Thanks to the Government of Kerala for Providing Social Security to the Legal Profession by Amending the Kerala Advocates Welfare Fund Act and the Kerala Court Fees and Suits Valuation Act

 (By Joseph John, Advocate, Former Chairman, Bar Council of Kerala)

The Kerala Legislative Assembly has passed the Kerala Advocates Welfare Fund (Amendment) Bill 2016 and an amendment to Section 76 of the Kerala Court Fees and Suits Valuation Act 1959. It has also by introducing the Finance Bill 2016 widened the scope of Legal Benefit Fund which authorises the Government to levy additional court fee at the rate of 1% for original suits, appeals and revisions filed before regular civil courts and for original applications, petitions, appeals and revisions in tribunals and other authorities with the objective of providing Social Security measures for members of the legal profession.

The Kerala Advocates Welfare Fund (Amendment) Bill 2016 was introduced in the Legislative Assembly by the Honourable Minister for Law Shri. A.K.Balan aimed at enhancing the welfare fund receivable by an advocate on retirement from the present `5 lakhs to `10 lakhs. This object is achieved by an yearly contribution of `25,000/- each by a member in the fund which at present is only `14,285/-. It also provides for financial assistance to the members of the fund for hospitalized treatment involving major surgical operations and for treatment of cancer and other critical illness to the tune of `1 lakh which is presently `5000/- only and also to provide financial assistance to Advocate Academy constituted by the Bar Council of Kerala for providing training to advocates to enable them to give efficient services to the people. Some of the other major provisions in the Amendment Bill, are as follows:

1. Provide stipend to Advocates who have less than three years standing at the Bar and who are below the age of 30 years and whose annual income is less than one lakh rupees, at a rate determined by the Trustee Committee of the Welfare Fund with the approval of the State Government.

2. To allow membership to the fund for advocates who were in employment otherwise for a period not exceeding five years and retirement benefits or pension of whom does not exceed `5000/-per month.

3. A member of the fund who voluntarily suspends his membership in the fund shall on resumption of practice as an advocate as allowed by the Bar Council can resume his membership in the fund also, thereafter, on payment of `2000/-as resumption fee.

4. The membership in the fund is limited to advocates having actual practice. Actual practice is defined as ‘carrying on profession of an advocate other than Senior Advocate, who have filed at least five vakalaths during an year and whose name is included in the list of practicing advocates published and maintained by the Bar Council of Kerala.

 A non-practicing advocate listed so by the Bar Council who has been a member of the fund shall be entitled to continue as such member of the fund only on inclusion of his name in the list of practicing advocates. On his resumption of practice, his period of non-practice shall be deemed to have been suspended. Those advocates who have left the profession for other employment, business etc., will not be entitled to continue in the fund until they resume practice.

5. By the insertion of sub-clause1E to Section 15 of the Amendment Bill an advocate who has been in actual practice but is not a member of the fund can get admission to the fund by submitting an application in the prescribed manner and by remitting an amount equal to the annual subscription payable by the member according to the duration of his practice at the time of entry , multiplied by 10 or the actual number of years of practice whichever is less together with a fine at the rate of `2000/- for every completed year of actual practice or `20,000 whichever is less. But such member shall not be allowed to receive any benefit from the fund within a period of 10 years from date of admission to the fund. The share of benefit from the fund to such members is limited to maximum of that of ten years or the actual period of practice whichever is less.

6. The minimum amount receivable in the event of death of a member irrespective of his/her period of practice is raised from `3 lakhs `5 lakhs but those who are entitled to get higher amounts will get such higher amount.

The financial sources of the Kerala Advocates Welfare Fund are:-

1.  Income from Advocates Welfare Fund Stamp.

2. Yearly contribution by members to the fund.

3. 20% of the enrolment fee.

4.  Share from Kerala Legal Benefit Fund provided under Section 76 of the Kerala Court Fees and Suits Valuation Act.

The income from the above sources was not at all sufficient to meet the claims of retiring members as per the Amendment. Subscription from members in an year comes to approximately 5 crore rupees. The income obtained by sale of welfare fund stamp comes around to three crores. The yearly contribution from the legal benefit fund is around ` 1.75 crore and share of enrolment fee comes to around two lakhs rupees. So the income received by the fund in an year is below 10 crores of rupees. The average disbursement from the fund comes to almost the same amount.

In the circumstances, to enhance the welfare fund from `5 lakhs to `10 lakhs, material increase in the source of income of the fund became necessary. The Bar Council of Kerala had presented to the Government of Kerala various proposals for increasing the income. The following proposals submitted by the Bar Council of Kerala before the Government have been accepted by the Government.

The annual contribution from a member of the fund shall be collected as per the following table.

II)   Value of welfare fund stamp to be affixed in Vakkalaths is raised from `25 to `50 in the High Court and from `15 to `25 in Subordinate Courts, Tribunals and other authorities.

III) The Bar Council of Kerala had submitted a proposal for making substantial increase in the income to the fund by amending the provisions in Section 76 of the Kerala Court Fees & Suits Valuation Act which provides for Legal Benefit Fund and also to effect necessary changes in the apportionment of the fund to the Advocates Welfare Fund.

