Mongol alliances in the Middle-East occurred throughout the second half of the 13th century and the beginning of the 14th century, and involved widely spread polities. These alliances were organized between, on the one hand a North-South axis consisting of the Mongol Golden Horde, the Egyptian Mamluks and the Genoese, and on the other, a East-West axis consisting of the Mongol Il-Khanids, the Armenians, the Franks. The Byzantine Empire would ally with the two parties alternatively.
North-South axis
The North-South axis consisted of the Mongol Golden Horde, the Egyptian Mamluks and the Genoese. This alliance started as early as 1261, when Berke, the khan of Kipchak drew up an alliance with the Mamluk Sultan Baibars.
Various elements especially facilitated the contacts between the Mamluks and the Mongols of the Golden Horde. Religiously, the Golden Horde was getting progressively closer to Islam. Commercially, the Mamluks imported most of their slave soldiers from the Mongol-Turkish Kipchak territory of southern Russia. Finally, the Mamluks and the Golden Horde were both in heated conflict with the Persian Mongol Il-Khanate, which facilitated an objective alliance.
These friendly relations would continue until 1320, a time when the Crusaders had been completely eliminated from the Levant, and when the Il-Khanate finally decided to sue for peace with the Mamluks.
Cultural impact was also significant, as many exchanges of artists and technicians occured.
East-West axis
The East-West axis consisted of the Mongol Il-Khanate of Persia, the Christian Armenians of Cilicia and the Franks. The first attempts at an alliance originated during the Crusade of Saint-Louis in the Levant in 1248. Envoys from the Mongol Il-Khan ruler Hulagu went sent to Saint-Louis temporary court in Cyprus and offered submission and a collaborative relationship.
The conflict between the two Mongol realms originated in a territorial dispute. Following the Mongol invasion of Central Asia, the Mongol Khagan Batu had attributed several of the territories south of the Caucasus to the Golden Horde: specifically Georgia, Armenia and Anatolia. The Il-Khan ruler Hulagu however invaded these territories and took them for himself. This led to a drawn-out conflict between the two Mongol realms, which would last well into the 14th century.
Strategically, as the Il-Khanate was surrounded by the alliance between the Golden Horde and the Mamluks, the Il-Khanate seeked desperately to develop an alliance with the other power in the Middle-East, the Christian Crusader States. Religiously, these two realms were also in a relatively close proximity, as the Il-Khanate particularly favoured Christianity.
Shifting alliances of the Byzantine Empire
The Byzantine Emperor was especially careful in his relations with the Mongols, usually trying to preserve both the Golden Horde and the Il-Khanate. He became the key axis of the various alliances in the Middle-East.
Constantinople controlled the sealane through which the Mongol-Mamluk trade had to transit, giving the Emperor considerable leverage. For this reason, the Byzantine emperor (Michael VIII Palaeologus, and later his son Andronicus II) were highly involved in a relationship with both the Mongols and the Mamluks, and formalized alliances with them.
Michael VIII Palaeologus concluded an alliance with Hulagu, the ruler of the Il-Khanate, by marrying one of his natural daughters to him.
Italian merchant cities
The Italians cities of Genoa and Venice were highly involved in these alliances and trade relations with the Mongols, and especially with the Golden Horde, as they were their intermediary for the trade of the Silk Road. Their military role would be limited, but Italian traders such as Marco Polo, and adventurers such as Buscarello de Ghizolfi, Tommaso Ugi di Siena or Isol the Pisan played a considerable role in collaborating with the Mongols, particularly on the diplomatic front.
Effects
The alliance between the Golden Horde and the Mamluks was a defensive one. The agreement was that each realm would intervene if the other was attacked by the Il-Khan. This agreement effectively forced Il-Khan rulers to fight on two front everytime they tried to invade the Levant. Typically, a ruler would start a campaign in Syria, only to be forced to recall his troops within a few months because he was being attacked by the Golden Horde in the north.
The Ilkhante invaded Syria on several occasions, most of the time in alliance with the Armenians who supplied Christian troops, and sometimes in alliance or attempted alliance with the Franks. Although they had some initial successes, they could never occupy the Levant more than a few months at a time, and usually retreated, whether because the Mamluks successfully counter-attacked, of because the Il-Khan Mongol had to face another offensive by the Golden Horde on their northern front.
In the end, the Il-Khan converted to Islam, starting with the rule of Ghazan in 1295, and, abandonned further ambitions for conquest, reaching a peace settlement with the Mamluks in 1323, when the Treaty of Aleppo was ratified. The Il-Khanate further atomized and disintegrated from 1335 throughout the 14th century.
North-South axis
The North-South axis consisted of the Mongol Golden Horde, the Egyptian Mamluks and the Genoese. This alliance started as early as 1261, when Berke, the khan of Kipchak drew up an alliance with the Mamluk Sultan Baibars.
Various elements especially facilitated the contacts between the Mamluks and the Mongols of the Golden Horde. Religiously, the Golden Horde was getting progressively closer to Islam. Commercially, the Mamluks imported most of their slave soldiers from the Mongol-Turkish Kipchak territory of southern Russia. Finally, the Mamluks and the Golden Horde were both in heated conflict with the Persian Mongol Il-Khanate, which facilitated an objective alliance.
These friendly relations would continue until 1320, a time when the Crusaders had been completely eliminated from the Levant, and when the Il-Khanate finally decided to sue for peace with the Mamluks.
Cultural impact was also significant, as many exchanges of artists and technicians occured.
East-West axis
The East-West axis consisted of the Mongol Il-Khanate of Persia, the Christian Armenians of Cilicia and the Franks. The first attempts at an alliance originated during the Crusade of Saint-Louis in the Levant in 1248. Envoys from the Mongol Il-Khan ruler Hulagu went sent to Saint-Louis temporary court in Cyprus and offered submission and a collaborative relationship.
The conflict between the two Mongol realms originated in a territorial dispute. Following the Mongol invasion of Central Asia, the Mongol Khagan Batu had attributed several of the territories south of the Caucasus to the Golden Horde: specifically Georgia, Armenia and Anatolia. The Il-Khan ruler Hulagu however invaded these territories and took them for himself. This led to a drawn-out conflict between the two Mongol realms, which would last well into the 14th century.
Strategically, as the Il-Khanate was surrounded by the alliance between the Golden Horde and the Mamluks, the Il-Khanate seeked desperately to develop an alliance with the other power in the Middle-East, the Christian Crusader States. Religiously, these two realms were also in a relatively close proximity, as the Il-Khanate particularly favoured Christianity.
Shifting alliances of the Byzantine Empire
The Byzantine Emperor was especially careful in his relations with the Mongols, usually trying to preserve both the Golden Horde and the Il-Khanate. He became the key axis of the various alliances in the Middle-East.
Constantinople controlled the sealane through which the Mongol-Mamluk trade had to transit, giving the Emperor considerable leverage. For this reason, the Byzantine emperor (Michael VIII Palaeologus, and later his son Andronicus II) were highly involved in a relationship with both the Mongols and the Mamluks, and formalized alliances with them.
Michael VIII Palaeologus concluded an alliance with Hulagu, the ruler of the Il-Khanate, by marrying one of his natural daughters to him.
Italian merchant cities
The Italians cities of Genoa and Venice were highly involved in these alliances and trade relations with the Mongols, and especially with the Golden Horde, as they were their intermediary for the trade of the Silk Road. Their military role would be limited, but Italian traders such as Marco Polo, and adventurers such as Buscarello de Ghizolfi, Tommaso Ugi di Siena or Isol the Pisan played a considerable role in collaborating with the Mongols, particularly on the diplomatic front.
Effects
The alliance between the Golden Horde and the Mamluks was a defensive one. The agreement was that each realm would intervene if the other was attacked by the Il-Khan. This agreement effectively forced Il-Khan rulers to fight on two front everytime they tried to invade the Levant. Typically, a ruler would start a campaign in Syria, only to be forced to recall his troops within a few months because he was being attacked by the Golden Horde in the north.
The Ilkhante invaded Syria on several occasions, most of the time in alliance with the Armenians who supplied Christian troops, and sometimes in alliance or attempted alliance with the Franks. Although they had some initial successes, they could never occupy the Levant more than a few months at a time, and usually retreated, whether because the Mamluks successfully counter-attacked, of because the Il-Khan Mongol had to face another offensive by the Golden Horde on their northern front.
In the end, the Il-Khan converted to Islam, starting with the rule of Ghazan in 1295, and, abandonned further ambitions for conquest, reaching a peace settlement with the Mamluks in 1323, when the Treaty of Aleppo was ratified. The Il-Khanate further atomized and disintegrated from 1335 throughout the 14th century.
Background
Decentralisation is an attempt to deepen democracy. It is an attempt to make efficient, effective, transparent and accountable governance at the grassroots. So establishing accountability measures is an essential pre-requisite in any decentralisation effort every where.
An experiment on decentralisation has been going on in the Indian state of Kerala for the past decade. The tiny stretch of land Kerala, having an area of 38,863sq KM and population of 3.18 crores, is divided into three levels of local governments with 999 Grama Panchayats at the grassroots level, 152 Block Panchayats at the intermediate tier and 14 District Panchayats at the district level, in rural areas and 53 Municipalities and 5 Corporations, in urban areas.
Emerging scene of local governance
Local governments, established in accordance with the provisions of the Constitution of India, are expected to function as “institution of self government” with a mandate to prepare plans and implement schemes for economic development and social justice. Local governments need to be more accountable to the people in exercise of their mandates and to bring in a more meaningful, dynamic and intensified democratic polity at the grassroots. Accountability is the cornerstone of the new local government system in Kerala and is embedded in multitudes of provisions relating to local governance. There has been little disagreement on the perspectives or need to ensure accountability measures. So the Government of Kerala has been engaged in establishing legal, regulatory and participatory mechanisms in local governments in the State in order to enhance the degree of accountability.
During the past decade, each local government in Kerala has been subjected to an unprecedented series of measures aimed at changing its powers, its financial health, the way it operates and the wide-ranging developmental activities it undertakes. The Government of Kerala has devolved enormous funds, functions and functionaries to local governments and the quantum of devolution would be much more than any other state in the country had done. Kerala has been engaged in many pioneering efforts towards enacting legislation, establishing regulatory measures and institutionalising the process of decentralization during the last decade. Ensuring multi-directional accountability in local governments through various means is part of a series of pioneering efforts initiated for evolving a fairly meaningful decentralised local government system in Kerala. Laying down systems and procedures for incorporating components of accountability was the difficult task the promoters of decentralisation in Kerala had to undertake in the initial phase of decentralisation.
The purpose of this paper is to examine those accountability mechanisms existing in the local governence scenario in Kerla. Such an examination would help in bringing good governance in the local goverments
What is accountability?
Accountability is defined as the state or responsibility of being required to give an explanation for ones action or inaction. Accountability refers to answerability of the public officials or institutions to the public for the action or inaction by them. Accountability refers to the existence of mechanisms, which ensure appointed officials and elected functionaries answerable for their actions and use of public resources. Accountability is an essential component of the broader strategy of 'good governance'.
