etc. played a huge role in propogating the same⁴⁶. If at all women were permitted in public, it was for social work (owing to its disciplinary nature). Gandhi’s emphasis on the power of the female owing to her virtues of selflessness and sacrifice had a great impact on the women in the Travancore and many of them, especially those involved in politics (such as Akkamma Cheriyan), began to move into Gandhian social work⁴⁷. It was in this period that Anna Chandy contested the elections for the Sree Mulam Popular Assembly in 1931. She faced a lot of backlash including a number of indecent posters being put up all over Travancore⁴⁸. The editorial of the Nazrani Deepika dated June 16, 1931 strongly criticized this move of hers and she drew vituperative reactions from the upper and middle class men⁴⁹. She lost the election but was however, made a nominated member of the Assembly from 1932-34⁵⁰. Her subsequent editorial in Shrimati, a magazine founded and edited by her⁵¹, pointing out the unfair practices during the same evoked an extremely misogynistic response from the popular Malayalarajyam daily⁵². A major reason for the unpopularity of the Shrimati magazine was that women writers were only lauded for the heightened emotional nature of their work which was not the case with her writing⁵³.

10. Anna Chandy is credited with creating the term “adukkalavadam” which translates as “kitchenism” to refer to how women were restricted to the private sphere⁵⁴. She was also dismissive of the popular argument of the time that women were “Empresses of the home” and the public sphere, particularly politics, was not their space⁵⁵ (Women in the political sphere were seen as lacking morals). This may be seen as a manner of cultural compensation⁵⁶, as suggested by Janaki Nair, for the oppression meted out to them and the term “Empress” suggests that the women held a large amount of power which was far from the truth.

11. Its heartening to note that India features on the global map as one of the earliest countries to have women in judicial services and this State to have the first woman Judge in the country. This article is a tribute to the first woman judge of this nation - a liberal feminist- the iron lady of Kerala Judiciary at this time when the Kerala High Court celebrates its Diamond Jubilee.

Foot note:

1 Census of India (1891) available at

https://web.archive.org/web/20060907163041/http://www.chaf.lib.latrobe.edu.au/dcd/pagephp?title=&action=previous& record=1037 (Last visited on May 8, 2017).

2Anna Chandy, Anna Chandyude Aathmakatha, 3 (1973).

3Anna Chandy, supra note 1, at 4.

4Anna Chandy, supra note 1, at 21.

5Anna Chandy, supra note 1, at 7.

6Anna Chandy, supra note 1, at 7.

7Anna Chandy, supra note 1, at 31.

8Anna Chandy, supra note 1, at 33.

9Anna Chandy, supra note 1, at 39.

10Anna Chandy, supra note 1, at 42.

11Anna Chandy, supra note 1, at 50.

12Anna Chandy, supra note 1, at 57.

13Bradwell v. State of Illinois, 83 US 130 (1873) (Supreme Court of the United States).

14Anna Chandy, supra note 1, at 61.

15 Anna Chandy, supra note 1, at 72.

16Anna Chandy, supra note 1, at 121.

17Anna Chandy, supra note 1, at 123.

18Anna Chandy, supra note 1, at 154.

19Anna Chandy, supra note 1, at 180.

20Anna Chandy, supra note 1, at 173.

21 Pallasanna Haneefa v. State of Kerala (High Court of Kerala).In the instant case, a woman had been stabbed to death by her husband as she had moved out of his house (owing to domestic violence) and shifted to a neighbour’s house. The defence however contended that the man was provoked because he saw his wife in a compromising position with the neighbour. Although the evidence was looked into in detail, a large part of the discussion focused on whether or not the woman in question would get physically intimate with another man given her circumstances.

22 Linda Gordon, What’s New in Women’s History?,A Reader in Feminist Knowledge 73, 76 (SnejaGunew ed., 1991).

23 Anna Chandy, supra note 1, at 180 (d).

24 http://www.lawcommissionofindia.nic.in/main.htm#a7 (Last visited on May 9, 2017).

25 42nd Report of the Law Commission of India, Indian Penal Code, 1860 (1971).

26 Id.

27 Law Commission of India, supranote 25.

28 Law Commission of India, supranote 25.

29 Anna Chandy, supra note 1, at 180(n).

30 http://www.vatican.va/archive/ENG0015/__P7Z.HTM#-2C6 (Last visited on May 10, 2017).

31 KalikuttyAsatty, MahilaSangam: Innu, Innale, Nale, Travancore Coir Factory Workers Union Golden Jubilee Souvenir 127, 129 (1972).

32 P.K  Michael   Tharakan,   Socio-Economic  Factors  in  Educational  Development: Case of   Nineteenth   Century Travancore,19(45) Economic and Political Weekly 1913, 1921 (November 10, 1984).

33 Id., at 1924.

34 MeeraVelayudhan, Caste, Class and Political Organisation of Women in Travancore, 19 (5/6) Social Scientist 61, 62 (1991).

35  Id., at 64.

36  MeeraVelayudhan, supra note 34.

37  MeeraVelayudhan, supra note 34.

38  J.Devika& Mini Sukumar, Making Space for Feminist Social Critique in Contemporary Kerala, 41(42) Economic and Political Weekly 4469, 4470 (October 21-27, 2006).

39  J.Devika & Binitha V. Thampi, Mobility Towards Work and Politics for Women in Kerala State, India: A View from the Histories of Gender and Space, 45(5) Modern Asian Studies 1147, 1154 (September, 2011).