The position of Legal Benefit Fund previously and as of now

Section 76 of the Kerala Court Fees and Suits Valuation Act before the Amendment had given authority to the Government of Kerala to levy 1% additional court fee on original petitions, original applications, appeals and revisions to tribunals or appellate authorities where the amount involved in the dispute is capable of valuation and `100 in other cases, by making notification in the Gazette towards legal benefit fund. It also provided for legal benefit fund stamp of `5 to be affixed in Vakkalaths and 50% of the value of legal benefit fund stamp was earmarked to the legal benefit fund. It originally provided for equal apportionment of the amounts thus received for the purpose of providing efficient legal service for the people of the State and the remaining 50% to provide Social Security for members of the legal profession. Even though, the Government is authorized to levy 1% additional court fee, it had by notification charged only 0 .5% of the additional court fee and that also only in the case of appeals and revisions to tribunals and other authorities constituted under special or local law. Thus the expected income was not derived.

By virtue of the Notwithstanding clause included by the enactment of Advocate Clerks Welfare Fund Act, 30% of the legal benefit fund was directed to be transferred to the Advocate Clerks Welfare Fund. The effect of said enactment was that 50% of the legal benefit fund allotted to the Advocates Welfare Fund was reduced to 35% of the remaining 70%.

The total membership in Advocate Welfare Fund is 22,362 whereas that of the Advocate Clerks Welfare Fund is 4239. Thus the per capita distribution of the advocates welfare fund is much less than that of the advocate clerks welfare fund. The Bar Council of Kerala had made definite memorandum before the UDF Government lead by Sri. Ommen Chandy for undoing the anomaly and also for enhancing the quantum of legal benefit fund by suitable amendment of Section 76 of the K.C.F. & S.V. Act providing for authorization to levy 1% additional court fee to original suits, appeals and revisions filed before the civil courts and also to notify the levy of 1% additional court fee in the place of 0.5% in the case of applications, petitions, appeals and revisions to tribunals and other authorities.

The previous Government led by Sri.Ommen Chandy vide the Finance Bill 2016 amended S.76 of the K.C.F. & S.V. Act as requested by the Bar Council of Kerala and on 07.04.2016 issued notifications accordingly in the Official Gazette authorizing levy of 1% additional court fee as stated above with effect from 01.04.2016. Thus a substantial source of income to the Advocates Welfare Fund has been provided which at any rough estimate will not be less than 75 crores of rupees in an year. This would lay a strong base for providing Social Security to members of the legal profession. However after general elections on dissolution of the Kerala Legislative Assembly the Finance Bill lapsed. The Bar Council of Kerala again approached the new LDF Government lead by Sri.Pinarai Vijayan which came to power, for inclusion of the lapsed provisions in the revised budget. The LDF Government was pleased to include the above provisions in the Finance Bill presented by Dr.Thomas Issac (Finance Minister) and had re-notified levy of the additional 1% court fee.

Certain anomalies were pointed out by various Bar Associations in the matter of levy of 1% additional court fee. Therefore the levy of 1% court fee is now made subject to Section 4A of the Kerala Court Fees & Suits Valuation Act and Rule 397(2) of the Kerala Motor Vehicles Rules. In cases where fixed Court Fee is prescribed, the additional court fee is limited to `100 which is also applicable in the case of petitions before the Family Courts.

To make the apportionment of the legal benefit fund proportionate to the membership of the Advocates Welfare Fund, the LDF Government have also further amended sub-clause (3) of S.76 of K.C.F. & S.V.Act by earmarking 70% of the Legal Benefit Fund to Kerala Advocates Welfare Fund and 30% to the Advocate Clerks Welfare Fund, subject to the provision that 10% of each of such allotted funds shall be set apart for providing infrastructure to the litigant public. Thus 63% of legal benefit fund will be credited to the Advocates Welfare Fund in the place of the 35% now received.

It is expected that an yearly accretion of at least 45 crore rupees would ensue to the Kerala Advocates Welfare Fund in the place of present yearly accretion of `1.75 crore which would enable further enhancement of Advocates Welfare Fund payable to the members, in future.

Legal profession is a noble and honourable profession. Lawyers in the country had led the Indian independence movement and lawyers occupy an honourable and dignified position in society. Advocates shall have efficiency, discipline and decorum with etiquette and standards. The Bar Council of Kerala has now established the Advocates Academy for providing training to lawyers and enabling them to provide efficient legal service to the community. Like every profession, lawyers also have to be provided with Social Security. Brilliant and efficient Legal Fraternity from which Presiding Officers emerge has to maintain its own standard. The justice delivery system has to strengthen itself. A retiring advocate should get at least the retirement benefits available to a first grade officer retiring from the State service. The 11th Bar Council of Kerala has taken a strong step forward to achieve this goal among its other activities. We also hope that apart from retirement benefits, a scheme for providing pension to advocates at the normal retirement age also would be possible in the near future.

On this occasion I express my sincere thanks to the LDF and UDF Governments under the leadership of Shri. Pinarayi Vijayan and Shri. Ommen Chandy respectively and to its Law & Finance Ministers Sri. K.M.Mani, Sri.A.K.Balan, Dr.Thomas Issac, Law Secretary Shri.B.G. Harindranath all of whom have coordinated the legislations in this regard. I also express my thanks to various officers of Law and Finance Departments and Officers in KLBF, the Advocate General Sri. C.P.Sudhakara Prasad, former Advocate General Shri. K.P.Dandapani, Shri. C.P.Pramod, Private Secretary to Minister of Law, to the Members of Advocates Welfare Fund Trustee Committee and to the Legal Benefit Fund Trustee Committee and their staff and to all Bar Associations in the State and various lawyer’s organizations. The role played by former Chairman of Bar Council of Kerala Shri. Adv. Manjeri Sreedharan Nair (present Director General of Prosecutions), Adv.T.H. Abdul Aziz, Adv. E. Shanavas Khan, members of the 11th Bar Council of Kerala and its Staff, Adv.Parippalli R.Raveendran, former member of the Bar Council of India is to be specifically mentioned. I also remember the name of Shri. K.Ajayan, Secretary, Bar Council of Kerala for his unstinted support and co-operation in the efforts to realize the above achievements.

