By Aravind Menon, IInd Semester, NUALS, Kaloor, Kochi
Successful Right to Information Act -- Essential Conditions
(By Aravind Menon, IInd Semester, NUALS, Kaloor, Kochi)
Right to Information Act 2005, is the ‘jewel in the crown of a successful constitutional reform’. It is the supreme manifestation of ‘freedom of speech and expression’ guaranteed by our Constitution. However, for a Freedom of Information Act to be a success, a right balance has to be struck between the competing interests of State and society 1. For this a Freedom of Information Act has to have certain qualities.
1. Maximum Disclosure
Right to information basically being a human right as well as a fundamental right, legislation on freedom of information must contain provisions, so as to provide maximum disclosure, with least exemptions as possible.
2. Obligation to Publish
A successful Freedom of Information Act, will contain provisions which makes it obligatory on the part of public authorities to publish either in printed format or by resorting to digitalization of records, i.e., computerization of records as regards to all aspects encompassed by the Act. Right to Information Act 2005, Chapter II, S.4 b, makes it obligatory on the part of public authorities, to publish the particulars of organization, functions, duties etc., within 120 days from the enactment of the Act. It also made mandatory that all government sites, especially those concerned with public relation, should post only those materials, including latest decisions of the Information Commissions, which does not create unnecessary and avoidable confusion in the minds of public authorities2. Moreover, it must be made mandatory that all government ministries and departments should file ‘Mandatory Annual Reports’ on the implementation of the Act.
3. Promotion of Open Government
This has to be brought about by two ways. It has been often alleged that, a ‘stubborn civil service’, has every potential to make a good legislation bad. Therefore, in order to bring public administration in its grip, promotion of an ‘open system’ must be rigorously pursued. Externally, public bodies should be legally obliged to promote the goals of the Act, through public education, active campaigning by the aid of media, whose prime objective must be to make citizen know that ‘ he has got this right’.
Internally, the cloud of secrecy should be properly addressed by many ways. First of all, employees must be given training on ‘Right to Information Act’. Public authorities needs to develop an internal code on access and openness. The Act, is bound to increase administrative efficiency and there by bring public accountability. Moreover, to promote openness within this system, incentives like promotion, and other monetary allowances can be considered.
4. Limited Scope of Exemption
Right to Information Act, 2005’s , main goal is to make the activities of the government as transparent as possible. But almost every FOIA’s have got certain exemption like information regarding troop deployment, strategic and economic policies. But exemptions in the name of ‘national security’, coupled with bureaucratic conspiracy, attempts are being made to weaken this Act both in name and in substance3. This is happening in countries like USA, UK, India etc. This should not happen at any cost. For a successful Information Act to exist, a culture of openness should be created. Some records may be exempted, legitimately, but these exemptions should not eclipse the very purpose for which the Act came into existence. So in order to make RTI/FOIA, a success, ‘disclosure must be made the rule, rather than exception’.
5. Facilitating Access
For a RTI/FOIA, to be successful, citizen should not only be guaranteed freedom to access government information, but also he must be provided facilities to access the information. For this, the first thing to do is to simplify the application process. Application should be brief and should be legible so that even an ordinary man can understand. Vernacular language can also be used. The clubbing of E- Governance with this Act, can go a long way in helping the citizens facilitate for cheap and easy access.
6. Low Access Cost
Freedom of Information should not come at an exorbitant price. There must be provisions in an Information Act, to provide to its citizens information at low costs. In India, Right to Information Act, 2005, prescribes only ‘reasonable fees’. The Act also states that no fees will be charged form the persons who are below poverty line.
7. Open Meetings
Information can come from open meetings and discussions. Our constitution under Art.19 (1) a, guarantees to its citizens ‘freedom of speech and expression’, subject to reasonable restrictions under Art.19 (2) of the constitution . Since freedom of speech and expression comes with in the ambit of Art.19 (1) (a) of the constitution, citizen should be given an opportunity to participate in government meetings, subject to exemptions.
8. Disclosure to take Precedence
It must be made a policy, that unless and until that an ‘information’ is so vital to the security of the nation, state or any other matter, so as to create a ‘foreseeable harm’ with the parting of this information, information should not be blocked at any cost.