40  MeeraVelayudhan, supra note 34, at 66.

41 Anna Chandy, On Women’s Liberation, Herself: Gender and Early Writings of Malayalee Women 113, 114(J. Devika ed., 2005).

42 Anna Chandy, supra note 1 at 101.

43 Anna Chandy, supra note 41, at114.

44 Anna Chandy, supra note 41, at 115.

45 Anna Chandy, supra note 41, at 123.

46 J.Devika&PraveenaKondoth, Sexual Violence and Predicament of Feminist Politics in Kerala, 36(33) Economic and Political Weekly 3170, 3177 (August 18, 2001).

47 J.Devika, supra note 39, at 1156.

48 Mini Sukumar, supra note 37, at 4471.

49 Mini Sukumar, supra note 37, at 4471.

50 Anna Chandy, supra note 1, at 109.

51 Anna Chandy, supra note 1, at 109.

52 Mini Sukumar, supra note 38, at 4475.

53 Mini Sukumar, supra note 38, at 4472.

54 Mini Sukumar, supra note 38, at 4473.

55 Mini Sukumar, supra note 38, at 4471. In 1951, the President of the Travancore-Cochin Congress Committee, KumbalathuSankuPillai, stated the same publicly, in response to questions about the huge gender gap in the Congress candidates’ list.

56 Janki Nair, On the Question of Agency in Indian Feminist Historiography, 6(1) Gender and History82,88 (1994).

Section 56 of N.I.Act 1881 (Indorsement) – Bane To Many ?

(By P.Rajan, Advocate, Thalassery)

Section 56 of the Negotiable Instruments Act speaks of indorsement (endorsement) to be made on negotiable instruments evidencing part payment relating to any debt created on the basis of an instrument as defined under the Act. The law prevalent in regard to Negotiable Instruments Act is more than a century old and the same is also promulgated during the British era and provisions stipulated in the Act are reproduced then as followed by several other nations. The section relevant i.e., S.56 doesn’t speak of, by whom the endorsement is to be made on the instrument. This anomaly remains unresolved despite the amendments made to the statute in 1989 also, by adding up Section 138 to 142, specifically meant for initiating prosecutions on returned cheques. By this amendment the intention of the law makers was to promote, acceptability of cheques for settlement of liabilities by making drawer liable for punishments in the event of return of cheques by the Banks for varying reasons – mainly due to insufficiency of Funds, some more amendments came in to effect to those provisions later on meant for prosecutions – delay condonation besides terms of punishments.

Our High Court in two judgements considered the scope and mode of indorsement and held that admission of part payment by the drawer of the cheque, should bear the indorsement as shown in the provision (2008 (4) KLT 509 - 2016 (1) KLT 390). After parting with a cheque by the debtor who makes payment of a portion of the cheque amount and the unwary payee who is compelled, rather tempted to receive the same, for the balance amount if prosecutes the other, due to his failure to discharge the liability, the prosecution under Section 138 of N.I. Act cannot be held maintainable as the twin judgements remain. It is not prudent to think that a person who is a creditor desirous of getting balance amount will undertake any endorsement to prove payments on request subsequently, even part payment without any proof may be a probable defence to scuttle the complaint before Court, even by advice basing on the current case law. Dormant are the provisions many, deserve radical changes.

The 2006 single Judges’ ruling just followed the earlier Division Bench judgement as precedent compels. The ambiguity could have been cleared if a larger bench considered the issue to achieve finality. The archaic law is being interpreted without uniformity even now by different High Courts. It is distressing to note that in the later ruling (2016 (1) KLT 390) the complainant honestly admitted at the earliest, acceptance of portion of the amount and the complaint was lodged only for the balance amount. Despite this plea the learned judge expressed the opinion of legal implediment following the Division Bench ruling and mandate of the age old provision. The Negotiable Instruments Act in its original characteristics was not meant for application of any provision regard to Criminal prosecution. For realizing money, only recourse was civil action basing on documents coming within the purview of the said act, but civil suits for realization of money when became futile exercise and some decrees after prolonged trial obtained became dead decrees on the plea of the debtor at  least rarely. To circumvent such instances, to award jail sentence also besides fine amount to the defaulter criminal cases can also be filed for early relief-evidently the changes to the Act. Our High Court has not considered the purport of the present law based on vital changes and a pragamatic approach should have been made while deciding the legal question, cardinal in nature. Even now High Court can answer and explain the legal implication of endorsement as several criminal appeals and revisions relating to cases under Section 138 of N.I.Act are pending before the Hon’ble High Court. Statute may remain static but case law deserves requisite changes as everything changes, everybody too- only the word change may remain changeless.

Litigation Management -Tools & Techniques -
Need for Implementation in Organisations...

(By Dr. P.Syamjith, Ph.D. in Law from Ambedkar Law University, Chennai)

In terms of Indian traditional ‘Vastu’, a sound building with structural integrity shall have a solid base and foundation. What is true in traditional vastu also rings true in managing litigation. In todays complex litigation environment, organisations face many challenges in litigation management. While functioning in todays competitive environment, organisations have vast legal needs: defending and pursuing claims, resolving contract disputes, representation at judicial forums. It is true that at times, organisations may feel tired and frustrated while dealing with litigation, but it is possible to manage the litigation to save time, money and energy.

