E D I T O R I A L   P A G E

EDITORIALS

Rivals, not enemies
THE unthinkable became do-able and the Lok Sabha went through the rite of approving the Railway Budget in 15 minutes flat, without a discussion but amidst earshattering din. Speaker Balayogi described Friday as his “most unpleasant”, but seen in the wider perspective of the sanctity of parliamentary procedure, it was the blackest day.

TRENDS AND POINTERS

Marketing reaches the womb
EACH month, a Sydney marketing executive tracks down the 20,000 Australian women who become pregnant; he runs a baby product sampling company. Bounty Services has, for 20 years been effectively distributing 230,000 sample bags — containing things like Huggies nappies, Vegemite, Dettol hand wash, Mother and Baby magazine and Ribena syrup — to new mothers in hospital maternity wards. Hospitals do the work free of charge for Bounty Services by handing out its ‘Mother-To-Be Bags’ to women, who register in their hospitals. The bags also contain brochures designed to elicit a response from the women — so that their names can be added to the marketing database.

• Insurance companies to cover toupees
• “Girl-watching beats bus-queue boredom”

POINT OF LAW

Supreme Court frowns on second appeals in Punjab and Haryana
Anupam Gupta
IN a major decision which will alter the landscape of civil litigation in Punjab and Haryana, the Supreme Court has struck Section 41 of the Punjab Courts Act dead by interpretation and held that second appeals can be entertained by the High Court only if they disclose a substantial question of law as stipulated in the Civil Procedure Code.

75 YEARS AGO

Indians in South Africa

SPIRITUAL NUGGETS

Rivals, not enemies 

THE unthinkable became do-able and the Lok Sabha went through the rite of approving the Railway Budget in 15 minutes flat, without a discussion but amidst earshattering din. Speaker Balayogi described Friday as his “most unpleasant”, but seen in the wider perspective of the sanctity of parliamentary procedure, it was the blackest day. The BJP, leader of the ruling coalition, refused to do the minimum to end the bitter confrontation with the Congress, which was happy to wallow in its Bangalore rhetoric of “waging every war”. With only the RJD giving it ideological company, the main opposition came close to walking away with the trophy for being a near lumpen party. And it received solid support from the BJP, making it difficult to judge which was the more committed lumpen party. For the sake of appearance, it is the Tehelka tapes that have thrown up the wrangle. But in reality it is the bitter personal equation between Prime Minister Vajpayee and Mrs Sonia Gandhi. She is angry at his referring the Subramanian Swamy chargesheet to the CBI for an enquiry. He is annoyed over her increasingly strident stance. Also, he has not forgotten how she joined hands with Ms Jayalalitha to topple his government three years back. Last week he told media men in Lucknow that he would meet her and iron out the differences. It was at this juncture that hawks took charge, reinforcing a similar tendency in the Congress too. Then there are leaders like Mr George Fernandes who have spent their entire life nursing anti-Congress sentiments. They are well matched by lifelong BJP baiters on the other side. The ongoing faceoff has several facets which collectively make a formidable force.

The Tehelka war sounds very unreal because both sides have been shifting their stand. At first the government offered to set up a joint parliamentary committee (JPC) but the Congress and others wanted the filing of an FIR and the arrest of all those seen accepting a bribe. A judicial inquiry came into being and the Opposition rejected it. The Congress surprised the government by agreeing to the JPC, but by then Mr Fernandes had shot it down. Now the government says it is ready to discuss the JPC proposal but only after the financial Bills are passed. The Congress has climbed down again, asking only for a firm assurance for cooperating with the government. The government says no talks and no promises until April 25, the constitutional deadline for passing the budget. This is indeed war, a mortal combat, fought in the august chambers of Parliament. One analyst has suggested that either the Speaker or, well, the President should host a very private lunch or dinner for the two to bring about a thaw. A very sensible idea.