9. Protection to ‘Whistle-Blowers’
‘Corruption is the cancer in our society’. Corruption in the government ranks can seriously undermine a RTI/FOIA. Sometimes, information regarding these rampant corruptions will be brought to light by some brave and informed citizens who are known as ‘whistle blowers’. But there is a lack of legislation to protect ‘ whistle blowers’ in India. The tragedy of Sathyandra Kumar Dubey , an IIT engineer for having exposed corruption in the ‘Golden Quadrilateral Project’ is still fresh. For this Law Commission of India, has proposed a ‘ Protection of Whistle Blowers Act’, in the 179th report in 20014. But it has not been materialized. In April 2004, pending the scrutiny of the Public Interest Disclosure (Protection of Informers) Bill, 2002, the Central Government passed a resolution authorizing the Central Vigilance Commission or disclosures of corruption or misuse of office by any Central Government employee while protecting the identity of the complainant5. Along with this there must be provisions in the Right to Information Act, to give protection to ‘whistle blowers’ by maintaining their privacy. Recent incident, of according protection to Kerala Civil Supplies M.D. Jacob Thomas6, for exposing corruption in Civil Supplies, is testimony to the fact that ‘whistleblowers’ still requires protection. The Act, must have provisions, where by the information supplied by the third parties are treated with utmost confidentiality7.
10. Existence of a Powerful and Independent Information Commission
For an Information Act to be successful, it is necessary to place a mechanism to properly redress the grievance of the people if their requests are not properly addressed. This can be in the form of a Commission, with quasi judicial authority, independent and neutral in its constitution. Right to Information Act, 2005, has authorized to setup Information Commissions both in the Centre and in the states8. Chief Information Commissioner, must be person equivalent to the rank of Chief Election Commissioner in the Centre. The appointment, salaries and remuneration, removal etc, have all been made to ensure the independence and neutrality of the office. The powers of the Commission to inquire into the matters, is equivalent to the power of a Civil Court under the Code of Civil Procedure, 1908.9 Moreover, the provision of appeal10, is also unique. Thus a powerful and an independent Information Commission can go a long way in ensuring the people’s faith in the Act, and ultimately guaranteeing its success.
11. Penalties
S.20 of the Right to Information Act, 2005 lays down penalties for the any non-compliance on the part of public information officer, with the provisions of this section. On such an instance, the CIC or SIC, after, giving due opportunity for the officer to be heard, can impose a fine of 250/- per day not exceeding 20,000/-. Although, Information Commission can recommend appropriate disciplinary proceeding, he cannot directly take action. Although, the action taken under this section is very rare. The initiation of proceedings against, K.K. Ramani, an Additional Secretary to the Government, for denying the Marad Report to the petitioner11, has hit the headlines. If penalty is imposed, it will be the first time that an official is punished for disobeying the commission’s order to provide information sought by a citizen under the Act. This will be a welcome boost for the ardent supporters of this Act.
12. Inclusion of Public and Private Authorities
According to RTI, ‘right to information means, the right to information accessible under the Act, which is held by or under the control of any public authority 12. However, the expression ‘public authority’ includes non-government organizations substantially financed directly or indirectly by funds provided by the appropriate governments13. So information related to private body can be accessed, only in a limited way. But, in an era of liberalization and privatization, giving only limited power to authority to access information regarding the private sector, can be ‘Opening Pandora’s Box’. Right to information, flows from Art.19 (1), which is available against the whole world. Leaving Private sector outside the purview of RTI, will have serious consequences. So there must be an amendment to include the private bodies, under the S.2(j). By, bringing the private bodies under the expression ‘other authorities’, under Art.12, ‘if that private body is discharging, a public function’14, this issue can be surmounted.
13. Effective Monitoring
Right to information, is based on the constitutional guarantee of ‘Freedom of speech and expression’. For, this Act to live up to the aspiration of people, not only must it be effectively implemented, but also should be vigilantly monitored. It has been a year, since RTI, 2005 has been passed. Still, this Act hasn’t mesmerized conscience of the common masses to the extend it has envisaged. The CIC and its satellites needs to do much more, to ensure the success of this Act. The rate of filing has improved no doubt, but the rate of disposal is not proportionate15. Right to Information Act, 2005 has got various sections which entail effective monitoring like, S.25(2)16. Ignorance is detrimental to this Act’s success. Therefore, educational programme aimed to improve awareness has to be contemplated17. The example shown by Karnataka and Maharashtra in implementing RTI as a syllabus in school curriculum is a welcome move18.
