The Last Page

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

I started as an accidental writer. When Naturam Vinayak Godse was aiming his revolver at Mahatma Gandhi, I was playing football at the Central Maidan, Mangalore for the St.Aloysius College, against Mangalore Town Police Soccer Team. Mr.Panicker, a class-mate, came running onto the play-ground, shouting:   “Stop, Gandhiji shot dead twice”, obviously to mean that Gandhiji was shot at twice, and he died. We stopped shooting the football. The next day, we spent starving. It was on that day I wrote an article on The Mahatma; and, later, I gave it for publication in the college hostel manuscript magazine, “The Clarion Call”. I am still in proud possession of that copy of the Clarion Call, of 1948, in which the article was published, as that was my first article. That was a solid start.

Thereafter, till now, I have written more than one hundred and fifty Articles and have delivered about fifty speeches, most of them on law and justice. I was not writing for health or wealth. I wrote on serious subjects; not about “this and that”. I have written about the absurdities, infirmities and ambiguities of the legal system. I have deprecated the power-play in court. I was writing for, and about, the lawyers, the judges, the justice delivery system, all in respect of the legal profession, expecting that those connected with the profession may be benefited, not at all expecting a Nobel, or an Oscar, or Guinness or Limca entry. I took care to write on the right page, being a witness to reality. 

I have not attempted to write about anything in 2011, which I consider the year of fear. I do not propose to write any more. I also do not wish to speak, because all I have spoken have remained the spoken silence. I shall not hereafter build a bridge or words. No lawyer seems to be interested to wear the tag of tradition. Lawyers Celebrate the monsoon, not the Law Fest. They conduct in Court talk-show.

They seem to have 3D craze for publicity. Lawyers have turned realtors, and seekers of casino capitalism, with American dreams. Senior Silk has become a party-wear. Gone are the days when the court was considered justice destination, and the Judiciary had no religion, caste, or creed. Justice - multiplier judges are rare. Where is the judge in the judge ! How many judges set benchmarks. Where do we find a ‘Magnificent judge’, like Justice Holmes or Justice Krishna Iyer. The bells and whistles of the legal profession are silenced. God forbid the issue of ‘Orange Notice’ against the profession.

The legal profession that the people ask for, is not there. These are days of mobile marketing of advocacy. No advocate remembers what he forgets. Lawyers look beyond the judge. We see encircled legal profession, afflicted with Malthusian Scourge. Lawyers expect judgments by dialling ‘J’. Verdicts refuse to come out. Judges and lawyers seem to have hearing problem. The legal profession seems to suffer from multiple organ failure.

I conclude with this last page. No more articles; nor more speeches. I have finished. I should thank the esteemed law journal, of Sri Siby Mathew, the Kerala Law Times, for discriminating accommodation, and all those who had provoked thought, and kindled law and language.

“Dhanyavad.”

Lawyers Are Not Liars

(By Srinath Girish,  Advocate,  Calicut)

It is the World’s oldest cliche, maybe. Lawyers are liars. Never trust a lawyer. Lawyers make hay when the Sun is down. Lawyers are like Nemo - they fiddle when Rome burns. If you see a snake or a lawyer in front of you, shoot the lawyer and worry about the snake later.

Lawyer jokes abound on the Net. From Shakespeare to the Eagles, plays, books and songs show lawyers in a bad light, as tricksters, charlatans and vultures preying on human sorrow and difficulty. Natural appendages to the word “lawyer” are “smooth talking”, “cunning”, “devious” and many other terms in the English language synonymous to creatures of the serpentine variety. Some songs even exhort listeners to kill all lawyers.

Is all this justified? Are lawyers as bad as all that?

I have been a lawyer for nearly seventeen years. If I had taken all the criticism about lawyers seriously, I would either have committed suicide or switched professions by now, if only to preserve my self respect. Who would want to be somebody who is abhorred by all and sundry? I remain a lawyer and happy to be one, because I know that all the flak about lawyers is groundless.

The lawyer’s profession started when man became civilized. Civilized Society made laws to regulate the conduct of individuals, organizations and the State itself. The State deputed the police and its officials to implement these laws and the Courts were formed to interpret and enforce them.

The fundamental thing to be remembered is that in a Democracy, it is the people who make the laws. Through the system of parliamentary procedure, the masses send their representatives to the Assemblies and the Legislatures, who pass the laws after due debate and on the majority principle. If the laws are flawed, it is the representatives of the people who have not properly  framed them. It is the same representatives who have seen fit to pass the laws without proper discussion or thought about their impact on society.

“I am the legal draftsman 

I draft the Country’s laws 

And for half its troubles 

I am undoubtedly the cause”......Anonymous      

This short poem epitomizes what happens when a law comes into being. A Bill is presented before Parliament or the Assembly, drafted by the minions of some politician with his own agenda in mind. The Bill is supposedly discussed by our Representatives and either rejected or accepted. If it is accepted, it is passed and becomes an Act, finding its place in the Statute Book. That is how democracy works. Man has devised no better system.

So what is the lawyer’s role? He doesn’t make the Law. It is the Legislature (namely, the people) which does that. He doesn’t implement it either. It is the Executive (the Government) which does that through its officials. He is not the enforcer of the Law, it is the Judiciary which is in charge of that. The only thing he does is assist the Court in interpreting it. It is for the Court to decide whether his assistance is worth it or not.

A lot is made out of lawyers defending criminals, getting them off scot-free while the Police and the Public look on helplessly. You can commit the worst crimes in the world - murder, rape, arson - if you have the right lawyer, they say. Lawyers are seen as the abettors of crime, the scum who prevent the police from putting depredators behind bars and away from society.

In any civilized society, there is a principle of natural justice, which is supposed to be the cornerstone of any law that is passed: Audi Alteram Partem : Let the Other Side be Heard. Which, in essence, means that every person has a right to a fair trial.

Have we forgotten the time-proven principles that our forefathers bequeathed to us? What happened to the old adages “Innocent until proved guilty beyond all doubt” and “Even if a thousand guilty go free, not one innocent should be deprived of his freedom”?