Catch 22 for India

WHETHER it is “local adventurism” or part of an unholy ISI design, the killing of 16 BSF personnel by men of the Bangladesh Rifles in Pyrdiwah village in the border area has put the government in Catch 22. Nobody is going to buy the theory being advanced by Bangladesh that the BSF jawans were lynched by a group of angry villagers. The mutilation of the bodies has provided proof of inhuman treatment given to the men in uniform against international conventions. In such a situation if India has lodged a “very strong protest” with Bangladesh, taking a “serious view” of the matter, it is within its rights. Some Bangladesh watchers like Mr Prakash Singh, former Director-General of the BSF, are, however, not satisfied with the Vajpayee government’s handling of the crisis. They wanted India to react more forcefully and bring the Hasina Wajed government to its knees, as China did when it lost a pilot in a midair collision with an American spy plane. That would have definitely helped assuage the hurt feelings of the Indians, but would go against the larger interest of the country. It would be against the canons of diplomacy.

If there is any neighbour with which India has had good relations it is Bangladesh under Awami League rule. Sheikh Hasina Wajed’s party represents the India-friendly forces in that country, but the elements opposed to maintaining cordial relations with New Delhi are equally strong. The anti-India forces, led Mrs Khaleda Zia’s BNP and comprising fundamentalist elements, are always on the lookout for an India-related issue to put the ruling group on the mat. If India reacts the way China did in the case of the USA, it would only help its enemies in Bangladesh, that too at a time when Assembly elections are due to be held there probably in October. Diplomatically speaking, a hawkish approach does not suit New Delhi while dealing with Dhaka despite the utterly provocative behaviour of the Bangladesh Rifles. India has to save itself from falling into an apparent trap laid by its enemies. A strong India factor in the coming Bangla elections is what the adversaries of Sheikh Hasina want. Her government has already been in difficult straits because of the recent nationwide strike and other problems. The eruption of the latest crisis involving India must have helped her opponents’ calculations to capture power. Bangladesh under the control of the anti-India forces will embolden, besides Pakistan’s ISI, the North-East’s insurgent groups like the United Liberation Front of Asom and the Nationalist Socialist Council of Nagaland which have already strengthened their bases in that country. Thus, India has to tread warily. This, however, does not mean that the NDA government should take the matter lightly. Under no circumstances can it afford to ignore a development that affects the morale of the armed forces. It is good that Bangladesh has ordered a probe into the aspect of mutilation of the BSF jawans’ bodies. But this is not enough. The Dhaka regime must apologise to set the matter at rest. 

Supreme Court’s order: the CNG dead-end
Revamping urban transport in India
Praful Bidwai

IF YOU think the compressed natural gas (CNG) crisis has ended in the national Capital, and that it won’t chase you in your city, think again. Long queues for buses in the scorching sun, with endless waits for schoolchildren, rationing of scarce CNG, and serious law-and-order problems could well become features of daily life in all our cities. Potentially, the Supreme Court order to convert all passenger buses in Delhi to just one fuel applies to all of them. It bids fair to introduce further chaos and irrationally into our already rickety, crisis-ridden and highly polluting urban transport system.

Even Delhi’s respite from the CNG-induced nightmare earlier this month is likely to prove much shorter than the six months’ extension of the April 1 deadline granted by the Supreme Court against the visible backdrop of public protest. For, bus fares are likely to increase by 60 to 100 per cent as buses shift from diesel to “cheaper” CNG. The reason is simple. A new CNG bus costs Rs 16 lakh — almost twice more than a diesel-operated vehicle. Interest and depreciation on capital accounts for roughly two-thirds of the fare. The fact that CNG is priced at Rs 12.21 litre — or about Rs 5 less than diesel — will matter only marginally. The price advantage will be further negated by the reduced seating capacity of CNG buses, caused by the one-tonne deadweight of gas cylinders strapped to their chassis.

Fares could increase even further once the Gas Authority of India starts recovering the investment (Rs 500 crore plus) in the CNG infrastructure built off the Hazira-Jagdishpur gas pipeline. (Delhi is lucky to be en route that line. Most cities aren’t, and will pay more). Fares are only part of added commuter travails. Others include long waits for refilling — an average of 30 minutes —, low gas pressure and operational difficulties caused by non-standardised kits which only one company imports into this one billion-strong country. CNG, like all fuels has its own problems: low pick-up, poor performance in hot weather, leaks from valves and pipes, etc. Many aren’t fully understood simply because no larger transport fleet anywhere uses compressed gas.

