Was NJAC Ever A Solution ?

(By Liju V. Stephen, Advocate, High Court of Kerala)

“The seat of justice is the seat of God”

                                                                   -- Mahavir Tyagi

 The Supreme Court’s verdict declaring “The National Judicial Appointment Commission Act of 2014” as unconstitutional had aroused mixed sentiments among the citizens of India. The anxiety of the citizens is well founded, for the reason that in a democracy the higher judiciary which is the ultimate repository of justice for any citizen has to be competent and independent. However on a larger perspective one would be constrained to think whether replacement of the Collegium System with that of NJAC would address the core issue in the selection process.

Under the Government of India Act of 1919 and 1935, the appointments of judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words of the Executive. Under Articles 124 and 217 of the Indian Constitution the President of India was empowered to appoint Judges of the Supreme Court and High Court after consultation with such of the Judges of Supreme Court and High Courts and other Constitutional functionaries.

The concept of a Collegium System commences from the 1993 “Advocate-on-Record” case (AIR 1994 SC 268) popularly known as the Second Judges case. Thereafter in Third Judges case a 9 Judges Bench of the Supreme Court (AIR 1999 SC 1) held that in the matter of appointment of Judges to the High Court and Supreme Court, the Chief Justice of India is entitled to have primacy. The said decision was an epoch making event in the Indian judiciary, whereby a Judicial Collegium System, the only kind of its own, came into existence. The Supreme Court in the above decision expressed the view that the proposal for appointment of Judges to Supreme Court should emanate from the Chief Justice of India, and for appointment of Judges to High Court the same should emanate from the concerned High Court. Thus under the Collegium System the Chief Justice of the respective High Court along with two other Senior most Judges would draw up a panel of prospective candidates. The Supreme Court Collegium may eitherapprove or reject the names so sent. If the Collegium approves the names, they are sent to the President of India and thereafter the President is to appoint the Judges.

Now after two decades of the Collegium System, the 99th Constitution Amendment has been brought to amend Article 214 and Article 217 of the Indian Constitution, and also for the incorporation of Article 124A for creating a National Judicial Appointment Commission to replace the Collegium System.

By The National Judicial Appointment Commission Act of 2014 the Collegium System is to be replaced by a Judicial Appointment Commission consisting of six persons i.e. the Union Law Minister, the Chief Justice of India and two senior most judges and two eminent persons. Whether the amendment for creating the Judicial Appointment Commission is to regain the power and primacy of the Executive or whether it is a fusion of the Judiciary and the Executive is not certain. But it is certain that the evolvement and the changes that had been happening in the systems is definitely nothing but the lack of transparency in either of the systems.

The Supreme Court of India observed in the Second Judges case that the ultimate constitutional purpose of these selection process is to get the best among the suitable persons to be appointed as Judges of superior Courts. If that be so the larger issue is not who the selecting body is, but who are to be selected. The two vital aspects in any appointment to a public office are;

(1) Transparency in the mode of selection and

(2) The right of every eligible and competent candidate to be considered.

The three bench of the Supreme Court in All India Judges Association v. Union of India (1993 (2) KLT 581(SC) =(1993 (4) SCC 288) observed that Judiciary exercise sovereign Judicial function of the state and holds public office as one among the three pillars of the State.

The Supreme Court and the High Courts in India had time and again held in a number of decisions that appointment to Public Offices has to observe these vital principles. The same is nothing but based on the basic principle of the fundamental right guaranteed under
Article 16(1) of the Indian Constitution that

“There shall be equality of opportunity for a citizen in matters relating to employment or appointment to any office under the State”.

The said principle of law had been interpreted and laid down by the Supreme Court of India that no person has a fundamental right to claim to be appointed to a public office but a person has a right to be considered for selection to a public office, if he is eligible to be considered. It is an undisputed fact that the selection of Judges to the Constitutional Courts in India are not done by any public intimation or notification calling from among all the competent and eligible candidates. But the procedure being followed subsequent to the judges case and even prior to that was pick and choose of candidates by the forwarding authority itself and the names of prospective candidates are finally selected from the said drawn list made by the forwarding authority.

It is a constitutional right that every eligible person has a right to be considered for any post under the State. Hence unless and until the said principle of law is laid and implemented in letter and spirit the best among the deserving candidates to these paramount post will never be considered nor selected.

Hence it is not the replacement of the selecting body that would resolve the main issue. As long as there is a transparent mode of selection by any of the selecting authority the first issue would be resolved. But the vital issue yet to be resolved is the considerations of all the deserving candidates to these posts are also to be resolved.

The Indian legal system has much been indebted to the English legal system, and NJAC is also not an exception. The British Parliament had enacted the Constitutional Reforms Act 2005 and the appointment of the Judicial Appointment Commission has removed the appointment of High Court Judges from the political arena, and the High Court Judges in England and Wales are appointed by a commission of 15 members. The applications are invited from eligible candidates by way of public notification and the short listed candidates are interviewed on five core qualities;

*   Intellectual capacity.

*   Personal qualities (integrity, independence, judgment decisiveness, objectivity, ability and willingness to learn).

*   Ability to understand and deal fairly.

*   Authority and communication skills.

*   And efficiency.

 Majority of the states of U.S.A are following the Missouri non partisans court plan of 1940 by which superior court judges are appointed by merit and open selection procedure and the same had been followed by countries such as Australia, South Africa etc.

Coming to the Indian scenario both the collegium system as well as the previous system has contributed very eminent Judges to the Indian judiciary. Definitely collegium system when compared to Executive appointment deserves acceptance for the reason that merit and integrity of a lawyer can be best assessed and judged by the Judges where the Lawyers perform their duty as in the case of teacher assessing the capability of his student and also for the reason of primacy. It is may be a fact that degeneration happened to the Collegium system also as in the case of any other Institutions. And the same can be due to the lack of transparency in the selection process. What can be the transparency in a system in which selection are made from a community of lawyers alone who has requisite experience in the field as mandated by the Indian Constitution. In the said system transparency is nothing but the consideration of all the eligible and competent.

It is pertinent to note that selection of Senior Advocates as contemplated under the Advocates Act and Rules are that an eligible person can apply or judges can suo moto consider deserving names and the selection is made by secrete voting by all the Judges in the concerned High Court. Thus all eligible and competent persons can be considered in such a process. Similarly the names so selected can be sent for consideration before the collegium which would make the system more transparent than the present system.

Thus transparency in public appointment can be achieved only by Public notification and selection of the best from among all the competent and eligible persons, and the true spirit of Article 16 of our Constitution is nothing other than this. Hence unless and until a transparent mode of selection exists and more importantly the consideration of all the eligible candidates NJAC or any other selecting body would only be a mere numerical replacement of the existing selecting bodies. The real need of the hour is not the replacement of any selecting body but the process of selection from the most suitable and competent among all the eligible.