These days, an accused is tried by the media and the public much before the Courts sentence him. A Court which finds that there is no evidence to hold an accused guilty of the crime alleged against him is reviled, itself accused of nepotism and unfair practices. The lawyers defending such vermin are viewed as virtual criminals themselves. Very often, Courts are persuaded by public sentiment to pass orders of conviction without any substantive evidence.

In my experience, if the Police and the Prosecution get their story right, there is little that any lawyer can do to get a really guilty person off the hook. On the reverse side, if the Prosecution story is flawless, an innocent person can be in real bad trouble. 

A question that is often asked of lawyers is “How can you take up a person’s case when you know that he is really guilty?”

There is something that most people do not know. A lawyer is bound to take up any brief that is entrusted to him, regardless of his personal feelings about the truth of his case. It is Law, part of the ethics of the Profession, akin to the dictum that a doctor cannot refuse to treat a patient who comes to him in distress. He is not entitled to refuse any brief except on certain specified reasons, including lack of knowledge of that field of law, ill-health, conflict of interest, etc. So when a person accused of a crime seeks to engage a lawyer, he is duty-bound to defend him, even if he feels his client is guilty as hell. His job is to find out the facts of the case which entitle his client to the least punishment prescribed under law. It is his job to ensure that his client gets a fair hearing.

Imagine a situation where a person has no right to defend himself. The Police arrest him, the Judge finds him guilty and sentences him without even giving him a chance to say anything in his defence. Even if he is allowed to present his case, his lack of knowledge about the law handicaps him in presenting his case in the best light. That is where a lawyer’s services are necessary. If not, we could as well go back to the Law of the Jungle. An Eye for an Eye and all that.

A large number of innocents go to jail even with an abundance of lawyers. It may be true that a large number of guilty escape (mainly because of badly drafted laws), but isn’t that what the basic principle is all about? Who will give back the wrongfully incarcerated his lost years, his lost family, his lost world? Lawyers are blamed for delaying the course of Justice. They are responsible for preventing the Courts from doing their work, seeking adjournments, obstructing the course of justice. They are responsible for the backlog, the huge pile of files pending before all Courts of the land.

Has anyone given a thought to these aspects - the number of judges, the infrastructure provided to the Judiciary and the fund allocation to it? This sector has to be the most neglected of all the Constitutional Institutions since Independence. How much of the funds generated by the Judiciary (through court fees and fines) is pumped back to it? How many Courts are provided with computers, internet facilities, fax machines, even photocopiers? How good is the Judge-Population Ratio in comparison with other countries? How many vacancies for judges are filled? Do judges have adequate and competent staff?

Lawyers do seek adjournments, it is true. This is solely for the benefit of their clients. Their opponents have their own lawyers who are there to prevent such adjournments, so the game evens out. Most judges are wise enough to recognize a fraudulent request for an adjournment and discourage it. It is not very easy to get adjournments. In fact, it is an art. So to blame lawyers alone for the huge backlog of cases is absurd. There are various other factors contributing to the syndrome. You can’t blame the judge too. He has a lot of cases before him, cases in which both parties are ready. Better to leave contentious issues aside and deal with those that are ripe for trial.

Pump more funds into the Judiciary. Improve its infrastructure. Appoint more judges. It will work wonders. But it will never happen. There are too many forces with a vested interest in keeping the Judiciary in the boondocks.

Most people know the saying “Justice delayed is Justice denied”. How many know the other part of the adage “Justice hurried is Justice buried”? Some cases just can’t be put on fast track. To arrive at the truth, a lot of burrowing may be necessary.

As in any field, there may be bad apples, who give the profession a bad name. I am not saying that all lawyers are above reproach or holier-than-thou. Lawyers, like all human beings, are out to make a living. The means each individual adopts depends on his own morals and sense of values.

But lawyers don’t lie. They just present their clients’ version of the truth. It is for the Courts to decide whether that version is correct or not. Remember, nothing is black or white. Everything is a shade of grey.

Experiments to Keep Money Power at Bay in Elections

(By Raju Narayana Swamy I.A.S)*

1.  Introduction

Against the discouraging backdrop of a fundamentalist and acrimonious partition of the subcontinent, a hasty knocking together under one sovereignty of former British-administered provinces and barely assimilated erstwhile princely States and one of the most outrageously hierarchical societies in the world, India bravely chose a secular universal adult suffrage democracy to have every one participate in governance, in preserving an uniquely diverse social ethos and most of all, in keeping the country together. (J.M. Lyngdoh). Democracy in India has not only to survive, it has to thrive in the interest of our country and our people. Free, fair and impartial elections are the bedrock of a democratic set up. Curbing money power in elections is a must to ensure the same. To quote Sri. N. Vittal, former Central Vigilance Commissioner, “Black money is the oxygen for corruption and corruption is the oxygen for black money. A commitment to combat corruption should figure in any strategy to establish good governance in the country.”

As a Research study of the Secretariat of the Lok Sabha points out, “Parliament is expected to reflect the social diversity of the society. Economically weaker sections should not face disadvantage.” As the Hon’ble Supreme Court observed in Kanwar Lal Gupta v. Amar Nath Chawla & Ors. in the judgement delivered on 3 October 1974, “The democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be should be able to participate on a footing of equality with others….. The small man’s chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process.”

2.  Enabling  provisions  in  R.P.  Act  1951  and  Conduct  of  Election  Rules  1961

The thrust of political finance reform in democracies world wide had four main characteristics.

a)  public funding, full or partial, of elections

b)  limits on expenditure (including sublimits on particular expenditure)

c) limits on contributions from individuals and organizations

d)  reporting and disclosure of election, party and candidate finances in some form.

       [Namit Oberoi]

The legal position on expenditure in the case of India is outlined in Section 77 of the Representation of the People Act 1951. “Every candidate at an election shall either by himself or by his election agent keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.”

Section 78 provides for lodging of account with the District Election Officer.

“Every contesting candidate at an election shall within 30 days from the date of election of the returned candidate,…..lodge with the District Election Officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under Section 77.”

Incurring or authorizing of expenditure in contravention of Section 77 is deemed to be a corrupt practice U/S 123(6) of the R.P. Act.