Conclusion
‘Information is an antidote to corruption’. Right to Information and good governance are closely related. Transparency and accountability, responsiveness are the major facets of good governance. The Act’s main aim is to bring people close to governance, by minimizing corruption, transparency in administration as well as public accountability. Good governance is an ideal, a dream, which is hard to achieve. Right to Information Act, if implemented in its rightful spirit, will surely help to make this dream a reality.
Foot Note
1. Freedom of Information; Access to Information as a Key to Democratic Governance; by Padmaja Padman- in www.humanrightsinitiative.org/programs/rti/malaysia.pdf; accessed on 28.8.06.
2. Secrecy is dead, Long live secrecy- by Vidhya Subrahmaniam , The Hindu, August 30, 2006, Wednesday; page 13.
3 S.8 of the RTI Act 2005 provides for exemption. Recent amendments so as to exclude ‘file noting’ from the purview of the RTI, would weaken this act. Right to Information (Amendment) Bill, 2006, Tentative Draft Bill, 19.6.2006. In S.8 of the principal Act, in sub-section (1),- in clause (i), for the first proviso, the following shall be substituted, namely;- “Provided that the decisions of Council of Ministers and the reasons thereof shall be made public after the decision has been taken, and the matter is complete, or over”; only exemption seems to be ‘file noting’ relating to social and development sectors. See proviso to S.8 (1)(k) of the RTI (Amendment) Bill, 2006.
4. www.lawcommissionofindia.nic.in
5. G.R.No.371/12/2002-AVD III, also see Facet of Media Law-by Madhavi Goradia Divan, 1st Edition 2006, Eastern Book Company, at page 172.
6. The Hindu, January 9, 2007, Tuesday "Whistle-blower protection to Supplyco Chief " - by John.L.Paul; Jacob Thomas, Chairman and Managing Director of Kerala State Civil Supplies Corporation (Supplyco), is the first person in Kerala to be given whistle-blower protection by the Centre.
7. S.11. where by the information supplied by the third parties are treated as confidential by that party, it becomes mandatory for the Information commissions to invite that persons within five days from the date receipt of the request of information, shall request that party to make an oral or written submission, as to whether that information ought to be allowed to be disclosed.
8. Chapter III and IV of the Act, provides for the Central and State Information Commissions.
9. S.18(2)-(4)
10 . look at S.19(1)-(8) of RTI, Act 2005.
11. The Hindu, December 2, 2006, Saturday, ‘Information officer facing action’- by K.P.M.Baheer.
12. See S.2 (j) of RTI, 2005.
13. See S.2 (f) of RTI, 2005.
14. Binny Ltd . v. Sadasivan & Ors. (2005 (4) KLT 315 (SC) ‘A body performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore, exercise public functions when they intervene or participate in social or economic affairs in the public interest.’ (para. 9-11 and 29)
15. By November, opening balance of petitions before CIC, was 2473, another 404 petitions were filed. But the disposal was only 273. The closing balance is 2604 at www.cic.gov.in
16. This section requires CIC and SIC to prepare a report on the implementation of RTI Act, 2005 during that year and forward a copy to the concerned government.
17. S.26, ‘the Appropriate Government is required to develop and organise educational programs to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under the Act’ at www.cic.gov.in
18 . C.N.Kumar; ‘Karnataka Education Department to include RTI in syllabus’- at www.cic.gov.in accessed on 19-01-2007.
By K.G. Balasubramanian, Advocate, High Court of Kerala
Some Thoughts on Hindu Succession (Amendment) Act
(By K.G. Balasubramanian, Advocate, Ernakulam)
Hindu Succession Act, 1956 - An Act to amend and codify the law relating to intestate succession among Hindus! 1976 - An Act to abolish the Joint Family System among Hindus!! 2005 - An Act further to amend the Hindu Succession Act, 1956!!! Brother, the Acts have become classic instances of gender discrimination.