Accountability pre-supposes rule of law, fair play or propriety in financial responsibilities and absence of illegitimate actions, arbitrariness or partiality. Essentially it refers to fair, honest and equitable exercise of power in accordance with long standing cannons of law The purpose of accountability is to create virtues in public governance and to reduce malfeasance. Accountable government reposes trust of the people it govern and such a government cannot engage in misappropriation or misuse of public funds, rent seeking, abuse of power or dishonesty, as they are mere trustees of the public resources. The inevitable multiplicity of demands that may arise from segregated voters in a plural democratic local government system, need to be decided in a democratic manner and never be decided in an arbitrary manner, so as to make the governance accountable to the people whom they serve. Accountable government is obliged to remain responsive to the needs, wishes and expectations of the people and is expected to show increased effectiveness and efficiency in implementation of its programmes and projects. But it is a sad story that the normative principles of accountability and the manifestation of it lie wide apart in Kerala too.
Accountability of the elected council
The elected council namely Panchayat / municipality is the supreme decision making body in a local government in Kerala. The elected council has accountability to the people for the legitimate democratic power emanating from the people on one hand and to the State and Central government on the other, for funds, for policy implementation and for creation of enabling environment for furthering decentralisation. Historically the elected representatives who constitute the decision makers in Panchayat/municipality are not pre-disposed towards being answerable for their actions. But many institutional structures were created to make the elected council more accountable to the people they serve.
Local governments in Kerala exercise primary accountability to local community through gramasabha/wardsabha. The local government should place the accounts of the previous years activities relating to the constituency, proposed activities for the ensuing year and an action taken report in the first meeting of the gramasabha/wardsabha every year. The gramasabha/wardsabha can suggest and prioritise developmental activities to be undertaken in the area and the local government should give due consideration to the suggestions. The members of the gramasabha/wardsabha have the right to know the rationale of any decision of the local body and the chairperson/council member is responsible to explain the rationale behind any decision of the local body, as per the local government laws in Kerala. This ensures that the local government has full authority to take a decision or action, but that should be based on sound reasoning and in accordance with the confines of law. In practice, the gramasabha/wardsabha cannot function as an effective forum of accountability in reducing corruption, bettering governance or ensuring transparency and mostly prospective beneficiaries attend it. In many places, it is conducted as a mere formality. Kerala has to enliven the gramasabha and other accountability structures to a great extent.
Citizen's Charter
Citizen charter, to be published by the elected council within six months from the date of assuming office and renewed every year, is another mechanism that ensures the accountability of the elected council to the people. The citizens charter should contain the name of the services the local government offers, the requirements of obtaining the services and the time span required to get the services by a citizen, in the prescribed format. If the local body fails to provide the services within the time limit as promised in the citizens charter, the citizen can approach the ombudsman indicating it as an incidence of maladministration. The citizen’s charter is a means to ensure the answerability of the local government to the people in offering services within the time limit offered and the quality promised in the charter. Citizens charter is an internal check. If the service delivery of the local government fails as against the promises offered in the charter, people can invoke the external check by the ombudsman through filing a simple petition. Ombudsman can treat the failure as a case of mal-administration and penalise the guilty.
On the other hand, the local governments in Kerala are responsible or answerable to the State government in many respects. Government can call for any document of the local government and has the authority to collect any information regarding local governance from the secretary or chairperson. Government can issue policy directions and such directions have the force of law, if they are in accordance with the state policies. Each local government has the responsibility to publish an administration report describing all its activities by 30th of September every year. The State Government has absolute power to dissolve a local government, if it has not passed its budget before the commencement of the financial year resulting in financial crisis or if the majority of elected functionaries have resigned. If government wants to dissolve a local government on any other persistent defaults in performing its duties, the government needs to obtain prior advice from the ombudsman about its legality and the Government can take final decision on the basis of such advice.
Audit and inspection are other regulatory mechanisms that ensure accountability of local governments to the legislature and state government. But it should be ensured that the control of the State government over local bodies should not be allowed to evolve into decline in autonomy and more centralisation of authority. The delicate balance between the control from above and freedom of autonomy of the local governments need to be maintained meaningfully.
The local governments in Kerala provides ample opportunity to the citizen to indicate their views about governance between elections through many means. The communication between voters and their representatives make the inflow and outflow of information easy. The representatives should have the obligation to explain the reasons of every public action to the voters regularly. The citizen, on the other hand, should have been given the power to recall its representative from the office in local governments, which we lack in Kerala. The accountability is considered to be very low, if the voter has limited provision to take action against over-action or in-action of the representatives in between the elections. For enhancing the degree of accountability, suitable administrative mechanisms that enhance the citizen’s participation as frequent as possible need to be established. Local government laws in Kerala provide for many provisions for constituting functional committees, sub-committees, ward committees etc and such provisions need to be made a functional reality.
Participatory Peoples Planning
The process of participatory planning in Kerala provides for multi-directional accountability of elected functionaries, appointed officials, local experts etc in formulating local plans in accordance with the aspirations of people through the well-formulated stages in the planning process. The stages in planning are need identification through gramasapha / wardsabha that consisting of voters, strategy setting in the development seminar that consists of key persons in the local government, stake holder discussion to ensure consensus, draft project and plan preparation by sectoral task forces, plan finalisation by local government council, plan vetting by Technical Advisory Committee consisting of voluntary experts and plan approval by District Planning Committee as the last phase. All these stages involve different categories of people in the local planning and certainly that enhances accountability in local governance.
The provision of right to information was embedded in local governance right from 1999 and that makes every file, record or register of the local government under the scrutiny of the public who wants to see or get a copy of any of them on paying the actual cost of copying. This ensures that a local government may not be able to do anything resulting in a record that cannot be shown to the public. The provision reminds the functionaries about the answerability, to the public.
The agenda of the local government council is a public document to be publicized three days ago in the notice board and the meetings can be viewed or listened by the media or public.
A council member has the right to call the attention of the elected council in its meeting on the neglect of any responsibility entrusted to it, misutilisation of property vested with it or needs of any of its locality and the issue thus raised need to be duly considered by the elected council. This implies that the local government is accountable to the urgent needs of the people coming within the realm of local governance.
The inexperience of the representatives, their ignorance of rules and regulations and absence of familiarity with development administration make the representatives dependent on bureaucracy, thereby reducing their accountability. The dependence of the elected representatives on benamies or elites also reduces their accountability. The party centered politics also reduces their accountability. Over dependence of political executives on bureaucracy, benamies or political bosses may reduce the accountability of local government to the people.
Accountability of the Elected Head
The chairperson is the chief executive authority of the local government and is accountable to the council for any of his action. In the council meeting, he presides over and controls the proceedings. But in council decision-making, majority decides and he is ‘the first among equals’ with the power of exercising a casting vote, in addition, in case of equal voting ties. The council members of the local governments have the power to restrict the chairperson's action as chief executive authority by putting structures through majority resolutions. Any member if the council can test the bonafides of any action of the local government through raising questions in the council meeting. Motion of no confidence by majority is a weapon, the council can exercise if the chairperson's action exceeds the contours set by the council.
The elected head is the chief of the officials and has the responsibility to ensure proper management of them including sanctioning the casual leave of the chief of divisions, suspension of non-gazetted officers etc. He has the responsibility to ensure that all payments are in order and has not made any payment as against the laws as advised by the officers. The elected head is responsible for the management of financial resources, human resources and other assets of the local government.
His official position as a chief executive of the local government make him accountable to the state government and people in diverse ways.
Accountability of the Secretary
The Secretary, as the chief executive officer of the local government, is accountable to the council. He is responsible to the local government in furnishing periodic reports on the administrative actions taken or on the progress in implementation of resolutions. He is accountable to the chairperson for implementation of his lawful directions and accountable to local government for any official action done in exercise of his role as the chief executive officer of the local government.
The responsibilities of the Secretary
The Secretary has the responsibility to give information required by the state government, legislature, legislative committees etc. regarding the functioning of the local governments. The secretary is responsible to keep all the records of the local government functioning and to provide those records for audit inspection. He should clarify the questions raised by the audit officers and take follow up actions on audit inspection reports by authorities of audit wings such as director of local funds audit, performance audit officer and the Accountant General.
The secretary is responsible to the local government council, standing committees or steering committees to provide lawful clarifications on any aspect of administration, to provide any record and to provide details of actions taken on any prior decision.
The Secretary is accountable to the Auditor for submitting Annual Financial Statement and other administrative records for examination, failure of which is a punishable offence. All other officers will have to exercise accountability to the auditors through the Secretary, who coordinates the audit activities.
Secretary is the link between the political executive and the officials, the interpreter of political decisions and the overseer of rules of transactions of business in the local government office. He is the first among the secretary level transferred sectoral officials designated as ‘ex-officio secretaries’. Secretary is the main instrument of inter-sctoral coordination.
Accountability of employees and officers
The employees or officers of the local government are accountable to the secretary or chairperson. The secretary has the authority to specify the duties of the officers below him and has the power to exercise supervision and control. The council can decide the duties of the sectoral officers in tune with the state government policies. The chairperson has overall control over the officials including the secretary in any local government.
The secretary, officials or other beaurocrats were so far made accountable through the formal system of disciple and control, which made them insular from public so far. Now through citizens charter, right to information, gramasabha and other participatory mechanism such as committee system, they are becoming increasingly answerable to the public for the acts of commission or omission in local government services.
General accountability enforcement measures
The provision for compulsory publication of notice prior to imposing or increasing the tax for the first time indicates the local governments accountability to the people while formulating any new policy. The beneficiary list of local government; need to be published in public before its finalisation. The publication of agenda of the local government council three days in advance and the publication of the minutes on the notice board later are measures for ensuring accountability. Many other provisions for publications of notice or information to the public exist as part of transparency measures and those provisions are meant for ensuring accountability in local governments. Publication of budget, public works estimates and audit reports in public are measures to ensure accountability of local governments in Kerala.
Each local government needs to prepare its budget well in advance before the commencement of the new financial year. The budget remains as a guiding force in expenditure assignments of the local government. Once the budget is formulated and approved, every expenditure item of the local government should be in conformity with the limits set in the budget.
The council is accountable to the auditors to make them know that all official actions in local governments is in accordance with set practices of rules, regulations and laws in force. Transparency measures and peoples right to know enable one to know the inner reality of decision making in local government and that enhances its accountability. People must enhance the use of right to access information in order to ensure accountability.
The local government has the liability to keep appropriate records of accounts to show that every business of the local government is done in the due manner with all fairness. The records need to be shown to the public who apply for examination of them, auditors who want to verify them and any officer authorised by the government assigned with examining them. The ombudsman and tribunal, if needed, can call for any record for examination and summon any elected or appointed official for seeking clarifications. Every member of the local government also has the right to examine any record from the secretary with prior notice to the president.
Issue of licence to traders and factory owners, as an exercise of regulatory power of the local government, ensures that those licencees are accountable to the local government for the conditions stipulated in the licences and the licensing system ensures that the licencee holders should follow the rules, regulations and the conditions set in the licence document. The licensing system makes the traders and factory owners accountable to the local government for creation of a safer environment for living, through the licence regulations.
Every village officer is accountable to the local government to provide information available in the records which he posses in his office and to help the local government authorities to collect taxes due to the local governments. As well, police officers are duty bound to assist the local government authorities in providing support in the execution of the powers of the local governments.