The Hon’ble Supreme Court of India in L.R. Shivaramagowde v. P.M. Chandrasekhar has ruled that the Election Commission of India can go into the correctness of the account of election expenses filed by the candidate and may disqualify the candidate for three years u/S.10A of R.P. Act 1951 if he/she fails to lodge the account at all or lodges incorrect account or untrue account of election expenditure. Not submitting a true day-to-day account of expenditure can thus result in disqualification of a candidate even if he has won the election. Exceeding the prescribed ceiling of expenditure can be a ground for an election petition against a winning candidate.

Each candidate is required to maintain a day to day account of his election expenditure in a register given to him by the Returning Officer at the time of filing of nomination papers. The particulars have been laid down in Rule 86 of the Conduct of Election Rules, 1961.

“The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-

(a) the date on which the expenditure was incurred or authorized

(b) the nature of expenditure (as for example, traveling, postage or printing and the like)

(c) the amount of expenditure

    (i)  the amount paid

    (ii)  the amount outstanding

(d) the date of payment

(e) the name and address of the payee

(f) the serial number of vouchers, in case of amount paid

(g) the serial number of bills, if any, in case of amount outstanding

(h) the name and address of the person to whom the amount outstanding is payable.

A voucher shall be obtained for every item of expenditure unless …. it is not practicable to obtain a voucher.”

The Election Commission has clarified that in fairness to the contesting candidates they will be permitted to file returns of election expenses in English, Hindi or the local language(s) in which the electoral rolls are printed.

Rule 87 stipulates that the District Election Officer, shall, within two days from the date on which the account of election expenses has been lodged by a candidate under Section 78, cause a notice to be affixed to his notice board specifying the date on which the account has been lodged and the time and place at which such account can be inspected. As per Rule 88, any person shall on payment of a fee of one rupee be entitled to inspect any such account. Rule 90 provides the maximum election expenses (which has now been hiked to Rs 16 lakh per assembly constituency for Kerala elections vide notification dated 23.2.2011)

It also deserves special mention that two former Chief Ministers are facing disqualification proceedings from the Election Commission on expenditure related issues.

3.  Provisions  in  the  Indian  Penal  Code

Section 171 B stipulates that whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right commits the offence of bribery. Section 171F prescribes the punishment for undue influence or personation at an election. Section 171H deals with illegal payments in connection with an election whereas Section 171I states that “whoever being required by law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such account shall be punished with fine which may extend to five hundred rupees.”

4.  Exclusive Bank Accounts to be opened

From the general elections to the Bihar Legislative Assembly in 2010, the Election Commission has embarked on a new experiment as regards monitoring of election expenditure. It is stipulated that each candidate shall open a separate bank account for election expenditure. This account shall be opened at least one day before the date on which the candidate files his/her nomination papers before the Returning Officer. The account number of this bank account shall be communicated by the candidate in writing to the Returning Officer. All election expenditure shall be made by the candidate only from this account. All money to be spent on electioneering shall be deposited in this account, irrespective of the source of funding. A certified copy of the account statement of this bank account shall be given by the candidate to the District Election Officer along with the statement of account of expenditure maintained by him/her. If a candidate is contesting election from more than one constituency, he is required to maintain and lodge a separate account of his election expenditure in respect of each such constituency.

The concept of expenditure sensitive constituencies has also been newly introduced. On the basis of past history, profile of the constituency and other developments, the Chief Electoral Officers have been directed to identify the constituencies which are prone to high expenditure and corrupt practices. The candidates have also been directed to furnish affidavits along with nomination paper indicating the following details as well (1) PAN of candidate, spouse and dependents (2) movable and immovable assets, purchase price and development cost of immovable property, approximate current market price of asset (3) liabilities (government dues, loans from banks, financial institutions etc.)

5.  Expenditure  Observers  and  Micro  observers

In most of the elections held in 2009 and 2010, there was only one kind of observer -general cum expenditure, rolled into one. Bihar assembly elections saw a radical change in the mechanism of monitoring election expenditure through the reintroduction of the concept of expenditure observers with a view to keep a strict vigil on surreptitious and discursive ways of spending money to influence voters. Expenditure observers are appointed under Section 20B of the R.P. Act 1951. Expenditure micro observers are appointed by the expenditure observer from a list of Central Government employees provided by the District Election Officer. Ideally there should be at least one expenditure micro observer per candidate. Video surveillance teams, video viewing teams, expenditure monitoring cell and complaint monitoring system are all parts of the new mechanism to monitor election expenditure. It is stipulated that the expenditure register shall be produced before the expenditure observer for inspection at least three times during the campaign period by the candidate or his election agent. This schedule shall be given wide publicity through the press.

6.  Legal  and  illegal  election  expenditure

Election expenditure can be broadly classified into categories:-

(i) expenditure permissible under law (public meetings, vehicles, banners, posters etc)

(ii) expenditure not permitted by law (money, liquor etc distributed to voters with intent to influence voting)

The aim of expenditure monitoring is therefore two fold. As regards the first category, it must be ensured that the expenditure is truthfully reported. For instance, as regards rallies, the candidates are required to submit an expenditure plan along with the application for permission. As regards vehicles, details of all vehicles used for election campaign (including two wheelers and cycle rickshaws) are required to be furnished by the candidate. If a vehicle is found being used for campaigning and its details have not been furnished to the authorities, it shall be considered unauthorized campaigning for the candidate and will attract Section 171 H of the I.P.C. and the expenditure on this vehicle will be added while considering the election expenses of the candidate.

As regards the second category, the Election Commission of India envisages that the system must be robust enough to catch such expenditure as well. It must not only be included in the account of election expenditure, but also action must be taken against the errants vide the relevant legal provisions (which may range from lodging of FIR to filing of complaints before the competent Magistrate). These illegal items of expenditure include

(a) appointing booth wise agents to purchase floating votes

(b) donations to clubs to influence its members

(c) rented crowds for party meetings

(d) presence of candidates in mass weddings and feasts where gifts are given on their behalf

(e) issue of cash coupons and coupons for free purchase of TV, bike etc. The above list is illustrative and by no means exhaustive.