Section 17(F) of the Registration Act -- An Analytical Study
Viz-a-vizConstitution and Existing Provision

(By Biju Menon K, Chief Judicial Magistrate, Kozhikode)

The object and impact of insertion of Clause (f) to Section 17 of the Registration Act making registration mandatory for agreement for sale of immovable property need to be addressed with more legislative sense.

As part of the above exercise, the following questions arise for serious consideration:

Whether courts are justified in refusing to entertain suits based on unregistered agreements?

Whether the State Legislature has power to add, amend or modify Section 17 in the present manner?

Clause (f), which was added by Act 31/13, reads thus:-

“All agreements for sale of immovable property for a consideration of 100 rupees and upwards shall be compulsorily registered."

The power of State Government to make rules under the Registration Act is dealt with under Section 89A of the Act.

Section 89A

Power to make rules for filing of true copies of documents:-

(1) The State Government may make rules for all purposes connected with the filing of true copies of documents in the appropriate Books under this Act.

(2)In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -

(a) the manner in which true copies of documents shall be prepared; and

(b) the manner of filing of such copies.

(3) All rules made under this section shall be published in the Official Gazette and, unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published.

(4) Every rule made under this section shall be laid, as soon as may be after it is made, before the Legislative Assemblywhile it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 69 empowers the Inspector General of Registration to frame Rules subject to the approval of the State Government in certain matters

Section 69:

Power of Inspector General to superintend registration offices and make rules -(1) The Inspector General shall exercise a general superintendence over all the registration offices in the territories under the [State Government], and shall have the power from time to time to make rules consistent with this Act-

(a) Providing for the safe custody of books, papers and documents;

[(aam) providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under sub-section (1) of Section 6A;]

(b) declaring what languages shall be deemed to be commonly used in each district;

[(bb) Providing for the grant of licences to document writers, the revocation of such licences, the terms and conditions subject to which and the authority by whom such licences shall be granted and generally for all purposes connected with the writing of documents to be presented for registration.]

(c) declaring what territorial divisions shall be recognised under Section 21;

(d) regulating the amount of fines imposed under Sections 25 and 34, respectively;

(e) regulating the exercise of the discretion reposed in the registering officer by
Section 63;

(f) regulating the form in which registering officers are to make memoranda of documents;

(g) regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under Section 51;

[(gg) regulating the manner in which the instruments referred to in sub-section (2) of Section 88 may be presented for registration;]

(h) declaring the particulars to be contained in Index Nos.I, II, III and IV respectively;

(i) declaring the holidays that shall be observed in the registration offices; and

(j) generally, regulating the proceedings of the Registrars and Sub-Registrars.

(2) The rules so made shall be submitted to the [State Government] for approval, and, after they have been approved; they shall be published in the [Official Gazette] and on publication shall have effect as if enacted in this Act.

It is therefore clear that the rule making power of the State Government under the Act is confined to matters related to administration and procedure in the offices of Registrars. It is neither possible nor permissible to hold that execution of a contract for sale of immovable property and rights thereunder as per other laws (T.P. Act, for e.g.) relate to administration and procedure in the offices of Registrars.

Registration of deeds and documents comes under Entry No.6 of the Concurrent List in the Seventh Schedule of our Constitution. Registration Act passed by the Parliament has overriding effect over any state law dealing with the subject by virtue of Article 254 of the Constitution.

Article 254(1):

If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.           (emphasis again by me)

The prerogative of the State Government is confined to the extent of powers to frame rules under Sections 69 and 89A. Surely, this does not include any amendment or addition to any substantive provisions of the Act like Section 17. Arguably, accepting the power of the State Legislature to enact/amend the law, when we find that there is an existing law which exempts agreements for sale of immovable property from registration, the amendment appears to be ultra vires.

Even if enactment of sub-section 17(f) is within the legislative freedom of the State, proviso to Section 49 of the Registration Act provides an avenue as it saves many unregistered agreements. It nullifies a subsequent amendment to Section 17 by virtue of Article 254.

Section 49, along with the proviso added by Act 21 of 1929, reads as under:-

Effect of non-registration of documents required to be registered.—No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882,4 of 1822] to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [xxxx] or as evidence of any collateral transaction not required to be effected by registered instrument].

Therefore, the addition to Section 17 of the Registration Act by our State Legislature is invalid as it is repugnant and therefore void under Article 254 of the Constitution.

Another disturbing aspect is, despite the compelling reasons which led to the enactment under debate, it is arguable that it erodes freedom of contract. Subsequent experience shows that though number of suits for decree for specific performance has been high, property deals have decreased, which does not augur well for ordinary people who may be in dire need of money for various reasons.

It is, hence, open to courts to entertain suits for specific performance and return of advance money based on unregistered agreements for sale of immovable property. 

\nt£]X«n¸n\v \nba\nÀ½mWtam?

(By ]n BÀ. hnPbIpamÀ, AUzt¡äv, XriqÀ)

CubnsS kwØm\ kÀ¡mÀ Hcp \nbaw ]mÊm¡n hnÚm]\w sNbvXp. 2013þse tIcf [\Imcy Øm]\§fnse \nt£]IcpsS Xmev]cykwc£W BIväv F¶mWv t]cv. hnÚm]\w 16.2.2015þÂ. \nt£]Isc h©n¡p¶ [\ImcyØm]\§Äs¡Xnsc ISp¯ \S]Sn A\nhmcyw Xs¶. \nt£]I\v apXepw ]enibpw \jvS]cnlmchpsams¡ e`yamt¡IXpw AXymhiyw. AXn\v iàamb \nbahpw AXy´mt]£nXamWv. F¶m kwØm\¯v BÀs¡ms¡bmWv \nba]cambn s]mXpP\¯nÂ\n¶v \nt£]w kzoIcn¡m³ A\phmZapÅXv? \nb{´W§Ä¡phnt[bambn t\m¬_m¦n§v ^n\m³kv I¼\nIÄ, klIcWØm]\§Ä, tImÀ¸tdj\pIÄ F¶nhbv¡p am{Xsa s]mXpP\\nt£]w kzoIcn¡m³ ]mSpÅp. aäp hyànItfm ]mÀ«WÀjn¸v Øm]\§tfm tImÀ]tdäv AÃm¯ hyànIfpsS Atkmkntbj\pItfm s]mXpP\§fnÂ\n¶v \nt£]w kzoIcn¡p¶Xv 1.4.1997 apX dnkÀÆv _m¦v Hm^v C´y BIväv 45 Fkv hIp¸v {]Imcw \ntcm[n¨n«pÅXmWv.