Litigation Law is most closely identified with civil law or tort law and the bringing of lawsuits. Historically, litigation has been the more common method used for corporate entities and individuals to resolve legal disputes. This is more relevant in case of organisations where they have to resolve their legal disputes with the customers/associates and third parties through litigation. Now litigation law encompasses variety of suits under various subjects. The organisations in todays world handle variety of litigation issues ranging from consumer cases to Writ Petitions before the High Courts or Supreme Courts. As the society progress, more and more social legaislations are born with the hierarchy of various judifical forums and it is the bounden duty of the organisations to comply with such social security legaislations in toto.

Litigation Law - Definition

Litigation Law covers the process of bringing and pursuing a suit, and encompasses the entire procedures, which culmiates in passing of decrees or enforcement of decrees. A lawsuit is a case or controversy authorized by law, to be decided in a court of justice or judicial forum, brought by one person or entity against another person or entity for the purpose of enforcing a right guaranteed by law or redressing a grievance or an injustice.¹

Litigation Management

Management in all business and organizational activities is the act of getting people together to accomplish desired goals and objectives using available resources efficiently and effectively. Litigation Management means the application of management principles in litigation process to deliver better results by reducing the cost and delay involved in litigation. Litigation Management needs to be adopted in response to strong and persistent demand for reform of the litigation process to reduce cost and delay and also to enhance the efficiency. Now days, organizations like Private/Public Sector Organisations/Banks/FIs are involved in various types of litigations, to resolve their legal issues. Considering the volume of the litigation and the complicities involved in litigation, these organisations are engaging the attorneys/advocates to represent their cases and argue on their behalf. So in litigation management, the Management of particular organisation and its officials who are dealing with the litigation and the legal firms/solicitors/advocates who are holding their brief
are the main stakeholders. In nutshell, the concept and processes of litigation management in Organisations revolves around the Management and its officials and the legal counsels.

An effective litigation management is not only important for organizations but also become necessity for effective and efficient resolution of legal issues. Putting into perspective, the needs and requirements of organisations, now there is a growing need for a comprehensive litigation management policy. In order to facilitate the formation of concrete litigation management policy by organisations, some of the random thought on the subject is shared in this thought paper.

In fact, we can pen down the objectives of litigation management as follows:-

(a) Early resolution of disputes2

(b) Reduction of litigation time

(c) More effective use of available resources for managing litigation issues

(d) Establishment of uniform standards in litigation

(e) Monitoring of progress of litigation

(f) Development of information technology support

(g) Facilitating planning for the future needs of litigation

An effective litigation management and cost-and–delay-reduction programme should also incorporate the following inter-related principles including:-

(a) The differential treatment of cases according to their needs, complexity, duration and probable litigation process.

(b) Early involvement of officials in planning the progress of the case, controlling and scheduling of hearings, trials and other litigation events.

(c) Regular communication between the officials and legal fraternity during the litigation process.

Litigation management is a comprehensive system of management of time and events in a legal process as it proceeds through the justice system, from litigation to resolution. The two essential components of litigation management system are the setting of a time table for pre-determined events and monitoring of the progress of the litigation through its time-table. This involves taking interest in cases from a much earlier stage in the process and manage them through a series of milestones to check-posts. Most organizations have now acted upon this philosophy and introduced a variety of schemes, the common denominator of which is substantially increased supervision of litigation and in some instances, effective control over litigation. The essence of this is the adoption by organisations of a systematic, managerial approach to deal with litigation.

The cases dealt by a organization must have a differential treatment and resolution according to their needs, complexity, duration and probable litigation consequences. Accordingly, litigation issues pertaining to an organization can be generally classified into Human Resource Management, Contracts, Non Performing Accounts Recovery and Miscellaneous matters.

In order to achieve the early resolution of disputes and reduction of litigation time, the officials who are in charge of litigation affairs need to periodically monitor the progress of the litigation and ensure that schedules are being followed. In the meetings between the officials and the legal counsels, necessary modifications in the litigation plan may be discussed and got approved. The officials may call for interim reports between scheduled hearings of the case. Once having established a schedule of litigation plan, the officials and advocates may expect that schedules are being met and cases are not being dragged due to the dereliction and dilatory tactics of the opposite side or for any other reasons.

The regular communication between advocates and officials during the litigation process is very important for effective management of litigation issues. In order to have a smooth flow of communication between the officials and advocates, regular meeting session can be held and all pending issues can be discussed in detail in such meetings.

WHY LITIGATION MANAGEMENT IS IMPORTANT TO ORGANISATIONS ?

As regards Public Sector Organisations, major chunk of time and energy is spend in dealing with litigation related issues. A proper and planned litigation policy can save the most valuable resources of the organisations. The issues relating to Human Resources, Contract and Non Performing Assets (NPA) can be settled at alternative disputes resolution forums.

The resolution of the long pending cases through effective litigation management assumes much importance. In order to achieve effective litigation management, it is important to put in place comprehensive policies and procedures which will enable the organisations to manage their litigation issues in a more systematic and scientific manner. In order to effectively manage the litigation related issues, the organisations need to adopt multipronged strategy. The litigation management strategy of a organisation must consist of different tools. On a micro level, while dealing with the litigation management, the following tools which are discussed below may be adopted in an organisation.