Ss. 6, 8 and 15 HS Act dealt with succession to the estate of Hindu males and females. S.17 deals with succession to the estate of marumakkathayees in particular. In the case of a male Hindu dying intestate, application of the Schedule is inevitable. Persons coming under Ss.15 and 17 are different from those coming under the Schedule. Why this discrimination? One feeble attempt at reconciliation is the amendment in 2005, whereby the Schedule has been put on some sort of a consequentially balanced (?) platform. In Mitakshara School, four generations of males were recognised as coparceners, as accepted in the Schedule originally. Under Marumakkathayam, the degree of female heirs acquiring right by birth in the property of an ancestress is theoretically infinite, restricted by only Mother Nature! Somewhere along came Kerala Joint Hindu Family System (Abolition) Act, 1975 and: Boom! On both counts!! Tributes to the Karta and Karanavan?!!
But, on the touchstone of Article 14, can “We, the people” maintain that there is equality in the matter in God’s own country? Does not HS Act retain the difference generated in 1956 between males, females and their estates? Is any public interest served thereby? Does such differential treatment have any nexus with any object? This segregation in 1956 might have been justifiable on religious precepts - made anachronistic by the Abolition Act! Going by 1993 (1) KLT 174, S.17 HS Act will haunt two more generations.
That brews another controversial issue. Is not coparcenary revived? Does not new S.6 HS Act repeal Ss. 3 and 4 Kerala Joint Hindu Family System (Abolition) Act? Can these provisions stand together? Neither the Kerala Act nor the HS Act has done away with Mitakshara law absolutely. The Kerala Act says no to right by birth and pious obligation. It has not, and cannot, annihilate communities or other religious rights, rites and customs. It has not defined ancestral property, a concept that has with stood the test of time, moulded and nurtured by Hindu philosophy and judicial recognition through centuries. It has not fully rewritten Manu’s Code or of Yagnavalkya. It refers to undivided Hindu family “governed by” the Mitakshara law. Millions in scores of communities in the State follow Mitakshara School in different forms and customs. Are they not “governed by” Mitakshara law? Governed, not in estate, but in food and worship, in birth and death, in marriage, in all things Hindu!
Look at S.4 of HS Act. Read it along with S.6(5) and the explanation. The disintegration effected by S.4 of Kerala Act is not included. Ss. 3 & 4 of the Kerala Act are set at nought. Really, new S.6 of HS Act has resurrected coparcenaries in Kerala. Even if abrogation of S.4 of the Kerala Act were held to be only from date of commencement of new S.6, the property obtained by persons “governed by” Mitakshara law under the Kerala Act till that date will be ancestral property as against their sons and daughters and descendants. With the added discrimination that under HS Act, daughters get what sons are denied by the Kerala Act. I do not think that even the abstract doctrine of eclipse will save the situation. Reading down? No way, Mr. Draftsman.
My first impression at the amendment to HS Act and its effect was exhilaration. One more small step in the right direction. But on closer scrutiny, I am petrified. The real effect of the repeal, if it is so, is that the object of the Kerala Act is demolished. How else can one now view S.4(1) and (2)? Shockingly, inadvertence (?) has lifted its head again. New S.6 does not touch Marumakkathayam School. The situation is, while law of succession under Marumakkathayam stands abolished, it is resurrected under Mitakshara, daughters included. The Parliament has created work for trapeze artists. Which way should one swing? Or really, excuse me, where were our representatives at the time of discussion of the Bill in the Parliament? In Parliament? Or elsewhere? Or ................?
Tailpiece: Aye, Aye, Guv’nor, the gunnie misfired his broadsides. ‘E shudav looked first! '
By V.K. Babu Prakash, JFCM, Kollam
Marching Women under the Domestic Violence Act
(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)
All the laws are Imperfect, even if made by a committee of arch angels
-- Bernad Shaw
It has been about nine months since the Domestic Violence Act, 2005 has come into force in the Country. When one looks at the litigation Scenario under the new Act, it seems like an alarming picture. A flood gate of new litigation is opened under the Act, whereby women are rushing to the criminal courts to get various kinds of remedies and redressals. They seek financial protection, protection order on shared houses, restraint order against violence, compensation for illtreatment, medical expenses, education expenses of children etc. Though the Act contains an ameliorative provision under S.14 to have counselling of the issues, indeed it has become purposeless. As no counsellors are appointed, Criminal Courts find it difficult to have proper counselling between parties. Since matrimonial dispute is the core issue under the Act, counselling is one of the effective remedies which should be recommended than the other forced remedies prescribed by the Act. The District Probation Officers who are designated as the protection officers as per the rules are working under a compelling circumstance as they are not provided with material resources and infra structures. One may wonder how Kerala got this much women in distress who knock on the Court under the D.V. Act. Both educated and illiterate, rich and poor, employed and vagrant, old and young are approaching the court with petitions under the D.V. Act. Due to the alarming rate of filing of cases, Criminal Courts find it difficult to attend with other cases as there is a time limit imposed by the D.V. Act. The Govt. has to seriously consider in setting up special or new Courts for the remedial measures under D.V. Act. Ordinary criminal Courts are in an explosive state of pendency with other cases thereby other litigants who seek justice will be put into trouble by the flux of this new litigation.