Benami Prohibition Act -- "Reconstruction"

(By Ashwin Sathyanath, Advocate, High Court of Kerala)

Introduction

The term “benami” means ‘without name’1Benami transactions are those transactions in which property is transferred to one person for a consideration paid or provided by another.2 In a benami transaction there is an ostensible owner and a real owner. The ostensible owner is known as the ‘benamidar’ and he is simply an ‘alias’ for the name of the real owner with whom the beneficial ownership of the property vest.3 Indian courts have recognised this custom from a very long time. According to Sir George Farwell, ‘benami transactions are quite unobjectionable and resemble the doctrine of English Law that ‘trust of the legal estate results to the man who pays the purchase money’4 However it remains a fact that all benami transactions are not harmless. It is often resorted for furthering illegal and questionable objects like evasion of taxes, defeating creditors etc.5 Taking into account the concerns caused by benami transactions, the President of India promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 based on the suggestions put forth by 57th Law Commission Report. The Government of India later referred this Ordinance to the Law Commission for its detailed examination and as a result the 130th Law Commission Report was submitted which lead to the culmination of ‘The Benami Transactions (Prohibition) Act, 1988’. The Act contained merely nine sections and aims to prohibit benami transactions and the right to recover property held benami.

This Act now stands amended by ‘The Benami Transactions (Prohibition) Amendment Act, 2016’.6 The Amendment Act endeavours to overcome the shortfalls of the earlier Act by amending the definition of ‘benami transactions’ and by providing for the establishment of various authorities in order to deal with benami transactions.7 It also specifies the penalty for entering into benami transactions. The Amendment Act brought in a change in the nomenclature of the Act. ‘The Benami Transactions (Prohibition) Act, 1988’ is now renamed as ‘Prohibition of Benami Property Transactions Act, 1988’.8

Benami Transaction - Definition

There is a significant alteration which is brought about in the definition of the term ‘benami transaction’ by the Amendment Act, 2016. The definition clause of the pre-amendment Act is substituted by a new section which carries along with it a plethora of new terms. The pre-amendment Act defined benami transaction as‘any transaction in which the property is transferred to one person for a consideration paid or provided by another person.’9 Further the pre-amendment Act provided for various exemptions to benami transactions in different sections of the Act.10 S.3(2) provided for an exemption in case of purchase of property in the name of wife/unmarried daughter. Another exemption can be found in S.4(3)(a) & (b) which dealt with transactions in which benamidar is a coparcener of a Hindu Undivided Family (HUF) or a trustee or a person standing in fiduciary capacity. However the post-amendment Act provides for the definition of the term ‘benami transaction’ along with its exemptions in the very beginning saving any kind of confusion.

As per the new definition ‘any transaction or arrangement where the property is transferred to or held by one person for the immediate or future benefit, direct or indirect of another person who paid or provided the consideration is a benami transaction.11 The Amendment Act also qualifies other transactions as benami. These include transactions carried out or made in fictitious name12, transactions where owner is not aware of or denies knowledge of his ownership in the property13 and transactions where the person providing the consideration is not traceable or fictitious.14

The courts have time and again differentiated between ‘benami transactions’ and ‘sham transactions’, the major difference being the absence of operative transfer in the later.15 It was also clarified that the definition of ‘benami transaction’ in the pre-amendment Act does not contemplate ‘sham transaction’ and hence they will not come within the purview of the Act.16 However by inclusion of transactions in the name of fictitious name etc., within the new definition, the post-amendment Act make itself applicable to sham transactions also.

Benami Transaction - Exemptions

As mentioned above, the exemptions to the definition of benami transactions have been provided in various sections of the pre-amendment Act. S.3(2) of pre-amendment Act provided that the prohibition to enter into benami transaction is not applicable to a person who purchase the property in the name of his wife or unmarried daughter. Another important feature of S.3(2) was that it carried along with it a rebuttable presumption that the property is purchased for the benefit of wife/unmarried daughter. The Amendment Act while omitting S.3(2) from the Act, introduced a new provision which has a wider amplitude. The word ‘wife’ in the pre-amendment Act is substituted by the word ‘spouse’ and the word ‘unmarried daughter’ by the word ‘any child’.17 The result of this being that in addition to the earlier scenario of husband or father purchasing the property in the name of his wife or unmarried daughter respectively, the exemption is now also available even if a wife purchases the property in the name of her husband or a father/mother makes a purchase in the name of any child (either son or daughter). In addition to this, the exemption in the post-amendment Act is silent about the presumption which existed earlier and the only new requirement is that the consideration for purchase should flow from the known sources of the individual. While evaluating the provisions of the pre-amendment Act the Hon’ble Supreme Court has clarified that though S.3(2) is an exemption to the Act as whole, the husband or the father should necessarily overcome the presumption attached along with it. 18 At the same time there were instances where the Courts have appreciated the fiduciary relationship between a husband and wife and proceeded under S.4(3)(b) which is free from any kind of presumption instead of S.3(2).19 Considering the fact that there already exist and will continue to arise numerous litigations invoking this exemption, the new change brought about by eliminating the rebuttable presumption will have its share of significance.