C§s\ tI{µ\nbaw Xs¶ taev¸dª hn`mK§Ä s]mXpP\§fn \n¶pw \nt£]w kzoIcn¡p¶Xv hne¡nbncnt¡ Hcp hyànt¡m hyànIfpsS kwL¯nt\m (klIcW kwLaÃ) ]¦mfn¯ Øm]\¯nt\m “\nt£]w kzoIcn¡mhp¶ [\Imcy Øm]\w”F¶ ]Zhn \ÂIpIbpw s]mXpP\§fn \n¶pw \nt£]w kzoIcn¡p¶ BÄ AYhm Øm]\§Ä F¶v 2013þse tIcf [\Imcy Øm]\§fnse \nt£]IcpsS Xmev]cy kwc£W BIväneqsS hyàam¡pIbpw sNbvXncn¡p¶Xv AÛpXapfhm¡p¶XmWv.

1.4.1997 apX Hcp hyàntbm, ]¦mfnIfpsS Iq«mbvatbm (]mÀ«WÀ jn¸v) tImÀ¸tdäv AÃm¯ Atkmkntbj\pItfm s]mXpP\§fn \n¶v \nt£]w kzoIcn¨pIqSm F¶ \nbaw (BÀ._n.sF. BIväv) \nehnepÅt¸mÄ C¯cw hyàntbm Iq«mbvatbm Øm]\tam s]mXpP\§fn \n¶pw \nt£]w kzoIcn¡mw F¶v 2013þse [\Imcy Øm]\§fnse \nt£]IcpsS Xmev]cykwc£W BIväneqsS hyhØm]nXam¡n kwØm\¯v sImIphcp¶Xv F´À°¯nemWv F¶p a\Ênemhp¶nÃ. sN¿m³ ]mSnÃm¯ Asæn kzoIcn¡m³ ]mSnÃm¯ \nt£]§Ä taev]dªhn[w hyànIÄ¡pw C¯cw Øm]\§Ä¡pw kzoIcn¡msa¶pw aS¡n \ÂIp¶Xn hogvNhcp¯nbm am{Xw Cu 2013þse kwØm\ BIväv {]Imcw in£m \S]SnIÄ F¶papÅ coXnbn hyhØ sImIph¶ncn¡p¶Xv \nba]cambn Xs¶ \ne\n¡p¶Xà Ft¶mÀ¡Ww. hncp²amb tI{µ\nbaw \ne\nÂs¡ CsX§s\ kw`hn¨p F¶Xn\pw hniZoIcWw thIXmWv.

1958þse tIcf aWnsetâgvkv BIvänse “]WanS]mSpImc³”F¶ \nÀÆN\¯n \nt£]w kzoIcn¡pI IqSn sN¿p¶h\pw DÄs¸Spw F¶Xv CXphsc t`ZKXn sN¿mXncn ¡p¶Xv F´psImIv F¶ Imcyhpw ZpcqlXbpWÀ¯p¶pIv. tI{µ\nbaw C¯cw hyàn Itfm, ]mÀ«vWÀjn¸pItfm, hyànIfpsS Atkmkntbj\pItfm s]mXpP\\nt£]w kzoIcn¡cpXv F¶v hyhØ sNbvXv 16 hÀjambn«pw kwØm\\nba§fn C¯cw \nt£]w C¡q«À¡v Bhmw F¶ hyhØ \ne\n¡p¶Xpw hoIpw 2013þse BIväneqsS AXn\v ]¨s¡mSnIm«p¶Xpw \nt£]X«n¸n\v XSbnSmt\m AtXm t{]mÕml\w \ÂImt\m F¶ tNmZyamWv Ahtijn¡p¶Xv. 2013þse BIvänse 5þmw hIp¸v hmKvZm\§Ä \ÂIn ta¸dª hyànIÄ/Øm]\§Ä \nt£]w kzoIcn¡p¶Xv \ymboIcn¡pIbpw AkzoImcyX Cà F¶v tZymXn¸n¡pIbpw sN¿p¶p.

C§s\ A\phZn¡m³ ]mSnÃm¯ AYhm tI{µ\nba¯m \ntcm[n¡s¸« s]mXpP\ \nt£] kzoIcWw Hcp kwØm\w \nbaw \nÀ½n¨v BImw F¶p hcp¯n XoÀ¯ncn¡p¶Xv F´n\v? CXv IÅ\nt£]§Ä kzoIcn¡p¶ hyànIÄ¡pw ]mÀ«vWÀjn¸v Øm]\§Ä¡pw aäpw AhcpsS sXäv (\nbahncp²ambn kzoIcn¡p¶ s]mXpP\\nt£]w) icnsh¡p¶Xpw t{]mÕml\w \ÂIpwhn[apÅXpamWv. 2013þse tIcf [\Imcy Øm]\§fnse \nt£]IcpsS Xmev]cykwc£W BIväv 16.2.2015 apX \S¸nem¡nbXneqsS kwPmXambncn¡p¶Xv sXämb ktµiw P\§fnse¯n¡pI F¶XmWv.

hyànIÄ¡pw ]¦mfn¯Øm]\§Ä¡pw aäpw s]mXpP\¯nsâ ]Ww tXm¶pw]Sn \nt£]ambn kzoIcn¡mw F¶p hcp¶ hyhØIÄ 2013þse Cu BIvän \n¶pw DS³ Xs¶ ]n³hent¡IXmWv.

AÃm¯ ]£w s]mXpP\\nt£kwc£W¯ns\¶ t]cn sImIph¶ \nbaw ^e¯n \nt£]X«n¸n\pÅ \nba\nÀ½mWambn amdpw F¶Xv \nkvXÀ¡w.

