- NK Jayakumar
The Kerala Legislative Assembly completes 50 years of its existence on the first day of April, 2007,exactly five months after the State celebrates its 50th birthday. But the legislative history of Kerala begins much earlier, in 1888, with the establishment of Legislative Council in Travancore.
The evolutionary process of the legislature and the legal system during a period spanning more than 100 years reveals the decisive influence of socio-economic and political factors.
Administration of justice was mainly based on local customs and practices. Property laws and personal laws were based on the feudal system and caste system. Many practices, which may now appear to be brutal, uncivilized and unfair such as slavery and untouchability, were considered legal. The introduction of a civilized and modern criminal justice system based on the English legal system and later the adoption of the Constitution with a Preamble proclaiming justice- social, economic and political- as its cherished goal, guaranteeing fundamental rights in Part III and enumerating guiding principles for legislation in Part IV, are landmarks in our legal history.
We find that even before the State of Kerala has come into existence, several progressive laws for social welfare were enacted in Travancore, Cochin and Malabar. Important among such laws are those on tenant-landlord relations, laws abolishing child marriage and p o l y g a m y, decentralization of power to local bodies, labour welfare legislation, forest protection law,abolition of child labour,law providing for free and compulsory primary education,Co-operative Societies Act,laws on inheritance and succession etc..
The law making efforts made by 11 successive legislative assemblies in 50 years may be viewed as a continuation of the earlier trend in some cases and a deliberate deviation from that trend in others. There have also been serious efforts to solve emerging social and economic problems through legislation.
The number of laws enacted by each Legislative Assembly from the First to the Eleventh (1957 to 2006) can be seen at a glance in the Table.
The Table may not give us an accurate picture of original legislation enacted in the State, since it includes amendments,repeals, and appropriation Acts. The number of original legislation may be around 400. It may not be possible, within the limited scope of this brief analysis, to examine the objectives, content and impact of all these laws. What is attempted here is only a brief look at some important legislative endeavors, which produced very significant impact on the socio-economic and political situation in the State. The first ministry, which came to power in Kerala in April 1957, naturally became the focal point of global attention as it was the first communist government elected to power in a democratic country.Legal and political pundits were keenly watching the performance of the State Government, especially how the Government would use its law making powers in tune with its avowed political ideology within the constraints of the Constitution of India . The first Kerala Legislative Assembly, which had a short life of just 28 months, can legitimately claim to be the initiator of many important legislative measures with a progressive outlook. It started with a law to prevent with a progressive outlook.It started with a law to prevent eviction of tenants and soon followed up by the Land Reform Act. This Act granted ownership rights to tenants and heralded the way for comprehensive land reform laws by succeeding legislatures.
Another significant legislative initiative of the first Kerala Legislative Assembly was the Kerala Education Act It has a unique place in the legislative history of our country as the first ever attempt to enact a comprehensive law on school education, covering both public and private institutions. The Act contained provisions to ensure fair conditions of service to teachers and to end exploitative practices followed by private managements. It empowered the Government to take over the management of private schools, which did not comply with the provisions of the Act. Another noteworthy provision in the Act was on free and compulsory primary education. Nearly 50 years after the Kerala Education Act and four years after the 86th Constitution amendment, making free and compulsory primary education a fundamental right, Parliament is yet to enact a law providing for free and compulsory education to fulfill the constitutional mandate.
The Kerala Education Act has earned a place of its own in our constitutional history as well. It became the subject matter of a reference by the President of India to the Supreme Court of India for its advisory opinion under Art. 143 of the Constitution, the first ever instance of the exercise of such advisory opinion by the Supreme Court. Some provisions of the Act had to be amended as advised by the Supreme Court. The Court also made several provisions of the Act inapplicable to minority educational institutions which enjoyed the protection of Art. 30. It remains to be added that the combined opposition to such progressive measures as Land Reforms Act and Education Act snowballed into a massive agitation which finally culminated in the overthrow of a democratically elected government, which still commanded a majority in the State Legislature, through a blatant abuse of the power under Art. 356 of the Constitution.
Land reforms measures initiated by the first Kerala Legislative Assembly were carried forward by subsequent legislative assemblies. Important amendments were introduced in 1961, 1963, 1968, and 1970. In the year 1964, the Kerala Land Reforms Act was included in the Ninth Schedule of the Constitution, thereby making it immune from judicial review on the ground of violation of fundamental rights. The impact of land reform legislation was not confined to landlord – tenant relations, but extended to the entire gamut of the State’s socio-economic and political scenario. Today, however, we find new forms of exploitation emerging in the agrarian front demanding effective legislative intervention.
Another important area where the state has achieved remarkable progress is democratic decentralization, thanks to the effective initiatives of the Kerala legislature. The first Administrative Reforms Commission under the chairmanship of EMS Nambudiripad had emphatically asserted in its Report that democratically elected local self government institutions must be the basic unit of administration. The Kerala Panchayat Bill and District Council Bill, which embodied the recommendations of ARC were introduced in the Legislative Assembly; but lapsed on the dissolution of the House. These Bills paved the way for Kerala Panchayat Act 1960, Municipalities Act 1960, Municipal Corporations Act 1961 and District Councils Act 1987. Finally, in accordance with the provisions of the 73rd and 74th Constitution Amendments, the Kerala Panchayat Raj Act and the Kerala Municipality Act were enacted in 1994. Delegation of many important powers to the three – tier Panchayat Raj System, reservation of one-third seats (including that of chairperson) to women and reservation to SC and ST are the salient features of these Acts. Important amendments were made to the Panchayat Raj Act, in 1999 in pursuance of the recommendations of a Committee headed by Dr.Satyabrata Sen. The establishment of an Ombudsman to enquire into allegations against Panchayat Raj institutions and recognition of the right of every individual to know about all the activities of the Panchayat through this amendment ensured transparency and made Panchayat Raj Institutions more effective instruments of Local Self Government.