Further S.4(3)(a) of the earlier Act is omitted by the Amendment Act and a similar provision is attached along with the definition of the benami transaction by way of exemption. S.4(3)(a) of the pre-amendment Act provided that the bar to file the suit or raise a defence contemplated under S.4 will not be applicable if the benamidar is a coparcener of H.U.F. and the property is held for the benefit of other coparceners. The post-amendment Act also provides for the same with a slight modification. It contemplates two scenarios. First, is when the benamidar is the Karta or a member of the H.U.F. and the property is held for his or her benefit alone. The second scenario is when the benamidar (Karta/member) holds the property for the benefit of the family. Another criterion introduced for this kind of transaction is that the consideration for purchase of the property should flow from the known sources of the H.U.F.20 The pre-amendment Act was silent about the source of consideration and hence even if a property was purchased by one coparcener using his personal income in the name of other coparcener, it stood exempted. But after the amendment it is mandatory that the consideration should flow from the known sources of the H.U.F.

Section 4(3)(b) of the pre-amendment Act also stands omitted. S.4(3)(b) of the earlier Act provided that prohibition to file a suit or raise a defence will not apply if the benamidar is a trustee or a person standing in fiduciary capacity. The new provision in the post-amendment Act also provides for a similar provision along with an elaborate inclusive definition for ‘persons standing in fiduciary capacity’ which includes trustees, executors, partners, director of company, depository etc.21

Apart from altering the already existing exemptions which were found in the pre-amendment Act, the legislature also found it apt to exempt a new kind of transaction which did not find any mention earlier. It provides that when any individual purchases property out of his known sources in the name of his brother, sister, lineal ascendants or descendants and the name of such individual along with the person in whose name the property is purchased appears as joint owners in the document, then such transactions are also an exemption to the definition of benami transaction.22

Retrospective Operation

Section 4 of the Act provides for prohibition of right to recover property held benami. S.4(1) & (2) prohibits a person claiming to be the real owner to raise the plea of benami irrespective of his position as a plaintiff or defendant in a suit, claim or action. S.4(1) prohibits the person claiming to be the real owner of the property to knock the doors of the court by filing a suit, claim or action inorder to enforce his right against the benamidar or any other person. Similarly S.4(2) prohibits a person claiming to be the real owner to take the defence of benami in any suit, claim or action filed by the benamidar or any other person. S.4(1) & (2) remains unamended and still remains in prominence. It is only S.4(3) which got omitted and a similar provision found place in the new exemptions provided.

The Hon’ble Supreme Court in the case of Mithilesh Kumari v. Prem Behari Khare 23 had an occasion to consider the retrospectivity of the Act in relation to S.4. The court held that S.4 applies to ‘pending’ as well as ‘future’ suits, claims or actions. Thus apart from preventing enforcement of any right and raising of any defence based on the plea of benami in a fresh suit, claim or action, S.4(1) & (2) was held to apply on all suits, claims and actions pending and awaiting consideration on the date of commencement of the Act. This decision resulted in holding all such suits, claims or actions pending till the date of commencement of the Act as infructuous.

Later the Apex Court in the case of R.Rajagopal Reddy & Ors. v. Padmini Chandrasekharan 24 examined the correctness of its earlier judgment in Mithilesh Kumari.25 The three Judge Bench held that the legislature never intended the application of S.4 on pending suits, claims or actions. Thus if a person claiming to be the real owner sought to enforce any right or took a defence based on the plea of benami before coming into force of S.4, he or she is free from the clutches of S.4 (1) & (2). With regard to S.4(2), the court made it clear that, if a suit, claim or action was filed by a benamidar before the commencement of the Act, the person claiming to be the real owner should have submitted his defence by way of written statement before the commencement of the Act. Though the court held that S. 4 is not retrospective, it concurred with Mithilesh Kumari 26 on the observation that prohibition under S.4(1) & (2) will be attracted even if a benami transaction was carried out prior to the commencement of the Act. Thus the test is not as to when the transaction took place but as to when suit was filed or the defence was raised. The Hon’ble Apex Court again in the case of Rebti Devi v. Ram Dutt 27 have categorically analysed the aspect of retrospectivity of in relation to its earlier judgments.

The post amendment Act still contain the provisions of S.4(1) and (2) and thus the aspect of retrospectivity which is clarified by the Hon’ble Apex Court still remain as the precedent.

Establishment of Authorities

The post-amendment Act establishes various authorities namely, Initiating Officer, Approving Authority, Administrator and Adjudicating Authority.28 If the Initiating officer believes that any person is holding a property as benamidar, he may issue notice to such person. Notice shall also be issued to the beneficial owner if his identity is within the knowledge.29 Further the Act also gives the Initiating Officer the power to provisionally attach the property with the prior approval of the Approving Authority, if he is of the opinion that the property may be alienated during the notice period.30After inquiry and taking into account all relevant materials the Initiating Officer shall within a period of 90 days pass an order to continue the provisional attachment (if already attached) or attach the property provisionally till the passing of the order of Adjudicating Authority. Initiating Officer also has the power to revoke the provisional attachment or decide not to attach the property with the prior approval of the Approving Authority.31 However, if the property stands attached until the order of the Adjudicating Authority, Initiating Officer shall within 15 days of attachment, draw up a statement of case and refer it to the Adjudicating Authority.32 After the receipt of reference from the Initiating Officer, the Adjudicating Authority shall issue a notice to furnish necessary documents, particulars or evidences to the benamidar or beneficial owner or claimants or interested party.33The Adjudicating Authority after considering the reply to the notice and carrying out necessary inquiry and hearing all the parties will pass an order holding the property as benami or otherwise and accordingly confirm or revoke the attachment order.34 An order holding the property as Benami will be followed by the act of Adjudicating authority confiscating the property and after confiscation the power will vest with the Administrator to receive and manage the property and he shall take possession accordingly.35

