Beware of Costs

(By T.P. Kelu Nambiar, Senior Advocate, Emakulam)

When the judicial conscience of a Division Bench, (comprising Mr. Justice Subramanian Poti and Mr. Justice V. Khalid, as their Lordships then were), felt rankled and festered by the absence of counsel on both sides in sixteen cases in a row in the cause list, considered to be 'old cases', the Bench dismissed all the cases for default. Petitions for resurrection were filed. Those petitions were allowed on condition of payment of Rs. 250/- each to the State. The condition imposed, namely payment of money to the non-party State, thereby propitiating the Civil Government with the cling of coins, appeared, to me, curious and novel. And it prompted me to promptly write an articulate article, entitled "Rankling Costs", (published in 1980 KLT Journal, at page 87). Therein, I ventured the view that the condition imposed was not justified, by analysing the aspect in the light of the definition and meaning of 'Costs' in certain statutes, Law Dictionaries, American Jurisprudence, Corpus Juris Secundum and decisions of the Kerala High Court. I pointed out that costs are expenses awarded by court to prevailing party and payable to a party and party basis, between ihe parties to the cause.

A more curious and novel situation has now emerged, where a Division Bench has recently imposed costs on both parties to the cause, the petitioner and the respondent, and ordered payment to the Legal Services Authority. (This is not a case of cross-costs against the contesting parties, but multiple costs in favour of a non-party.) The order did not slop there. It continued: "Liberty to the petitioner and the 4th respondent to proceed against the respective counsel for recovering the costs ordered by us either by way of civil suit or by moving the Consumer Disputes Redressal Forum". This is the last sentence (or nail?) in the judgment, rendered on the 23rd day of September, 2002, in O.P. No. 18338 of 2002, by the Division Bench, comprising Chief Justice Mr. B.N. Srikrishna and Mr. Justice R. Basant. (The judgment was by the learned Chief Justice.) Advocate Sri. C.C. Thomas, for the petitioner and Advocate Sri. T.M. Abdul Latheef, for the 4th respondent, would have cursed the day on which their clients had executed the vakalaths in their favour, and it needs to be checked whether it was on the 13th of a month, being Friday as well. I, for one, abhor Friday the 13th and the black cats.

Even further curious and novel is the penultimate paragraph in the order, dated 21st October, 2002, in Review Petition No. 724 of 2002, filed by the petitioner in the O.P., rendered by the Division Bench comprising Mr. Justice K.A. Abdul Gafoor and Mr. Justice R. Basant. (The judgment was by Mr. Justice Basant.) Dismissing the Review Petition, the Division Bench observed:

"Lastly it is submitted that the observation in the last line of the impugned judgment that the petitioner and the 4th respondent are at liberty to proceed against their respective counsel for recovering the costs ordered either by way of civil suit or by moving the Consumer Disputes Redressa) Forum deserves to be reviewed as the petitioner's counsel has no contumacious responsibility. The Division Bench had not made any final pronouncement on the liability of counsel. It was only observed that the parties shall have that liberty. Needless to say, if the said parties choose to stake claims against their counsel, such claims will have to be established in accordance with law. That observation also does not in these circumstances deserve to be reviewed".

27 born, I am pushing seventy-six successfully. I have been in this profession for about fifty years. I am unaware of any direction like the one issued in the O.P., or the clarification made in the R.P. I am constrained to confess, with the utmost respect though, that all the three learned Judges concerned with the disposal of the O.P. and the R.P. are surely not right; and the orders are verily illegal, and acutely embarrassing.

What is the reason for the observation that the clients are at liberty to recover costs ordered from their counsel. No reason is stated. Is it because the Division Bench thought that the counsel had ventured a wrong legal advice? How, and on what basis, did the court draw such a presumption, if any. The Court knows not the nature of the professional communication between the clients and the counsel. The court could not have enquired into the advice given by the counsel to their clients. The Court should have known the principles under S. 126 of the Indian Evidence Act and R. 17, Chapter II, of the Bar Council of India Rules, and other principles regarding the nature and content of professional communications. Did the court take into consideration a situation in which the client/clients would have insisted that, come what may, the petition/petitions should be filed. Did the Court cast attention to the principle that an advocate cannot refuse to take up an engagement from a client, except in certain circumstances. The exceptional circumstances are not present in this case.

