THE KERALA VEXATIOUS LITIGATION (PREVENTION) BILL, 2002
Background Note
Our State stands second in the number of litigations pending in India one of the reasons is that the tendency to abuse the process of the Court is on increase. People must resort to courts for vindicating justice and not for harassing others. Prevention of vexatious litigation is a very laudable object. It is incongruous that the vexatious litigation (Prevention) Act, 1949 to prevent vexatious litigation is in force only in Malabar area of the State.
A Division Bench of the High Court of Kerala in its judgment in Advocate General, Vs. T.A.Rajendran reported in 1988 (1) KLT 305, stressed the urgency of enacting a uniform law to prevent vexatious litigation, applicable to the entire State of Kerala. Accordingly a Bill was published in the Ninth Kerala Legislative Assembly as Bill No.118. That Bill could not be introduced in or passed by the Legislative Assembly before its dissolution. The Law Reforms Committee recommends to enact a legislation on the lines of the Bill already published. A draft Bill is also appended herewith.
THE KERALA VEXATIOUS LITIGATION (PREVENTION) BILL, 2002
A Bill to prevent the institution of vexatious proceedings in courts in the State of Kerala.
Preamble.- WHEREAS, it is expedient to prevent the institution of vexatious proceedings in courts in the State of Kerala;
BE it enacted in the Fifty-third Year of the Republic of India as follows:-
1. Short title, extent and commencement.-(1) This Act may be called the Kerala Vexatious Litigation (Prevention) Act, 2002.
(2) It extends to the whole of the State of Kerala.
(3) It shall come into force at once.
2. Leave of Court necessary for vexatious litigant to institute proceedings.- If, on an application made by the Advocate General, or otherwise, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings of a civil, criminal or other nature in any court or courts, the High Court may, after giving that person an opportunity of being heard, order that no proceedings of a civil, criminal or other nature shall be instituted by him in any court, without the leave of the High Court, if the proceedings are to be instituted in the High Court and without the leave of the District and Sessions Judge, if the proceedings are to be instituted in any other court.
(2) If it appears to the High Court that the person against whom a proceeding is instituted or initiated under sub-section (1) is unable, on account of poverty, to engage a pleader, the High Court may engage a pleader to appear for him.
Explanation.- For the purpose of this section “Pleader” has the same meaning as in clause (15) of section 2 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908).
3. Leave to be granted only if prima facie ground exist.- The leave referred to in sub-section (1) of section 2 shall not be given in respect of any proceedings unless the High Court or the District and Sessions Judge, as the case may be, is satisfied that there is prima facie ground for such proceedings.
4. Appeals.- 1) An appeal shall lie to the High Court against the order of the District and Sessions Judge refusing leave under section 3, within thirty days of the date of such order.
(1) The provisions of sections 5 and 12 of the limitation Act, 1963 (Central Act XXXVI of 1963), shall apply to an appeal filed to the High Court.
(2) The application for leave filed before the High Court under section 3 and the appeal filed under this section shall be heard by a Bench consisting of not less than two judges of the High Court and the decision of the High Court thereon shall be final.
5. Proceedings instituted without leave to be dismissed.- Any proceedings instituted by a person against whom an order under sub-section (1) of section 2 has been made, without obtaining the leave referred to in that sub-section, shall be dismissed:
Provided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave.
6. Publication of orders.- Every order made under sub-section(1) of section 2 shall be published in the Gazette.
7. Madras Act VIII of 1949 to cease to apply.- The vexatious Litigation (Prevention) Act 1949 (Madras Act VIII of 1949), shall cease to apply to the Malabar District referred to in sub-section (2) of section 5 of the States Re-organization Act, 1956 (Central Act 37 of 1956).
STATEMENT OF OBJECTS AND REASONS
The vexatious Litigation (prevention) Act, 1949 (Madras Act VIII of 1949), is in force in the Malabar Area of the State referred to in sub-section (2) of section 5 of the States Reorganization Act, 1956 (Central Act 37 of 1956), as the Malabar District. No similar legislation is in force in the remaining parts of the State. A Division Bench of the High Court of Kerala in its judgment in Advocate General, Kerala State Vs T.A. Rejendran, reported in 1988 (1) K.L.T.305, has observed, among other things that prevention of vexatious litigation is a very laudable object. People must resort to Courts for vindicating justice and not for harassing others. The tendency of abusing the process of the court and harassing the innocent is on the increase. It is incongruous that law to prevent vexatious litigation is in force only in a part of the State. The Court, therefore, has stressed the urgent necessity of enacting a uniform law to prevent institutions of vexatious litigation in courts, applicable to the whole of the State of Kerala. Government also considers that it is desirable to enact a uniform law on the subject applicable the whole of the State.