Hm¸-td-j³ Ipt_cbpw tIcf ]W-an-S-]mSv \nb-ahpw

(By -]n.-BÀ.hnP-b-Ip-amÀ, AUz-t¡-äv, XriqÀ)

Hcp A²ym-]nI CubnsS Cu teJ-Is\ ImWm³ h¶p. ssIhiw Hcp tImSXn t\m«o-kv. hmbv]bv¡v Pmayw \n¶v ]Ww ssI]-än-b-bmÄ Xncn-¨-S-bv¡m-sX-bm-b-t¸mÄ tIkm-b-Xm-Wv. F¶m A²ym-]n-Ibv¡v t\m«o-kn ]d-bp¶ 1þmw {]Xnsb (hm-bv]-sb-Sp-¯-bmÄ) Adn-bn-Ã. tNmZn¨p h¶-t¸mÄ Ipd¨p hÀjw ap¼v kl-A-²ym-]nI Hcp hmbv]mPmayw Xc-W-sa-¶m-h-iy-s¸-«-t¸mÄ Øm]-\-¯n H¸w-t]mbn NqIn-Im-Wn-¨n-S-s¯ms¡ H¸n«v Xncn-¨p-t]m-¶p. Iq«n-s¡m-Ip-t]mb klA²ym-]n-I-bm-hs« \m«p-Im-c\v Pmayw H¸n-«-Xp-anÃ! A`y-kvX-hn-Zy-cm-bn-«p-t]mepw I®-S¨v H¸n-«p-sIm-Sp-¡p¶ {]Ir-X-ap-Å-hÀ \ap-¡n-S-bn [mcmfw. t»Uv am^nb sdbvUnepw H¸n« »m¦v sN¡p-Ifpw ap{Z-]-{X-§fpw shÅ IS-em-kp-Ifpw \nc-h[n ]nSn-IqSn sb¦nepw AsXm¶pw in£mÀl-amb Ipä-]-{X-§-fmbn amdp-¶n-Ã. "Hm¸-td-j³ Ipt_c"cImw-L«w kÀ¡mÀ {]Jym-]n-¨n-cn-¡p-¶p. H¶mw-L-«-¯nse ]cm-Xn-¡mÀ¡v \oXn In«ntbm? H¶mw-L-«-¯nse 3000þHmfw tIkp-I-fn 699 tIkp-I-fn am{X-amWv NmÀÖvjoäv \ÂIn-bXv F¶v a{´n Xs¶ hyà-am-¡n. t»UvIm-cpsS tXÀhm-gvNbpw km[m-c-W-¡m-cpsS Bß-l-Xy-bv¡pw Adp-Xn-bnÃ.

2012þ tIcfw Aan-X-]-eni CuSm-¡Â \ntcm-[-\-\n-baw sImIp-h-s¶-¦nepw Cu \nb-a-¯nepw "Aan-X-]-eni"F¶m 1958þse aWn-se-tâgvkv BIvSnse 7þmw hIp-¸n ]d-bp¶ ]eni F¶mWv \nÀÆ-Nn-¨n-«p-Å-Xv. 1958þse \nb-a-¯n ]en-i-kw-_-Ôn¨v hnNn-{X-amb hyh-Ø-bmWv DÅ-Xv. kwØm-\¯v ]W-an-S-]m-Sp-Im-c³ hmbv]bv¡v hmWn-Py-_m¦v CuSm-¡p¶ ]en-i-tb-¡mÄ 2% IqSp-X ]en-isb hm§m³ ]mSpÅq (7-þmw hIp¸v). C§s\ kzÀ®-]-W-b-hm-bv]bv¡v 12% ]eni hmWn-Py-_m¦v CuSm-¡p¶p F¦n 14% am{X-amWv kzImcy ]W-an-S-]m-Sp-ImÀ hmt§-I-Xv. F¶m Ch-cpsS \ne-]mSv CX-Ã. hmWn-Py-_m-¦p-I-fnse hnh-[-Xcw hmbv]-I-fn sh¨v Gähpw  DbÀ¶ ]en-i-\n-c-¡pÅ hmbv] GXmtWm AXn-t\-¡mÄ 2% IqSp-X ]eni kzÀ®-hm-bv]bv¡p Xs¶ hm§mw F¶mWvv. AXmbXv hmWn-Py-_m-¦n t]gvk-W temWn\v (kzÀW-hm-bv]-bÃ) 17% amWv ]eni F¦n kzImcy ]W-an-S-]m-Sp-Im-c\v 19% ]eni kzÀ®-hm-bv]-bv¡p-Xs¶ hm§mw F¶mWv Ch-cpsS \ne-]mSv. CXn-\-hÀ ASn-Øm-\-am-¡p-¶Xv 7þmw hIp-¸n "tem¬kv"F¶p a{Xta ]d-bp-¶q-Åq F¶-XmWv. Cu \ne-]mSv adn-I-S¡m³ \mw CXp-hsc \nb-a-t`-Z-K-Xn¡v apXnÀ¶n-«n-Ã. C¯cw Ah-Ø-I-fn-emWv Ipt_c apt¶-dp-¶-Xv.

]eni kw_-Ôn¨ asämcp hkvXpX, C§s\ kzImcy ]W-an-S-]m-SpImcn \sÃmcp hn`mKw t\m¬_m-¦n§v ^n\m³kv I¼\n (NBFC)Bbn amdp-Ibpw aWn-se-tâgvkv BIvSnsâ ]cn[n adn-IS-¡p-Ibpw tXm¶nb ]eni hm§pIbpw sN¿p¶p F¶-Xm-Wv. t\m¬_m-¦n§v ^n\m³kv I¼-\n-Ifpw hmbv] \ÂIp-s¶-¦n aWn-se-tâgvkv BIvSv -{]-Imcw ssek³kv FSp-¡-W-sa¶ kÀ¡mÀ \ne-]mSv tIcf sslt¡m-SXn Unhn-j³ _©pw 2009se hn[n-bn-eqsS icn-sh-¨-t¸mÄ I¼-\n-IÄ kp{]ow-tIm-S-Xn-bn F¯p-Ibpw XÂØnXn XpS-cm³ D¯-chv hm§p-Ibpw sNbvXp. XpSÀ¶v kwØm\ \na-b-{]-Imcw F³.-_n.-F-^v.-kn.ImcpsS hmbv]m-]-eni \nb-{´n-¡m³ kwØm\¯n\v BhmsX h¶p. AanX ]eni \nb-{´n¨v Hm¸-td-j³ Ipt_c hnP-bn-¡-W-sa-¦n sslt¡m-SXn hn[n icn-sh-¨p-sImIv kp{]ow-tIm-S-Xn-bn \n¶v D¯-c-hp-Im-hm³ kwØm\ kÀ¡mÀ ASn-b-´nc \S-]Sn ssIs¡m-Å-Ww. ]e I¼-\n-Ifpw kzoI-cn-¡p¶ ]W-b-kzÀ®w hmWn-Py-_m-¦n Ipdª ]en-ibv¡v ]Wbw shbv¡p¶p. _m¦p-I-fm-Is« 4% ]en-i-bv¡v Irjn-hm-bv]-bpsS t]cn kzÀ®-]-Wbw kzoI-cn-¡m³ k¶-²-cp-am-Wv. C§s\ asäm-cp-h-gn¡pw km[m-c-W-¡m-c\p e`n-t¡Ihmbv] hgn-am-dp-¶p.