The Act also provides for the establishment of Appellate Tribunal to hear the appeals against the order of the Adjudicating Authority. Any person including the Initiating Officer who is aggrieved by the order of the Adjudicating Authority can prefer an appeal within a period of 45 days.36 Further there is also a provision to prefer an appeal in the High Court against the order of the Appellate Tribunal within a period of 60 days.37

The Act also provides for designating certain Session Courts as special courts for the trial of any offence punishable under the Act.38 There is also an enhancemnet in the punishment contemplated for entering into benami transactions and provides for rigorous imprisonment for a term not less than 1 year upto 7 years along with fine.39 The post-amendment Act also penalises providing of false information.40

Conclusion

The amendment brought about is welcoming taking into account the confusion caused by the pre-amendment Act. The scope of the term ‘benami transaction’ has expanded and brings within its purview various transactions including ‘sham transaction’. The transactions which are exempted are categorically mentioned and endeavours to include all types of genuine transactions.The Amendment Act also provides for an effective instituional mechanisam which will ensure due enforcement of its provisions.

Foot Note:

1.     57th Report of the Law Commission of India, Benami Transactions (1973).

2.     Section 2(a), The Benami Transactions (Prohibition) Act,1988.

3.     Gurnarain v. Sheolal(AIR 1918 P.C.140).

4.     Bilas Kumar v. Desraj Ranjit Singh (AIR 1915 PC 96).

5.     57th Report, supra note 1, at 6.

6.     The Gazette of India, dt. August 11, 2016 (See 2016 (4) KLT Central Statutes Page Nos. 31 to 53).

7.     Bill Summary-The Benami Transactions (Prohibition) Amendment Bill, 2015 (PRS Legislative Research, 2015).

8.     Section 3, The Benami Transactions (Prohibition) Amendment Act, 2016.

9.     Section 2(a), The Benami Transactions (Prohibition) Act, 1988.

10.  Section 3(2), S.4(3)(a) & (b), The Benami Transactions (Prohibition) Act, 1988.

11.  Section 2(9)(A)(a) & (b), Amendment Act.

12.  Section 2(9)(B), Amendment Act.

13.  Section 2(9)(C), Amendment Act.

14.  Section 2(9)(D), Amendment Act.

15.  Sree Meenakshi Mills Ltd v. Commissioner of Income Tax, AIR 1957 SC 49.

16.  Sumathikutty v. Sathyabhama (1994 (2) KLJ 244; Ouseph Chacko v. Raman Nair (1989 (1) KLT 767).

17.  Section 2(9)(A)(iii), Amendment Act.

18.  Nand Kishore Mehra v. Sushila Mehra (1995) 2 SCC 572.

19.  Muhammed Basheer v. Jameela 2013 (1) KLT 1; Belcita Vincent Gomez v. Vincent Gomez 2013 (4) KLT 890.

20.  Section 2(9)(A)(i), Amendment Act.

21.  Section 2(9)(A)(ii), Amendment Act.

22.    Section 2(9)(A)(iv), Amendment Act.

23.    Mithilesh Kumari v. Prem Behari Khare (1989 (1) KLT SN 29 (C.No.46) SC = (1989) 2 SCC 95).

24.    R.Rajagopal Reddy & Ors. v. Padmini Chandrasekharan (1995) 2 SCC 630.

25.    Mithilesh Kumari (1989 (1) KLT SN 29 (C.No.46) SC = (1989) 2 SCC 95.

26.    Mithilesh Kumari (1989 (1) KLT SN 29 (C.No.46) SC = (1989) 2 SCC 95.

27.  Rebti Devi v. Ram Dutt (1997) 11 SCC 714.

28.  Section18, Amendment Act.

29.  Section 24(1) & (2), Amendment Act.

30.  Section 24(3), Amendment Act.

31.  Section 24(4), Amendment Act.

32.  Section 24(5), Amendment Act.

33.  Section 26, Amendment Act.

34.  Section 26(3), Amendment Act.

35.  Section 28, S.29, Amendment Act.

36.  Section 46, Amendment Act.

37.  Section 49, Amendment Act.

38.  Section 50, Amendment Act. 

39.   Section 53, Amendment Act.

40.  Section 54, Amendment Act.

Notary Advocates as Mediators, Arbitrators or Conciliators

(By A.M. Ashraf, Judicial First Class Magistrate, Kodungallur)

A dispute precedes a litigation. A dispute may be raised because of ignorance on the part of disputant. The relationship between the litigants become, bitter when his ignorance about his right is fueled by his ego. If a disputant is empowered by making him aware of his right, the dispute may come to an end. Due to inherited legacy of huge arrears, almost all courts are heavily burdened with these tasks and consequential delay in disposal of cases, more often defeats justice invariably, adds complications to the already complicated issues involved. Function of Notaries was at one point of time considered to be a Notary to attest, verify, authenticate, certify the execution of an instrument. But the conventional concept has undergone a sea of change with the insertion of new sub-section in S.8 of Notaries Act 1952. Really object of the enactment was to change the Notaries with duty of mediating and promoting the settlement of disputes as and when they are called to it. In these juncture , Notary Advocate will have an important role to play, but the goal cannot be achieved unless requisite institutional frame work is put to place.