Ombudsman ensures accountability measures in local governance by deciding petitions on corruption, irregularities and mal-administration. Any one aggrieved by any instance of corruption irregularity or mal-administration can invoke the ombudsman by filing a petition and the decision of the ombudsman is abiding on the local government or its functionaries. The local government functionaries are hence accountable to the ombudsman, if they engage in maladministration, corruption or irregularities. Ombudsman can punish the culprits based on examination of records, simple trial process or detailed enquiry. The institution of Ombudsman when first introduced in Kerala consisted of a High Court judge, two District Judges, two government secretaries and two eminent public citizens nominated in consultation with the Leader of Opposition in the Legislative Assembly. The seven-member Ombudsman was reduced to a one-member Ombudsman later in 2001. The Ombudsman was overloaded with complaints right from the beginning and that makes it difficult to settle the conflicts within a reasonable time, even though a six-month period is stipulated in the law for settling the disputes. But the existence of the Ombudsman instils fear in the minds of the corrupt and callous functionaries to some extend, as the Ombudsman can punish the perpetrators.
Performance audit
Performance audit is another mechanism that ensures accountability in local governments. Performance audit is a concurrent quarterly auditing system being considered as a corrective mechanism, done by government officials categorized as performance audit teams consisting of a group of three each that conducts performance audit for three-days in each Panchayat.
The tribunal for Local Governments is another quasi-judicial grievance redressel mechanism. The tribunal can exercise appellant or revision authority over the exercise of regulatory powers by local governments or its functionaries. Tribunal is presided over by a District Judge who can entertain appeals or revision petitions from citizens aggrieved by a decision of the local government, on matters stipulated by the government, mainly licensing, taxing and similar regulatory items.
Accountability in local governance can be enhanced by encouraging participatory process. Participation of people is necessary for ensuring responsiveness in government and involving community in decision-making. Gramasabha, Neighbour Hood Groups, holding of public discussions, community contracting, working groups, other committees etc. ensure public participation and that open-up new ways to ensure accountability.
Ways to improve accountability
Accountability in local governments in Kerala can be improved through a variety of measures. Some of the measures that may enhance accountability are as follows: -
• Enforcement and strengthening of all laws, rules and regulations relating to local governance by all actors-particularly the state government agencies- in local governance
• Creating an environment for bringing all law-breakers to the ombudsman
• Formulation and enforcement of code of conduct for various actors in local governance as stipulated in the local government laws
• By intensifying inspection, monitoring & evaluation as envisaged in the statutes
• Encouraging wider dissemination of information on local governance, facilitating feedback from citizen and promoting follow-up activities
• Opening up a suggestion box at all local government offices to collect public grievances and timely redressal of them by the authorities which in turn will diminish the number of petitions to the Ombudsman
• Ensuring timely audit by various audit parties and follow-up on the implementation of audit recommendations by the state government
• Enforcing the citizens charter and ensuring of transparency provisions. A multi-pronged approach consisting of sensitisation, non-governmental initiatives and penal measures need to be used for enforcing the citizens charter
• Setting minimum standards for service delivery as part of citizens charter or other measures and rewarding exemplary officials to keep them motivated
• Improving community involvement and ensuring quality in service delivery to the possible extent through encouraging committee system rather than through bureaucratic measures
• Training all new functionaries on their roles and responsibilities including the accountability of each actors in local governance
• Training the public in accountability and transparency measures as a reverse process to increase the public demand for it. Ensuring regular civic education for citizens so as to make them aware of their civic rights and empower them to demand accountability
• Improving the channels of communication between local government actors and the public as a means to exercise accountability easily
• Exposing the functionaries having corruption tendencies so as to diminish their discretion and monopoly and to raise the level of absence of accountability among them
• Strengthening the overseeing institutions of the State pertaining to decentralisation that make policies, formulate programs and evaluate the implementation
• Strengthening the existing vertical and horizontal checks and balances and effectively punishing the corrupt, at last in obvious cases
• Ensuring the elected officials stop involving in the implementation of projects other than in a supervisory manner and concentrating on policy making, overseeing and monitoring
• Reducing the dominance of vested interests in local government procurements through law reforms, procedural mechanisms and participatory measures such as involving more people in decision making
• Encouraging transparency through promoting investigative Journalism and publishing of internal affairs of local governments widely to draw public attention
• Improving the deterrent measured to increase fairness in decision-making and vitalizing the management practices in local governance so as to make a balanced exercise of everybody’s role
• Publicizing the names of local governments that are not compliant with rules, by the state government and penalizing them as per laws
Summing up
Decentralisation is a very complex process, which requires a lot of patience to put it in to practice. Ensuring accountability in public governance requires much more patience and concerted efforts from all the proponents and promoters of decentralisation. Local governments in Kerala have been endowed with well balanced and well knit accountability systems and procedures. But putting all those accountability measures into practice is a very challenging task. Making those accountability measures workable in the local governments is the tough task the Kerala has to undertake, in order to bring in features of good governance in the local government system in the State.
Decentralisation is an attempt to deepen democracy. It is an attempt to make efficient, effective, transparent and accountable governance at the grassroots. So establishing accountability measures is an essential pre-requisite in any decentralisation effort every where.
An experiment on decentralisation has been going on in the Indian state of Kerala for the past decade. The tiny stretch of land Kerala, having an area of 38,863sq KM and population of 3.18 crores, is divided into three levels of local governments with 999 Grama Panchayats at the grassroots level, 152 Block Panchayats at the intermediate tier and 14 District Panchayats at the district level, in rural areas and 53 Municipalities and 5 Corporations, in urban areas.
Emerging scene of local governance
Local governments, established in accordance with the provisions of the Constitution of India, are expected to function as “institution of self government” with a mandate to prepare plans and implement schemes for economic development and social justice. Local governments need to be more accountable to the people in exercise of their mandates and to bring in a more meaningful, dynamic and intensified democratic polity at the grassroots. Accountability is the cornerstone of the new local government system in Kerala and is embedded in multitudes of provisions relating to local governance. There has been little disagreement on the perspectives or need to ensure accountability measures. So the Government of Kerala has been engaged in establishing legal, regulatory and participatory mechanisms in local governments in the State in order to enhance the degree of accountability.
During the past decade, each local government in Kerala has been subjected to an unprecedented series of measures aimed at changing its powers, its financial health, the way it operates and the wide-ranging developmental activities it undertakes. The Government of Kerala has devolved enormous funds, functions and functionaries to local governments and the quantum of devolution would be much more than any other state in the country had done. Kerala has been engaged in many pioneering efforts towards enacting legislation, establishing regulatory measures and institutionalising the process of decentralization during the last decade. Ensuring multi-directional accountability in local governments through various means is part of a series of pioneering efforts initiated for evolving a fairly meaningful decentralised local government system in Kerala. Laying down systems and procedures for incorporating components of accountability was the difficult task the promoters of decentralisation in Kerala had to undertake in the initial phase of decentralisation.
The purpose of this paper is to examine those accountability mechanisms existing in the local governence scenario in Kerla. Such an examination would help in bringing good governance in the local goverments
What is accountability?
Accountability is defined as the state or responsibility of being required to give an explanation for ones action or inaction. Accountability refers to answerability of the public officials or institutions to the public for the action or inaction by them. Accountability refers to the existence of mechanisms, which ensure appointed officials and elected functionaries answerable for their actions and use of public resources. Accountability is an essential component of the broader strategy of 'good governance'.
Accountability pre-supposes rule of law, fair play or propriety in financial responsibilities and absence of illegitimate actions, arbitrariness or partiality. Essentially it refers to fair, honest and equitable exercise of power in accordance with long standing cannons of law The purpose of accountability is to create virtues in public governance and to reduce malfeasance. Accountable government reposes trust of the people it govern and such a government cannot engage in misappropriation or misuse of public funds, rent seeking, abuse of power or dishonesty, as they are mere trustees of the public resources. The inevitable multiplicity of demands that may arise from segregated voters in a plural democratic local government system, need to be decided in a democratic manner and never be decided in an arbitrary manner, so as to make the governance accountable to the people whom they serve. Accountable government is obliged to remain responsive to the needs, wishes and expectations of the people and is expected to show increased effectiveness and efficiency in implementation of its programmes and projects. But it is a sad story that the normative principles of accountability and the manifestation of it lie wide apart in Kerala too.
Accountability of the elected council
The elected council namely Panchayat / municipality is the supreme decision making body in a local government in Kerala. The elected council has accountability to the people for the legitimate democratic power emanating from the people on one hand and to the State and Central government on the other, for funds, for policy implementation and for creation of enabling environment for furthering decentralisation. Historically the elected representatives who constitute the decision makers in Panchayat/municipality are not pre-disposed towards being answerable for their actions. But many institutional structures were created to make the elected council more accountable to the people they serve.
Local governments in Kerala exercise primary accountability to local community through gramasabha/wardsabha. The local government should place the accounts of the previous years activities relating to the constituency, proposed activities for the ensuing year and an action taken report in the first meeting of the gramasabha/wardsabha every year. The gramasabha/wardsabha can suggest and prioritise developmental activities to be undertaken in the area and the local government should give due consideration to the suggestions. The members of the gramasabha/wardsabha have the right to know the rationale of any decision of the local body and the chairperson/council member is responsible to explain the rationale behind any decision of the local body, as per the local government laws in Kerala. This ensures that the local government has full authority to take a decision or action, but that should be based on sound reasoning and in accordance with the confines of law. In practice, the gramasabha/wardsabha cannot function as an effective forum of accountability in reducing corruption, bettering governance or ensuring transparency and mostly prospective beneficiaries attend it. In many places, it is conducted as a mere formality. Kerala has to enliven the gramasabha and other accountability structures to a great extent.
Citizen's Charter
Citizen charter, to be published by the elected council within six months from the date of assuming office and renewed every year, is another mechanism that ensures the accountability of the elected council to the people. The citizens charter should contain the name of the services the local government offers, the requirements of obtaining the services and the time span required to get the services by a citizen, in the prescribed format. If the local body fails to provide the services within the time limit as promised in the citizens charter, the citizen can approach the ombudsman indicating it as an incidence of maladministration. The citizen’s charter is a means to ensure the answerability of the local government to the people in offering services within the time limit offered and the quality promised in the charter. Citizens charter is an internal check. If the service delivery of the local government fails as against the promises offered in the charter, people can invoke the external check by the ombudsman through filing a simple petition. Ombudsman can treat the failure as a case of mal-administration and penalise the guilty.
On the other hand, the local governments in Kerala are responsible or answerable to the State government in many respects. Government can call for any document of the local government and has the authority to collect any information regarding local governance from the secretary or chairperson. Government can issue policy directions and such directions have the force of law, if they are in accordance with the state policies. Each local government has the responsibility to publish an administration report describing all its activities by 30th of September every year. The State Government has absolute power to dissolve a local government, if it has not passed its budget before the commencement of the financial year resulting in financial crisis or if the majority of elected functionaries have resigned. If government wants to dissolve a local government on any other persistent defaults in performing its duties, the government needs to obtain prior advice from the ombudsman about its legality and the Government can take final decision on the basis of such advice.