AanX ]enibv¡v t]meokv tIsk-Sp-¡p-¶Xv tIcf aWn-se-tâgvkv BIvSnse 3, 7 hIp-¸p-IÄ ewLn¨p F¶p ]d-ªv 17þmw hIp-¸p-{]-Im-c-am-Wv. Cu tIkp-Ifn an¡-hmdpw hnNm-cW Ign-bp-t¼mÄ in£ CÃm-sXtbm aXn-bmb in£ e`-n-¡m-sXtbm t]mIp¶p. ]e tIkp-Ifnepw hnNm-c-W-bv¡p-ap-¼p-Xs¶ NmÀPp-t]mepw sslt¡m-SXn d±m-¡n-. 6.1.2015Âsslt¡m-SXn ]pd-s¸-Sp-hn¨ hn[n (hn-aepw tIc-f-kw-Øm-\hpw X½n-epÅ tIkv) HcmÄ asäm-cmÄ¡v tcJ-I-fpsS _e-¯n ]Ww ISw sImSp-¡p-¶-Xv aWn-se-tâgvkv BIvSnsâ ewL-\-aà F¶v hyà-am-¡p-¶-Xm-Wv. CXv hyàn-]-c-amb Imcy-am-sW¶pw tImSXn NqInIm«n.  sdbvUn sN¡p-Ifpw aäpw IsI-¯n-b-Xns\ XpSÀ¶p-Im-b-Xm-Wv tIkv. aWn se³tUgvkv ssek³kpw DIm-bn-cp-¶n-Ã. F¶m t{]mkn-Iyq-j\v tIkv _e-s¸-Sp-¯m³ aäp sXfn-hp-I-fn-à F¶mWv tImSXn ]d-ª-Xv. asämcp tIkn  (2011 (1)  KLT 803)aWn-se-tâgvkv BIvSnse 18 C hIp-¸p-{]-Imcw C³kvs]-IvSn§v Akn.-I-½o-j-WÀ¡v tIm¼u-In§v At]£ \ÂIn-bm {Inan-\ tIkv DIm-bmepw ]ng HSp-¡m³ Ah-kcw \ÂI-W-sa¶pw ]ng HSp-¡n-bXv tImS-Xn-bn ImWn-¨m in£ eLq-I-cn-¡m³ Bhpw F¶pw sslt¡m-SXn hyà-am-¡p-I-bp-Im-bn. AXm-bXv ]W-ap-sI-¦n AS¨v {Inan-\ in£ Xs¶ A\-[n-Ir-X-]-W-an-S-]m-Sp-Im-c\v Ipdbv¡mw F¶p kmcw.

1958 se tIcf aWn-se-tâgvkv BIvSv Imtem-Nn-X-ambn ]cn-jvI-cn-¨n-«n-Ãm-¯-Xm-Wv. 2þmw hIp-¸n "_m¦v"F¶ t]cn ]W-an-S-]m-Sp-Øm-]\w ]mSnà F¶p hne-¡n-bn-«p-Iv. CXv adn-I-S-¡m³ ]W-an-S-]m-Sp-ImÀ t]cn-s\m¸w "_mt¦gvkv"F¶m-¡n. CXn-s\-Xnsc \S-]-Sn-sb-Sp-¯-t¸mÄ "_m¦v"F¶v tNÀ¡p-¶-Xnt\ Cu \nb-a-¯n hne-¡pÅp F¶v ]dªv sslt¡m-SXn ChÀ¡v A\p-Iq-e-amb hn[n Fgp-Xn. Npcp-¡-¯n kzIm-cy-]-W-an-S-]mSpw _m¦v BWv F¶ [mcW km[m-c-W-¡m-cn ]c-¡m³ CS-bm-bn. CXv adn-I-S-¡m³ Hcp t`Z-K-Xnbpw DIm-bn-Ã. dnkÀÆv _m¦v \nb-a-¯nse 45 Fkv hIp¸p {]Imcw hyàn-Itfm ]mÀ«vWÀjn-¸mtbm \S¯p¶ Øm]-\-§Ä sUt¸m-knäv kzoI-cn-¡m³ ]mSn-Ã. F¶m kwØm\ \nb-a-¯nse 2(7) hIp¸v sUt¸m-knäv kzoI-c-Whpw ]W-an-S-]m-Smbn C¶pw \ne-\nÀ¯n-bn-cn-¡p-¶p! CXv km[m-c-W-¡m-c³ h©n-X-\m-Im³ km[y-X-Iq-«p-¶p. A\-[n-IrX ]W-an-S-]m-Sn \nc-h[n hymPhpw Fgp-Xn-tNÀ¯-Xp-amb tcJ-IÄ ]nSn-Iq-SmdpsI-¦nepw {Inan-\ tIkn ]e-t¸mgpw NXn, hymP-tcJ Na-bv¡Â XpS-§nb Ipä-§Ä¡pÅ C´y³ in£m-\n-b-a-¯nse hIp-¸p-IÄ tNÀ¡m-dn-Ã. CXpw t»Uv am^n-bbv¡v Ffp¸w tIkn \n¶pw c£-s¸-Sm³ km[yX hÀ²n-¸n-¡p-¶p.

t\m¬_m-¦n§v ^n\m³kv I¼-\n-IÄ kwØm-\¯v Xg-¨p-h-f-cp-¶p. ImcWw cIm-Wv. (1) aWn se³tUgvkv \nb-aw, Aan-X-]-eni CuSm-¡Â \ntcm-[-\-\n-baw F¶nh {]Imcw AanX ]eni hm§p¶p F¶m-tcm-]n¨v ChÀs¡-Xnsc \ne-hn tIsk-Sp-¡m-\m-hn-Ã. CXn-\p-Im-cWw taÂ]-dª kp{]ow-tIm-S-Xn-bn InS-¡p¶ tIkp-X-s¶. ^ew Cu I¼-\n-IÄ¡v IqSp-X ]eni hmbv]bv¡v CuSm-¡m-\m-Ip¶p F¶-Xm-Wv. (2) dnkÀÆv _m¦v \nbaw hmbv]m-]-en-i-\n-c-¡nsâ Imcy-¯n hmWn-Py-_m-¦p-Isf \nb-{´n-¡p-s¶-¦nepw F³_nF-^vkn Isf \nb-{´n-¡p-¶nà F¶-Xm-Wv. Cu I¼-\n-IÄ¡v Ah-cpsS {]hÀ¯-\-Nn-ehv apX-em-bh ASn-Ø-m-\-am¡n kzbw ]eni\nc¡v \nÝ-bn-¡m³ kzmX{´yw \ÂIn-bn-cn-¡p¶p. kwØm-\w CXn-s\-Xnsc ià-amb bmsXm-cp-\o-¡hpw \S-¯p-¶n-Ã. kwØm-\s¯ Hcp {]apJ F³_nF-^vkn bv¡v F{X {_m©p-I-fp-sI¶v IW-¡ptIm F¶ hnh-cm-h-Imi At]-£bv¡v tI{µ-I-¼\n cPn-kv{Sm-dpsS adp-]-Sn, I¼-\n-\n-b-a-{]-Imcw cPn-ÌÀ sN¿-s¸« Hcp F³_nF-^vkn bv¡v F{X-sbms¡ {_m©pIv F¶v I¼\n cPn-ÌÀ sNbvX Hm^o-kn t]mepw Adn-bn-¡m³ \nb-a-]-c-amb _m[yX Cà F¶mWv! CXmWv \½psS \nb-ahpw \nb-{´-Whpw Ft¶mÀ¡p-I. Cu Ah-Øbn kwØm-\¯v C¯cw I¼-\n-IÄ F{X ]eni hm§n-bmepw Ipt_c-bv¡v \ne-hn H¶pw sN¿m-\m-hnà F¶XmWv hkvXp-X. kÀ¡mÀ ASn-b´n-c-ambn sNt¿IImcy-§Ä Ch-bm-Wv.