However, ironically, high fares could wreck the environmental gains from switching to a cleaner fuel (which CNG undoubtedly is in relation to standard diesel). As bus rides become expensive, middle class commuters will increasingly opt for two-wheelers. Most can afford 10 year-old scooters costing under Rs 10,000 and their fuel cost — roughly 75 paise per kilometre. This exactly matches the fare of chartered buses in Delhi, which account for more than a tenth of all commuter trips. Now, over 40 per cent of chartered bus users also own a private vehicle. They will keep it at home as long as the bus fares are Rs 450-500 per month. If fares rise to Rs 700-900, they will take out the old scooter. That’s precisely what happened during the April 3 Delhi transport strike.

Such a switch to private transport even by a tenth of bus-users will raise overall pollution levels. Seven to 10 two-wheelers pollute as much as one diesel bus, besides occupying twice as much road space in motion, thus producing traffic congestion, which in turn further adds to toxic emissions. Put simply, a doubling of bus fares will more than double vehicular pollution — an eminently, indeed egregiously undesirable, consequence, a case of the cure being worse than the disease.

This just shows that good environmentalists cannot be indifferent to economic costs. These influence social choices and have environmental consequences. Nor can they just shrug off the issue of equity, as the Supreme Court has regrettably done. Its agenda for cleaning up Delhi’s unbearably polluted air focuses entirely on public transport, under one lakh vehicles, with the core-burden on just 12,000 buses. But it has left out the bulk — 29 lakh private trucks, cars and two-wheelers, which contribute about 90 per cent of vehicular emissions. The court was equally one-sided in emphasising emissions from individual buses, rather than the city’s total pollution load, itself related to proliferation of private transport. (This pollutes, and further slows down buses and taxis, forcing them to halt more frequently. It thus causes still more pollution.)

Worse, rather than specify pollution norms (i.e. permissible emissions of SOx, NOx, particulates, etc, for vehicles), the court adopted a micro-management approach, going into minute details of which fuel to use. Admittedly, it could cite the Delhi government’s failure to implement the court’s directive for two years. But that can hardly justify the court’s forays into the nitty-gritty. Last fortnight it even specified a complicated affidavit in place of a simple administrative procedure for temporary permits!

Unfortunately, the whole issue of remodelling urban transport and fighting pollution has been reduced to a choice between following (the letter of) the court’s orders and facing its contempt, or, at another level, between CNG and ultra-low sulphur diesel. Powerful commercial interests — and environmentalists armed with partial facts and lop-sided arguments — back each fuel option. Much can be said against, and something for, each fuel. CNG is much less polluting than diesel in respect of particulates, oxides of sulphur, and carbon monoxide. But not with hydrocarbons or oxides of nitrogen. It has a higher proportion of ultra-fine particles which can be especially damaging to the lung. Its overall “greenhouse” effect is no better (according to some accounts, worse).

Diesel can be improved, with its sulphur content reduced to 0.005 per cent, even to zero. Particulate traps can further reduce diesel emissions, albeit at a cost. There are both pluses and minuses on both sides. Almost a year ago the CNG issue was clinically dissected while advocating a holistic multiple-fuel approach. That approach remains equally valid, indeed more so now that the crisis is upon us.

What we badly need is a thorough-going, radical, solution to the pollution problem as part of the urban transport problem. Our cities have grown wildly and chaotically, without adequate public investment in roads, pavements, signals and vehicles. Most city bus services have badly shrunk or collapsed. There is no public control over the rickety, unsafe, three-wheelers, tempos, vans and cattle-carriers that have replaced them. Transport has been effectively privatised, with the number of personal-use vehicles expanding almost twice as rapidly as population. This expansion is partly driven by the low quality and safety of public transport. The growing public-private dualism is self-perpetuating. Too many private vehicles further slow down public transportation, adding to pollution (stationary vehicles or those shifting gears emit more toxins), and in turn further spur privatisation.