The only circumstance in which a counsel could be mulcted with costs (payable to his client) is where he is found guilty of professional misconduct, where the conduct of the counsel is found irregular in form and improper in substance; and is grossly improper conduct in the discharge of his professional duty.

The present is not such a case; and there is no such finding even. Strange is the direction in the last sentence of the judgment in the O.P; and odd is the consolatory clarification in the penultimate paragraph of the order in the Review Petition. Exercise of patient wisdom is one of the principles of judicatio. It requires no smart legal erudition to recognise the flaw in the judgment and order relating to costs.

To enable the bar to perform its duties effectively, both the law of the land and the conventions of the court have surrounded it with immunities and privileges. The atmosphere of complete freedom from fear can be achieved only if the bar itself is fearless.

I do not for a moment pretend that my views are unexceptionable. Ishall never feel unhappy or uneasy if somebody finds flaw in my reasoning and comes forward with a contradiction.

All the same, 1 should alert the members of the legal profession to perceive the effect of the stinging rebuke in the judgment and the order, on the legal profession as a whole.

Tail peace: The Bar's affection is a precious judicial asset.

Towering Trg

(By T.P. Kelu Nambiar, Senior Advocate)

"I am tired. Enough is enough, I feel like retiring now. I would love to retire in style. A silent resignation is creeping in". This was the wailing of that born winner, a man of forceful manner, a sterling lawyer, a lawyer of awesome reputation, the unattainable 'Meru' among lawyers, Senior Advocate Sri. T.R. Govinda Wariyar, (popularly known by the initialism 'TRG' in the legal circle), when he spoke to me a few months ago. Could I believe it, coming as it was from TRG, the living legend, the most complete lawyer package, who still has the ammunition; whom nobody could dismantle. The venturesome lawyer is his own boss, who never used to sit back in peace; who is a doer and a thinker; whose mind's antennae were always up. The most instantly recognizable lawyer in Kerala, high up in the legal profession, TRG is the first choice lawyer of the litigants; as a straight - talking lawyer; a cut above the rest; who excelled in all the shades of glory; a lawyer who walked into the profession, not crawled into it. TRG is the Great Survivor among lawyers; he has been lawyer for about fifty years, doing the same job with the same unblinking dedication to professional duty, despite changing times and attitudes. You can take TRG out of the profession, but you cannot take the profession out of TRG. I remember his victories, passions and sorrows.

A lawyer with grit, guts and glory, an advocate of renown, TRG has the ability to keep friends across professional lines, with his cool, charming, modest, warm and sociable manners.

TRG firmly believes that a lawyer's fundamental right is to argue a case forcefully and that winning a case is the high point in advocacy. A lawyer with a tidy weight, TRG runs in the race for a win. He never runs out. He never is a frothing pretender in the profession. He always maintains the body-mind-intellect personality. His arguments generated much more light rather than plenty of heat. He is one of the most precious lawyers.

In court we are explosive rivals, but in private we had developed a mutual affection, though there are almost as many differences between us as there are similarities. We studied law together.

Frank, fearless and committed, TRG is, as a lawyer. There are many landmarks to his credit. He is a lawyer who wakes up in time; a lawyer powered by the profession; a lawyer who worshipped the profession. He argues every case in real earnest. Each case fitted him like a glove. His mode of argument is substance backed up with style. He is an impregnable adversary; a giant-killer lawyer. Any win against TRG would only be surviving a scare, after getting flummoxed. He never bats with half-the-bat. He does not put his leg before the cause. He is his client's dream and his adversary's nightmare. He would make his opponents ridiculous, with his measured aggression in arguments. He is a different senior lawyer. There may be other able senior lawyers. But 'no two tigers have the same stripe pattern'.

Humility is a strong part of TRG's character. At a personal level TRG is a very kind-hearted and considerate person.

TRG is a prudential lawyer, taking care of the litigants' investment in the litigation, as safe as a bank. He never studied cases and argued them for his health. For TRG, Court is where the heart is. He is an all-in-one lawyer. His office was chock-a-block with clients.