(1) DATA BANK OF CASES

In order to control and supervise court cases, it is highly important to create a robust data bank of all court cases. It is important that all the details pertaining to the court cases must be incorporated in the data bank so that the same can be used effectively for follow up & better recovery. In order to build up the data bank, apart from collecting details of the cases from the case dealing officers at different verticals of the organisation, it is also advisable to source the details from the dealing advocates. In order to collect the details from the advocates, a monthly status report in the following format can be prepared and data may be collected:-

In order to effectively build up the data bank of court cases, latest techniques of information technology shall be used. The collection of the court details in the form of monthly status report is very effective & useful on the following two grounds:-

(a) The Business Units/Branch offices are able to understand the status of the court cases and take pro-active steps to defend the interest of the organisations.

(b) This will make the attorneys/advocates more alert and vigilant in dealing with the cases.

(c) It will remain as good record for the officials of Business Unit/Branches for close follow up and reporting to the higher authorities.

(2) EARLY IDENTIFICATION OF LEGAL ISSUES

The early identification of legal issues helps the organisations to plan the course of litigation well in advance and obtain favourable orders within reasonable period of time. The delay in taking legal action in eligible cases dilutes the prospects of getting favourable orders within reasonable period of time. As far the Bank’s are concerned, in today’s banking scenario, one of the challenges which the Banks are facing is non-availability of the borrowers/guarantors and non-traceability of the property details of the borrowers/guarantors which is happening mainly due to the delay in taking legal action. Further, a critical analysis of the pattern of recovery in secured advances also shows that delay in taking legal action results in alienation/disposal of the secured assets.

(3) WISE SELECTION OF ATTORNEY/ADVOCATE

The wise selection of attorney/advocate who suit to the needs and requirements of the organisation is an important aspect in litigation management. The attorney/advocate selection need to be approached systematically. It is advisable to to develop own panel of approved counsels. Introduction of new faces into the existing list of advocates will rejuvenate the litigation management system in an organisation. These steps will help in delivering a sound conlcusion by partnering with the right outside counsel.

(4) EFFECTIVE COST CONTROL

To help manage costs, it is advisable to have consensus with the attorney/advocate regarding the payment of fees and reduce the terms and conditions into the form of Memorandum of Understanding (MOU). Written guidelines will avoid misunderstanding. At the beginning of any case assignment, communicate in writing with the advocates regarding the cost-control aims of the organisation.

(5) SETTING STANDARDS OF SERVICE

Litigation management is more than just cost management. Litigation guidelines should cover not just billing issues, but also service standards such as the following:-

I. Frequency of status reports

II. Expected turnaround on specific requests

II. Turnaround time expected on returned phone calls, e-mail replies, etc.

IV. Accessibility at “odd” hours.

(6) ONE TO ONE MEETING WITH ATTORNEY/ADVOCATE

The advocates who have been empanelled or work with the organisations are playing a vital role in better litigation management. The attorneys/advocates can act as a catalyst for improving the litigation management techniques. In order to have effective follow up of the cases, constant inter-action with the advocates are very important. In all cases, where substantial question of law is involved, constant or regular meetings with the attorneys/advocates are very useful and effective. So as to accommodate meeting with senior advocates who are handling all high stake cases, a flexible schedule can be prepared and as per the convenience of the officials of Branch/Business Units, date and time can be finalized. In such meeting, the dealing advocate, dealing officer, Branch Head and Controlling Office officials shall attend. A large number of such one to one meeting can be conducted which will provide a platform to review the progress of the cases. Any other issues pending in between the officials of the Branch/Business Units and dealing advocates may also be discussed and resolved in such meeting. Minuets of such meeting must be drawn and recorded in the advocate meeting register.

(7) JOINT MEETING OF ADVOCATES AND OFFICIALS OF BUSINESS UNIT/BRANCH

A comprehensive meeting of the advocates and officials of Branch/Business Units on frequent intervals is also very important for smooth management of the litigation issues. In such meeting, all the pending issues relating to the payment of advocates fee,
co-ordination between the advocates and officials of Branch/Business Units can be discussed and resolved. It is advisable that such joint meeting between the advocates and branch officials can be conducted on quarterly basis. Minuets of such meeting must be drawn and recorded in the advocate meeting register.

(8) ALTERNATIVE DISPUTES RESOLUTION (ADR)

Alternative dispute resolution (ADR) was introduced to bring litigation to a conclusion through mediation or arbitration, thus avoiding lengthy and costly litigation. The organisation can make better use of alternative disputes resolution platform for resolving their legal issues. The forums like Lok Adalat shall play vital role in settling the issues amicably without incurring any expense or waster of time.

(9) LIMITATION

The doctrine of limitation is based on two legal maxims. The first legal maxim is
“vigilantibus non dormentibus jura subvenient”³ which means laws come to the assistance of the vigilant and not of the sleepy”. The second legal maxim is “interest reipublicae ut sit finis litum” ⁴ which means the interest of the State requires that there should be end to litigation. So, it is very important that suits/original applications need to be filed on behalf of the organisations within the period of limitation. If the suits/original applications are not filed within the period of limitation as prescribed under the provisions of the Limitation Act, organisations shall not be able to enforce its rights by filing case against the default persons/entities. So, it is of paramount importance that in all eligible cases, suits/original applications must be filed when the documents are in live. The non-filing of the case in eligible accounts will jeopardize the position of the organisations.

(10) EXECUTION OF DECREES OBTAINED IN FAVOUR OF ORGANISATIONS

As regards the Banking institutions are concerned, an area which requires much attention is the enforcement of decrees in favour of the Bank. In cases, wherever the Debt Recovery Certificate is issued in favour of the Bank, immediate action is required to be initiated for enforcement of such Debt Recovery Certificate by filing execution petition before the concerned Court/DRT’s or by filing affidavit, valuation report and encumbrance certificate before the Recovery Officer for initiating recovery proceedings.