1. ta NqIn-Im-«nb tIcf aWn-se-tâgvkv BIvSnse Ipd-hp-IÄ DS³  ]cn-l-cn-¡-Ww.

2. kp{]ow-tIm-S-Xn-bn 5 hÀj-am-bn«pw XoÀ¸m-ImsX InS-¡p¶ kwØm\ \nb-a-¯n-s\-Xn-sc-bpÅ F³_nF-^vkn¡mÀ \ÂInb A¸o-ep-I-fn sslt¡m-SXn hn[n icn-sh¨v D¯-chv e`n-¡m-\pÅ kXzc \nb-a-\-S-]-Sn- DIm-IWw.

3. dnkÀÆv _m¦v \nb-a-¯n _mt¦-Xc [\-Imcy Øm]-\-§Ä¡v hm§m-hp¶ ]eni ¢n]vX-s¸-Sp¯n t`Z-KXn hcp-¯m³ tI{µs¯ kao]n-¡-Ww.

4. sImÅ-]-en-i-¡msc ]nSn-Iq-Sp-t¼mÄ ]W-¯nsâ Dd-hnSw IsI¯n F³t^m-gvkvsaâv Ub-d-IvS-td-än\v IqSn tIsk-Sp-¡m³ hgn-sbm-cp-¡-Ww.5. ]W-an-S-]m-Sp-ImÀ kzoI-cn-¡p¶ hkvXphmbv]-I-fn AXv ]cn-tim-[n-¡m³ ]©m-b¯p tXmdpw \nb-a-hn-Z-Kv²À IqSn AS-§p¶ Hcp I½n-änsb \ntbm-Kn-¡p-Ibpw Cu I½n-än-bpsS AwKo-Im-c-t¯msS AÃm¯ hkvXp]Wb hmbv]-IÄ¡v \nb-a-km-[p-X-bnà F¶v hyhØ sImIp-h-cn-Ibpw thWw.
6. \mSp-\o-sf-bpÅ A\-[n-IrX Nn«n-\S-¯n¸v \nb-{´n-¡m³ cPn-kvt{S-j³ hIp-¸n Hcp Hm^o-kÀ BWv DÅ-Xv. CXp amän ià-amb kwhn-[m\w A\n-hm-cy-am-Wv.

7. Hcp ]äw cmjv{So-b-¡mcpw t]meo-kp-tZym-K-Øcpw sImÅ-]-en-i-¡mÀs¡m-¸-ap-Iv. CXv _n\m-an-bmbn ]Ww Cd-¡nbpw tIskm-Xp-¡m³ A[n-Imcw D]-tbm-Kn-¨p-am-Wv. anI¨, kXy-k-Ô-cmb DtZym-K-Øsc "Ipt_-c-]Wn"G¸n-¡p-¶-Xn kÀ¡mÀ ]e-t¸mgpw ]cm-P-b-s¸-Sp-¶p. tUm: tXmakv  sFkIv 2007 Agn-a-Xn-c-lnX hmf-bmÀ ]²Xn hnP-bn-¸n¨Xv -{i²n-¡pI. \nIp-Xn-h-Ip-¸nse Gähpw anI¨ DtZym-K-Øsc Xnc-sª-Sp¯v ]me-¡m-S³ sN¡vt]m-Ìp-I-fn \nb-an¨mWv tUm: sFkIv kwØm-\s¯ Xs¶ \nIpXn hcp-am\w Db-À¯nb-Xv.

8. C¶v Hcp t»Uv ]en-i-¡m-c³ ]nSn-¡-s¸-«m Ah\v BsI en-¡p¶ in£ Pmay-¯n\p ap¼pÅ aqt¶m \mtem Znh-ks¯ dnam³Uv am{Xw.  sXfn-hp-ti-J-c-W-¯nsâ A`mhw IqSn-bmWv tIkp-IÄ ZpÀ_-e-am-Ip-¶-Xn\v Imc-W-sa¶v sslt¡m-SXn Xs¶ NqIn-Im-«n-b-Xm-Wv. sF.]n.kn. hIp-¸p-IÄ IqSn tNÀ¯pÅ NmÀÖv X¿m-dm-¡epw A\n-hm-cyw.

9. hmWn-Py-\n-IpXn hIp-¸n hcp¶ ]W-an-S-]mSv ssek³kv At]-£-IÄ [mcm-f-am-Wv. `qanI-¨-h-S-¯nse \nÝ-em-h-Øbpw KÄ^n \n¶pÅ Xncn-¨p-h-chpw Hs¡ CXn\p Imc-W-am-Wv. F¶m ssek³kn§v A[n-Im-cn-bmb hmWn-Py-\n-IpXn Akn:I-½o-j-WÀamÀ  \nIpXn ]ncn-hp-ambn _Ô-s¸« Xnc-¡n-\nS-bn-emWv aWn-se-tâgvkv BIvSv AUvan-\n-ÌÀ sN¿p-¶Xv. AXn-\m CS-hn-«pÅ ]W-an-S-]m-Sp-Øm-]\ ]cn-tim-[\, tIsk-Sp-¡Â F¶nh k{In-b-am-Im³ PnÃ-tXmdpw Cu hIp-¸n Hcp Akn:I½o-j-W-sd-sb-¦nepw Cu BIvSnsâ am{Xw ]qÀ®-Np-a-Xe \ÂIn \nb-an-¡-Ww. C§s\ krjvSn-]-camb \S-]-Sn-IÄ CÃm-¯-]£w ‘Ipt_c’C\nbpw ]cm-P-b-s¸-Spw. Aan-X-]-en-i-¡mÀ tXÀhmgvN \S-¯p-Ibpw sN¿pw !