Audit and inspection are other regulatory mechanisms that ensure accountability of local governments to the legislature and state government. But it should be ensured that the control of the State government over local bodies should not be allowed to evolve into decline in autonomy and more centralisation of authority. The delicate balance between the control from above and freedom of autonomy of the local governments need to be maintained meaningfully.
The local governments in Kerala provides ample opportunity to the citizen to indicate their views about governance between elections through many means. The communication between voters and their representatives make the inflow and outflow of information easy. The representatives should have the obligation to explain the reasons of every public action to the voters regularly. The citizen, on the other hand, should have been given the power to recall its representative from the office in local governments, which we lack in Kerala. The accountability is considered to be very low, if the voter has limited provision to take action against over-action or in-action of the representatives in between the elections. For enhancing the degree of accountability, suitable administrative mechanisms that enhance the citizen’s participation as frequent as possible need to be established. Local government laws in Kerala provide for many provisions for constituting functional committees, sub-committees, ward committees etc and such provisions need to be made a functional reality.
Participatory Peoples Planning
The process of participatory planning in Kerala provides for multi-directional accountability of elected functionaries, appointed officials, local experts etc in formulating local plans in accordance with the aspirations of people through the well-formulated stages in the planning process. The stages in planning are need identification through gramasapha / wardsabha that consisting of voters, strategy setting in the development seminar that consists of key persons in the local government, stake holder discussion to ensure consensus, draft project and plan preparation by sectoral task forces, plan finalisation by local government council, plan vetting by Technical Advisory Committee consisting of voluntary experts and plan approval by District Planning Committee as the last phase. All these stages involve different categories of people in the local planning and certainly that enhances accountability in local governance.
The provision of right to information was embedded in local governance right from 1999 and that makes every file, record or register of the local government under the scrutiny of the public who wants to see or get a copy of any of them on paying the actual cost of copying. This ensures that a local government may not be able to do anything resulting in a record that cannot be shown to the public. The provision reminds the functionaries about the answerability, to the public.
The agenda of the local government council is a public document to be publicized three days ago in the notice board and the meetings can be viewed or listened by the media or public.
A council member has the right to call the attention of the elected council in its meeting on the neglect of any responsibility entrusted to it, misutilisation of property vested with it or needs of any of its locality and the issue thus raised need to be duly considered by the elected council. This implies that the local government is accountable to the urgent needs of the people coming within the realm of local governance.
The inexperience of the representatives, their ignorance of rules and regulations and absence of familiarity with development administration make the representatives dependent on bureaucracy, thereby reducing their accountability. The dependence of the elected representatives on benamies or elites also reduces their accountability. The party centered politics also reduces their accountability. Over dependence of political executives on bureaucracy, benamies or political bosses may reduce the accountability of local government to the people.
Accountability of the Elected Head
The chairperson is the chief executive authority of the local government and is accountable to the council for any of his action. In the council meeting, he presides over and controls the proceedings. But in council decision-making, majority decides and he is ‘the first among equals’ with the power of exercising a casting vote, in addition, in case of equal voting ties. The council members of the local governments have the power to restrict the chairperson's action as chief executive authority by putting structures through majority resolutions. Any member if the council can test the bonafides of any action of the local government through raising questions in the council meeting. Motion of no confidence by majority is a weapon, the council can exercise if the chairperson's action exceeds the contours set by the council.
The elected head is the chief of the officials and has the responsibility to ensure proper management of them including sanctioning the casual leave of the chief of divisions, suspension of non-gazetted officers etc. He has the responsibility to ensure that all payments are in order and has not made any payment as against the laws as advised by the officers. The elected head is responsible for the management of financial resources, human resources and other assets of the local government.
His official position as a chief executive of the local government make him accountable to the state government and people in diverse ways.
Accountability of the Secretary
The Secretary, as the chief executive officer of the local government, is accountable to the council. He is responsible to the local government in furnishing periodic reports on the administrative actions taken or on the progress in implementation of resolutions. He is accountable to the chairperson for implementation of his lawful directions and accountable to local government for any official action done in exercise of his role as the chief executive officer of the local government.
The responsibilities of the Secretary
The Secretary has the responsibility to give information required by the state government, legislature, legislative committees etc. regarding the functioning of the local governments. The secretary is responsible to keep all the records of the local government functioning and to provide those records for audit inspection. He should clarify the questions raised by the audit officers and take follow up actions on audit inspection reports by authorities of audit wings such as director of local funds audit, performance audit officer and the Accountant General.
The secretary is responsible to the local government council, standing committees or steering committees to provide lawful clarifications on any aspect of administration, to provide any record and to provide details of actions taken on any prior decision.
The Secretary is accountable to the Auditor for submitting Annual Financial Statement and other administrative records for examination, failure of which is a punishable offence. All other officers will have to exercise accountability to the auditors through the Secretary, who coordinates the audit activities.
Secretary is the link between the political executive and the officials, the interpreter of political decisions and the overseer of rules of transactions of business in the local government office. He is the first among the secretary level transferred sectoral officials designated as ‘ex-officio secretaries’. Secretary is the main instrument of inter-sctoral coordination.
Accountability of employees and officers
The employees or officers of the local government are accountable to the secretary or chairperson. The secretary has the authority to specify the duties of the officers below him and has the power to exercise supervision and control. The council can decide the duties of the sectoral officers in tune with the state government policies. The chairperson has overall control over the officials including the secretary in any local government.
The secretary, officials or other beaurocrats were so far made accountable through the formal system of disciple and control, which made them insular from public so far. Now through citizens charter, right to information, gramasabha and other participatory mechanism such as committee system, they are becoming increasingly answerable to the public for the acts of commission or omission in local government services.
General accountability enforcement measures
The provision for compulsory publication of notice prior to imposing or increasing the tax for the first time indicates the local governments accountability to the people while formulating any new policy. The beneficiary list of local government; need to be published in public before its finalisation. The publication of agenda of the local government council three days in advance and the publication of the minutes on the notice board later are measures for ensuring accountability. Many other provisions for publications of notice or information to the public exist as part of transparency measures and those provisions are meant for ensuring accountability in local governments. Publication of budget, public works estimates and audit reports in public are measures to ensure accountability of local governments in Kerala.
Each local government needs to prepare its budget well in advance before the commencement of the new financial year. The budget remains as a guiding force in expenditure assignments of the local government. Once the budget is formulated and approved, every expenditure item of the local government should be in conformity with the limits set in the budget.
The council is accountable to the auditors to make them know that all official actions in local governments is in accordance with set practices of rules, regulations and laws in force. Transparency measures and peoples right to know enable one to know the inner reality of decision making in local government and that enhances its accountability. People must enhance the use of right to access information in order to ensure accountability.
The local government has the liability to keep appropriate records of accounts to show that every business of the local government is done in the due manner with all fairness. The records need to be shown to the public who apply for examination of them, auditors who want to verify them and any officer authorised by the government assigned with examining them. The ombudsman and tribunal, if needed, can call for any record for examination and summon any elected or appointed official for seeking clarifications. Every member of the local government also has the right to examine any record from the secretary with prior notice to the president.
Issue of licence to traders and factory owners, as an exercise of regulatory power of the local government, ensures that those licencees are accountable to the local government for the conditions stipulated in the licences and the licensing system ensures that the licencee holders should follow the rules, regulations and the conditions set in the licence document. The licensing system makes the traders and factory owners accountable to the local government for creation of a safer environment for living, through the licence regulations.
Every village officer is accountable to the local government to provide information available in the records which he posses in his office and to help the local government authorities to collect taxes due to the local governments. As well, police officers are duty bound to assist the local government authorities in providing support in the execution of the powers of the local governments.
Ombudsman ensures accountability measures in local governance by deciding petitions on corruption, irregularities and mal-administration. Any one aggrieved by any instance of corruption irregularity or mal-administration can invoke the ombudsman by filing a petition and the decision of the ombudsman is abiding on the local government or its functionaries. The local government functionaries are hence accountable to the ombudsman, if they engage in maladministration, corruption or irregularities. Ombudsman can punish the culprits based on examination of records, simple trial process or detailed enquiry. The institution of Ombudsman when first introduced in Kerala consisted of a High Court judge, two District Judges, two government secretaries and two eminent public citizens nominated in consultation with the Leader of Opposition in the Legislative Assembly. The seven-member Ombudsman was reduced to a one-member Ombudsman later in 2001. The Ombudsman was overloaded with complaints right from the beginning and that makes it difficult to settle the conflicts within a reasonable time, even though a six-month period is stipulated in the law for settling the disputes. But the existence of the Ombudsman instils fear in the minds of the corrupt and callous functionaries to some extend, as the Ombudsman can punish the perpetrators.
Performance audit
Performance audit is another mechanism that ensures accountability in local governments. Performance audit is a concurrent quarterly auditing system being considered as a corrective mechanism, done by government officials categorized as performance audit teams consisting of a group of three each that conducts performance audit for three-days in each Panchayat.
The tribunal for Local Governments is another quasi-judicial grievance redressel mechanism. The tribunal can exercise appellant or revision authority over the exercise of regulatory powers by local governments or its functionaries. Tribunal is presided over by a District Judge who can entertain appeals or revision petitions from citizens aggrieved by a decision of the local government, on matters stipulated by the government, mainly licensing, taxing and similar regulatory items.
Accountability in local governance can be enhanced by encouraging participatory process. Participation of people is necessary for ensuring responsiveness in government and involving community in decision-making. Gramasabha, Neighbour Hood Groups, holding of public discussions, community contracting, working groups, other committees etc. ensure public participation and that open-up new ways to ensure accountability.
Ways to improve accountability
Accountability in local governments in Kerala can be improved through a variety of measures. Some of the measures that may enhance accountability are as follows: -
• Enforcement and strengthening of all laws, rules and regulations relating to local governance by all actors-particularly the state government agencies- in local governance
• Creating an environment for bringing all law-breakers to the ombudsman
• Formulation and enforcement of code of conduct for various actors in local governance as stipulated in the local government laws
• By intensifying inspection, monitoring & evaluation as envisaged in the statutes
• Encouraging wider dissemination of information on local governance, facilitating feedback from citizen and promoting follow-up activities
• Opening up a suggestion box at all local government offices to collect public grievances and timely redressal of them by the authorities which in turn will diminish the number of petitions to the Ombudsman
• Ensuring timely audit by various audit parties and follow-up on the implementation of audit recommendations by the state government
• Enforcing the citizens charter and ensuring of transparency provisions. A multi-pronged approach consisting of sensitisation, non-governmental initiatives and penal measures need to be used for enforcing the citizens charter
• Setting minimum standards for service delivery as part of citizens charter or other measures and rewarding exemplary officials to keep them motivated
• Improving community involvement and ensuring quality in service delivery to the possible extent through encouraging committee system rather than through bureaucratic measures
• Training all new functionaries on their roles and responsibilities including the accountability of each actors in local governance
• Training the public in accountability and transparency measures as a reverse process to increase the public demand for it. Ensuring regular civic education for citizens so as to make them aware of their civic rights and empower them to demand accountability
• Improving the channels of communication between local government actors and the public as a means to exercise accountability easily
• Exposing the functionaries having corruption tendencies so as to diminish their discretion and monopoly and to raise the level of absence of accountability among them
• Strengthening the overseeing institutions of the State pertaining to decentralisation that make policies, formulate programs and evaluate the implementation
• Strengthening the existing vertical and horizontal checks and balances and effectively punishing the corrupt, at last in obvious cases
• Ensuring the elected officials stop involving in the implementation of projects other than in a supervisory manner and concentrating on policy making, overseeing and monitoring
• Reducing the dominance of vested interests in local government procurements through law reforms, procedural mechanisms and participatory measures such as involving more people in decision making
• Encouraging transparency through promoting investigative Journalism and publishing of internal affairs of local governments widely to draw public attention
• Improving the deterrent measured to increase fairness in decision-making and vitalizing the management practices in local governance so as to make a balanced exercise of everybody’s role
• Publicizing the names of local governments that are not compliant with rules, by the state government and penalizing them as per laws
Summing up
Decentralisation is a very complex process, which requires a lot of patience to put it in to practice. Ensuring accountability in public governance requires much more patience and concerted efforts from all the proponents and promoters of decentralisation. Local governments in Kerala have been endowed with well balanced and well knit accountability systems and procedures. But putting all those accountability measures into practice is a very challenging task. Making those accountability measures workable in the local governments is the tough task the Kerala has to undertake, in order to bring in features of good governance in the local government system in the State.