Next, when we look at the provisions of the Act it has so many pit falls. The Act is a hurry - burry legislation which did not have wider discussions before it became enacted. As it is the brain child of Mrs. Renuka Chaudhary, the Union Minister, it is women friendly . The recent observation of the Hon’ble Supreme Court that the Act is a ‘clumsily drafted one which needs through over hauling opened the mind of the Minister to have amendments on its provisions. The definition of the expression shared household occuring in S.2 (s) of the Act creates so much confusion and difficulty in interpreting it in a pragmatic sense. Again the definition of respondent occuring in S.2 (9) of the Act creates another question mark that a respondent can only mean a male person alone thereby petition can be filed by a female against a, male person alone. Though the Act lays down in S.28 that the procedure would be governed by the provision of the Code of Criminal Procedure, it does not specifically make out any provision for execution or implementation of the order passed under Ss.18, 19, 20, 21, 22 or 23. Of course the Act contains provision that breach of any order passed under the Act will invite penal consequences under S.31, nevertheless it is not a relief to the petitioner who only wants an implementation of the order granted in her favour. As the objective of the Act is to give civil remedy to the aggrieved woman, it must have prescribed express provision for execution of the order passed by the Magistrate.
S.12(1) of the Act says that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act. Sub-s.4 of S.12 says that the Magistrate shall fix the first date of hearing, which shall not be ordinarily be beyond three days from the date of receipt of the application by the Court. The mode of service of notice is prescribed in S.13 which says that it shall be served by the protection officer by such means . This causes a lot of difficulty. First of all, the period of three days prescribed for hearing within which the notice is to be served on the respondent is a never achievable proposition. Supposing that the respondent is a person from a far away place, then how the protection officer could get the notice served on the respondent within three days? Further, the forms of prescribed notice scheduled in the rule are not printed and supplied at all. Again, the protection officers would find it difficult to give the notice on the respondent as they are not provided with any means or resources for service of notice. Another point to ponder is that the Magistrate who takes cognizance of the case, who passes the order himself has to execute the order one way or other. The protection officer appointed under the Act looks like a person to render voluntary public service as it seems that he has got a duty to search and find out domestic violence in his area and report it to Court. The next strangeness of the Act is that when there is no other evidence except that of the aggrieved woman, her sole testimony shall be relied upon by the Magistrate in deciding the existence or otherwise of the domestic violence. With the drastic provisions of the Act along with the penal provision of S.498 (A) I.P.C. as well, the women in the country are hunting down their erring men partners like sheep to the shamble.
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
Insult Not The Dead*
(By T.P. Kelu Nambiar, Sr. Advocate)
Dear Mr. President,
I am to entreat you, request you, and desire you to read this letter carefully, attentively, and repeatedly. I pray your patience; and please do not destroy the prayer. The matter comprised in this letter may not be treated in a ‘take it or leave it’ fashion.
I am constrained to say, regretfully, I have a hunch that lawyers are being treated as the legal profession’s apartheid; and lawyers are unable to protect their own rights. And, I have learnt to trust my intuition.