TRG is never a lawyer making endorsements to Judges. He believed that a lawyer is not a whipping boy of the judiciary. He is unwilling to wear the logo of a Judge or of another lawyer. You.may love him or hate him as a lawyer, but you cannot ignore him. Hear TRG for a forceful discussion, back and forth between the Bench and the Bar. He never makes empty noises in court. He argues with spirit and fire, even before a 'zero tolerance' Judge. He is articulate, passionate and irrepressible, when he starts to argue. He knew every nuance of the law just like the back of his hand. He never gives sops to anybody in his professional career. In a check-list of performance of all the lawyers, TE G's name figures at the very top. This is not a concession, but his entitlement.

TRG got noticed soon in the profession- And he has celebrated Victory No. 'N'. Leadership of the Bar is the by-product of his superior advocacy. He is a symbol of the past tradition of the profession. I consider him as the designated representative of Senior Advocates. TRG is the Kerala lawyer of the 21st century. His commitment to the profession is hard to match. He had no time to rest 'under the Greenwood Tree'.

TRG never adopted a lavish life-style, though he could afford one. He is plain sans frills, unlike lawyers with Hollywood looks.

In the profession, TRG seemed to be on pins and needles all the time. His arguments are so full of life, so full of law, so full of possibilities. In him, we see the triumph of advocacy. He possesses the ABCD of a true lawyer:

Accessibility;

Brilliance;

Communicative Skill;and

Devotion to Duty.

TRG created a new grammar of advocacy.

The profile of this great lawyer will never be written about in any history book; but it is on the hard work of such lawyers the legal profession progresses.

Shariat and Child Marriage

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

The Muslim Personal Law Board has opined that the Child Marriage Restraint Act, 1929, hereafter refers the Act, is against the shariat and therefore, it is not binding to Muslims. This gave a re-birth to a practically dead Act. As per the Act, the minimum marriageable age of a girl is the completion of 18th year and a boy 21 years. S. 2(a) of the Act reads -

Child means a person who, if a male, has not completed twenty one years of age and, if a female, has not completed eighteen years of age.

The statement of objects and reasons of the Act, among other things, says this minimum marriageable age has been fixed to check the population growth, to enable a responsible parenthood, to delay the fertility period and to protect the health of the mother as well as the child. In our country the tendency is delayed marriage.

Mulla's Principles of Mohammedan Law is one of the Authorities on Muslim Personal Law, the shariat. S. 251 speaks about the capacity of marriage. It reads -

1. Every Mohammedan of sound mind, who has attained puberty, may enter into contract of marriage.

2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians (Ss. 270-275).

3. A marriage of a Mohammedan who is of sound mind and attained puberty, is void, if it is brought out without his consent.

Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

Dr. Tahir Mohammed is another authority on shariat. In his book Muslim Law of India, he agrees puberty and sound mind decide the capacity of marriage similar to that of Mulla. In the 1980 edition page 48 of the book, he narrates the following regarding puberty. It reads -

i. Puberty is a physical phenomenon to be ascertained by evidence.

ii. In the absence of evidence to the contrary, it is generally presumed that a person who has completed the fifteenth year of age has attained puberty.

iii. The possibility of attaining puberty by a boy as well as by a girl before the age of fifteen years, however, recognised by law.

iv. The earliest age of puberty for a boy is, generally, twelve years.

v. The earliest possible age of puberty for a girl is, generally, nine years.

The dictionary meaning of puberty is beginning of sexual maturing, a stage at which a person's sexual organs are maturing and he or she becomes capable of having children. It indicates puberty is between 9 and 15 years of age. If shariat is followed, the Act is violated.

Shariat is considered the revelations of Prophet Mohammed and his disciples. Like man is the product of circumstance, the Prophet was the product of circumstance existed in Arabia fourteen centuries back. His revelations were made with good intention and for the welfare of the society at large. What was good in Arabia need not be the same to the rest of the globe. Such revelations can only be a guide line to the future generations. In our country an Act has been passed by the elected representatives of the people after considering the various aspects on the timing of marriage. It is based on reality and necessity. The intention of the Act in discussion is to prevent population explosion and to protect the health of the mother and the child. If this is true, the Act must prevail over the guide lines.