A grounded relation over a sequence of sets is a mathematical object consisting of two components. The first component is a subset of the cartesian product taken over the given sequence of sets, which sets are called the domains of the relation. The second component is just the cartesian product itself.
For example, if L is a grounded relation over a finite sequence of sets, then L has the form L (F(L), G(L)), where F(L) ⊆ G(L) X1 × … × Xk, for some positive integer k.
The default assumption in almost all applied settings is that the domains of the grounded relation are nonempty sets, hence departures from this assumption need to be noted explicitly.
For example, if L is a grounded relation over a finite sequence of sets, then L has the form L (F(L), G(L)), where F(L) ⊆ G(L) X1 × … × Xk, for some positive integer k.
The default assumption in almost all applied settings is that the domains of the grounded relation are nonempty sets, hence departures from this assumption need to be noted explicitly.
Introduction
Kerala has made many exciting initiatives in the process of decentralisation of powers that can be replicated with suitable modifications in other States. Creation of a Tribunal for adjudication of conflicts between local governments and the citizens is an initiative of that sort which draws our special attention.
What is a Tribunal?
Tribunal is a generic term used for an independent, quasi-judicial body, normally presided over by an impartial judicial officer, set up outside the court system to hear appeals/revision with a purpose of resolving the dispute / grievance relatively speedy and to avoid costly litigation in arriving at its resolution. Tribunal exercises adjudication power on disputes referred to it. It is neither administrative nor legislative in nature. It does not have the power to exercise any discretion in implementing official policies of the government nor has the power to make any direction for future conduct. It shows judicial approach in all its actions. Tribunal resembles the court as it sits in public, normally presided over by a judicial officer, gives determinate judgments, follows principles of natural justice and can be moved by a plaint. But it differs from court, as it cannot decide questions of law. The procedures of the Tribunal differ from those used in the courts, especially regarding burden of proof and presentation of evidence. Tribunal is a semi-judicial body that resembles a court in many respects and differs with it in many other aspects.
Tribunals are established to tackle the inadequacy of overburdened courts to settle disputes and to work as an alternative to courts for settling disputes in specific areas assigned to them. They can settle the disputes in a speedier manner than the courts normally do by following informality and simplicity in procedures. Tribunal normally discourages the presence of lawyers in the proceedings, while a person can take the assistance of legal practitioners of his choice if need be. The strict rules of evidence, which are applicable in courts, are absent in Tribunal. Appeals are not allowed on decisions of the Tribunal, but an appeal on ‘points of law’ can lie to High Courts from orders issued by the tribunal. Tribunal cannot entertain any question ultravires their jurisdiction. The decisions of the Tribunal should be provided with detailed reasoning as far as possible. Quick disposal of petitions is the hallmark of Tribunal and very complex rules of procedure are avoided in its proceedings.
The Local Governments in Kerala
The Kerala Panchayat Raj Act 1994, and Kerala Municipality Act 1994, enacted in conformity with the 73rd & 74th constitutional amendments now govern the functioning of local governments in Kerala. Over the past ten years, the local government in Kerala has been subjected to an unprecedented series of measures aimed at broadening its powers, improving it’s financial health, the way it operates by involving more people and the wide-ranging sectoral activities it undertakes. The local government has become near-autonomous governing unit at the third tier in their jurisdiction.
Kerala has made a classic paradigm in decentralisation of powers by transferring political, administrative and fiscal powers to the local governments. Even before the constitutional amendments, local governments in Kerala were very stable and far better than their counterparts in the country in terms of their functions, functionaries and infrastructure. They were in existence in those days basically for providing civic amenities and welfare functions, but not for ensuring development functions. After the constitutional amendments, the State of Kerala had earmarked one-third of its plan size as devolved funds to local governments for bottom-up participatory planning in development sectors transferred to them. The devolution of funds was followed by many innovative measures in accountability and transparency with a view to refine them and to free them from all sorts of mal-administrative practices.
The Government of Kerala, inspite of the change of guard in the Ministry, has been continuing with effective steps to devolve more funds, functions and functionaries to local governments. The degree of decentralization in the State is far better than in any other State in the country. The State has made many pioneering efforts towards institutionalising the process of decentralization during the last one decade. Kerala has thereby emerged as the most politically decentralized State in the country. The distinguishing feature of Kerala decentralization was its 'big-bang approach' in which funds, functions and functionaries were transferred to local governments in one go at the beginning followed by 'learning by doing' where procedures and systems were created later, in ‘reversal’ of the normal sequence of establishing the pre-requisites and providing money later. This has led to creation of highly decentralized and reasonably empowered local governments in the State. Creation of appellate Tribunals for local governments is the most recent pioneering effort in a series of efforts made in Kerala towards developing an effective, efficient and accountable decentralised local government system.
Need for establishing Tribunal for Local Governments?
The court system is increasingly becoming inapproachable for resolution of disputes for many due to high cost, absence of legally valid evidence and the inordinate delay in settling the issues. Only 0.01 percent population is approaching the court even though everybody has theoretical accessibility to courts. With this very low turn out, there are 127327 cases pending in the High Court in Kerala as on 31-12-2003 and 3446397 cases are pending in all the 21 High courts and the Supreme Court altogether . Establishment of alternate dispute resolution mechanism such as Tribunals is a way out for avoiding delay due to long-pendency of petitions and to ensure speedy justice, at low cost and without the kind of evidence that stands the scrutiny of jurisprudence.
Local governments are endowed with a lot of powers including regulatory and taxation powers. The exercise of most of the regulatory and taxation powers in local governments are entitled to the Secretary of it as the exercise is conceived as a question of deciding facts or of applying the legal provisions in accordance with administrative principles. Taxation, grant of license, enforcement of building regulations, abatement of nuisance from the public, public safety etc are such regulatory powers. In the domain of regulatory powers, even the elected functionaries have a prior policy making role by way of fixing norms and criteria to be followed. In exercise of regulatory functions, the concepts of fairness, impartiality, prudence and natural justice are expected to be followed in accordance with spirit of the act / rules rather than applying the hair-splitting analysis of procedural formalities. So in order to ensure fairness in exercise of regulatory powers in accordance with the spirit of laws governing them, a quasi-judicial body is needed to step in where the fairness is violated.
In addition, the elected functionaries, while exercising the distinct decision making role in planning and implementing development schemes, have to face political and social local pressures from voters that they cannot escape or ignore easily. The traditional virtues like impartiality, neutrality and anonymity are very difficult to realise at the local government level, since all the local government institutions in Kerala are very active political institutions. As the elected members have a constituency both in the geographical and socio-political sense, constituency-building efforts by political leaders continue as a legitimate activity in the highly polarized and competitive local government politics. So the tendency to favour a region, a group of people or even individuals is so evident in the exercise of functions in the Local Government. The tendency has wider ramification and become multifarious when the elected Chairman/President has executive authority. In order to curb that tendency, we need an agency that resolves disputes impartially.
In Local Governments in Kerala, the political executives have a greater role in their right to take decisions in the execution of their official functions. They have the power to authorize expenditure from public funds. The local government council consisting of elected functionaries is endowed with the power of collecting taxes due to local governments. Above all, the Standing Committee on Finance, an elected body in the local government, has authority to hear appeals in tax decisions, which is quasi-judicial in character. In the exercise of such enormous powers, values like impartiality, fairness, propriety and accountability have to be ensured to avoid the possibility of political executives or appointed officials switching over to ‘decentralisation of corruption’ or ‘decentralized favoritism’.
In a system of decentralized exercise of powers, the possibility of decentralized corruption will have to be minimised to push the benefits of decentralization wider and deeper. For that new systems and procedures have to be created to check the continuance of old negative tendencies or vices and to foster the positive possibilities or virtues in the new local government institutions. This will have to be done with minimum executive control by the State Government over the elected institutions, except in very rare cases. Alternate system of redressal of grievance can only address this issue, particularly in the wake of enormous transfer of powers to the purview of local governments.
In addition the Government or its Officers had to sit in judgment over the petitions filed by the people against local governments, which causes a lot of strain where the Government and the local bodies are ruled by opposing political parties. The Tribunals are necessary when the Government had to give up such discretionary powers so as to avoid complaints of political partisanship while dealing with appeals.
Therefore, the Government of Kerala has created a Tribunal, which can, ensure evolving a responsive local government administration through quick redressal of public grievances and check the arbitrary functioning by them while upholding the autonomy of local governments. Then the Government would be spared of routine supervisory activities over local governments, allowing it to concentrate on key areas of policy making with regard to decentralization. The Tribunal for Local Governments was created on 23rd August 2004, in Kerala for the first time in a State in India.
Purpose of the Tribunal
The purpose of the Tribunal is to exercise appellate powers over local governments in their exercise of wide ranging functions of regulatory nature. The Tribunal for local governments is a quasi-judicial body, for grievance redressal of the public against unfair exercise of responsibilities by local governments, remaining outside the governmental control.
The Tribunal is presided over by a judicial officer in the rank of a District Judge. The Tribunal shall hear the appeals against the decisions of the local governments / Secretary on one hand and revision petitions on appeal decisions issued by the local government when it functions as the appellate authority over below level decisions, on the other. The success of the Tribunal depends on the speed in hearing appeals, simplicity in its proceedings and the fairness in disposing of its decisions. Simplicity of procedures is the cornerstone of speedy disposal of the petitions. Tribunal can combine simplicity of procedures of an executive authority with the independence of a judicial system for a fair, simple and speedy decision-making process. In order to make Tribunal a citizen-friendly one, its procedures and proceedings should be devoid of conventional technicalities of a court. Lawyers can represent the parties but they are preferred to remain away from appearing in Tribunal, as far as possible, in order to ensure its informality, minimise technicalities, and reduce cost to the local body as well as to the citizens.