This vicious cycle cannot be broken in most cities with “classical” solutions like an underground metro or overground railway. (Mumbai is the sole exception but it too is over-saturated. Kolkata is only a part-exception). In today’s congested cities, these “solutions” are unaffordable. We must create or strengthen mass-transit systems wherever possible. We must revive trams and trolley buses. Our planning must emphasise limiting commuter trips and give equal rights to pedestrians and bicycle-riders.

The role of non-mechanised transport must not be underrated. Bicycles even today account for four times more commuter trips than three-wheelers in Delhi. But where mechanised transport is unavoidably the main mode, the city bus will remain its principal vehicle. This means giving buses priority in road use. That involves creating bus — only lanes and discouraging private vehicles through pedestrians — only zones, high parking fees and other restrictions.

It is here that the choice of pollution-reduction technology comes in. This involves not just fuels, but engines, and not just internal combustion engines (ICEs). Already, city planners in Frankfurt, Brussels, Sydney, Seoul, Paris, Bordeaux, Los Angeles, even New York, are experimenting with hybrid engines, using electricity and diesel/gas as well as high-efficiency ICEs with cleaner fuels. Even Third World countries like Argentina are using a mix of CNG and diesel (as igniter) in conventional engines — to good effect. At the same time, bus designs are being modified — e.g. with lower chassis and wider doors — to increase commuter convenience and safety.

The Supreme Court’s blanket order for wholesale conversion to CNG is particularly unfortunate because it will reduce or eliminate these options while freezing just one kind of fuel and engine. As new technologies develop, better engines and fuels come on the market, and their costs drop, India will still be stuck with rather primitive engines — inefficient, at best Euro I-compatible, and burning a not-so-abundant nor easily tradable fuel. We’ll have been extraordinarily myopic — to the point of self-destruction.

Yet there are alternatives, as just outlined. What we need today is not another Bhure Lal committee to rationalise this or that fuel, but a transitional approach based on pilot projects with CNG, ULSD, the zero-sulphur Fischer-Tropsch fuel, as well as new-generation engines and electric trolley-buses. We must evaluate these options rigorously, openly, and above all, publicly. Only thus should we gradually phase in new-generation buses. Or else, we’ll never get out of the transportation-pollution trap that annually costs us thousands of crores in lost health and time, and makes urban life utter hell in India. 

Blair rides high despite foot and mouth
V. Gangadhar

WHEN the Great Plague hit England several centuries back, the nation was under absolute monarchy. The nation knew nothing about democracy and general elections. And since there were no general elections, there was no need to postpone them in view of the Black Plague.

We live in different times. The Black Plague, fortunately, had been eliminated. Yet, in this nuclear age, one of the most developed countries in the world, Britain has been bit by the deadly foot and mouth disease. While such a disease among politicians was quite common and did not disturb the normal lives of the people, foot and mouth among the British cows, sheep and pigs has taken a heavy toll. Life in the country has been disrupted to such an extent that Prime Minister Tony Blair has to postpone the general election.

The foot and mouth has shaken the British economy and the nation would take a long time to recover. Imagine a small nation like England having to slaughter 1,366,000 animals. Already 888,000 cows, sheep and pigs have been killed while another 478,000 await slaughter. The countryside is loaded with carcasses waiting to be buried. The British government has been paying heavy compensation. According to British Agriculture Minister Nick Brown, the Labour government so far has paid £600 million for the affected farmers and another £250 million for the slaughtered animals.

The foot and mouth has changed the life-style in Britain. Food habits are no longer what they were. More people are turning to consumption of chicken, fish and imported meat. Between February and March this year the prices of imported meat rose by 20 per cent in the island. On the other side, no one in the world wanted exported British meat. Exports were hit hard and the economy took a real beating.

Yet, there is something to commend in the manner the British are handling the crisis. Plenty of the “stiff upper lip” attitude is evident. Realising the implications of the national calamity, the Conservative Opposition did not try and call for the blood of the Blair government. The working of British Parliament was not disturbed, no effigies of ministers were burnt. Of course, the government measures in combating the foot and mouth did invite Opposition criticism, but behind it was the feeling that the responsibility could not be pinned on anyone. The entire nation was affected and the nation had to unite to fight the crisis.