Section 8(hb)(Ins. by Act 36 of 1999 effect from 17.02.1999) would supplement that a Notary may do by virtue of his office, act as an arbitrator, mediator or conciliator, if so required. Hence a section of legal practice have become dressed as mediators, conciliators and arbitrators (It is apposite to provide appropriate training). Unequivocal picturesque rains a point that a notary has authority or authorised to act as an officer of ADR (Alternative Dispute Resolution) mechanism, which provided additional form in the dispute resolution mechanism. But our awareness or lack of it would be tested from the fact that how many of us are aware that in terms of section 8(hb) of the Notaries Act in 1952 one of the functions of a Notary is to act as an arbitrator, conciliator ?. How many of us even think of availing the services of Notaries as mediators who are absolutely untrained ?.

Sub-section (1) of Section 89 of C.P.C. empowers the court to formulate the terms of settlement and give them to the parties for their observation and reformulate the terms of a possible settlement and then refer the same for any one of the ADR processes. If sub-section (1) of Section 89 is to be literally followed, there is nothing wrong in entrusting a matter to a Notary Advocate by virtue of S.(hb), for any one of the ADR process. Ideo , in the matter of ADR process , the Notary Advocates should be encouraged.

The job of Notary Advocate is that facilitator or arbitrator. But the tasks of the facilitator is not that of arbitrator. The arbitrator decide issue between the parties, a Notary Advocate bring them together with the object of settling the dispute. Ideo, a Notary Advocate unlike a lawyer is a healer of conflicts and not a combatant. Duties of Notary Advocate cannot be confined solely with a view to verify, authenticate or attest the execution of any instrument. Their duty is to act as a commissioner to record evidence in any civil or criminal trial, if so directed by any Court or Authority, but also a Notary Advocate may act by virtue of his office to act as an arbitrator, mediator or conciliator, if so required. So, the input is the Notaries are to be invited to be part and parcel of ADR process too, after imparting training.

Registration of Marriage Act, Some Important Rulings

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Registration of Marriage (Common) Rules 2008 Kerala, Rules 5 & 6

1. In view of the introduction of Kerala Registration of Marriage (Common) Rules 2008,the Government should seriously consider amendment to the Registration Rules prohibiting registration of agreements under “Head as Marriage Agreement”.

ILR 2009 (2) Ker.95 (D.B.) (Sayed Abdul Basil v. Assistant Commissioner of Police).

2. Marriages of persons who are Indian Citizens belonging to various religions should be made compulsory in their respective States where the marriage is solemnized. 2006(1) KLT 791 (SC) = 2006 (2) MLJ 15 (Seema v. Ashwani Kumar)

3. Registration of Marriages (Common) Rules, 2008 (Kerala), Rr.13 & 9(1) — Correction in marriage register.

Pendency of criminal proceedings, alleging fabrication of false marriage certificate, cannot stand in the way permitting an application for correction in the register, in view of the manner in which the correction is effected in the original record.

2012 (4) KLT 623 (Jijomon v. Neezhoor Grama Panchayat).

4. Registration of Marriages (Common) Rules, 2008 (Kerala) Rr.9(1) & 13 — Passport is an authentic record regarding the name and other personal particulars of an individual.

5. Family Law - Marriage Registration Certificate.

Quashing of- TN Registration of Marriages Act, 2009 - Allegation that 4th respondent took petitioner to Sub Registrar’s office and made her sign, as if she is the witness to 4th respondent’s marriage. But 4th respondent claimed that petitioner and 4th respondent got married to each other. Petitioner alleged that no proof regarding manner in which alleged marriage conducted, no certificate of priest and no proof that alleged marriage took place within jurisdiction of Sub Registrar’s office. Allegation that entire transaction of alleged registration is unauthorized and to be cancelled. Thereafter Sub Registrar sent letter to petitioner stating that marriage is registered and registration can be cancelled in court only. Writ Petition - Whether marriage certificate as registered is a nullity and same is to be quashed as void ab initio. Held, disputed fact exists regarding manner in which petitioner appeared before Sub Registrar and signed documents. Such disputed questions cannot be gone into in Writ Petition. Petitioner’s father’s family card, mark sheet and driving licence found as documents filed before Sub Registrar’s office. Manner in which these documents filed before Sub Registrar to be gone into elaborate trial and not in writ proceedings. Letter issued by Sub Registrar informing petitioner to approach court to cancel registration certificate unwarranted and same is set aside. Court directs Sub Registrar to place entire papers/documents/records before District Registrar (Admin.) District Registrar (Admin.) to take up complaint of petitioner and conduct enquiry as to whether registration taken place fraudulently. If proved that registration fraudulent, necessary criminal action to be initiated and marriage certificate to be annulled. Petition disposed of.

(2014) 3 MLJ 863 (C.Sivagama Sundari v. Inspector General of Registration)
(2009) 2 MLJ (Cr) 607, AIR 1964 SC 962 referred.

6. Registration of Marriages (Common) Rules, 2008 (Kerala), Rule 6.

Marriage solemnized between two persons belonging to different religions can be registered under the provisions of the Rules. Circular to the effect that marriages solemnized between persons belonging to different religions or not registrable under the Rules is repugnant and contrary to the provisions contained in the Rules.
2012 (2) KLT 594 = ILR 2012 (2) Ker.463 = 2012 (2) KLJ 580 (Deepu Dev & Anr. v. State of Kerala & Anr.)

7. Registration of Marriages (Common) Rules 2008 (Kerala).

Whether registration under the rules will validate a marriage. Held, registration itself cannot be a proof of the validity of marriage. By virtue of registration under the Common Rules no marriage which is inherently invalid will not become validated in any manner.