Power of Attorney and Cheque Case

(By S.A. Karim, Advocate, Thiruvananthapuram)

Powers of Attorney Act, 1882, hereafter refers the Act, enables one to act or perform anything on behalf of another. S. 1A of the Act speaks about the definition. It reads-

Power of attorney included any instrument empowering a specified person to act for and in the name of the person executing it.

This instrument is widely used in Civil Courts and before Government and semi Government authorities. Negotiable Instruments Act, 1881, is one of the central Acts of our country. By Act 66 of 1988, Ss. 138 to 142 have been added in the N.I. Act, with effect from 1st April, 1989. Till this date cheque cases were dealt with in civil Courts. Since then dishonoured cheque cases have been tried and disposed off either by the Metropolitan Magistrate or Judicial Magistrate of the first class. The punishment is either imprisonment or fine or both. In criminal Courts power of attorney has no role. In my knowledge, it has been first introduced in the N.I. Act by the Kerala High Court.

In Hamsa v. Ibrahim, reported in 1993 (2) KLT, page 698, Mr. Justice K.T. Thomas of Kerala High Court held that power of attorney holder of a payee or holder in due course can make a complaint under S. 142 of the N.I. Act.   This decision has been followed in Shaji v. Reghunandanan, reported in 1999 (3) KLT, page 82, short notes and in Pandalai v. Jacob C. Alexander, reported in 2000 (2) KLT, page 59. So, the application of power of attorney is a settled position of law in Kerala State.

In S.P. Sampathy v. Manju Gupta & Anr., reported in 2002 Criminal Law Journal, page 2621, Mr. Justice Bilal Nazki and Justice Gopal Krishna Tamada of Andhra Pradesh High Court has held that complainant cannot be filed by a powers of attorney holder on behalf of payee under S. 138 of N.I. Act. The complaint can only be filed in writing by the payee or the holder in due course. Power of attorney holder has no entity in terms of S. 142 of N.I. Act. One can understand a complaint having been made under S. 142 by a holder in due course of the cheque but a power of attorney holder would not be a holder in due course of the cheque. By this decision a batch of petitions have disposed off on the same point of law.

This is the charm of judicial interpretations. It is another classic example that two heads need not think alike. But the misery is to the people. The litigants of one State enjoy the benefit of a positive interpretation and the same is denied to another State. In the case in hand, the application of power of attorney under the N.I. Act is good law in Kerala State, but the same is bad in Andhra Pradesh. This difference can be remedied only by the Apex Court.

'Is Lokayukta 'Watch Dog' of Administration With only Recommendatory Jurisdiction'?

(By N. Dharmadan, Advocate, Ernakulam)

The Lokpal/Lokayukta is the Indian nomenclature of Swedish 'Ombudsman'. It had originally envolved and was intended to function like an 'Ombudsman', in accordance with the recommendations of Administrative Reforms Commission in 1966, for the redress of grievances of the people. In Western countries the 'Ombudsman' developed as one of the components in the system of accountability closely linked with Parliament, This institution, in our country, emerged as citizen's defender and a symbol of democratic Government. According to an eminent jurist it is a "watch dog designed to look into the entire working of the administration"1 and deal with effectively "mal-administration", which is the root cause of all corruption. Its object is to "eliminate corruption in public service" and among the public servant; not by adjudicating the rights of parties as in a civil court or other judicial forum; but by examining the various aspects of the complaints, entering its finding and conclusion and leaving it to the Government or competent authority to take necessary follow up action, in implementation of it in the interest of justice. The final decision generally rests with the Government and the Legislature under the scheme of the Act2 So the role of this institution is advisory and recommendatory to establish and promote the governance of rule of law and thereby develop a system of good governance. By sending reports and its recommendations on complaints from the citizen, it bridges the gap between the citizen and administration.