Mr Blair, who was riding on the crest of a popularity wave, has announced he will hold the general election in May, much ahead of the scheduled period. This is due to the fact that the Labour party is enjoying an enviable lead over the Tories and the Social Democrats. However, following demands from the people, the media and the Opposition, the government has taken a decision to postpone the polls till the foot and mouth is checked.

The Opposition parties hope that they can exploit the situation and attack the government for its “dithering” over controlling the foot and mouth and the delay in compensating the farmers. These charges cannot really be justified, but then during an election any charge is good enough to beat those in power. Tories leader William Hague has expressed the hope that his party can utilise the additional time for vigorous campaigning against the government of the foot and mouth issue.

These hopes, however, have been nullified by the recent public opinion polls in Britain. The latest Gallup survey on the poll issue has brought out that the Labour still maintains a clear 26 point lead over the rival parties. The poll results which were published in The Daily Telegraph showed Labour clearly in the lead with 53 per cent, followed by the Tories with 27 per cent and the Social Democrats with 15 per cent.

Such a clear lead was clearly a shot in the arm for the government. It vindicated Mr Blair’s decision to delay the election from May 3 to June 7 and to take personal charge of the campaign against the foot and mouth epidemic. In his public appearances, the Prime Minister exuded confidence that the epidemic would be controlled before Britain went to the polls.

Britain watchers admit that for a ruling party and its Prime Minister to enjoy such an overwhelming lead over its rivals despite the epidemic is nothing short of a miracle. Neither the crippled economy nor heart-rending TV pictures of animals being slaughtered could turn the tide against the Labour. The youthful, bouncy and smiling image of Mr Blair has apparently convinced the British voters that he is the Man of the Hour when the nation faces an economic crisis.

The Tories can only shrug helplessly. Mr William Hague knew that his party had forced the government on the defensive on the foot and mouth issue. But he must be disappointed by the fact that his personal popularity had declined. This is quite an amazing development because when the ruling party was flayed for its incompetence, the leader of the Opposition found himself on the upswing.

Ultimately, it was question of personalities and personal charisma. Here Mr Blair scored heavily. The British celebrated when the Prime Minister’s wife, Cherie, gave birth to their fourth child last year. At the national level, the percentage of youth in the population showed a rise and it was natural that they vibed with a youthful Prime Minister.

The British farmers themselves are prepared condone the Blair government for the delay in rushing to their help. After all, the magnitude of the foot and mouth took some time to sink in. It was understandable that Britain was not prepared for such an epidemic. If the government appeared to dither, it was quite understandable. Such a calamity would have thrown any government on the defensive.

As Mr Blair prepares himself for yet another poll success, he must be delighted to have put one over his more powerful ally, US President George Bush, who could only squeak through to the White House after the Florida vote counting fiasco. The British general election in early June will not be a heart stopper. Even traditional betting on poll results will be a low key affair. After all, everyone knows who the winner will be.

Marketing reaches the womb

EACH month, a Sydney marketing executive tracks down the 20,000 Australian women who become pregnant; he runs a baby product sampling company. Bounty Services has, for 20 years been effectively distributing 230,000 sample bags — containing things like Huggies nappies, Vegemite, Dettol hand wash, Mother and Baby magazine and Ribena syrup — to new mothers in hospital maternity wards. Hospitals do the work free of charge for Bounty Services by handing out its ‘Mother-To-Be Bags’ to women, who register in their hospitals. The bags also contain brochures designed to elicit a response from the women — so that their names can be added to the marketing database.

The information age is making it even easier to trace these women after they leave the hospitals through a database of 200,000 women. Bounty Services distributes its bags to 93 per cent of the hospitals in Australia, but there is growing concern about commercial exploitation, sparking calls for a review of the sample bags and their distribution by hospitals. Said one new mother: “A first-time mother is a vulnerable consumer. We’ve already spent $ 3,500 on products we probably don’t need, some of it because of the “Mother To Be Bag”.” WFS

Insurance companies to cover toupees

“Insurance companies call it cosmetic, but unfortunately it’s a necessity for people who get these kinds of diseases,” DeLuca said. AP

“Girl-watching beats bus-queue boredom”

A total of 6% thought walking would be quickest way of getting around London if their bus did not come. Guardian

Supreme Court frowns on second appeals in Punjab and Haryana
Anupam Gupta

IN a major decision which will alter the landscape of civil litigation in Punjab and Haryana, the Supreme Court has struck Section 41 of the Punjab Courts Act dead by interpretation and held that second appeals can be entertained by the High Court only if they disclose a substantial question of law as stipulated in the Civil Procedure Code.