Constitution of Tribunal
The Government of Kerala can constitute a Tribunal for every district or for more than one district to consider and dispose of the appeal or revision petition filed against the decisions of the local governments, as per section 271 S of the Kerala Panchayat Raj Act and the provision is equally applicable to all urban and rural local governments in Kerala.
As per Government Order No. 52/04/LSGD dtd.5 February 2004, the Government constituted only one Tribunal for all the districts in the State. Later Sri. George Mathew, a Judicial Officer in the rank of a District Judge was appointed as its presiding officer on 11-8-2004. He was appointed in consultation with the Chief Justice of the High Court of Kerala as provided for in the act. The Tribunal is deeply engaged in its functions since then and the workload is very high. The appointment of one tribunal for all the 14 districts in the State rather than one each for each district was for reducing the running expenses incurred in it’s functioning.
The person appointed as Tribunal can hold office till the completion of three years from the date of taking charge of the Office or till the date of retirement on super- annuation from the judicial service, whichever is earlier. He is eligible for pay, allowances and other benefits as if he has continued in the judicial service. The Government shall appoint a Secretary and other Officers and Staff as may be required to assist the Tribunal in performing its duties. The Secretary of the Tribunal shall be an Officer not below the rank of an Under Secretary in the Law Department of the State Government.
Matters of Filing Petition to the Tribunal?
A citizen can file an appeal or revision petition in tribunal on the following matters only. They are: -
1. Assessment, demand and collection of tax, fee or cess.
2. Issue of permit and licence for trade, factories, industries, markets and other institutions.
3. Registration of private hospitals, paramedical institutions and tutorial institutions.
4. Water supply in Local Self Government areas.
5. Providing lamps in the public streets of the Local Self Government areas.
6. Construction and maintenance of sewerage in the Local Self Government areas.
7. Action against private latrines that make nuisance to the management of public comfort stations in the Local Self Government areas.
8. Removal and processing of rubbish, solid waste and filth in the Local Self Government areas.
9. Regulation of fairs and festivals; levying of contribution for doing sanitation works from those who conduct the fairs.
10. Maintenance of public streets and prevention of encroachment thereon.
11. Protection of public places.
12. Regulation of building construction.
13. Protection of poramboke land
14. Action against projections, trees and places which are dangerous or which cause nuisance; action against dangerous ponds, wells and ditches; action against dangerous quarrying’.
15. Action against pond, ditch, well, tank, watercourse, marshy land, sewerage, cess pool etc. which are the sources of nuisance.
16. Controlling the Agriculture and the use of pesticides that are injurious to public health.
17. Protection of public water reservoirs.
18. Prohibition of animal rearing that cause nuisance to others.
19. Control over slaughterhouses, action against unauthorised slaughtering.
20. Management of markets, collection of fees and prohibition of sale of goods in public streets.
21. Licences for vehicle parking and for unloading places etc.
22. Licence for hotels, prohibiting the sale of food materials dangerous to health and destroying the same.
23. Licence for burial grounds.
24. Taking steps against the spread of dangerous diseases.
The Government can add any item to the above schedule from time to time by a notification in the Kerala Gazette.
Procedure of Filing a Petition to the Tribunal?
Any citizen in the local body can file appeal or revision against a notice, order or proceedings of the Village Panchayat or Municipality or its Standing Committee for Finance or of the local government in respect of twenty four areas specified above.
Petitions shall be submitted to the Tribunal in the prescribed form 'C', provided in the rules, within thirty days from the date of the impugned notice / order / proceedings, against which the petition is filed. In case, an appeal submitted to the local government has not been decided within sixty days of filing, the applicant can submit an appeal petition to the Tribunal within ninety days from the date of the impugned order. The Tribunal may admit a petition submitted after the prescribed time limit, but within one month, if the Tribunal is satisfied that there is sufficient bonafied reason for not submitting the petition within the time limit. Petition can be filed either in person before 3 PM on all working days or through registered post to The Tribunal for Local Self Government Institutions situated at the Rehabilitation Block, TRIDA building, Medical College P O, Thiruvananthapuram -695011
Along with every petition, the petitioner shall furnish an attested copy of the petition, the original of the impugned order/an attested copy of it and attested copy of the connected documents, if any. The petitioner shall also submit as many attested copies thereof as the number of counter-petitioners. The petitioner should remit fifty rupees as fee in the Office of the Tribunal by cash or enclose a bank draft drawn in favour of the Tribunal for Local Self Government Institutions for the same amount payable at any nationalised or scheduled bank at the headquarters of the Tribunal, along with every petition. A court fee of Rs.50/- is to be affixed in the petitions towards Legal Benefit Fund as per the provisions of the Kerala Court Fess & Suit Valuation Act 1959.
In case the petition is on tax appeal, the applicant has to remit the tax demanded by the local body in the demand notice prior to submitting an appeal/revision petition. Sufficient number of covers and stamps needed to issue registered notice to the Respondents also need to be submitted along with every petition.
Citizens can submit petitions if there is undue delay in decision-making by authorities of local governments in the stipulated subjects. If the concerned Village Panchayat or Municipality or Standing Committee for Finance or the Secretary of the local government, has not taken any decision within the prescribed time limit in cases where time limit has been prescribed in the Acts or Rules, the affected party can file an appeal before the Tribunal. The petitioner may submit petition before the Tribunal directly or by registered post.
Manner of Handling the Petitions
All petitions received by the Tribunal shall be entered in the petition register in the prescribed form. The Tribunal may not entertain a petition that is not in compliance with the provisions of the Kerala Panchayat Raj Act, the Kerala Municipality Act and the Rules thereof. The defective petitions, after recording the defects therein, shall be returned to the petitioner and if the petitioner re-submits the petition so received back within fifteen days after rectifying the defects, the rectified petition shall be considered as duly furnished.
The Registers to be Maintained
The Tribunal shall maintain a Petition register, a Diary register and other registers as stipulated in laws. In the Petition register, the details of all the petitions received and disposed of by the Tribunal and the summary of the final order issued by it shall be recorded. In the Diary register, the gist of all the petitions received by the Tribunal and notes in respect of the proceedings taken and orders passed at various stages from the date of receipt of each petition till the final disposal, shall be recorded. The format of the register has been provided in the rules pertaining to the Tribunal.
The Principle of Natural Justice
On receipt of any petition, the Tribunal or the Officer authorised by it shall register the petition and issue an acknowledgement receipt. The Tribunal can, on the application of the petitioner, issue order to stay any action on the content in a petition. The Tribunal can also issue order to discontinue the proceedings already initiated by the local government authorities, if he is satisfied that it is necessary to do so in the interest of justice. The petitioners and the respondents are bound to comply with the stay order, if issued.
Immediately on registering a petition and giving acknowledgement receipt to the petitioner, the Tribunal shall issue a notice in the prescribed form to the counter-petitioner giving him a copy of the petition and informing him to submit his statement in the matter along with the documents thereof, before the Tribunal within fifteen days from the date of receipt of the notice. If such statement is not filed, the petition will be disposed ex-parte.
The Tribunal has powers to summon any person suo moto as witness and can direct any person including the petitioner or the counter-petitioner to produce any document or record before the Tribunal. The Village Panchayat or Municipality or its Secretary who has been made the counter-petitioner in a petition shall produce the connected files and other documents along with a statement before the Tribunal. If the record cannot be produced due to bonafide reasons, an attested copy of it needs to be produced along with the statement. All records and documents produced before the Tribunal in connection with disposing any petition shall be collected back from the Tribunal by the person, who submitted them, within two months from the date of disposal of the petition.
If the Tribunal, on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat, Municipality or its Secretary, is not issued or taken in accordance with proper established procedures, the Tribunal may direct such Village Panchayat or Municipality or the Secretary, to issue notice or order or to take action afresh, complying with the procedures under the law.
The pleadings
If the Tribunal, on considering the petition, the statement of the counter-petitioner and the connected documents, thinks that it is necessary to give an opportunity to the petitioner or counter-petitioner to be heard in person, it may fix a date for the purpose and direct the petitioner and the counter-petitioner or the person authorised by them or, if found necessary, their advocate to appear before the Tribunal on the date. The date for hearing of the petition shall be fixed in such a manner as to dispose of the petition finally before the completion of sixty days from the date of receipt of the petition. The pleadings on the petitions can be heard by the Tribunal at its office or at the Office of the concerned local government or at any other place as decided by the Tribunal. The Tribunal may dispose of the petition ex-parte, if any of the parties or the advocate has not been present on the date of hearing or on any date adjourned for hearing.
The Powers of a Court
The Tribunal has the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters and the powers are as follows: -
i. Summoning and enforcing the attendance of any person and examining him on oath;
ii. Demanding the discovery and production of any document or other material object producible as evidence;
iii. Receiving evidence on affidavits;
iv. Requisition of any public document or a copy thereof from any court or office;
v. Appointing Commissions for the examination of witnesses or in respect of documents.
Any proceeding before the Tribunal shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code and any attempt to dishonour the Tribunal can attract contempt proceedings.
Order of the Tribunal
The Tribunal shall, after considering the petition and connected records or, if there is trial of the parties, after the completion of such trial, issue an order recording its decision on the petition. If the Tribunal thinks it necessary to do so, it may declare in advance, a date to issue such order and shall issue the order on the date. An order of the Tribunal shall be in writing and shall bear the signature and seal of the Tribunal.
On pronouncement of the order of the Tribunal, the impugned notice or order issued or action taken by the local government or its Secretary, shall remain as such or modified or annulled. Copy of the order of the Tribunal shall be issued to each party to the petition, within one week from the date of the order, on application. The order can be collected from the office during office hours either in person or through authorised representative. The Tribunal shall have sitting on all working days.
After disposal of the case, on application, the concerned parties can collect all the documents produced in connection with the appeal/revision petition. The Tribunal may, at any time, either suo moto or on the application of any of the parties rectify any error or omission accidentally occurred in the order. English or Malayalam is the language of the Tribunal. The Tribunal has power to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper. The Tribunal has powers to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper with regard to the procedures, which are not provided for in the Kerala Panchayat Raj Act and related rules.
Problems that need Special Attention
Attending and settling the petitions that may arise from all the 14 districts is a very difficult and laborious task that a single-man Tribunal can handle. Increasing the number of Tribunals from one to at least one each for a group of districts not exceeding five would be a suggestion worth- considering so that one can be established at the middle and another at the northern part of the State in the next phase of expansion. Establishing one Tribunal each for each district is the ideal and one for two districts each is an alternate suggestion remaining with the consideration of the Government as per newspaper reports.
The modality of payment of fees to the Tribunal makes it cumbersome for an ordinary citizen to submit a petition easily. A petitioner who wants to opt for paying the fee by bank draft cannot submit the draft from a new generation bank with which many have accounts as the Treasury accounts of the Tribunal recognizes only the drafts from nationalized or schedules banks. Since many banks discourage issuing of bank drafts for negligible amount, obtaining a bank draft is a humiliating experience in many bank counters. The amount towards the Legal Benefit Fund, to be accompanied with every application, need to be remitted by purchasing special stamps designated for the purpose from the treasuries. All this makes the filing of a petition, a tedious task. So either the modality of payment of fees need to be simplified or fees itself need to be dispensed with as in the case of family courts.