The broad function of this institution is to investigate written complaints from citizen, who claims to have sustained injustice in connection with mal-administration and acts relating to the administrative machinery, and report its recommendation to the Government, who shall report back about the action taken within a specified period. If the advice of the Lokayukta is not accepted by the Government it will forward again a 'special report' to the Governor for being placed before the Legislature for consideration. But in the actual practice these reports are not laid before the House nor are they discussed in the Legislature because the legislators are not actually interested in such reports. However the most significant part of it is that in forwarding the reports and recommendations the Lokayukta can effectively meet the problems of citizens in its findings and suggestions, for the redressal of grievances, for which citizens mainly approach the Lokayukta with fervent hope of getting reliefs at the hands of competent authority with lesser expense in a limited period.

The institution of Lokayukta was modeled on the Swedish Institution of 'Ombudsman' and "Parliamentary Commissioner" in England3 The powers of 'Ombudsman' in Sweeden4 as defined in the Constitution are (i) to supervise the Judges, Government officials and civil servants, observe the laws, and (ii) to prosecute those who have acted illegally or neglected their duties. The jurisdiction embrances all national and municipal offices. There the 'Ombudsman' can initiate suo motu action and it is independent of the Government, unlike in the case of U.K., where he is an ex-officio member of Council of Tribunals5. On the other hand the jurisdiction of the Newsland6 'Ombudsman' is much wider than that of its Sweedish counter-part in as such as the former can interfere not only in cases of mal-administration, but also in cases of wrong decisions, ultravires, unreasonable, oppressive or discriminatory acts, or decisions withoutreasons7 He is not an agent of executive. He is Parliament's man; but he is not subject to the superintendence of the House or any of its committees.

In India thorough efforts were made for the establishment of some institutions at the centre for the eradication of corruption so far it did not produce any favourable results. The existing machineries for combating corruption are found to be not sufficient to meet the alarming situation. The high level corruption is increasing day-by-day. The Supreme Court in a recent judgment8. observed that corruption in "a civilised society is discease like cancer which if not detected in time is sure to malign the polity of country leading to disastrous consequences". In our democratic set up and the changing Governments the role of Lokayukta is of vital importance. In fact the institution of the Lokayukta is gaining wide acceptance among the general public as a means for ventilating and redressing the grievances of the citizen against those who occupy position in Government for it is being considered as an effective means of guaranteeing civic rights and building up confidence in the administrative activities. But in India as stated above the Governmental efforts to weedout corruption and mal-administration and all attempts to build up confidence in service have miserably failed. Now corruption is rampant and nepotism has infiltrated from the ministerial level to the lower officers damaging the public image of administration and functions of Ministers who are, majority of them, considered as dishonest and inefficient.

Unless and until we provide a basically sound and healthy society no good result should be expected from the implementation of the proposal in the Lokpal Bill framed persuant to the report of the Administrative Committee, which was set up on 5th January 1966 under the Chairmanship of Sri. Morarji Desai. It is doubtful whether this Bill will produce any appreciable improvement in the administration under the present set up. However, the creation of Two tyre" machinary viz., Lokpal at the centre and Lokayukta at the State Level h ad been recommended. Having considered this the Government introduced the Lokpal and Lokayukta Bill 1968 in the Lok Sabha on 10th May 1968. It lapsed due to dissolution the Fourth Lok Sabha. The same was the fate of Lokpal Bill 1971,1977,1985,1989 and 19%. Now Lokpal Bill of 1998 is pending consideration with Parliamentary Committee.

But some States took upon themselves the task of establishing the institution of Lokayukta by enacting state statutes. Maharashtra is the first State which established Lokayukta in 1972. Office of Lokayukta now exist in Assam, Andhra Pradesh, Bihar, Gujarat, Maharashtra, Madhya Pradesh, Himachai Pradesh, Uttar Pradesh, Kerala, Karnataka, Punjab, Orissa and Delhi. The provisions in the State laws with regard to nomenclature, composition, powers and procedure vary from State to State. There is no uniformity. The variances in approach by the States will have some impact on the working of this institution. The changing role of the modem Government is to a certain extent responsible for these variances and the ineffectiveness of the Lokayukta.