8. Registration of Marriages (Common) Rules 2008 (Kerala) R.6

Marriage solemnized between 2 persons belonging to different religions can be registered under the rules Circular No. 63882/RC3/2010 /LSGD Dt. 28.2.11 is illegal.

2012 (2) KLT 594 (Deepu Dev & Anr. v. State of Kerala and Anr.).

2006 (1) KLT 791 (SC) (Seema v. Ashwani Kumar).

9. Registration of Marriages (common) Rules, 2008 (Kerala) Rule 6

Marriage between an Indian and a foreign national solemnized in the State of Kerala. Whether can be registered under the Rules. Held, rules does not contain any stipulation about nationality of the parties contracting the marriage. So long as marriage is solemnised in the State, Authorities are bound to register it, even if one of the party is a foreign national. Personal appearance of the parties to the marriage is not necessary for presentation of application for registration of marriage.

2012 (1) KLT 750(Najma v. Registrar General of Marriages)

10. Registration of Marriages (Common) Rules, 2008 (Kerala), R.10

Fact that wife was a minor at the time of marriage cannot disentitle parties from getting their marriage registered.

2013(2) KLTSN 66)(C.No.77) = 2013(2) KLJ 651 (Faseela v. State of Kerala).

Climate Change -- Impact on Human Rights

(By Justice A.K.Jayasankaran Nambiar, Judge, High Court of Kerala)

The phrase “Human Rights” is invariably used to refer to those inalienable rights that are conceded to an individual by society, so as to ensure his/her survival as a human being on planet earth. Unlike legally conferred rights, that owe their origin to socially accepted legal frameworks, a human right is one that inheres in every human from the time he/she commences life on earth. It was therefore that, when a re­affirmation of human rights was necessitated after the end of the second world war, the document that was published by the United Nations came to be called the Universal Declaration of Human Rights - it merely declared what was already known - that every human being possessed certain inalienable human rights. For, we the people of India, the affirmation of these rights is through the fundamental right to life, guaranteed by Art. 21 of the Constitution of India.

Our Courts have long recognised the existence of a right to clean environment as an integral facet of the right to life under Art. 21 of the Constitution. Further, our Constitution mandates that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country (Art.48-A) and that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures (Art.51-A). While we have had to grapple with the vexed issue of the extent of regulation that is to be imposed on economic activity, so as to strike a balance between the competing interests of economy and environment, the twin principles of “sustainable development” and “polluter pays” have occupied a pride of place in environmental litigation in our country. Our long-term vision is guided by the principle of inter-generational equity. We have, however, reached a stage where we can no longer view environmental issues as something that affects us as citizens of this country. We now need to think global - not only as to how our actions will affect living beings the world over, but also how the actions of others can be regulated to ensure our continued survival. Strategies now need to expand beyond territorial frontiers and envelop the whole world as one unit. Since the problems we face are global and affect us as citizens of the world, our solutions also need to be global, so as to offer solace to even those living outside the territorial confines of our country.

Of the myriad environmental problems that we face today, climate change, or global warming, is just one. It refers to the change in global or regional climate patterns over an extended period of time, ranging from decades to millions of years, and is attributed largely to the increased levels of atmospheric carbon dioxide that is produced by the use of fossil fuels. Scientists would tell us that the rate at which energy is received from the sun, and the rate at which it is lost to space, determine the equilibrium temperature and climate of earth. This energy is distributed around the globe by winds, ocean currents, and other mechanisms to affect the climates of different regions. Factors that shape climate are called forcing mechanisms and these can, in turn be of two types -internal and external. Internal forcing mechanisms are natural processes within the climate system itself eg., thermohaline circulation. External forcing mechanisms can be either natural or anthropogenic, the latter referring to human activities that affect the climate, and the subject of focus in this paper.

In his book “A New Green History of the World”, Clive Ponting encapsulates the essence of the problem that we face today, in the following words:

“Without greenhouse gases in the atmosphere to trap outgoing terrestrial infrared radiation the average temperature on earth would be about -18 degree Celsius and too cold for life. These gases, primarily carbon dioxide and methane, maintain the average temperature of the earth at about 15 degree Celsius. However, in the last 200 years, human activities have added extra quantities of these greenhouse gases - carbon dioxide, methane and nitrous oxide - and introduced new ones in the form of the various Chlorofluorocarbons (CFC’s). The effect of these changes has been to turn a vital life-sustaining mechanism into the world’s most threatening and potentially catastrophic environmental problem - global warming.”

Carbon Dioxide today accounts for about two-thirds of the total effect of greenhouse gas emissions. The excess carbon dioxide that we release into the atmosphere comes mainly from the burning of fossil fuels like coal, oil and natural gas. Deforestation and clearing of land also contribute to the release of carbon dioxide into the atmosphere since the cut trees are burnt to produce carbon dioxide, and lesser number of standing trees results in lesser absorption of carbon dioxide by the trees during photosynthesis. Similarly, methane gas is released into the atmosphere from paddy fields, where decaying animal and vegetable matter is sued as fertilizer, and from domesticated cattle that have bacteria in their guts, which release methane as a waste product. Termites feeding on decayed wood also produce methane as a by-product of digestion. Nitrous oxide is produced by vehicle engines as also by nitrate fertilizers. Although there is lesser concentration of methane and nitrous oxide in the atmosphere, when compared to carbon dioxide, together with CFC’s, they are more powerful as greenhouse gases and are more long lived and hence will remain in the atmosphere for longer periods.