CONCLUSION

In fact, the Litigation Management system has got many tools and can be innovated by every official who is dealing with the litigation issues of organisations. An endeavour has been made here to bring out and discuss some effective tools of litigation management. If litigation management is introduced by appropriate processes & procedures, it can surely become a very efficient tool for the proper and timely disposal of court cases filed for and against the organisations. In order to effectively and efficiently implement the tools of Litigation Management, there is a need for extensive training for the concerned officials. In several cases, the legal issues can be identified at an early stage and officials can act pro-actively in consultation with the attorneys/advocates and this in turn will minimize the time and expense. The effective use of Litigation Management will also enable the organizations to reap better results with the available resources.

Foot Note:

1. Manual for Litigation Management and Cost and Delay Reduction, Federal Judicial Centre, 1992,
   Wahington DC
2. Case Management and its advantages by Justice M.Jagannadha Rao.
3. Black’s Law Dictionary, 3^rd Edition by Bryan A. Garner.
4. Merriam-Webster’s Dictionary of Law 4by Merriam – Webster Inc.

Section 27 of the Arms Act, 1959 — A Critical Analysis in the Wake of
Jinu v. State of Kerala(2017 (4) KLT 895)

(By D. Pappachan, Former District Judge, Emakulam)

The knowledgeable article written bySri.Abdul Khader Kunju S.(2018 (1) KLT Journal page 21) made me to write these few lines. As elucidated in that article, the latest pronouncement of the Hon’ble High Court in Jinu’scase (2017 (4) KLT 895) holding that possession and brandishing of lethal weapon like sword in public is no offence under the Arms Act, 1959 is illogic and incomprehensible, besides being opposed to an earlier decision of the Hon’ble Court inAzzi v. State of Kerala(2013 (4) KLT 439).

In fact, in the background of the concurrent finding of the Trial Court and appellate court on facts leading to the alleged offence, the only legal question that came up for consideration of the Hon’ble High Court in Jinu’s case was whether possession and brandishing of sword in a public place, which is a non-notified area u/S.4 of the Arms Act 1959, will attract the offence u/S.27(1) of the said Act. After analysing the relevant provisions of the Arms Act 1959 and the Rules thereunder, the Hon’ble High Court held that so long as the place at which the miscreant was found using the lethal weapon is an area in respect of which a notification u/S.4 of the Arms Act regulating the use of such arms is not issued, brandishing of that weapon in public does not attract the offence u/S.27(1) of the Arms Act 1959. The relevant portion of the decision of the Hon’ble High Court in Jinu’scase (2017 (4) KLT 895) reads as follows:

Thus, on reading S.5 along with S.4 of the Arms Act it can be seen that S.5 will not be applicable in cases of arms coming under the purview of S.4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under S.27 will not lie.

Here it is to be remembered that exactly on the same facts and circumstances the Hon’ble High Court in Azzi’scase (2013 (4) KLT 439) held that possession or use of a sword in a public place without licence attracts the offence u/S.27(1) of the Arms Act, 1959. Unfortunately, that decision is not seen to have been brought to the notice of the Hon’ble High Court while deciding Jinu’scase. Of course, in Azzi’scase there was no contention that sword is not a weapon coming u/S.2(1)(c) of the Arms Act. And going by the definition of arms in S. 2(l)(c) of the Arms Act vis-a-visRule 3 of the Arms Rules 1962, it was not at all possible to take a contention that swords or weapons with blades longer than 9” or wider than 2” do not require licence even in the absence of notification u/S. 4 of the Arms Act.

In this context referring to the definition of the word “prescribed” in S.2(g) of the Arms Act 1959, as pointed out by the learned author in the article referred to above, use of weapons of “prescribed” category in any area without a licence is an offence. Rule 3 of Arms Rules 1962 r/w Item V of Schedule 1 of the said Rules makes clear that swords with blades longer than 9” and wider than 2” are weapons of “prescribed” category. Use or possession of “prescribed” category of weapons as described in Schedule 1 of the Arms Rules 1962 in any area without holding a licence issued u/S.5(1) of the Arms Act 1959 is obviously in violation of said provision and is hence punishable u/S.27(1) of the Arms Act 1959.

Right now, I may refer to yet another decision of the Hon’ble High Court in Jithu v. State of Kerala(2014 (3) KLT 243), wherein it was held that acquisition or possession of arms is not an offence under the Arms Act 1959 in the absence of notification issued u/S.4 of the Arms Act. But it is to be remembered that in Jithu’s case the offence u/S.27(1) of the Arms Act did not come up for consideration. The only question which was considered in that case was whether acquisition or possession of weapon as defined u/S.2(1)(c) of the Arms Act attracts the offence u/S.25(1)(a) of the Arms Act or it is only an offence u/S. 25(1B)(b) of the Act. In that case the Hon’ble Court had no occasion to consider whether use or brandishing of a lethal weapon in public is in violation of S.5 of the Arms Act, thereby to attract the offence u/S.27(1) of the Act. Anyway, as the facts are clearly distinguishable, the decision in Jithu’s case (2014 (3) KLT 243) was not of much assistance in Jinu’scase (2017 (4) KLT 895).