Though civil procedure is a subject on the Concurrent List, the Civil Procedure Code applicable throughout the country is a central legislation. The Punjab Courts Act, on the other hand, is a state law applicable only in Punjab and Haryana.

Covering the entire gamut of civil procedure, the Code — one of the bulkiest and most monotonous Indian legislations, which every practising lawyer must be familiar with but which takes a whole life-time to master — deals also with the question of appeal, a substantive question of vital importance for the administration of justice.

Far narrower in scope, the Punjab Courts Act deals basically and in rather general terms with the jurisdiction of district and subordinate courts on the civil side. And with the appellate jurisdiction of the High Court in that context.

Both the laws thus happen to provide for the High Court’s jurisdiction to hear what is called a “second appeal” — appeal upon appeal, or appeal from the decision of an appellate court subordinate to the High Court.

Debated though it inevitably is in dull legalese, the question of second appeal, its scope and parameters, addresses larger and fundamental concerns regarding access to justice.

Before independence, when the Privy Council in London was technically the highest court of appeal for India, the High Courts were, for all practical purposes, the highest court accessible to the mass of Indian litigants. Access to the Privy Council entailed expenditure beyond the reach of all but a negligible minority of Maharajas, big zamindars and the owners (or trustees) of hugely rich properties dedicated to religious or charitable purposes.

Hence the importance of the jurisdiction of second appeal vested in the High Court.

After independence — and the conferral upon the Supreme Court of a “special leave” jurisdiction (under Article 136) that has resulted in its becoming the busiest apex court in the world — the importance of second appeal has lessened, though the debate on the subject proceeds almost as if history has stood still.

At the same time, however, independence and a vastly expanded and qualitatively transformed writ jurisdiction — now at the service of fundamental rights and much else besides — have given a big boost to the prestige and power of the High Courts around the country. And some of it has rubbed off on their conventional, non-writ civil jurisdiction as well.

Whatever be the subject matter of the litigation, the average litigant now tries his luck in the High Court far more often than he ever did in the past.

Whether it be a “judgement of reversal” (the district court reversing or setting aside the judgement of the trial court, in first appeal) or “concurrent” verdicts of both the courts below that he has to assail before the High Court, it would be a wholly untypical litigant, indeed, who does not file a second appeal.

Hence, again, the importance of the scope of second appeal, once similar but now — after 1977 — vastly different under the CPC and the Punjab Courts Act.

“Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force,” provides the CPC in Section 100, “an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.”

That is Section 100 of the CPC as it stands since its amendment by Parliament in 1976 (with effect from February 1, 1977).

“An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant,” opined the Law Commission of India in 1973, examining the CPC for itself, “but a wide right of second appeal is more in the nature of a luxury.”

If a second appeal to the High Court is a luxury, a third appeal to the Supreme Court — in the guise of an SLP under Article 136 — is unforgivable hedonism. The Commission’s philosophy, as expounded in its 54th report (on the Code of Civil Procedure), found ready soil in Parliament, however.

Section 100 was amended and in place of its wide, complicated language that had given rise — in the Commission’s words — to a “plethora of conflicting judgements”, thanks to the “ingenuity of lawyers” on the one hand and “judicial subtlety” on the other, was introduced an apparently simple and straight formula: substantial question of law.

And yet, even the amended Section 100 retains the saving clause with which the Section opens: “Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force”.

The Punjab Courts Act, enacted ten years after the CPC was originally adopted in 1908, is one such law.

Corresponding to the original Section 100 of the CPC — using near-identical language, in fact — Section 41 of the Punjab Courts Act provides that a second appeal shall lie to the High Court on any of the following grounds:

(a) the decision (appealed against) being contrary to law, or to some custom or usage having the force of law; (b) the decision having failed to determine some material issue of law, or of custom or usage having the force of law; and (c) a substantial error or defect in procedure, which may possibly have produced an error or defect in the decision of the case upon the merits.