Another need is to introduce, establish and reinforce the system of internal conflict resolution mechanism as part of the administration of local governments so as to bring down the number of complaints that may arise. We may apply the spirit of 'Principle of subsidiary' in this area too. That means a dispute that can be resolved at lower levels of appointed officials or elected political executives should not be allowed to go up to the Tribunal. The absence of an established internal conflict resolution mechanism results in throwing up numerous complaints to the resource -poor Tribunal.
Another problem concerned with Tribunal is its resource-poverty. The Tribunal is working with insufficient manpower, facilities and funds and hence cannot function in the professional manner as is expected to. That is why the petitioner is asked to submit covers and stamps required for sending notice to the counter petitioner. Professional approach demands allotment of more resources than that are available to the Tribunal.
Summing up
It seems that the Tribunal that has been in existence in Kerala, can go a long way in upholding the rights of the citizen in a highly deccentralised governance system along with protecting the autonomy of the elected local government against possible usurpation by the State executive. This quasi-judicial body would provide meaningful checks and the balance required to make the local government system work with greater efficiency, sense of direction and purpose of existence. A Tribunal, so created can bring in elements of good Local Governance in Kerala.
Kerala has made many exciting initiatives in the process of decentralisation of powers that can be replicated with suitable modifications in other States. Creation of a Tribunal for adjudication of conflicts between local governments and the citizens is an initiative of that sort which draws our special attention.
What is a Tribunal?
Tribunal is a generic term used for an independent, quasi-judicial body, normally presided over by an impartial judicial officer, set up outside the court system to hear appeals/revision with a purpose of resolving the dispute / grievance relatively speedy and to avoid costly litigation in arriving at its resolution. Tribunal exercises adjudication power on disputes referred to it. It is neither administrative nor legislative in nature. It does not have the power to exercise any discretion in implementing official policies of the government nor has the power to make any direction for future conduct. It shows judicial approach in all its actions. Tribunal resembles the court as it sits in public, normally presided over by a judicial officer, gives determinate judgments, follows principles of natural justice and can be moved by a plaint. But it differs from court, as it cannot decide questions of law. The procedures of the Tribunal differ from those used in the courts, especially regarding burden of proof and presentation of evidence. Tribunal is a semi-judicial body that resembles a court in many respects and differs with it in many other aspects.
Tribunals are established to tackle the inadequacy of overburdened courts to settle disputes and to work as an alternative to courts for settling disputes in specific areas assigned to them. They can settle the disputes in a speedier manner than the courts normally do by following informality and simplicity in procedures. Tribunal normally discourages the presence of lawyers in the proceedings, while a person can take the assistance of legal practitioners of his choice if need be. The strict rules of evidence, which are applicable in courts, are absent in Tribunal. Appeals are not allowed on decisions of the Tribunal, but an appeal on ‘points of law’ can lie to High Courts from orders issued by the tribunal. Tribunal cannot entertain any question ultravires their jurisdiction. The decisions of the Tribunal should be provided with detailed reasoning as far as possible. Quick disposal of petitions is the hallmark of Tribunal and very complex rules of procedure are avoided in its proceedings.
The Local Governments in Kerala
The Kerala Panchayat Raj Act 1994, and Kerala Municipality Act 1994, enacted in conformity with the 73rd & 74th constitutional amendments now govern the functioning of local governments in Kerala. Over the past ten years, the local government in Kerala has been subjected to an unprecedented series of measures aimed at broadening its powers, improving it’s financial health, the way it operates by involving more people and the wide-ranging sectoral activities it undertakes. The local government has become near-autonomous governing unit at the third tier in their jurisdiction.
Kerala has made a classic paradigm in decentralisation of powers by transferring political, administrative and fiscal powers to the local governments. Even before the constitutional amendments, local governments in Kerala were very stable and far better than their counterparts in the country in terms of their functions, functionaries and infrastructure. They were in existence in those days basically for providing civic amenities and welfare functions, but not for ensuring development functions. After the constitutional amendments, the State of Kerala had earmarked one-third of its plan size as devolved funds to local governments for bottom-up participatory planning in development sectors transferred to them. The devolution of funds was followed by many innovative measures in accountability and transparency with a view to refine them and to free them from all sorts of mal-administrative practices.
The Government of Kerala, inspite of the change of guard in the Ministry, has been continuing with effective steps to devolve more funds, functions and functionaries to local governments. The degree of decentralization in the State is far better than in any other State in the country. The State has made many pioneering efforts towards institutionalising the process of decentralization during the last one decade. Kerala has thereby emerged as the most politically decentralized State in the country. The distinguishing feature of Kerala decentralization was its 'big-bang approach' in which funds, functions and functionaries were transferred to local governments in one go at the beginning followed by 'learning by doing' where procedures and systems were created later, in ‘reversal’ of the normal sequence of establishing the pre-requisites and providing money later. This has led to creation of highly decentralized and reasonably empowered local governments in the State. Creation of appellate Tribunals for local governments is the most recent pioneering effort in a series of efforts made in Kerala towards developing an effective, efficient and accountable decentralised local government system.
Need for establishing Tribunal for Local Governments?
The court system is increasingly becoming inapproachable for resolution of disputes for many due to high cost, absence of legally valid evidence and the inordinate delay in settling the issues. Only 0.01 percent population is approaching the court even though everybody has theoretical accessibility to courts. With this very low turn out, there are 127327 cases pending in the High Court in Kerala as on 31-12-2003 and 3446397 cases are pending in all the 21 High courts and the Supreme Court altogether . Establishment of alternate dispute resolution mechanism such as Tribunals is a way out for avoiding delay due to long-pendency of petitions and to ensure speedy justice, at low cost and without the kind of evidence that stands the scrutiny of jurisprudence.
Local governments are endowed with a lot of powers including regulatory and taxation powers. The exercise of most of the regulatory and taxation powers in local governments are entitled to the Secretary of it as the exercise is conceived as a question of deciding facts or of applying the legal provisions in accordance with administrative principles. Taxation, grant of license, enforcement of building regulations, abatement of nuisance from the public, public safety etc are such regulatory powers. In the domain of regulatory powers, even the elected functionaries have a prior policy making role by way of fixing norms and criteria to be followed. In exercise of regulatory functions, the concepts of fairness, impartiality, prudence and natural justice are expected to be followed in accordance with spirit of the act / rules rather than applying the hair-splitting analysis of procedural formalities. So in order to ensure fairness in exercise of regulatory powers in accordance with the spirit of laws governing them, a quasi-judicial body is needed to step in where the fairness is violated.
In addition, the elected functionaries, while exercising the distinct decision making role in planning and implementing development schemes, have to face political and social local pressures from voters that they cannot escape or ignore easily. The traditional virtues like impartiality, neutrality and anonymity are very difficult to realise at the local government level, since all the local government institutions in Kerala are very active political institutions. As the elected members have a constituency both in the geographical and socio-political sense, constituency-building efforts by political leaders continue as a legitimate activity in the highly polarized and competitive local government politics. So the tendency to favour a region, a group of people or even individuals is so evident in the exercise of functions in the Local Government. The tendency has wider ramification and become multifarious when the elected Chairman/President has executive authority. In order to curb that tendency, we need an agency that resolves disputes impartially.
In Local Governments in Kerala, the political executives have a greater role in their right to take decisions in the execution of their official functions. They have the power to authorize expenditure from public funds. The local government council consisting of elected functionaries is endowed with the power of collecting taxes due to local governments. Above all, the Standing Committee on Finance, an elected body in the local government, has authority to hear appeals in tax decisions, which is quasi-judicial in character. In the exercise of such enormous powers, values like impartiality, fairness, propriety and accountability have to be ensured to avoid the possibility of political executives or appointed officials switching over to ‘decentralisation of corruption’ or ‘decentralized favoritism’.
In a system of decentralized exercise of powers, the possibility of decentralized corruption will have to be minimised to push the benefits of decentralization wider and deeper. For that new systems and procedures have to be created to check the continuance of old negative tendencies or vices and to foster the positive possibilities or virtues in the new local government institutions. This will have to be done with minimum executive control by the State Government over the elected institutions, except in very rare cases. Alternate system of redressal of grievance can only address this issue, particularly in the wake of enormous transfer of powers to the purview of local governments.
In addition the Government or its Officers had to sit in judgment over the petitions filed by the people against local governments, which causes a lot of strain where the Government and the local bodies are ruled by opposing political parties. The Tribunals are necessary when the Government had to give up such discretionary powers so as to avoid complaints of political partisanship while dealing with appeals.
Therefore, the Government of Kerala has created a Tribunal, which can, ensure evolving a responsive local government administration through quick redressal of public grievances and check the arbitrary functioning by them while upholding the autonomy of local governments. Then the Government would be spared of routine supervisory activities over local governments, allowing it to concentrate on key areas of policy making with regard to decentralization. The Tribunal for Local Governments was created on 23rd August 2004, in Kerala for the first time in a State in India.
Purpose of the Tribunal
The purpose of the Tribunal is to exercise appellate powers over local governments in their exercise of wide ranging functions of regulatory nature. The Tribunal for local governments is a quasi-judicial body, for grievance redressal of the public against unfair exercise of responsibilities by local governments, remaining outside the governmental control.
The Tribunal is presided over by a judicial officer in the rank of a District Judge. The Tribunal shall hear the appeals against the decisions of the local governments / Secretary on one hand and revision petitions on appeal decisions issued by the local government when it functions as the appellate authority over below level decisions, on the other. The success of the Tribunal depends on the speed in hearing appeals, simplicity in its proceedings and the fairness in disposing of its decisions. Simplicity of procedures is the cornerstone of speedy disposal of the petitions. Tribunal can combine simplicity of procedures of an executive authority with the independence of a judicial system for a fair, simple and speedy decision-making process. In order to make Tribunal a citizen-friendly one, its procedures and proceedings should be devoid of conventional technicalities of a court. Lawyers can represent the parties but they are preferred to remain away from appearing in Tribunal, as far as possible, in order to ensure its informality, minimise technicalities, and reduce cost to the local body as well as to the citizens.
Constitution of Tribunal
The Government of Kerala can constitute a Tribunal for every district or for more than one district to consider and dispose of the appeal or revision petition filed against the decisions of the local governments, as per section 271 S of the Kerala Panchayat Raj Act and the provision is equally applicable to all urban and rural local governments in Kerala.
As per Government Order No. 52/04/LSGD dtd.5 February 2004, the Government constituted only one Tribunal for all the districts in the State. Later Sri. George Mathew, a Judicial Officer in the rank of a District Judge was appointed as its presiding officer on 11-8-2004. He was appointed in consultation with the Chief Justice of the High Court of Kerala as provided for in the act. The Tribunal is deeply engaged in its functions since then and the workload is very high. The appointment of one tribunal for all the 14 districts in the State rather than one each for each district was for reducing the running expenses incurred in it’s functioning.
The person appointed as Tribunal can hold office till the completion of three years from the date of taking charge of the Office or till the date of retirement on super- annuation from the judicial service, whichever is earlier. He is eligible for pay, allowances and other benefits as if he has continued in the judicial service. The Government shall appoint a Secretary and other Officers and Staff as may be required to assist the Tribunal in performing its duties. The Secretary of the Tribunal shall be an Officer not below the rank of an Under Secretary in the Law Department of the State Government.