The Kerala Lokayukta Act of 1999 was framed by the erstwhile L.D.F. Government, after repealing the then enactment which was in force viz. the Kerala Public Mens Corruption (Investigations and Enquiries) Act, 1987, Act 24 of 1988. This Act was repealed and reenacted with political motive. Without taking into account the very object and real purpose for the introduction of Lokayukta in the prevailing circumstances in Kerala. It is seen from experience that the State Government's interest stops after the enactment of the law in this behalf and giving wide publicity that the Government had taken effective steps to combact corruption and maintain purity of the administration. Thereafter there is no sincere and earnest efforts on the part of the Government to see that the Lokayukta works properly and efficiently. Prompt steps for the implementation of the recommendations of Lokayukta are lacking and there is no machinery for expiditing the same. The greatest draw back lies in the helplessness of Lokayukta when the Government or the concerned authority ignores or refuses to implement the recommendations in the reports of the Lokayukta.

It is under this back ground that the issue concerning the Lokayukta's jurisdiction, as to whether it is invested with all judicial power to express final and binding opinion on the legality or validity of any action or decision impugned before it, becomes relevant.

On a comparative assessment of the statutory provisions now prevailing in the various States it can be stated with certainty that Lokayukta is only an advisory authority without having the powers for adjudicating contesting issues as in the case of a court of law even though it is judicial in character. But it can enter into clear finding and arrive at final conclusion in respect of matters raised in the complaint for sending its recommendations and report to the concerned authority. They can also pass final orders on interlocutory matters in the interest of justice. The Bombay High Court9 while, considering the identical situation held "admittedly under the Act the Lokayukta has no jurisdiction to pass a binding order which will operate on its own force. However it is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied".

For investigating the complaints wide powers are conferred on this authority. They are also coupled with duty to investigate impartially and independently. It has been held by Bombay High Court in the same case that these powers are "wider than of a court of law". The Court held:

"The million doller question before our democracy is as to who will watch the watchman? This seems to be the object behind the present legislation. It is no doubt true that the Lokayukta is invested with the power of investigation and to make a recommendatory report. However, it is not an exercise in futility".

The Lokayukta, under the present Act, has trie powers to take evidence10 by summoning and enforcing attendance of persons and production of documents, issue commission and enforce other powers of civil Court11. It can decide its own procedure for investigation. The proceedings before it are deemed to be judicial proceedings within the meaning of S. 193 IPC. It has the power to initiate prosecution of a public servant12 who commits criminal offence, intentionally insults the Lokayukta13 interferes or interrupts with the investigation either by words or deeds. It is punishable with simple imprisonment for a term not less than six months or extending to one year and fine extending upto Rs. 5000/-. It is deemed to be a High Court for dealing with contempt coming within the purview of Contempt of Court Act, 197114. It can also initiate prosecution, when false complaints15 are filed with malicious intention, treating it as an offence punishable with imprisonment for a period upto six months and with fine of Rs.2000/- or maximum of Rs. 5000/-. In addition to all these powers the Rules, framed under S.22 of the Act, invest the Lokayukta with the powers of a civil court, while trying a suit under CPC 190816 , to grant injunction, pass interlocutory orders in the interest of justice, implead additional parties, legal representatives, review its decision, dismiss complaints for default, decide complaints ex parte set aside order of dismissal for default, pass ex parte orders etc. The provisions of S. 5 of the Limitation Act, 1963 would be applicable to the application filed before the Lokayukta. All these powers are invested with the object that the Lokayukta functions as an effective machinery for investigation of the complaints of the citizen for eradicating mal-administration and corruption. But since the power to take a binding decision is lacking the end product is unsatisfactory and the object is not achieved. However, it is considered that all findings and conclusions of Lokayukta have the status of the rulings of the High Court. The Government or the competent authority cannot reverse, overrule or set aside such findings and conclusions.

The Kerala Act makes a distinction between the terms of "allegation" S. 2(b) and "grievance" S. 2(h) in the matter of dealing with the complaints. The position is the same in Maharashtra Act and Karnataka Act.