2. The Bill is intended to achieve the above object.
FINANCIAL MEMORANDUM
The Bill, if enacted and brought into operation, would not involve any additional expenditure from the Consolidated Fund of the State.
MODERNISING THE LABOUR REGIME FOR PROMOTING JOB CREATION
Background Note:-
Most of our labour laws and procedures in Kerala are focused on the organised sector and its protection which is less than ten percent of the labour force. The organized sector has not grown and there is a vast body of unemployed persons of our work force. Given our critical unemployment situation, is the responsibility of the Government to create a labour regime that will enable job creation by spurring investment. Most of our labour enactments are out of tune with present day requirement. These have to be revamped, simplified and unified, while ensuring that the legitimate interests of organised labour are assured. The nature of work has also changed substantially in the past few years and hence labour legislation has to be refocused in tune with the times.
Complementary to this, provisions in the laws and rules which increase administrative work and the transaction costs and thus act as disincentives to the establishment of small enterprises have to be amended and simplified.
Renewal Registration / licenses etc.
As per the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and the Kerala Shops and Commercial Establishments Act, 1960 the registration / licence for starting an establishment, licence is given for one year and the same can be renewed year to year. For administrative convenience it is proposed that such licenses can be issued for three years or for a shorter period as the applicant proposes.
In addition, amendments to Acts on the following lines are suggested.
Kerala Industrial Establishment (National and Festival Holidays) Act, 1958
The application of the Act can be limited to establishments to employing 50 or more workers and thereby exclude all SSI Units from the purview of the said Act.
The said Act empowers officers to inspect or to fix festival holidays for an establishment. In fixing the festival holidays there is the obvious difficulty of specifying the days acceptable to all regions and employees because of the varying nature and importance of the festivals in different localities. Therefore, it is proposed to make provisions for deciding the festival holidays between the employer and the workers themselves and only send a copy of the list to the Inspector of the area for information. Only in the case of specific written complaints from either party need the intervention of the Inspector be involved.
There is provison enabling the employer to require the employee to work in a holiday. However, in cases where an employe e works on any holiday he shall be entited tp twice the wages and to avail himself of a substituted holiday with wages.
Kerala Shops and Commercial Establishments Act, 1960
The Law relating to the regulation of conditions of work and employment in shops, commercial establishments, restaurants, theatres and other establishments in the State is contained in the Kerala Shops and Commercial Establishments Act, 1960. Under the said Act an employee includes an apprentice also. An apprentice under the said Act means a person, aged not less than twelve years, whom an employer employs in his service for training by himself or by any other person for any trade or calling. The Committee suggested that it can be limited to apprentices who have completed more than two years.
One month notice in writing is requied to dispense with the services of an employee employed continuously for a period of not less than six months. The Committee suggests enhancement of the period from six months to one year.
There is prohibition of engaging women before 6 a.m. or after 7 p.m. and exemption has to be granted in each case. In hospitals, in I.T. institutions and the several modern sectors, it is necessary to engage women employees during night also. Women, now seek employment in all sectors and there should be no discrimination against them. In the interests of increasing women's employment in all sectors, the Committee recommends that only in categories of establishments to be notified by the Government the prohibition may be insisted upon and that the general prohibition may be removed.
The Kerala Casual, Temporary and Badli Workers (Wages) Act, 1989
The said Act applies to all factories, plantations, motor transport undertakings and also all establishments under the Kerala Shops and Commercial Establishments Act, 1960. The Committee suggests that SSI Units may be exempted from the purview of the said Act.
The Committee recommended that the said Act may be made applicable to,
(1) Shops and establishments employing more than 20 workers;
(2) Factories and plantations employing more than 25 workers;
(3) Motor transport undertakings employing 20 workers.
The draft bills for the amendment of the concerned Acts for the above purposes are appended