7.   Seizure  of  undisclosed  cash

Gratification of voters is generally done out of undisclosed income. Any undisclosed cash can be seized under the Income Tax Act (Sec 132). If it is out of illegal foreign exchange, the Enforcement Directorate can seize. If it is suspected to be for bribery, police authorities can seize it. Carrying cash is not illegal under any law and is not anathema to regular business. But it can be seized if its end use is suspected to be for an illegal purpose. As the Hon’ble Supreme Court ruled in Rajendran Chingaravelu v.  R.K. Mishra (Civil Appeal No 7914 of 2009), “any bona fide measures taken in public interest and to provide public safety or to prevent circulation of black money cannot be objected as interference with the personal liberty or freedom of a citizen…. The carrying of a huge sum itself gives rise to a legitimate suspicion, the intelligence officers are therefore entitled to satisfy themselves not only that the money is from a legitimate source, but also that such a large amount is being carried for a legitimate purpose.”

In fact, the Hon’ble Courts have contributed to election reforms by encouraging the Election Commission to innovate where there are no legal sign posts to indicate the jurisdiction and the limits thereof (J.M. Lyngdoh). As the Hon’ble Supreme Court observed in Mohinder Singh Gill v. Chief Election Commissioner (1978) ISSC 405 “Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences and that cannot be achieved unless it has an amplitude of powers in the conduct of the elections - of course in accordance with existing laws. But where these are absent, and yet a situation has to be tackled, the CEC has not to fold his hands and pray to god for dwine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently in all matters relating to the conduct of elections..”

Keeping in tune with the spirit of these observations, the following actions have been ordered by the Election Commission of India:-

(a) Flying squads placed in such a way that important roads are kept under constant vigil with instructions that unexplained cash of Rs. 1 lakh and above suspected for bribery of voters should be seized.

(b) Investigation Directorates to keep surveillance teams at major railway stations, airports, hotels etc.

(c)    Key financial brokers, pawn brokers, cash couriers etc., to be kept under surveillance.

(d)   Banks directed to report suspicious cash withdrawals above Rs. 1 lakh.

(e)    Hotels asked to report scan reports indicating huge cash being carried by the guest.

(f)  Any suspicious deposit of cash in the account of Self Help Groups or non governmental organisations will be monitored so that this route is not misutilised for delivering cash to the voters.

(g)   Taking note of the fact that in schemes like MNREGS, workers could be paid over and above their fixed wage as bribe, the ECI ordered that disbursement of wages under government schemes should be done strictly by government officials. No party functionary should be present on such occasions.

8.  Benchmarks  for  expenditure  assessment

The District Election Officer shall notify the rates of various items of election expenditure for his district within three days of the announcement of the election. These rates should include hiring charges of loudspeaker, construction of podium/pandal of standard sizes, cloth banner, posters etc. If a candidate feels that the rates notified are not reasonable, he may apply to the District Election Officer in writing within 24 hours of the notification and the District Election Officer shall consider every such application within 24 hours of having received it and pass an appropriate order on it.

9.   Shadow  Expenditure  Register

A shadow expenditure register shall be maintained by accounting teams for each candidate in the same format in which the expenditure register is maintained by the candidate. It is open to the public as well as candidates. Any discrepancy between the register maintained by the candidate and the shadow expenditure register shall be brought to the notice of the candidate at the time of inspection. The notices so issued and replies received if any shall be duly considered by the District Election Officer in forming his opinion about the truthfulness of the account of expenditure submitted by the candidate after the declaration of result.

10.  Expenditure  on  star  campaigners

Explanation 1 of Section 77(1) of the R.P. Act 1951 declares that

“The expenditure incurred by leaders of the political party on account of travel by air or by other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorized by a candidate of that political party or his election agent for the purpose of this sub-section.”

Explanation 2 clarifies that the expression leaders of political party means

“Where such political party is a recognized political party, such persons not exceeding 40 in number and

Where such political party is other than a recognized political party such persons not exceeding 20 in number

Whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purpose of such election within a period of seven days from the date of notification….”

If such intimation is not received from the party within the stipulated time, expenditure on travel of such leaders will also be shown to be the candidate’s expenditure. The Hon’ble Supreme Court of India in its judgement in Kanwar Lal Gupta v. Amar Nath Chawla has held that expenditure incurred by the political party which can be identified with the election of a given candidate as distinguished from expenditure on general party propaganda would be liable to be added to the expenditure of that candidate as being impliedly authorized by the candidate. “If a candidate were to be subject to the limitation of the ceiling but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing a ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated.”

In this connection, it may also be noted that the validity of explanation 1 to Section 77 was challenged in P. Nalla Thampy Terah v. Union of India. A constitutional bench in the case observed that the petitioner was not unjustified in criticizing the provisions contained in Explanation 1 as diluting the principle of free and fair elections. In C. Narayanswamy v. C.K. Jaffer Sherief, the Supreme Court observed that “as the law stands in India today, anybody including a smuggler, criminal or any other antisocial element may spend any amount over the election of any candidate in whom such person is interested.” In Gajanan Bapat v. Dattaji Meghe, the Supreme Court held that the practice followed by political parties of not maintaining any accounts of its candidates defeats the purpose of Explanation 1 to S.77(1) of R.P. Act. Explanation 1 to Section 77 was also at the centre of the issue in the case of Common Cause v. Union of India.

The legal position when the leader of a political party covered under Explanation 2 to Section 77(1) happens to be himself a candidate has been clarified by the Election Commission:-

“When he goes out of his constituency to other constituencies or comes back to his own constituency from other constituencies as a star campaigner, expenditure on his travel from his constituency to others and back would fall within the exempted category. Once he reaches his constituency and travels within his own constituency, expenditure on such travel would be liable to be accounted for by him in his election expenditure.”

11.  The  Ground  Reality

It is estimated that about Rs 7,000 crores is spent by all major parties and candidates in Lok Sabha and State Assembly elections over a period of 5 years in India. This reality on the ground is exemplified in the words of the former CEC, James Michael Lyngdoh himself, “Every one knows the actual expenditure per candidate, even for an Assembly election, now runs into several crores. In other words, most of the candidates would seem to have committed a corrupt practice under the electoral law and the elections of the winners are apparently liable to be set aside on appeal to the High Court. Unfortunately Indian voters are wined and dined by candidates......Travel expenses of 40 national leaders on behalf of the candidate of a national or regional party are now excluded from his election expenses. The expense on helicoptering these national leaders alone would run into crores. That this is a permissive step is confirmed by the Revenue Department’s instructions allowing donations to political parties complete tax exemption. The Representation of the People Act needs to be amended to formally enable the Election Commission to question a party whose expenses, including travel expenses on campaigning national leaders in all the contested constituencies is in excess of the funds indicated in the annual audit and to take action if necessary for the deregistration of the party.”