Matters of Filing Petition to the Tribunal?
A citizen can file an appeal or revision petition in tribunal on the following matters only. They are: -
1. Assessment, demand and collection of tax, fee or cess.
2. Issue of permit and licence for trade, factories, industries, markets and other institutions.
3. Registration of private hospitals, paramedical institutions and tutorial institutions.
4. Water supply in Local Self Government areas.
5. Providing lamps in the public streets of the Local Self Government areas.
6. Construction and maintenance of sewerage in the Local Self Government areas.
7. Action against private latrines that make nuisance to the management of public comfort stations in the Local Self Government areas.
8. Removal and processing of rubbish, solid waste and filth in the Local Self Government areas.
9. Regulation of fairs and festivals; levying of contribution for doing sanitation works from those who conduct the fairs.
10. Maintenance of public streets and prevention of encroachment thereon.
11. Protection of public places.
12. Regulation of building construction.
13. Protection of poramboke land
14. Action against projections, trees and places which are dangerous or which cause nuisance; action against dangerous ponds, wells and ditches; action against dangerous quarrying’.
15. Action against pond, ditch, well, tank, watercourse, marshy land, sewerage, cess pool etc. which are the sources of nuisance.
16. Controlling the Agriculture and the use of pesticides that are injurious to public health.
17. Protection of public water reservoirs.
18. Prohibition of animal rearing that cause nuisance to others.
19. Control over slaughterhouses, action against unauthorised slaughtering.
20. Management of markets, collection of fees and prohibition of sale of goods in public streets.
21. Licences for vehicle parking and for unloading places etc.
22. Licence for hotels, prohibiting the sale of food materials dangerous to health and destroying the same.
23. Licence for burial grounds.
24. Taking steps against the spread of dangerous diseases.
The Government can add any item to the above schedule from time to time by a notification in the Kerala Gazette.
Procedure of Filing a Petition to the Tribunal?
Any citizen in the local body can file appeal or revision against a notice, order or proceedings of the Village Panchayat or Municipality or its Standing Committee for Finance or of the local government in respect of twenty four areas specified above.
Petitions shall be submitted to the Tribunal in the prescribed form 'C', provided in the rules, within thirty days from the date of the impugned notice / order / proceedings, against which the petition is filed. In case, an appeal submitted to the local government has not been decided within sixty days of filing, the applicant can submit an appeal petition to the Tribunal within ninety days from the date of the impugned order. The Tribunal may admit a petition submitted after the prescribed time limit, but within one month, if the Tribunal is satisfied that there is sufficient bonafied reason for not submitting the petition within the time limit. Petition can be filed either in person before 3 PM on all working days or through registered post to The Tribunal for Local Self Government Institutions situated at the Rehabilitation Block, TRIDA building, Medical College P O, Thiruvananthapuram -695011
Along with every petition, the petitioner shall furnish an attested copy of the petition, the original of the impugned order/an attested copy of it and attested copy of the connected documents, if any. The petitioner shall also submit as many attested copies thereof as the number of counter-petitioners. The petitioner should remit fifty rupees as fee in the Office of the Tribunal by cash or enclose a bank draft drawn in favour of the Tribunal for Local Self Government Institutions for the same amount payable at any nationalised or scheduled bank at the headquarters of the Tribunal, along with every petition. A court fee of Rs.50/- is to be affixed in the petitions towards Legal Benefit Fund as per the provisions of the Kerala Court Fess & Suit Valuation Act 1959.
In case the petition is on tax appeal, the applicant has to remit the tax demanded by the local body in the demand notice prior to submitting an appeal/revision petition. Sufficient number of covers and stamps needed to issue registered notice to the Respondents also need to be submitted along with every petition.
Citizens can submit petitions if there is undue delay in decision-making by authorities of local governments in the stipulated subjects. If the concerned Village Panchayat or Municipality or Standing Committee for Finance or the Secretary of the local government, has not taken any decision within the prescribed time limit in cases where time limit has been prescribed in the Acts or Rules, the affected party can file an appeal before the Tribunal. The petitioner may submit petition before the Tribunal directly or by registered post.
Manner of Handling the Petitions
All petitions received by the Tribunal shall be entered in the petition register in the prescribed form. The Tribunal may not entertain a petition that is not in compliance with the provisions of the Kerala Panchayat Raj Act, the Kerala Municipality Act and the Rules thereof. The defective petitions, after recording the defects therein, shall be returned to the petitioner and if the petitioner re-submits the petition so received back within fifteen days after rectifying the defects, the rectified petition shall be considered as duly furnished.
The Registers to be Maintained
The Tribunal shall maintain a Petition register, a Diary register and other registers as stipulated in laws. In the Petition register, the details of all the petitions received and disposed of by the Tribunal and the summary of the final order issued by it shall be recorded. In the Diary register, the gist of all the petitions received by the Tribunal and notes in respect of the proceedings taken and orders passed at various stages from the date of receipt of each petition till the final disposal, shall be recorded. The format of the register has been provided in the rules pertaining to the Tribunal.
The Principle of Natural Justice
On receipt of any petition, the Tribunal or the Officer authorised by it shall register the petition and issue an acknowledgement receipt. The Tribunal can, on the application of the petitioner, issue order to stay any action on the content in a petition. The Tribunal can also issue order to discontinue the proceedings already initiated by the local government authorities, if he is satisfied that it is necessary to do so in the interest of justice. The petitioners and the respondents are bound to comply with the stay order, if issued.
Immediately on registering a petition and giving acknowledgement receipt to the petitioner, the Tribunal shall issue a notice in the prescribed form to the counter-petitioner giving him a copy of the petition and informing him to submit his statement in the matter along with the documents thereof, before the Tribunal within fifteen days from the date of receipt of the notice. If such statement is not filed, the petition will be disposed ex-parte.
The Tribunal has powers to summon any person suo moto as witness and can direct any person including the petitioner or the counter-petitioner to produce any document or record before the Tribunal. The Village Panchayat or Municipality or its Secretary who has been made the counter-petitioner in a petition shall produce the connected files and other documents along with a statement before the Tribunal. If the record cannot be produced due to bonafide reasons, an attested copy of it needs to be produced along with the statement. All records and documents produced before the Tribunal in connection with disposing any petition shall be collected back from the Tribunal by the person, who submitted them, within two months from the date of disposal of the petition.
If the Tribunal, on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat, Municipality or its Secretary, is not issued or taken in accordance with proper established procedures, the Tribunal may direct such Village Panchayat or Municipality or the Secretary, to issue notice or order or to take action afresh, complying with the procedures under the law.
The pleadings
If the Tribunal, on considering the petition, the statement of the counter-petitioner and the connected documents, thinks that it is necessary to give an opportunity to the petitioner or counter-petitioner to be heard in person, it may fix a date for the purpose and direct the petitioner and the counter-petitioner or the person authorised by them or, if found necessary, their advocate to appear before the Tribunal on the date. The date for hearing of the petition shall be fixed in such a manner as to dispose of the petition finally before the completion of sixty days from the date of receipt of the petition. The pleadings on the petitions can be heard by the Tribunal at its office or at the Office of the concerned local government or at any other place as decided by the Tribunal. The Tribunal may dispose of the petition ex-parte, if any of the parties or the advocate has not been present on the date of hearing or on any date adjourned for hearing.
The Powers of a Court
The Tribunal has the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters and the powers are as follows: -
i. Summoning and enforcing the attendance of any person and examining him on oath;
ii. Demanding the discovery and production of any document or other material object producible as evidence;
iii. Receiving evidence on affidavits;
iv. Requisition of any public document or a copy thereof from any court or office;
v. Appointing Commissions for the examination of witnesses or in respect of documents.
Any proceeding before the Tribunal shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code and any attempt to dishonour the Tribunal can attract contempt proceedings.
Order of the Tribunal
The Tribunal shall, after considering the petition and connected records or, if there is trial of the parties, after the completion of such trial, issue an order recording its decision on the petition. If the Tribunal thinks it necessary to do so, it may declare in advance, a date to issue such order and shall issue the order on the date. An order of the Tribunal shall be in writing and shall bear the signature and seal of the Tribunal.
On pronouncement of the order of the Tribunal, the impugned notice or order issued or action taken by the local government or its Secretary, shall remain as such or modified or annulled. Copy of the order of the Tribunal shall be issued to each party to the petition, within one week from the date of the order, on application. The order can be collected from the office during office hours either in person or through authorised representative. The Tribunal shall have sitting on all working days.
After disposal of the case, on application, the concerned parties can collect all the documents produced in connection with the appeal/revision petition. The Tribunal may, at any time, either suo moto or on the application of any of the parties rectify any error or omission accidentally occurred in the order. English or Malayalam is the language of the Tribunal. The Tribunal has power to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper. The Tribunal has powers to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper with regard to the procedures, which are not provided for in the Kerala Panchayat Raj Act and related rules.
Problems that need Special Attention
Attending and settling the petitions that may arise from all the 14 districts is a very difficult and laborious task that a single-man Tribunal can handle. Increasing the number of Tribunals from one to at least one each for a group of districts not exceeding five would be a suggestion worth- considering so that one can be established at the middle and another at the northern part of the State in the next phase of expansion. Establishing one Tribunal each for each district is the ideal and one for two districts each is an alternate suggestion remaining with the consideration of the Government as per newspaper reports.
The modality of payment of fees to the Tribunal makes it cumbersome for an ordinary citizen to submit a petition easily. A petitioner who wants to opt for paying the fee by bank draft cannot submit the draft from a new generation bank with which many have accounts as the Treasury accounts of the Tribunal recognizes only the drafts from nationalized or schedules banks. Since many banks discourage issuing of bank drafts for negligible amount, obtaining a bank draft is a humiliating experience in many bank counters. The amount towards the Legal Benefit Fund, to be accompanied with every application, need to be remitted by purchasing special stamps designated for the purpose from the treasuries. All this makes the filing of a petition, a tedious task. So either the modality of payment of fees need to be simplified or fees itself need to be dispensed with as in the case of family courts.
Another need is to introduce, establish and reinforce the system of internal conflict resolution mechanism as part of the administration of local governments so as to bring down the number of complaints that may arise. We may apply the spirit of 'Principle of subsidiary' in this area too. That means a dispute that can be resolved at lower levels of appointed officials or elected political executives should not be allowed to go up to the Tribunal. The absence of an established internal conflict resolution mechanism results in throwing up numerous complaints to the resource -poor Tribunal.
Another problem concerned with Tribunal is its resource-poverty. The Tribunal is working with insufficient manpower, facilities and funds and hence cannot function in the professional manner as is expected to. That is why the petitioner is asked to submit covers and stamps required for sending notice to the counter petitioner. Professional approach demands allotment of more resources than that are available to the Tribunal.
Summing up
It seems that the Tribunal that has been in existence in Kerala, can go a long way in upholding the rights of the citizen in a highly deccentralised governance system along with protecting the autonomy of the elected local government against possible usurpation by the State executive. This quasi-judicial body would provide meaningful checks and the balance required to make the local government system work with greater efficiency, sense of direction and purpose of existence. A Tribunal, so created can bring in elements of good Local Governance in Kerala.