Global efforts at tackling climate change through regulations took shape in 1988 when the UN Intergovernmental Panel on Climate Change (IPCC) was established to provide the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts. As an intergovernmental body, membership of the IPCC is open to all member countries of the United Nations (UN) and the World Meteorological Organization (WMO). Currently, about 195 countries are members of the IPCC. The reports provided by the IPCC, which has significant scientific inputs, enable Governments to take policy decisions with regard to Climate Change.

At the Rio Earth Summit in 1992, one of the three conventions that were adopted by the participating countries was the United Nations Framework Convention on Climate Change (UNFCCC). It came into force with effect from 21.03.1994 and has been ratified by 197 countries. The principle objective of the convention is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. It stipulated that such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner. The most notable feature of the convention was that it put the onus on developed countries to lead the way since they were the source of most past and current greenhouse gas emissions. The industrialized countries took the lead and the efforts taken ensured that emissions were reduced to the 1990 levels by the year 2000. The convention also mandated that the industrialized countries would support climate change activities in developing countries by providing financial support for action on climate change. A system of grants and loans has been set up through the convention and is managed by the Global Environment Facility. Industrialized countries also agreed to share technology with less advanced nations. Recognizing the need for economic development in poorer countries, the convention accepted that the share of greenhouse gas emissions produced by developing nations would grow in the following years.

The Kyoto protocol was adopted in Kyoto, Japan on 11.12.1997 and, owing to a complex ratification process, came into force only on 16.02.2005. The agreement is noteworthy because it commits its parties by setting internationally binding emission reduction targets, and a heavier burden on developed nations under the principle of “common but differentiated responsibilities”. On 8.12.2012, at Doha, the Doha Amendment to the Kyoto Protocol was adopted which prescribed new commitments for the developed nations for the period from 1st January 2013 to 31st December 2020. The commitments envisage a reduction of Greenhouse Gas emissions by developed nations by at least 18 % below 1990 levels in the eight-year period from 2013 to 2020.

Quite Recently, the Paris Agreement of 2015 saw all nations come together to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so. The central aim of the agreement is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below two degree Celsius above pre-industrial levels, and to pursue efforts to limit the temperature increase even further to 1.5 degree Celsius. India became a signatory to this agreement on 2nd October, 2016.

While it may be a fact that countries have come together to address the problem of climate change and have, indeed, drawn up treaties, protocols and agreements that announce their decisions and plans for the future, the legal enforceability of the obligations and duties expected of the signatory States has always been a matter of concern. Much depends upon the final words used in an agreement. In this context, one finds a brilliant analysis of the text of the Paris Agreement of 2015 in an article titled “The 2015 Paris Agreement: Interplay between Hard, Soft and Non-Obligations” by Lavanya Rajamani, Professor, Centre for Policy Research, New Delhi, who was part of the UNFCCC Secretariat core drafting and Advisory Team at the Paris negotiations. She concludes her paper by stating “The Paris Agreement is arguably an exemplar of the ‘brave new world of international law’ in which forms of law and lawmaking have ‘mutated into fascinating hybrid forms. The Paris Agreement, a product of a deeply discordant political context, rife with fundamental and seemingly irresolvable differences between Parties, is an unusual Agreement. It contains a carefully calibrated mix of hard, soft and non-obligations, the boundaries between which are blurred. Each of these types of obligations plays a distinct and valuable role. The ‘hard obligations’ of conduct in mitigation and finance, in conjunction with a rigorous oversight system, form the core of the Paris Agreement. The ‘soft obligations’ peppered throughout the instrument in relation to mitigation, adaptation and means of implementation create good faith expectations of Parties. And the non-obligations, albeit unusual in operational provisions of treaties, provide valuable context, construct narratives and offer mutual reassurances. This delicate and unusual mix of obligations (hard and soft) and non-obligations—years in the making— was crucial in delivering the Paris Agreement. It remains to be seen if this mix of obligations will deliver us from climate change.”

International Treaties and Agreements need to be legally enforceable throughout the world, and every signatory country ought to be made legally obliged to adhere to its respective commitment. When it comes to matters that have a direct bearing on human rights, commitments need to be in the nature of “Hard Obligations”. We are far too deep in the quagmire of global warming to find solace in “soft obligations” and “non-obligations” in International agreements.

India’s efforts at tackling the problem through domestic measures began in 2006 with the laying down of the National Environment Policy 2006, which focuses on sustainable development alongside environmental concerns. We have adopted a National Action Plan on Climate Change (NAPCC) and the policy initiatives of the Central Government are supplemented by the actions of the State Governments, NGO’s and initiatives of the private sector and other stakeholders. The State Governments have put in place their own action plans on climate change (SAPCC). Action has also been taken through amending various statutes that regulate the use of natural resources so as to ensure the efficient use of energy. Fiscal measures such as imposition of cesses and duties on certain types of fuel, as also higher rates of tax on fossil fuels, have also been introduced so as to force a conversion to alternate and cleaner energy. .Afforestation and Reforestation have been actively pursued and we have been successful in enhancing the forest cover in our country’, although we still have some distance to go before we reach our goal of bringing approximately 33% of the land area under forest cover.

Conclusion

The world community has come together to tackle the problem of global warming and we need to ensure that the momentum is kept up in the coming years. Commitments by individual nations, in International Agreements, need to be recorded in unambiguous terms and legally enforceable. We need to realize that the problem, if left unchecked, will have catastrophic consequences for the human species. We are told that mid-2016 was the warmest period in the history of the earth and that should be catalyst enough to increase our efforts in this area. Our actions need to be concerted and designed to ensure that this basic human right - to an environment that is conducive to human life on earth - is respected and guaranteed to all of mankind, across generations.