Kerala Advocates Welfare Fund Act, 1980
Further Amendment is Needed

(By Adv. Parippally R. Raveendran, Former Member Bar Council of India, & 

Former Vice Chairman, Bar Council of Kerala)

1) In the justice delivery system the harmonious blending of the bench and Bar is a necessary requirement and role of a lawyer in the administration of justice is very vital. United States of America is having the largest member advocate in the Bar in the world and next after that our country is having more than 18 lakhs advocates enrolled in various State Bar Councils as advocates. During the pre-Independence era this noble profession was attracted by only few members from the upper class community but after Independence the legal profession in India became too popular and middle class and lower middle class people were also attracted to this profession and the profession became more popular. A study of Dr. N.R. Madava Menon reveals that the average lawyer of Madras is earning only meagre income of Rs.1,500/- per mensum. The Economic situation of lawyers of the country is deteriorating day by day. Only very few people in the profession are getting attractive fees and income who are in the upper strata. Majority of the members of the legal fraternity are getting worried about their professional prospects and daily income and the social security measures are alien to the profession. In this context the Kerala Advocate Welfare Fund Act can be treated as a unique piece of Social Welfare of legislation.

2) By virtue of Sections 6(2), 7(2), 15(2) g(a) of the Advocates Act , 1961, Bar Council of India and State Bar Councils constitute one or more fund for the purpose of giving financial assistance to organize welfare schemes for the indigent disabled and other advocates. Based on this provision, the State of Kerala has passed the Kerala Advocates Welfare Fund Act, 1980 (Act 2 of 1980) w.e.f.05.04.1981.

3) The principal Act was promulgated on 10.12.1980 and brought into force by notification dated 05.04.1981. The object of the Act is to provide terminal benefits on different stages apart from other attended benefits.

4) As per the original legislation Rs.30,000/- was provided and in 1989, 1993, 2001 and 2011 the Act was periodically amended and on 24.01.2011 as per amendment Act 2 of 2011 the terminal benefits was raised to Rs.14,285/- prospectively. However while legislating the ordinance in terms of Act 2001 prospective effect has been given for the first time and so much of erosion from the fund put an end. By the last amendment in 2011 Rs.5,00,000/- was given to the member who attained actual practice of 35 years in profession. The main source of income generated to fund is from the sale of stamps and annual subscription of the members. We have to share the anxious consideration of the Trustee Committee that the source of fund to the corpus is too limited. Apart from the sale of stamps annual subscription and admission fee, 20% of the enrollment fee and income from the Legal Benefit Fund are the other sources.

5) On account of the 2011 amendment the retiral benefit is enhanced to Rs.14,285/- for every completed year of practice and maximum amount is Rs.5,00,000/- at the saturation point of 35 years. At the time of existing members who attained 32 years of practice category, commuting their then entitlement of Rs.3,00,000/- as on 10.06.2008, they can continue in the fund and to entitle Rs.14,285/- early up to the maximum Rs.5,00,000 thus ensured continuity and there by avoided a sudden drain (Rs.3000/-) becomes Rs.14,285/- ie. Five times increase.

6) Those members who have stopped practice and received benefits under the Act and if they wish to resume practice can do so by repaying the amount received with interest of 12%.

7) In terms of section 3(2) (c) and (3) of the K.A.W.F Act the amount set apart from Legal Benefit Fund Constituted under sub-section (2) of Section 76 of the Kerala Court Fees and Suit Valuation Act, 1959 provided social security measures for the legal profession and shall be credited to the fund.

8) Rule 11(2) of the Kerala Legal Benefit Fund Rules, 1991 empowers KAWFTC to receive 50% of the total amount available as on 31st March every year from Legal Benefit Fund. A total amount of Rs.9,24,22,000/- is available during the year 2013-14 for apportionment and Rs.3,23,47,700/- was allotted to the KAWF by KLBF and its meeting dated 22.2.2014 and a total amount of Rs.10,64,50,768/- was received by the trustee committee till that date.

9) It is pertinent to note that out of 17372 lawyers were admitted to the membership of the fund 1402 persons were availed benefit from the fund and total disbursed amount is so far Rs.54,69,0978/-.

10) During the time of the LDF Government the AILU agitated for grant of some amount from the Government and the then Government ordered to pay an amount of Rs.2 crores by way of grant to the fund. But some delay was occurred in handing over the amount and finally the lawyers union constrained to approach the Hon’ble High Court of Kerala and filed writ petition against the Government and finally the Government released the amount in terms of GO(RT) 1537/2013 Law dated 27.11.2013.

11)  In order to strengthen the financial stability of the Fund the corpus is to be enhanced further. The main source of income is sale of stamps. In order to further enhance the welfare fund to Rs.10 lakhs the corresponding increase in the value of welfare stamps is highly necessary. Now, the State is the main litigant in almost all the cases. But for appearance the State memos are being filed without any stamps and there should be a statutory mandate had to be given to such authorities to affix stamps. Now to High Court Rs.25/- and Subordinate Courts Rs. 15 being levied as welfare stamps. It is to be enhanced at the rate of Rs.100/- and 75 respectively, at the event of enhancing the welfare fund to 10 lakhs and corresponding increase must be made in the annual subscription and thereby the member will get Rs.25,000/- per annum instead of Rs.14,285/- as on today.

12)  Now a nominal income of Rs.150/- is levied as enrollment fees. The statutorily fixed 20% is to be increased and the Bar Council has to take a decision to enhance its revenue from the total enrollment expense by at least 10-15%. Out of the court fees levied by the Govts. it is the long standing demand of the legal fraternity to set apart at least 5% of the total court fees for the welfare fund functioning of the Advocates Welfare Fund.

13)   As per the last amendment, for the premature death of the member the legal heirs will get Rs. 3 lakhs. But that should be limited to the age of 55 as stood earlier, otherwise it will be another cause for the drain from the fund.

The present financial position of the Trustee committee.