Quoting again from the observations of the Hon’ble Supreme Court,

“Hundreds and thousands of vehicles of various kinds are pressed onto the roads….. Millions of leaflets and many millions of posters are printed and distributed or posted all over the country. Banners by lakhs are hoisted. Flags go up, walls are painted and hundreds of thousands of loudspeakers play out the loud exhortations and extravagant promises. VIPs and VVIPs come and go, some of them in helicopters and air taxis. The political parties in their quest for power spend more than one thousand crore of rupees in the General Election, yet nobody accounts for the bulk of the money so spent and there is no accountability anywhere. Nobody discloses the source of the money. There are no proper accounts and no audit. From where this money comes, nobody knows. In a democracy where rule of law prevails this type of naked display of black money by violating the mandatory provisions of law cannot be permitted. Unless the statutory provisions meant to bring transparency in the functioning of the democracy are strictly enforced and the election funding is made transparent, the vicious circle cannot broken.”

High election expenditure, buying of votes and polling irregularities have become the norm in order to gain electoral advantage in the Westminister model. This high expenditure forces parties and politicians to extort money from a variety of sources, legitimizes corruption, encourages political recruitment of those willing to spend large amounts of ill-gotten black money, discourages public spirited citizens from contesting and leads to a cycle of corruption, greed and extortion which undermines our democracy. Political parties need funds for three activities: election campaigns, inter-election maintenance of their organizations and political activities and support of infrastructure for the parties. [Namit Oberoi]. In this scenario, a shift towards proportional representation in which a party’s representation depends on the overall percentage of votes in each State is worth considering. Such a shift will act as a disincentive to polling irregularities, as any effort of a candidate to gain unfair advantage locally may run counter to the party’s objective of maximizing its vote in a whole State (Jayaprakash Narayan).

Perhaps, we also have to take a leaf out of the provisions of the German Law on Political Parties of 1967, Section V whereof creates a statutory obligation upon all political parties to maintain clear and correct accounts, have them audited and submit the same to the President of the German Bundestag. Or from the French experience where it is provided that every candidate receiving State funding shall execute a bond and furnish a bank guarantee so that in case he got less than 8% of total votes polled, he would forfeit his bond. Or from the American experience where despite high cost of electioneering all campaign financing is fully accounted for and disclosed and all expenditure is legitimate and open. It is also high time that we sit back and think about the statistics of Indian and US elections which points out that in purchasing power terms, Indian election expenses are probably five times those in the US, making our per capita expenditure higher - an absurd situation considering our low income per capita (Jayaprakash Narayan).

12.  Conclusion

“If there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be travelled by candidates nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana skillfully administered nor violent demonstrations attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organizing of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people’s decision by discussion and not a Hobson’s choice offered by political parties,” thus observed the Hon’ble Supreme Court of India.

We have miles to go before we can achieve this ideal goal. Till then, we have no way other than to follow the advice of the Chandogya Upanishad “Yadeva vidya karoti shradhaya upanishadhaha trivisham virothavathi.” It means that if we have faith and conviction and apply our knowledge with deep analytical skills, our action becomes strong and successful. The Indian Constitution does not provide for a formal referendum. But no one can prevent an informal referendum through modern electronic means (J.M. Lyngdoh). Let us therefore join our hands together to strengthen the noble efforts of the Election Commission aimed at curbing money power so that Indian democracy becomes “speaking truth to power, to make truth powerful and power truthful.”

 References

1. James Michael Lyngdoh, former Chief Election Commissioner of India, Sixth Gutta Sri Rama Rao

    Memorial Lecture, Electoral Reforms in India.

2. N.Vittal, former Central Vigilance Commissioner, Commitment to Combat Corruption in Ethics in Public       Governance, published by IC Centre for Governance, MRA, Asia Plateau, Panchgani, Maharashtra.

3. Kanwarlal Gupta v. Amar Nath Chawla (1975) 3 SCC 646.

4. Manual of Election Law, 2004, Government of India, Ministry of Law and Justice.

5. Compendium of Instructions, 2009, Election Commission of India.

6. Proposed Electoral Reforms, 2004, Election Commission of India.

7. L.R. Shivaramagowde v. P.M. Chandrasekhar (AIR 1999 SC 252).

8. Notification S.O.425(E) dated 23rd February 2011 of the Ministry of Law and Justice (Legislative
     Department).

9.  Rajendran Chingaravelu v R.K. Mishra (SC: Civil Appeal No 7914 of 2009).

10. Mohinder Singh Gill v. Chief Election Commissioner ((1978) ISSC 405).

11. Dr. Jayaprakash Narayan, Campaign Coordinator, Lok Satta, “Indian Elections - Campaign Finance 
      Reform,” National Seminar on Electoral Reforms, 17th & 18th November 2000, Calcutta.

12. YogendraYadav and Sanjay Kumar, “Political Agenda of Electoral Reforms in India”, Comparative 
       Electoral Processes in South Asia, pp.32-54.

13. T.S. Krishna Murthy and Vijay Patidar, Case Study 2, India.

14. Common Cause a Registered Society v Union of India (1996) 2 SCC 752).

15. Chapter 4 on Electoral Processes and Political Parties, Constitutional Commission Report.

16. Namit Oberoi, Reforming Election Funding, INUJS L. Rev (2008) 137-148.

17. P. Nalla Thampy Terah v. Union of India (AIR 1985 SC 133).

18. C. Narayanswamy v. C.K. Jaffer Sherief (1994 (Supp.) 3 SCC 170).

19. Gajanan Bapat v. Dattaji Meghe (1995) 5 SCC 437).

20. GadauhYashwantrao Kankarrao v. Balasaheb Vikhe Patil (1994) 1 SCC 682

21. N.S. Gehlot, Electoral Reforms in India: A need for national action whither Indian Politics, 
      212-234 (K.L.Kamal & R.P. Joshi ed 1996).