The definitions of these terms are as follows:-

2(b). "allegation", in relation to a public servant, means any affirmation that such public servant,-

(i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;

(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or

(iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;

XXX                XXX             XXX

2(h) "grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration;

S. 12(1) of the Act deals with "grievance". If the Lokayukta, after investigation of a complaint involving "grievance", is satisfied that it is a genuine one, it will forward the report in the form of a recommendation to the competent authority concerned prescribing the ways and means for remedying or redressing the grievance, which the competent authority shall consider within one month and report back to the Lokayukta about the action taken by it on the report. Then the Lokayukta would close the matter, if it is satisfied that the action taken by the competent authority on the report is due implementation of the recommendation. But if the Lokayukta is not satisfied, it would send a "special report" to the Governor, who would place it before the Legislative Assembly.

S. 12(3) makes provision for investigation of complaints involving an "allegation". While investigating such a complaint if the Lokayukta is satisfied that the allegation is substantiated and the concerned public servant should not continue to hold the post, a declaration shall be made to that effect and forward the report to the competent authority as provided in S. 14(1), which shall be accepted by the competent authority concerned without any further verification or consideration. There is no option to reject or modify it. So there is nothing wrong in assuming that this recommendation of Lokayukta and the findings and conclusions thereof in connection with the "allegation" are binding even though the Lokayukta does not make an executive order or decision by itself apart from forwarding its report or recommendation. Sri. Partric Neill, QC in his book17 has stated after a critical study that "one day it may be necessary to consider enforcement powers on this authority. The hour has come. So it is now desirable to incorporate modifications and additions in the Act for providing more teeth for the enforcement of the findings and conclusions of the Lokayukta. Even though this institution has no power or jurisdiction like the court to pass binding orders, the establishment of this institution will undoubtedly be a big step forward for improving the machinary and mechanism for redressing public grievances.

The usefulness of this institution will depend not on its character, jurisdiction, power etc., but on improving the wider frame work and maintaining three following basic and unique characteristics18, viz:

(1) The Lokayukta is an independent and non-partisum officer, who supervises the administration fairly with utmost honesty.

(2) He deals with specific complaints from the public against administrative injustice and maladministration.

(3) He has the power to investigate, criticise and report back to the Legislature but not to reverse administrative actions.

The functioning of this institution clearly reflects that there is no political will on the part of the Kerala Government and the Legislature to maintain the Lokayukta as an efficient and effective institution for building up public confidence satisfying the above requirements. The successful functioning of this institution necessarily needs a clear understanding among the political parties to keep it above party politics and favouritism. The parmount consideration must be the proper and fair functioning of the institution. It should function effectively irrespective of any change of Governments or political manipulations. The appointment of honest and upright person having atmost honesty and integrity is a sina-qua-non to make this institution an incurreptible, fearless and independent investigative machinery in which the public can have full confidence. The solemn duty of impartial investigation of allegations and grievances by this institution is allowed to be carried out by inefficient persons, against whom personal allegations and cases are pending, the citizen would develop a feeling of frustration, more so if no action is taken when complaints are filed against political head weight or influential persons. It would defeat the very object and purpose for which the institution was established in our State.

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Foot Note:

1. Dr. S.S. Singh, Professor of Indian Institution of Public Administration, in his speech in Sixth All India Conference of Lokayukta and Upalokayukta 2001

2. Kerala Lok Ayukta Act, 1999.

3. Parliamentary Commissioner Act, 1967; the procedure is explained at page50of Vol. IHalsubury's Laws of England 4th Edn.

4. Page 43, Ombudsman, An Indian Perspective by Subhash Chandra Gupta.

5. Ibid Page43.

6. Parliamentary Commissioner (Ombudsman) Act, 1962.

7. Ibid Page 45.

9. Vishwas Rao v. Ayukta State of Maharashtra AIR 1985 Bom. 136.

10. Section 11 of of Kerala Lokayukta Act.

11.Sections 11 (f) and 23 (d).

12. Section 15 of Kerala Lokayukta Act.

13. Section 18 of Kerala Lokayukta Act.

14. Section 19 of Kerala Lokayukta Act.

15. Section 21 of Kerala Lokayukta Act.

16. Rule 3 of Kerala Lokayukta (Power of Civil Court) Rules, 1999.

17. Administrative Justice, Some Necessary Reforms by Sri. Patrick Neill QC Page 128,

18. Page 162 of Ombudsman, An Indian Perspective by Subash Chandra Gupta.