As already stated, the decision in Jinu’s case (2017 (4) KLT 895) does not appear to lay down the correct legal position, apart from that the decision runs counter to the earlier decision of the very same Court in Azzi’s case (2013 (4) KLT 439). Above all, the decision in Jinu’s case (2017 (4) KLT 895) is likely to bring about a very anomalous situation that the law enforcing machinery in our State will be confused as to whether any action is possible against anti-social elements, who are out to hold people at ransom wielding lethal weapons like the swords in public. Therefore, agreeing with the learned author of the article referred to above I am of the considered view that the ratio of the decision of Hon’ble High Court in Jinu’s case (2017 (4) KLT 895) requires to be unsettled at the earliest in the interest of justice.

Legislative Procedures on Law, Rule and Delegated Legislation

(By V.K.Babu Prakash, Secretary, Kerala Legislative Assembly)

Law is the body of principles, recognised and applied by the State for the administration of justice. The important sources of law are legislation, judicial precedent, customary law and convention. The term ‘legislation is derived from the Latin word ‘Legis Latio’ meaning bringing or proposing of a law. It is the process of making or enacting laws. In otherwords, legislation is the exercise of the power and function of making laws that have the force of authority by virtue of their promulgations by the sovereign State or other organisation. Two broad categories of legislation are supreme legislation and subordinate legislation. Supreme legislation proceeds from supreme or sovereign power like Parliament or State legislature incapable of being repealed, annulled or controlled by any authority. Subordinate Legislation proceeds from any authority other than the sovereign power and is dependent for its continued existence on some authority. The main- function of the legislature is making and enacting of laws. The Constitution of India lays out provisions for the enactment of the law by the Parliament in the Union level. Regarding State legislature, the Legislative Assembly makes law in a State. The law enacted by Parliament or State Legislature can be challenged before courts alleging ultra viresthe Constitution.

Principles of Legislation

The Legislation must be in consonance with the principles of natural justice. There are various theories holding on legislation and its effects. The utility theory exhorted by Jermi Bentham postulates that good legislation is the art of achieving maximum pleasure to the maximum number of the people.

Distribution of Legislative Powers

Territorial extend of Union and State Legislation:The State Legislation naturally suffers from a limitation to which Parliament is not subject, namely, that the territory of the union being divided amongst the States, has the power to legislate for any part of the territory of India [Article 246(4)]. A State Legislature can make laws for the whole or any part of the State to which it belongs [Article 245(1)]. The Parliament has the power of extra territorial legislation, which no State Legislature possesses. This means Parliament can enact law not only on persons and property within the territory of India but also on Indian subjects and their property situated anywhere in the world outside India.

Distribution of Legislative Subjects

The Constitution adopts a threefold distribution of legislative power between the Union and the States (Article 246), which is also called List I. There are 97 subjects over which the Union shall have exclusive power of legislation. It includes defence, foreign affairs, banking, insurance, currency and coinage, union duties and taxes. List II, which is also called State List comprising 59 items or entries over which the State Legislature shall have exclusive power of legislation. Those include Police, Local Self Government, Public Health and Sanitations, Agriculture, Fisheries, State Taxes and Duties. List III, also called Concurrent List empowers the Union and State to enact laws over 52 items. They are Criminal Law and Procedure, Civil Procedure, Marriage, Contracts, Torts, Trusts, Welfare of Labour and Education. Whenever there is overlapping of legislation, predominance is given to the enactment of Parliament. When there is repugnancy between a Union and State law relating to an entry in the Concurrent List, the law enacted by the Union prevails [Article 254(1)]. In order to determine whether a particular enactment falls under one entry or the other, generally the court before which such a law is challenged, applies ‘pith & substance’ principle. The principle is to find out the legislative competency of the State and the Union over the entry. If the legislature has no power to legislate over the entry, then the court finds repugnancy and holds that the State Legislation is only a ‘Colourable Legislation’. Therefore the Union law prevails over the State law.

Classification of Bills

1.  Government Bill: When a bill is presented in the house by a Minister it is called the Government Bill.

2.  Private Members Bill: When a bill is presented in the house by a member other than a Minister, it is called a Private Member Bill.

3.  Original Bills: Bills containing new proposals or policies are termed Original Bills.

4. Consolidating Bills: Bills aimed at consolidating existing laws on a particular subject are known as Consolidating Bills.

5.  Expiring Laws Bills: Bills providing for the continuation of an expiring Act are termed expiring laws Bills.

6.  Expiring laws bills or Ordinance replacing Bills: Bills seeking to replace ordinance are called Ordinance Replacing Bills.

7.  Constitution (Amendment) Bills: Bills seeking to amend the Constitution are known as Constitution Amendment Bills.

8.  Money Bills: Bills which exclusively contain provision for imposition, abolition, remition, alteration or regulation of taxes or for appropriation of money out of the consolidated fund etc. are classified as money bills.

9.  Financial Bills: Any of the matters which come within the definition of a money bill, but do not consist solely of those matters and those which, if enacted and brought into operation would involve expenditure from the Consolidated Fund of India.

Important features of a Bill

1.  Title: Every bill has a title succinctly describing the nature of the proposed measure that the bill aims at achieving. The title, generally referred as the long title is pre-fixed to the bill and retained in the Act and is different from short title.

2.  Preamble: Preamble is a clause at the beginning of a statute following the title and preceding the enacting clauses. The proper function of the preamble is to explain facts which are necessary for the purpose of understanding the Act. Earlier, the preamble was not considered part of the bill. Now it is a part of the bill, which is amenable for amendment.