22. B. Hyedervali, Law and Corruption in India, 29 Indian Bar Rev (2002).

23. Citizens Campaign for Electoral Funding Reforms, http://www.loksatta.org/ccer.htm

24. Dolly Arora, State Funding of Elections Some Posers, Economic and Political Weekly (2000)

25.  E. Sridharan, Reforming Political Finance, http://www.india-seminar.com 2001/506/ 
       5046536%20e.%20sridharan.htm.

26. M.V. Pylee, Emerging Trends of Indian Polity 43 (1998).

27. Goswami Committee on Electoral Reforms (1990).

28. Indrajit Gupta Committee on State Funding of Elections (1998).

29. Law Commission’s Report on Reform of the Electoral Laws (1999).

30. B. Venkatesh Kumar, Funding of Elections - Case for Institutionalized Financing, Economic & Political 
       Weekly, 1884 (1999).

31. C. Rajasekhar, Ensuring Free and Fair Elections: Role of Election Commission of India, 26 Indian Bar 
       Review (1999).

32. J.S. Bali, Political Parties and Electoral Reforms in Perspective of the Constitution (1998).

* The author has served as observer of the Election Commission of India in 10 States and is currently observer for the Tamilnadu elections)  

‘BÄ«Àt\äv dn{U-kÂ’

(sI. cmaIpamÀ, ko\obÀ AUzt¡äv, FdWmIpfw)

Hcp _e-lo\ \nan-j-¯n-emWv tat\m\v tXm¶n-bXv Xsâ ]cn-N-b-¡m-c\v Ccp-]Xv e£w cq] ISw sImSp-¡m³. _nkn-\ÊvImc-\sà Ft¸mgpw ]W-¯n-\m-h-iy-ap-Im-Ip-a-tÃm. ]e Xob-Xn-I-fn-embn Xncn¨p Xcm³ k½-Xn¨v sN¡p-Ifpw X¶p. s\tKm-jy-_nÄ C³kv{Sp-saâvkv BIvSv A\p-k-cn¨v sN¡v aS-§n-bm {Inan-\ Ipä-am-sW¶ \nb-tam-]-tZ-ihpw tat\m³ t\Sn-bn-cp-¶p.

tat\m³ henb _nkn-\-Êp-Im-c-\m-Wv. \m«n ]e henb Øm]-\-§-fpapIv. F¦nepw A§n-s\s¯ Hcmsf kplr¯v NXn-¡p-sa¶v kz]v\-¯nÂt]mepw Icp-Xn-bn-cp-¶n-Ã. ]s£ sN¡p-IÄ Hs¶m-¶mbn ]Ww In«msX aS-§n. “d^À Sp t{UmbÀ” F¶pw H¶p-c-sI-®-¯n “knKvt\-¨À Unt^Àkv ” F¶pw sat½m-hn-se-gp-Xn. aäm-tcbpw t]mse tat\m\pw tIÊv sImSp-¯p. Hm-tcm sN¡n\pw Hmtcm tIÊv. ]cm-Xn-¡m-c³ lmP-cp-Im-IWw F¶v h¡o {]tXy-In¨pw \nÀt±-in-¨n-cp-¶p. F¶m BZys¯ “tkzm¬tÌ-ävsaâv”Ign-ªm ]ns¶ hnNm-c-W¡v h¶m aXn. h¡o tat\ms\ [cn-¸n-¨p. “tkzm¬tÌ-ävsaâv”FSp-¡m³ aPn-kvt{Säv Znhkw \nÝ-bn-¨p. cIp amkw Ignªv Htcm tIÊnepw Htcm Znhkw FÃm tIÊnepw B NS§v Ign-ª-t¸m-tg¡pw Xs¶ sImÃw H¶p Ign-ªp. F«p Xh-W-sb-¦nepw tat\m³ _nkn-\Êpw Ifªv tImS-Xn-bn lmP-cm-bn.

Ah-km\w {]Xn ]cn-N-b-¡m-c³ lmP-cm-bn. Pmay-sa-Sp-¯p. tat\m\v Aev]w Bizm-k-am-bn. C\n hnNm-c-Wbv¡v hcp-a-tÃm. At¸m-gmWv XS-Ê-hm-Zw. sN¡nse H¸v hyXym-k-ap-Iv. sNt¡ Aà þ XS-Ê-hmZw aPn-kvt{Säv XÅn. {]Xn skj³kv tImS-Xn-bn t]mbn. Ahn-sSbpw tXmäp. sslt¡m-S-Xn-bn-se-¯n. tIÊv tI« PUvPn ]d-ªp. {][m\ \nba {]iv\-amWv Unhn-j³ s_©v tIÄ¡-W-sa-¶v. Unhn-j³ s_©n h¶-t¸mÄ {]Xn-`mKw h¡o hmZn-¨p. cIv Unhn-j³ _©p-IÄ X½n A`n-{]m-b-hy-Xym-k-ap-Iv. tIÊv ^pÄs_-©n-se¯n.

tat\m³ At¸m-tg¡pw tIÊn-s\-¸än ad¶p XpS-§n-bn-cp-¶p. CS-bv¡n-Sbv¡v h¡o hnfn¡pw þ C¶v sFäw ]{´-Im-Wv. FSp-t¡-I-Xm-Wv. XoÀ¶-t¸mÄ sImÃw aq¶v Ign-sª¶v am{Xw. tIÊv ^b sNbvX tImS-Xnbv¡v Xs¶ aS-¡n. “\½psS tIÊv  KLT bn h¶p.” h¡o A`n-am-\-t¯mSpIqSn ]d-ªp.

aPn-kvt{Säv tImS-Xn-bn hoIpw tIÊnsâ tcJ-IÄ Xncn-s¨-¯n-b-t¸m-sgbv¡pw B tImSXn-bnse tIsÊÃmw thsd tImS-Xn-bn-te¡v amän-b-t{X. ]mhw tat\m³ ]Xn-\©v {]mh-iy-sa-¦nepw tImS-Xn-bn k¶n-ln-X-\m-bn-cp-¶p. “CsX´m FÃm tIÊpw H¶n-s¨-Sp-¡m-¯-Xv. ?”  tat\m³ h¡o-en-t\mSv kwibw tNmZn-¨p. “tPmbnâv {Sb-en\v {]Xn-`mKw k½-Xn-¡-Ww. k½-Xn-¡p-sa¶p tXm¶p-¶n-Ã.” adp-]-Sn.

