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. 

University Ombudsman Still an Unborn Baby

(By Ajay R. Kamath, Advocate, Trivandrum)

In Kerala, we are very much familiar about the concept of “Ombudsman”. We have seen ombudsman for Local Self-government Institutions, Banking, Insurance, Electricity and for Co-operative Societies. But how many of us are aware that it is mandatory for each and every university to have an Ombudsman.

The University Grants Commission in 2013 came out with a regulation called UGC (Grievance Redressal) Regulations, 2012 with an aim to redress the grievances and to uplift the overall standard of higher education in the country. The regulation proposes to establish a two tier mechanism which consists of a Grievance Redressal Committee at the college/regional level and Ombudsman as its Appeal Authority.

Who will be Ombudsman?

The Regulation prescribes that, the Ombudsman must be a person who has been a judge not below the rank of a District Judge or a retired professor who has at least ten years’ experience as a professor.

Mode of appointment

The Ombudsman in a State University must be appointed from a panel of three names recommended by the search committee consisting of nominee of the Governor of the State as Chairman; two Vice-Chancellors from public Universities of the State, nominated by the State Government as members; one Vice-Chancellor from private university of the State, nominated by the State Government as member and Higher Education Secretary of the State as the member and Convener.

Purpose of the Ombudsman

Ombudsman serves as a platform for aggrieved students to register their complaints or grievances, regarding the following;

* Admissions taking place contrary to the merit determined in accordance with the institute’s declared policy.

* Making admission contrary to merit determined in accordance with the declared admission policy of the institute.

* Irregularity in the admission process adopted by the institute.

* Refusing admission in accordance with the declared admission policy of the institute.

* Non publication of prospectus, as specified.

* Publishing any information in the prospectus, which is false or misleading, and not based on facts.

* Withhold or refuse to return any document in the form of certificates of degree, diploma or any other award or other document deposited with it by a person for the purpose of seeking admission in such institution, with a view to induce or compel such person to pay any fee or fees in respect of any course or program of study which such person does not intend to pursue.

* Demand of money in excess of that specified in the declared admission policy or approved by the competent authority to be charged by such institution.

* Breach of the policy for reservation in admission as may be applicable.

* Complaints, of alleged discrimination of students, from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Women, Minority or Disabled categories.

* Non-payment or delay in payment of scholarships to any student that such institution is committed, under the conditions imposed by University Grants Commission, or by any other authority.

* Delay in conduct of examinations or declaration of results beyond that specified in the academic calendar.

* On provision of student amenities as may have been promised or required to be provided by the institution.

* Denial of quality education as promised at the time of admission or required to be provided.

* Non transparent or unfair evaluation practices.

* Harassment and victimisation of students, including sexual harassment.

How it will function

* Each University/Institution shall establish a registry, headed by an employee of the institute of appropriate rank as the Ombudsman may decide where any aggrieved student or person may make an application seeking redressal of grievance.

* On receipt of an application by the registry, the employee-in­charge shall inform the Ombudsman. The registry shall immediately provide a copy to the institution for furnishing its reply within seven days.

* The Ombudsman shall fix a date tor hearing the complaint which shall be communicated to the institute and the aggrieved person either in writing or electronically, as may be feasible.

* An aggrieved person - may appear either in person or represented by such person as may be authorised to present his case.

* The Ombudsman shall be guided by the principles of natural justice while hearing the grievance.

* The Ombudsman shall ensure disposal of every application as speedily as possible and not later than a month of receipt of the grievance.

* The institution shall co-operate with the Ombudsman in redressal of grievances and failure to do so may be reported by the Ombudsman to the U.G.C.

* On the conclusion of proceedings, the Ombudsman shall pass such order, with reasons for such order, as may be deemed fit to redress the grievance and provide such relief as may be desirable to the affected party at issue.

* The institution shall comply with the order of the Ombudsman, failing in which it shall be reported to the U.G.C.

Consequences of non-compliance

If any University wilfully contravenes or repeatedly fails to comply with orders of the Ombudsman, then it shall be reported to the U.G.C. and U.G.C. may proceed to take following actions, namely:-

a) withdrawal of declaration of fitness to receive grants under Section 128 of the Act;

b) withholding any grant allocated to the Institution;

c) declaring the institution ineligible for consideration for any assistance under any of the general or special assistance programs of the Commission;

d) informing the general public, including potential candidates for admission, through a notice displayed prominently in the newspapers or other suitable media and posted on the website of the Commission, declaring that the institution does not possess the minimum standards for redressal of grievances;

e) recommend to the affiliating university for withdrawal of affiliation, in case of a college;

f) recommend to the Central Government for withdrawal of declaration as Institution deemed to be university, in case of an institution deemed to be university;

g) recommend to the appropriate State Government for withdrawal of status as university in case of a university established or incorporated under a State Act;

h) taking such other action within its powers as the Commission may deem fit and impose such other penalties as may be provided in the Act for such duration of time as the institution complies with the provisions of the U.G.C. Regulations

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Status in our Universities

It has been 4 years and 7 months since the U.G.C.(Grievance Redressal) Regulations came into force but none of the Universities in the State has appointed an Ombudsman, even after a directive from the U.G.C. The Ombudsman in our Universities will indeed help to curb the current unfair practises which are currently occurring in our State. It is pertinent to note that a proposal for appointing an Ombudsman in University of Kerala and Cochin University of Science and Technology are within the consideration of the State Government and a favourable action is expected soon.