TABLE I

1. Total number of advocates as per State Roll:          46,916

2. Active members in KAWF:                                          17,372

3. Number of W/F members who completed 35 years of practice:            2,592

4.Amount required for meeting these 2592 claims as per present rate:-Rs.129,60 crores

5. Total amount disbursed from the Fund from 1981 onwards:     Rs.54,69,00,978/-

6. Number of members availed W/F benefits on account cessation of practice 1402

7. Number of death claims:                                             1796

8.Retirement benefit:                                                        153

9. No. of members availed Medical aid :                       338 members

10. -do- Educational aid :                                                 19

11. Meeting Expenses/Year:                                           Rs.40,865/-

12. Establishment expenses/year:                                 Rs.16,59,108/-

13. Printing & Stationary :                                                Rs.52,965/-

14. Telephone bill :                                                           Rs.18,302/-

15. Amount received from KLBF to W/F from the year 2007 onwards :

                                                            Date of receipt

                                                            1.8.2007   : Rs. 68,952

                                                            20.6.2009  : Rs. 21,377

                                                            10.9.2009 : Rs. 31,377

                                                            9.6.2010   : Rs. 31,377

TABLE II

MAXIMUM AMOUNT PAYABLE

*       1981 - 30,000/-

*       1989 - 60,000/-

*       1993 - 1,00,000/-

*        1995 - Stamp Value Rs.2 to Rs.5 [2000-10/-]

*        2001 - 3,00,000/-

*        2008 - 5,00,000/- [prospective]

*        All others retrospective-mounting liability

Some Vital Statistics - As on31.10.2008

*     Total No. of Adv. On Roll-32,770

*      Members in the fund - 19,147

*     No. of members who have completed 35 years of standing and eligible for Rs. 5 lakhs-937

*    Rs.3,00,000/- x 937 = Rs.28,11,00,000/-

*    Fund available -Rs.4,27,00,000/- may cater to maximum 143 members.

*    Esta. Expenses:- No. of staff- 3+1, Salary-Rs.6 lakhs/yr

*    Printing- Rs.10,000, Telephone- Rs.25,000, Meeting - Rs.21,000 [Total below 7 lakhs only]-

*   No rent being collected, by the Bar Council, KSEB, KWA.

TABLE III

Grant from Government received so far

*            1984-85  Rs.10,00,000/-

*            1985-86  Rs. 5,00,000/-

*            1986-87- Rs.5,00,000/-

*            1987-88- Rs.5,00,000/-

*            1988-89  Rs..2,00,000/-

*            1989-90  Rs.5,00,000/-

*            1990-91  Rs.5,00,000/-

*            1991-92 Rs.5,00,000/-

*            1992-93 Rs.1,00,000/-

*            1993-94 Rs.1,00,000/-

*            1994-95 Rs.1,000/- from 1996 onwards-Nil

As per the Writ Petition against the Government in pursuance to the High Court order Government released Rs.2 crores for after a long gap of 1994-1995.

TABLE IV

Contribution from Legal Benefit Fund till 2007

16.07.2005           Rs.15,53,800/-

17.06.2006          Rs.1,74,17,5000/-

16.07.2007          Rs. 68,95,235/-

The mainobjectives of the last amendment

* Prevented drainage of Fund from unreasonable and unjustifiable claims

* Mobilized additional income for stabilizing the Fund

* Brought more benefit to the Members.

* Amendments came into effect prospectively

* Eliminated advocates ‘not in active practice’ from the membership

* Issuing passbooks with photo identification, with name of nominees

The Bar Association can take a vital role in eliminating the non-practicing lawyers who are enjoying the benefits actually intended for practicing lawyers. A sizable number of members are engaged in other avocation and business and even working aboard. In order to ensure transparency and financial viability of the fund expulsion of the non-practicing members and the periodical renewal of members in the fund with some documentary evidence duly certified by the Bar and Bench is necessary to eliminate the ineligible persons.

TABLE V

THE EXISTING ANNUAL SUBSCRIPTION RATES

                                                       Rates            

                                                            Existing              Proposed

Below 5 years                                      200                      300

Below 10 years and above 5 years     500                      750

Below 15 years and above 10 years    1000                 1500

Below 20 years and above 15 years    1500                  2000

On or above 25 years                         1500                   2500

Above 25 years                                   3000 (new slab)

For Designated Seniors                    3000                   5000 

* To strengthen the financial stability the applicability of Sec.75(1) may be extended to all appeals, revisions and original proceedings instituted and commenced in Kerala State before all Tribunals and appellate authorities, including High Court.

* A reasonable percentage of the penalty, fine or cost levied by all courts, Tribunal and other authorities may be set apart for the Kerala Advocates Welfare Fund. With the ouster of jurisdiction of courts and conferment of the same on Central Tribunal like Debt Recovery Tribunal, Central Administrative Tribunal etc, there in a big fall in the Court fees and additional fee levable. The Union Government may be persuaded to make appropriate legislation to enable the State to secure 0.5% of the subject matter involved in any proceedings before these Tribunals to be collected and credited to the Advocates’ Welfare Fund for the purpose of providing social security measures for the members of the legal profession.

Afresh notification may be issued to the effect that additional court fee now being collected @ 0.5% be raised to 1%

TABLE VI

Welfare Scheme UnderKerala Advocates Welfare Fund are as follows:

1.   Medical aid to members [Section 18 (b)].

a) Application for Medical aid Form IX.

2.   Educational aid to members [Section 18(b)].

a) Application for Educational Aid.

3.   Retirement benefits of lawyers on account of cessation of practice [Section 16].

a) Application for retirement benefits- Cessation Form VII.

4.   Terminal benefit to the family of deceased lawyers [Section 16].

a) Application for Terminal benefits-Form VII.

STATEMENT OF CASH INFLOW AND OUTLAW FOR THE PERIOD
1.7.2009 TO 30.06.2010 AFTER ISSUANCE OF THE ORDINANCE AND
BEFORE NOTIFICATION OF THE AMENDMENT

Total members                                                                                19,682

Fund Available with Trustee Committee                                7, 40, 41,000.00

Number of members eligible for maximum amount                            1180

Total inflow during the year                                                     5,91,88,466.00

Total outflow-do-                                                                      3,32,23,143.00

                                                                  Surplus                      2,59,65,323.00

Inflow: Particulars

Subscription                                                                               3,26,14,000.00

Application fee                                                                           2,97,500.00

Sale of stamp                                                                              1,82,92,500.00

Legal Benefit fund                                                                     52,75,576.00

Income from investments                                                                     25,40,800.00

20% of Enrolment fee-from Bar Council                                           1,68,090.00

Outflow: Particulars

Death & Cessation (86+54)                                                     3,21,86,353.00

Medical Aid (14)                                                                         70,000.00

Establishment Expenses                                                         9,66,790.00

Fund balance as on date (23.7.15)                                        17 crores.

Not even half of the enrolled members are not joined in the fund. A statutory provision is to be enacted for enlisting them in the fund irrespective of their standing if they pay the arrears of subscription by calculating some mechanism without affecting the financial viability of the fund.

Though more than 18 lakh lawyers were enrolled in India only in few states like Kerala, Tamilnadu, Andrapradesh, Karnantaka, U.P. are having the Welfare Fund Schemes. There is no uniform central legislation introduced by the Government of India or Law Ministry for the Welfare of the legal fraternity so far applicable to all States and Union Territories. Among the States Kerala Model legislation is worth and unique in all aspects and we have to strengthen the fund.