Ah-km\w cmhnse apX Im¯n-cp¶v \mep-a-Wn¡v tIÊv hnfn¨v tat\msâ samgn tcJ-s¸-Sp-¯n-b-t¸m-tg¡pw A©p-a-Wn-bm-bn. “tIÊv ASp-¯-amkw ]Xn-t\-gn-te¡v amän-bn-cn-¡p-¶p.” s_©v ¢mÀ¡v \nÊw-K-\mbn hnfn¨p ]d-ªp.

ASp¯ Xob-Xn-bn aPn-kvt{Säv eohm-bn-cp-¶p. FÃm tIÊp-Ifpw Hcp amkw Ignªv hnfn¡pw F¶ enÌv tImS-Xn-bnse Npa-cnsem«n-¨n-cn-¡p-¶p. tat\m\v aSp-¯p. \mev tIÊn\pw lmPcm-Ip¶ Znh-k-§-fn ]cn-N-b-¡mÀ tNmZn-¡p-¶p. “tat\m³ kmtd, F¶pw tImS-Xn-bn-em-WtÃm hà A_-²hpw ]än-t¨m?  “sN¸-¡p-än¡v H¶p sImSp-¡p-I-bmWv thIXv.”tat\m³ a\-Ên  hnNm-cn-¨p. I¿nse Imipw sImSp¯v _nkn-\Êpw Ifªv tImSXn hcm-´-bn \nc§n \S¶v Ah-km\w Xs¶ IÅ-s\-t¸mse t\m¡p-¶p. aSp-¯p þ  icn¡pw aSp-¯p. Fs´mcp \nb-a-hy-h-Ø-bm-Wn-Xv. ? A[zm-\n-¨pIm¡nb Imiv klm-b-¯n\v sImSp-¯Xv Xncn¨p In«m³ {ian-¨p. Imipw Nne-hm-bn --þ amt\mw t]mbn.

A§n-s\-bn-cn-s¡-bmWv ^vssfän k®n-¡p-«nsb IIXv þ CSp-¡n-¡m-c³ þ Xcn-In-S-¡m-c³  ]s£ Gäm Gä-t]m-se-bm-Wv. “Ft´m¶m tat\m³ kmtd. ? F¶ HIv hntijw” ? tat\m³ “IY apgp-h³ ]d-ªp.”  “Hm þ CXmtWm þ DUm-bn¸p ]Wn-IÄ¡v Nne skä-¸pIsfm-s¡-bpIv. ” CSp¡n ssÌen k®n-¡p-«n-bpsS Ub-tem-Kv.

Ipd¨p Znhkw Ignªv k®n-¡p-«n-bpsS t^m¬ImÄ “tat\m³ kmtd, Imsd-Sp¯v k_v Pbn-en-tem«v H¶v h¶m-t«.” þ Pbn-entem þ “AsXms¡ skä-¸m-¡n-bn-«p-Iv.” Pbn-en IIXv tat\m\v hniz-kn-¡m³ Ign-ªn-Ã. Xsâ sN¡v tIÊnse {]Xn I¼nbpw ]nSn¨v \n¡p-¶p. ASp¯v k®n-¡p-«nbpw. I¿nse _mKn \n¶v Ccp-]-¯©v e£w cq]- ta-t\m\v F®n sImSp-¯p. “tIskms¡ XoÀ¯qsS” tat\m³ Xe-bm-«n. k®n-¡p-«n-bpsS IqsS {]Xnsb hn«-b-¨p.

“F´m k®n-¡p«n þ ISpw Is¿m¶pw sNbvXn-ÃtÃm ?” F¶m ISpw ssI¿m þ kmtd taem-¸o-ksd IIp. ]¯v ]nSn-¸n-¨p. AI-¯m¡n X¶p þ \½psS Øncw skä-¸n-epÅ kbn-Zn-t\w, D½-tdbpw s]än-t¡-kn\v DÅn-em¡n þ Pbn-eÀ¡v A©v þ hmÀUÀamÀ¡v H¶pw þ icn¡pw s]cp-amdn þ _Ôp-¡sf hnfn¨p ss]k hcp-¯n. F¶m-¯n\m ]ns¶ k®n GäXv?

Duties and Powers of  Muthawallis of Wakfs

(By Thattamala M. Abdul Azeez, Advocate, Quilon)

Wakf is a unique charitable Institution not comparable with other charitable institutions like a Society registered under any Societies Registration Act or a trust registered under the Trust Act or any Club or other charitable institutions. A Muslim alone can create or found a Wakf. A Wakf is created by a Muslim or group of Muslims with objects that are religious, pious or charitable, whereas other charitable institutions mentioned above can be created by the required number of persons for any object that need not necessarily be exclusively for religious pious or charitable purpose. The creator of the Wakf unconditionally dedicates his lawfully acquired property free from all encumbrances to the almighty God for the benefit of the beneficiaries of the Wakf expressly or implicitly meant by him. As the God himself is unable to carry out the charitable activities of the Wakf, such duties are entrusted to a person or a body of persons called Mutawalli. The Wakif or creator of Wakf himself can be the Mutawalli or he can include the provisions for the appointment of Mutawalli in the Wakf deed or Wakf nama. The Mutawalli has no right in the property belonging to the Wakf; the property is not vested in him, and he is not a trustee in the technical sense. He is merely a Superintendent or Manager. The Manager has to carry out the objects of the Wakf to the utmost satisfaction of the beneficiaries. The Manager has no discretion in the matter of rendering services or benefits to the beneficiaries. He has only duties towards the beneficiaries and has no powers against the beneficiaries. He has certain limited powers against the employees of the Wakf and in respect of the properties of the Wakf. The Mutawallis are the servants of the beneficiaries and the beneficiares are the masters. The Mutawallis are legally bound to carry out the duties under the Wakf alone like maintaining the Mosque to the utmost service of the beneficiaries who are the Muslims of the world in general and the members of the local Muslim Jamaath in particular. Besides the maintenance of the Mosque and burial ground attached to the Mosque., the Wakf runs orphanages, Madrasas or schools for religious or general education for imparting religious education to Muslim children, hospitals, rest houses, caravansaries for the travellers etc.. In imparting the said services or benefits to the Muslims the Mutawallis or Managers of the Wakf are not invested with any power to show discrimination among the beneficiaries. All Muslims in a Mahallu Jamaath are entitled to the services to be rendered by the Mutawallis as their duties and the beneficiaries or members of the Jamaath are entitled to the services as of right. No Jamaath member is liable to be excluded from the benefits or services. The Mutawalli is not empowered to lay down any condition precedent for imparting services or benefits to the members of the Jamaath. In short, Muthawalis have only duties as mentioned in the Sharia and in Section 5 of the Wakf Act, 1995.