3.  Enacting Formula: It is a short paragraph preceding the clauses of a bill.

4.  Short Title: It is merely a label or index heading to the enactment.

5.  Extent Clause: It is with respect to the area within which the Act is made applicable. Normally a law passed in the Parliament is applicable through out the country except, whether it otherwise expressly provided for in the Act itself.

6.  Commencement Clause: It is an important provision by which the Acts which are intended to take effect, at once need not usually have a commencement clause.

7   Interpretation of definition Clause: The clause usually comes after the short title or situation clause. The definitions are arranged in alphabetical order.

8.  Duration Clause: Certain laws are of limited duration which are enacted for a short stipulated period. Such enactment is not to be effective after the expiry of the period stipulated.

9.  Declaratory Clause: It declares or states the need or requirement which the law was framed to fulfill.

10. Rule making Clause: It contains the delegating power to the executive to make rules and regulations for administering the various provisions contained in the rule making clause of a bill.

11. Repeal and Savings: It is a provision both for repeal and savings which is placed at the end of the statute.

12. Schedules: Some Acts only have schedules. It contains illustration of forms, appending plans etc.

13.Statement of Objects and Reasons: It is an explanatory statement regarding the purpose of the proposed legislation. It helps understanding the necessity and scope of the bill. However, the Constitutional Courts may not rely on the statement of objects and reason to gather the intention of the legislation for the enactment.

14. Notes on Clauses: It is to explain the various provisions in a bill and their significance.

15. Memorandum Regarding Delegated Legislation: The Memorandum draws proposals for the delegation of subordinate legislative power to the authority concerned or Government Memorandum containing re-modifications in a bill to replace an ordinance. The purpose is to replace an ordinance with a modified bill for the introduction into the house.

Statutory Provisions for Legislation: Articles 107-111 and Articles 196-201 of the Constitution deal with the Legislative power of Parliament and State Legislative Assemblies respectively. Rules 66 to 106 of the Rules of Procedure and conduct of business of Kerala Legislative Assembly provide the procedure for legislation in the Kerala Legislative Assembly. Paragraphs 219-230 of the Kerala Secretarial Office Manual deal with putting of the files regarding legislation by the officers concerned of the administrative department of the Government. Rules of business of Government of Kerala provide the procedure for legislation through the administrative department concerned, the Department, Ministers, Chief Ministers and advices given by the Law Department on a legislation.

Drafting of Bills:The proposal for legislation comes from the department to which the subject matter of the Legislation relates. The Law Department will examine the competence of the State Legislature for the Legislation along with various Constitutional requirements like the need for obtaining the recommendation of Governor, it if is a Money Bill. The question regarding whether the proposed bill would be inconsistence with any of the provisions of the Constitution or relating to fundamental rights would also be examined. The Law Department gives its advice on the above matters as per Rule 45 of the rules of business. There after the administrative department would prepare a note for circulation to the Chief Minister, Minister concerned of the department and the Law Minister. When the Chief Minister agrees to the proposal and a policy decision is taken, the administrative department would draw a memorandum of instructions explaining the circumstances for the proposed legislation with a statement of objects and reasons. The Administrative department would also prepare the financial memorandum. Then it is sent to the Law Department for the preparation of the draft bill. When the draft bill has been approved by the Minister concerned, it would be circulated to the Chief Minister for placing it to the Cabinet of Ministers for approval. After the approval by the Cabinet, the draft would be forwarded to the Governor or to the President for approval if necessary. After obtaining the approval if needed, the bill would be sent back to the Administrative Department for final approval. The finally approved draft bill is then forwarded to the Secretariat of the Legislative Assembly by the Law Department for further action.

The enacting procedures followed at the Legislative Assembly Secretariat.

1. The Secretariat will scrutinise whether the bill contains a statement of object and reasons.

2. Whether recommendation and approval of the Governor is obtained.

3. Whether Constitutional requirements had been complied or not.

4. Whether the bill involves expenditure from public funds. If so whether it is printed in italics or not.

5. Whether the bill contains the financial memorandum and if so whether it is attached to the bill or not.

6. When a memorandum on subordinate legislation, if needed, has been appended to the bill.

7.  When a memorandum containing modification to the bill to replace an ordinance if needed has been appended to the bill. Whether correction carried out in the proof with the seal of the ministry of law.

Publication of bills before introduction

On a request made by the member in charge of the bill, the Speaker may order publication of the bill in the Gazette.

Introduction of Government Bills

A Minister who wishes to introduce a bill has to give seven day’s notice in writing of his intention to move for leave to introduce the bill. The Speaker can allow a shorter notice than 7 days. Copies of the bill have to be made available to members atleast 2 days before the day on which it is proposed to be introduced.

Motion after introduction of Bills

After introduction a motion can be moved by the member to refer the bill to the Select Committee or to a Joint Committee.

Motion for considerations

The member who is in-charge of the bill can move for a motion for consideration of the principle of the bill and its provisions. But at that stage, the details of the bill are not discussed other than its principles.

Circulation for eliciting public opinion

Member in-charge of the bill after introduction may move that the bill be circulated for electing public opinion, if the bill has got general importance of public.

Second reading of the Bill

After the introduction of the Bill or the Bill has been reported by the Select and Joint Committee, be taken into consideration by the house clause by clause. The Speaker may call each clause separately and when amendments relating to the particular clause are disposed of, then he puts the question of passing the bill clause by clause.