I am on the aspect of obituary reference accorded to ‘dead’ lawyers. For some time now, when an advocate passes away, ‘reference’ in Court, touching the deceased, is held after a lapse of long number of days, probably waiting for other lawyer-deaths, so that condolence meetings could be combined into two-in-one or three-in-one, holding a mass meeting for all together. This has happened many a time in recent past. This I say with the veracity of a historian. Please look into the ‘Red Book’ and find out the origin. When Judges or retired Judges pass away, obituary reference is almost instantaneous. Recently, a practising Senior Advocate was murdered on the evening of July 12, 2007. A few days later, (on 19-7-2007), a retired Judge of the High Court ( retired long, long ago), passed away. Obituary Reference by the ‘Full Court’ was held for the ‘dead’ Judge, the next morning itself, you, the President, participating. But, obituary reference to the lawyer was held still later, you, the President, not minding. Why differentiate between “mortal ghosts”, to borrow the expression of Dylan Thomas. Is the Association going down in the estimation of right-thinking members? God forbid!
When Adam brought death into the world, he did not devise great death or small death. “And all the dead lie down”; said Emily Dickinson.
Let me probe at some length into the secret life of the English language. John Donne sang:
“Death be not proud.........
Everyman’s death diminishes me; because I am involved in Mankind. Therefore never send to know for whom the bell tolls; it tolls for thee”.
Everyone possesses a body of ‘dusty death’. Here, there is no difference between a soldier and a scholar, a prince and a plebeian. G.K.Chesterton perceived ‘democracy’ in the dead. Death stands still as Miss Havinsham’s clock. Death closes all, mused Lord Tennyson. And, said T.S.Eliot, “Death has undone so many”. By dying, you make space.
Differentiating the dead, amounts to insulting the dead. Death cannot be blacklisted. According to the Old Testament, death is the deliverance from the body of death.
Let me quote Edna St.Vincent Millay:
“Down, down, down
into the darkness of the grave
Gently they go,
the beautiful, the tender, the kind,
Quietly they go,
the intelligent, the witty, the brave”.
Shakespeare made Macbeth perorate:
“Life’s but a walking shadow, a poor player,
That struts and frets his hour upon the stage,
And then is heard no more; it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing”.
“There is no way to destroy death”. Life insurance agents work on this premise.
In sum, ‘death is life’s high meed; as John Keats put it. “In the last analysis, it is our conception of death which decides our answers to all the questions that life puts to us”. This is not my opinion, but of Dag Hammarskjold. Everybody is struck down by death’s feather. On death, you forget your past. Therefore, differentiate not the dead; insult not the dead. Death takes everybody by the heart.
George Bernard Shaw’s famous words may be quoted: “Life levels all men; death levels the eminent”. It was Dylan Thomas who said: “After the first death, there is no other”. One may live like a prince, or king, or Senior Advocate, or Judge, or Philosopher, but does not die like that. It is said that Jesus Christ alone died like God.
My live body may, perhaps, brook any insult; but my dead body would revolt against the slightest affront; and, to register such a protest only, I visualise My ‘dead body alive’. Kindly, therefore, spare me. I leave My last will to the Kerala High Court Advocates Association: “Please do not hold a belated condolence meeting in Court with reference to me, and that, too, before an attenuated gathering”.
Dear Mr.President, kindly publish this letter for the information of the members of the Association. And, if so advised, please communicate a copy to the Registrar-General.
I do reserve my right to publish this letter, through the medium of our esteemed Law Journal, the Kerala Law Times.
Long Live the ‘Dead’ Lawyer.
Tail-piece:
“Death and the cross are the two
great levellers; kings and their
subjects, masters and slaves,
find a common level in two places -
at the foot of the cross, and at
the silence of the grave”.
-- Charles Caleb Colton
“APw N¯p KPambv ]nd¡p¶p
KPw N¯§PhpamboSp¶p
\cn N¯p \c\mbv ]nd¡p¶p
\mcn N¯pSt\mcnbmbv t]mIp¶p
Ir]IqSmsX ]oUn¸n¨oSp¶
\r]³ N¯p Iranbmbv ]nd¡p¶p
Cu¨ Ns¯mcp ]q¨bmboSp¶p
Cuizcsâ hnemk§fn§s\.”
-- Poonthanam in 'Jnanapana'
* Letter, dated 4th September, 2007 addressed to the President, Kerala High Court Advocates Association, by Senior Advocate T.P. Kelu Nambiar)
By K.G. Balasubramanian, Advocate, High Court of Kerala
Some Thoughts on “Denial of Title” and “Estoppel”
(By K.G. Balasubramanian, Advocate, Ernakulam)
1. Estoppel between landlord and tenant in the setting of Kerala Buildings (Lease & Rent Control) Act is baffling. Made so more by interpretation, than its setting. I feel the issue of denial of title of the landlord by the tenant warrants a different consideration - precedents notwithstanding.