Over and above the services or benefits rendered by the Mutawallis under or as per the provisions in the Wakf, as decided by the members of the Mahallu Jamaath, the Mutawallis, who are now a days elected from among the members of the Mahallu Jamaath as their representatives can be invested with certain additional duties in respect of subjects other than Wakf. Here also the Mutawallis are not vested with any powers but only duties. Thus the Mutawallis are invested with certain duties in respect of subjects like marriage and divorce among the members of the Jamaath. As a result of this additional duties, the Mutawallis are invested with the duty of issuing intimation letters to other Jamaaths in respect of the proposed marriage of the members of the Jamaath as a gesture of goodwill and etiquette and registering of marriages solemnized among the members of the Jamaath in a marriage register maintained in the Jamaaths. These are not required for the validity of the marriages among Muslims as per Sharia. These are recent practices adopted by the members of the Jamaath just for the sake of their convenience. Registration of marriages was introduced in the Jamaths as there was no other authority in the country for the registration of Muslim marriages. The registration of Muslim marriages by the Jamaath was deviced to enable the Muslim women   intended to go abroad along with their husbands to get passports from the Passport Offices. The device was not against Sharia or any other law in force in the country. The Jamaath certificate serves as an easy evidence of a Muslim marriage. Now, as compulsory registration of marriages in the local bodies has been introduced by the Govt: the Jamaath certificate serves as an easy evidence, eventhough other evidences are also acceptable (AIR 2000 Mad. 381).

The Mutawallis are not empowered to compel or coerce the beneficiaries or members of the Jamaath, to avail the services or benefits rendered under the Wakf or the additional services rendered in the subject of  marriage or divorce. Thus the services of the Khatib or Mulla who is an employee of the Wakf are sought by the ignorant or illiterate members of the Jamaath during the solemnisation of the marriage. But the beneficiaries who are capable of uttering the words of marriage contract or delivering the marriage sermon which is only optional cannot be compelled to take the services of the Khatib or Mulla of the Mosque. Not availing the services of the Khatib or Mulla is not an offence punishable either under the Sharia or the laws of the land. Similarly the Mutawalli can render services to the unmarried persons to enable them to get married. Similarly in cases of divorce, the Mutawallis can render services to reconcile the couple.

At the same time, the Mutawallis are not competent or empowered to determine the validity of a Muslim marriage or to effect a divorce, as these subjects are not in their provice and hence ultravires. If they intermeddle with such subjects, it amounts to abuse of their position as Mutawallis against which the beneficiaries or the members of the Jamaath are entitled to take action for appropriate remedies in the appropriate court.

Wakf laws do not provide for any disciplinary action against the beneficiaries by the Mutawallis. It is because the beneficiaries are the masters in the sense that the Wakf itself is for the benefit of the beneficiaries and the Mutawallis are merely the caretakers of the beneficiaries and the Mutawallis are simply the representatives of the beneficiaries elected from among themselves. Again the Mutawallis are not empowered to exclude any beneficiary from providing the services or benefits to them. They have also no power to alter beneficiaries or to ostracise any family of the beneficiary. The High Court of Kerala has held in 1987 (1) KLT 762 that the Mutawallis of Wakfs or Mahallu Jamaath are not Khaliphas with power to expel or ostracise any member of the Mahallu Jamaath.

In the matter of Muslim marriages, the marriage guardian or wali is competent to say the words of contract and to deliver the marriage ceremony. No one is competent to do both the above acts without his express consent.

In case the marriage guardian commits any mistake in the ceremony or in the words of contract, that itself is not a cause for any action against him by anybody not to say of the Muthawallis of the Mahallu Jamaath. In sharia, it is not an action warranting any action against the marriage guardian. As marriage is not a subject coming under the purview of Wakf, the Mutawallis have no right to take any action against the marriage guardian. The whole congregation of the Mahallu Jamaath is not competent to take any punitive action against the person who commits the mistake. There is no provision for punishment either in the sharia or in the Wakf Act 1995. There is no authority in the sharia for trying the wrong doer or no procedure has been prescribed for imposing any punishment in this regard. The Mutawallis are not empowered to refuse contributions, offerings, oblations etc. to the Wakf.

Now a days the Mahallu Jamaaths have formulated bye-laws for their administration. The provisions in the bye laws are to be confined within the purview of the Wakf laws of sharia and the Wakf Act 1995. But the bye-laws contain provisions beyond the jurisdiction of Wakf proper. They contain provisions regarding marriage and divorce which are separate subjects mentioned in Section 2 of the Sharia Act 1937 which are outside the jurisdiction of Wakfs and Muthawallis. For example, there are provisions in the bye-laws requiring the members of the Jamaath or the beneficiaries to obtain previous permission from the Mutawallis for solemnizing marriages, to intimate the betrothel to the Mutawallis to give a portion of the betrothel money and a percentage of the dowry to the Mutawallis to intimate and obtain permission for doing the circumcision of the male children of the members of the Jamaath, to intimate the house warming of the newly built houses to the Mutawallis, to solemnise the marriage with the priest hood of the Khatib or Mulla, to pay Talaq fees to the Jaamath, not to approach the court for redressal of grievances by the members etc. These provisions are un-Islamic and against Sharia and the laws of the land. The ignorance and illiterate members are obliged to obey meekly the dictates of the Mutawallis. Actually the above provisions are beyond the powers of the Mutawallis. The Wakf Board which has been constituted for the better administration of the Wakfs turn a blind eye towards the aforesaid provisions in the bye laws. Actually it is the duty of the Wakf Board to direct to dilate such un-Islamic, unlawful and illegal provisions from the bye laws. But they fail to discharge their duty properly.