The initiative of the Kerala Legislature in the field of labour welfare have gained country wide recognition. Laws protecting the rights of agricultural workers and headload workers have been hailed as models for other States. The workers in almost all the segments, organised as well as unorganised, have been brought under the purview of welfare funds through appropriate legislation. Equally important is the contribution made by the Cooperative Societies Act of 1964. The Act ensures democratic functioning, transparency and voluntary membership of co-operative societies. Provisions to establish an autonomous Recruitment Board for making appointments in Co-operative institutions were introduced by an amendment in 2000. In short the Kerala Co-operative Societies Act provided a stable legal framework to the co-operative sector,enabling it to play a vital role in the State’s development .
One of the important tasks of the legal system is to provide for remedies and for redressal of grievances and amicable settlement of disputes. Since judicial remedies are generally considered to be technical, formal, expensive and time consuming, a search for alternatives has convinced our lawmakers that an expeditious, informal and inexpensive system of relief could be provided through the ombudsman system.Thus allegations of corruption and complaints of maladministration are now effectively dealt with by the Lok ayukta, established by the Kerala Lokayukta Act 1999.This Act has been described as an exemplary legislation among the Lokayukta Acts in force in many Indian States. In addition to the Lok ayukta, the Kerala Women’s Commission with powers to intervene in women’s complaints, has been established under the Kerala Women’s Commission Act 1995. The Kerala State Human Rights Commission and the State Information Commission, constituted under Central Acts, are also functioning effectively in our State.
The contribution of the Kerala Legislative Assembly in providing an autonomous and stable legal framework to institutions of higher education in the State is also significant. This was done through the Kerala University Act 1957 (Subsequently amended in 1974), the Calicut University Act, 1975, the Mahatma Gandhi University Act 1985, the Cochin University Act 1971,( later re-enacted as the Cochin University of Science and Technology Act in 1986), the Kerala Agricultural University Act 1971, the Sree Sankaracharya University of Sanskrit Act, 1994, and the Kannur University Act, 1996. But it must be added that the legislative attempt to establish a centre of excellence in legal education through the National University for Advanced Legal Studies and Research Act, 2005 is seriously flawed because it is conceived as a self financing University. The provision of the Act, as they exist now, do not ensure the academic, administrative and financial autonomy of the University.
The menace of ragging has assumed alarming proportions in institutions of higher education all over the country. A bold initiative to curb this menace was taken by the Kerala Legislative Assembly in 1998, when it enacted the Prohibition of Ragging Act. If effectively implemented, this Act can put an end to the barbarities being practiced in the name of ragging, which drive many children, in a mood of desperation, to end their educational career or even to end their life.
The mushroom growth of professional educational institutions in Kerala, without any law to regulate their activities, has created a situation of total anarchy and exploitative practices in the field of professional education. The judgments of courts, which were often contradictory and inconsistent, or couched in ambiguities, afforded only adhoc solutions. The directives from the Court and popular pressure led to the enactment of the Kerala Self-financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act in 2004. But this Act, which allowed private managements absolute freedom in the matter of admissions and determination of fees tuned out, in effect, to be a license to plunder. The Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act enacted by the Kerala Legislative Assembly in June 2006, in stark contrast to the 2004 Act, is a model legislation worthy of emulation by other state legislatures. The Act harmonises the twin objectives of excellence in education and social justice by ensuring merit in admissions and regulating the fee structure in a rational manner. An elaborate system of freeships is envisaged so as to ensure that no meritorious student is denied professional education because he /she is poor.
The Kerala Legislative Assembly can also claim credit for enacting a comprehensive legislation embodying the concept of ‘Sports for All.’ The Kerala Sports Act, 2001, provides for the constitution of Sports Council at State, District and Local level aiming at the development of sports and games ensuring greater public participation. This again is a pioneering legislation which could secure as a model for other states.
Commendable as the performance of the Kerala Legislative Assembly in the 50 years if its existence is, it is necessary to point out an undesirable tendency, which strikes at the very essence of democracy. It is true that the Constitution permits ordinance making to meet exigencies when the legislature is not in session. But promulgation of an ordinance when there is no urgency, allowing it to lapse by not presenting it at the next session of the Assembly, and then re-promulgating it after the session is prorogued is really a ‘fraud on the Constitution’ as held by the Supreme Court in D.C. Wadhwa v State of Bihar (AIR 1987 SC 579). For instance, the Felonious Activities (Prevention) Ordinance, which contained provision making serious inroads into the liberty of an individual, was promulgated in June 2005. The ordinance lapsed because it was not introduced as a Bill in the subsequent session of the Assembly. After the session was prorogued the Ordinance was again re-promulgated. Such practices, which deny an opportunity to the elected representatives of the people to perform their legitimate role, really make a mockery of democracy.