2. In many other States, denial of title spells doom to the tenant. But in God’s own country, it is maddening, if not sickening, that denial of title is an escape route to an unscrupulous tenant, to delay judgement day by compelling the landlord to invoke S.11(2) or its companions in a civil Court! Why? I have personally nothing against tenants. They also serve. But, one is entitled to look for parity, purity, proportion and propriety in legislative drills. More, in the case of a Self Contained Code.
3. The definition of landlord vide Section 2(3) is not exhaustive. It includes a person who is receiving or is entitled to receive rent as agent, trustee, executor, administrator, receiver, guardian. It does not, and cannot, include one who had received rent. The dichotomy between past and present receipt of rent is intentional. The decisive element is the right to receive rent, in praesenti, either for himself or on behalf of another. Take the case of the so-called landlord who, the tenant belatedly learns, is neither the owner of the building nor an agent, etc., of another, but only a usurper. Or that of the landlord, whose title is vitiated, being sham or fraudulent on tenant and public. Though he might have received rent, can he seek eviction? No, according to me, because receipt by him was legally not either for himself or on behalf of another. Lawful entitlement to receive rent appears, to me, to be the concomitant of S. 2(3).
4. In view of AIR 1979 SC 1409, one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. In AIR 1988 SC 1413, their Lordships held that: “the law as to the estoppel of a tenant under S.116 of the Evidence Act was a recognition, and statutory assimilation, of the equitable principles underlying the doctrine of estoppel in relation to tenants. The Section was not exhaustive of the law of estoppel. The section inter alia, predicated that no tenant of immovable property during the continuance of the tenancy, would be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. There could be a denial of the title of his landlord without the tenant renouncing his own character as a tenant, where, for instance, he had set up a plea of Jus tertii”. Their Lordships also accepted that: “But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person”. The “notwithstanding” manoeuvre in S.11(1) reigns the field and the rule that payment of rent to the landlord estops the tenant is not applicable in all cases, an inevitable situation, with due respect to precedents to the contrary on the point.
5. While concocting S.116 Evidence Act, the draftsman had in mind, probably, only T.P. Act and, perhaps, a handful other tenancy legislations in force in some of the then fiefdoms/provinces. Onslaughts like S. 11(1) or other inroads into freedom of contract were not in his contemplation. Till the stylishly bandied notwithstanding entered appearance, S.106 T.P.Act and companions governed tenancies. ‘Optima est legum interpres consuetudo. Contemporanea expositio est fortissima in lege”? Control of eviction of tenants became a necessity in India around mid 20th century, a process that was accelerated after “We, The People” and mercilessly aggravated thereafter by mammoth reforms in tenancy law, all of which shredded Ss.106 T.P. Act and 116 Evidence Act. Does not the second proviso to S.11(1) efface S.116 Evidence Act? If not, is it not an exception to S.116? The position becomes more engaging as Ss.106 and 116 can apply only to contractual tenancies and not to tenancies covered by S.11, because two opposite legal provisions cannot cover a building simultaneously.
6. I would remind myself that there is no estoppel against statute. A party brought to Rent Control Court by the landlord need not court the proceedings as a tenant. He can set up any contention, including denial of title. Going by AIR 1988 SC 1413, his attornment will not always aid a landlord. The Rent Control Court gets jurisdiction to grant an order for eviction only if he is a tenant under the petitioner. The Rent Control Court is a Court for all purposes and effect, presided over by a learned Munsiff. Whether the contentions of the tenant be bonafide or not, why should that worthy Court be denied jurisdiction to finally decide questions of title and the vanquished landlord be driven to a separate suit? That has resulted only in docket explosion, likely to be an alarming recurrence in view of real estate development. Why not the proceeding be converted/tried as a suit, as is done in some other situations?
Tailpiece: S.2(3) speaks of “entitled” and the second proviso to S.11(1) speaks of “title”. Really, is there any jurisprudential dissimilarity between “title” and being “entitled”?