Third reading of the Bill

It is the final stage. When all the clauses and schedules of the bill have been considered and voted upon by the house, the member in-charge can move for the passing of the bill. No amendments except formal or consequential shall be adopted. Thereafter, the bill can be passed on the basis of voting. When the bill has been passed by the Assembly, it should be signed by the Speaker and presented to the Governor. The Governor may either assent to the bill, withhold his assent or return the bill, if it is not a money bill, with the message for reconsideration of the bill or any of the provisions. When the bill which was returned, has been reconsidered by the house, is again passed by the house with or without the modification suggested by the Governor, re­presented to the Governor, the Governor shall not withhold his assent to the bill. In the Kerala Legislative Assembly all the bills are to be introduced in Malayalam version. Prior permission of the Speaker is necessary for introducing bill in English version.

Private Members Bill

Any member of the Legislative Assembly other than the minister can introduce a bill into the Assembly. Such a member shall draft the bill and forward it to the Legislative Secretariat for scrutiny. Thereafter the bill should be introduced in the manner, like a government bill is introduced.

Ordinance

The President or the Governor has got legislative power to promulgate ordinance under Article 123 & 213 of the Constitution. When the house is not in session and the President or Governor is satisfied that circumstance exists, which is necessary for him to take immediate action, he can promulgate ordinance on the advice of the council of Ministers, which is then approved by the Cabinet. It would not be sent to the Assembly Secretariat like the drafted bill. The ordinance approved by the Cabinet shall be signed by the Governor which shall be notified in the gazette. The ordinance lapses at the expiry of six weeks from the date of re-assembly of Parliament or Legislative Assembly.

Subordinate Legislation

Subordinate Legislation is an important area in the Administrative Law. In the modern concepts of a welfare State, Governmental activity has expanded in various walks of law and the executive machinery has to issue Rules and Orders to catch up with the needs of the people. Delegated legislation in India is generally expressed as statutory Rules and Orders. The term rule is defined in the General Clauses Acts, 1897 as a rule made in the exercise of a power conferred by any enactment and shall include a rule made under any enactment and shall include a rule made under any enactment. Often Legislature passes statutes that set out broad outlines and principles, and delegates authority to an executive branch official to issue delegated legislation. The purpose of delegated legislation is to provide the procedural recommendations for implementing the substantive provisions of the statute. It is also called ‘colourable legislation’. Generally, a subordinate legislation other than a rule is always called Government notification or SRO. It is published in the gazette having the Government Order No. & date on its top. The numbering of all SROs is done on year basis. The name of the parent Act by the section which confers the power to make the rule is mentioned before the first rule. The first rule shall be a short title and a commencement of rules. The Government SRO shall contain an explanatory note. Although it does not form part of a notification, yet it would explain the object of the rule or notification. As per paragraph 250 of the Kerala Secretariat Office Manual, the statutory rules are provided by the Administrative Department concerned itself. The drafted rule shall be forwarded to the Law Department for scrutiny. In addition to the scrutiny of Law Department, the notifications issued under the Public Services Act have to be scrutinized by the personal and administrative reforms department as well. The draft shall be placed before the Cabinet of Ministers under paragraph 251. There shall also be a consultation with Kerala Public Service Commission in the matter of notification issued under a Public Services Act. Subordinate Legislation has been controlled by the Judiciary and Legislative Assembly.

Controlled by Judiciary

A Subordinate Legislation can be challenged before the appropriate court of law. The court ‘usually looks into the competency of the provision to see whether it is consistent with the parent Act. There are two tests adopted by the courts for deciding the validity of a Subordinate Legislation. The first is Ultra Vires, which means as beyond powers. If the Subordinate Legislation is beyond the authority, then it becomes Ultra vires. If the parent Act itself is Ultra Vires, the Constitution, then obviously, the Subordinate Legislation also would become Ultra Vires. If there is procedural non-compliance then also the court strikes down the Subordinate Legislation. Gazette publication and consultation are the two main procedural requirements prescribed for Subordinate Legislation.

Parliamentary or Legislative Control

The Parliament and Legislative Assembly have constituted three committees for Legislative scruitiny of Subordinate Legislation. They are subject committee, Committee on Subordinate Legislation and Committee on Papers Laid on Table. Subject Committee considers rules at the draft stage and approves it with or without amendment. The committee on Subordinate Legislation scruitinises the rules, regulation, first statute after they have been notified. A Minister cannot become a member of the Committees. The committee on Papers laid on the table examines the Subordinate Legislation laid on the table of the house and reports to the house on, whether there had been compliance of the provisions of the Constitution or any other Act. The committee also looks into, whether there has been any undue delay in laying the paper and whether the statement explaining the delay also has been laid on the table.

Before 1957, there was no laying on table procedure regarding Subordinate Legislations in Kerala. Now, uniformity had been achieved in the laying procedure. As per Rule 166 of the rules of procedure and conduct of business in the Kerala Legislative Assembly, all the Subordinate Legislations framed in furtherence of the Constitution or any Act, shall be laid before the Legislative Assembly for the period specified in the Constitution or the relevant Act. If the relevant Act does not specify the period, it shall be laid before the Legislative Assembly for a period of 14 days. When the specified period is not completed on any one session, it should be relied in the succeeding session until 14 days are completed. The laying is done by the Minister concerned, who is in-charge of the Administrative Department. A member can give notice for amendment on the Subordinate Legislation. The Speaker will fix the time for consideration of the amendment. If the rule is amended, the amended rule shall be laid on the table.