Unlike Section 100 of the CPC, however, Section 41 of the Punjab Courts Act has remained the same since 1918.

By which provision, then, are second appeals in Punjab and Haryana to be governed?

“(O)n principle, on the specific language of the statutory provisions involved, and the overwhelming weight of authority,” ruled a Full Bench of the Punjab and Haryana High Court in October, 1977, answering this question, “it must be held that the provisions of Section 41 of the Punjab Courts Act are in no way affected or curtailed by the amended Section 100 of the CPC.”

“(I)n the jurisdiction to which the Punjab Courts Act extends,” it added, “the admission and adjudication of second appeals would be governed by Section 41 of the Act to the exclusion of the general provisions of Section 100 of the Code.”

Almost 14 years after it was pronounced, the Supreme Court overruled the Full Bench verdict last month.

Section 41 of the Punjab Act (it ruled) is repugnant to Section 100 of the CPC as amended in 1976 and, as such, is devoid of any effect in view of the principle of parliamentary supremacy embodied in Article 254 of the Constitution.

A key constitutional provision, Article 254 addresses the issue of inconsistency between a law made by Parliament and a law made by a State legislature on a subject where both are otherwise competent to legislate.

Being on the Concurrent List, civil procedure is one such subject.

“If any provision of a law made by the legislature of a State (reads Article 254 in its material part) is repugnant to any provision of a law made by Parliament which Parliament is competent to make.... the law made by Parliament, whether passed before or after the law made by the legislature of such State...shall prevail, and the law made by the legislature of the State shall, to the extent of the repugnancy, be void.”

Apart from Article 254, the Supreme Court has relied upon Section 97 of the Code of Civil Procedure (Amendment) Act of 1976.

“Any amendment made (reads Section 97), or any provision inserted in the principal Act by a State legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.”

Section 41 of the Punjab Act, the Supreme Court holds, is thus deemed to have been repealed by Section 97 of the 1976 amendment to the CPC (called the “principal Act”).

Both strands of the Supreme Court’s ruling, now the law of the land binding on the Punjab and Haryana High Court, are clearly wrong.

No question of any inconsistency or repugnancy between Section 41 of the Punjab Act, on the one hand, and Section 100 of the CPC, on the other, arises in view of the saving clause with which the latter opens.

Retained even in the amended Section 100, the clause obviously protects contrary or different laws such as the Punjab Courts Act of 1918.

To read Section 100 minus the saving clause, and then to treat Section 41 of the Punjab Act as repugnant to Section 100, is not a very happy method of interpretation of statutes.

Nor can Section 97 operate to repeal Section 41 (of the Punjab Act), for Section 41 is not an amendment made or provision inserted in the CPC as required by Section 97. It is a provision that lies wholly outside the CPC though overlapping with it.

To treat such a mundane subject as civil procedure on the anvil of constitutional principles is admirable indeed. But, with great respect to the Supreme Court, the Constitution requires more than a mere reading to be applied correctly to the facts of a given case.

More on second appeals next week.

75 YEARS AGO

Indians in South Africa

If the telegram published in these columns yesterday, summing up a statement received by a Calcutta contemporary from its Delhi correspondent, means anything it means that an announcement is about to be made in the Union Parliament either for the consideration of the Anti-Asiatic Bill or materially modifying it. Nothing else can be meant by the statement that "the forthcoming announcement will record success for the labours of Lord Reading's Government and the ascendency in the counsels of the Union Government of a saner element which looks ahead and will rise above petty mindedness in dealing with a great racial issue." So many conflicting statements have, however, been made on this subject during the last six months that the public would prefer not to hallow until it is actually out of the wood. One thing is certain. The Indian problem in South Africa is much wider than the question of the abandonment or modification of the Anti-Asiatic Bill, and as regards that problem the telegram significantly adds that "it remains to be threshed out."

SPIRITUAL NUGGETS

Feed your mind with the thought of God, your heart with purity

And your hands with selfless service.

Remain soaked in the remembrance of God with a one-pointed mind.

***

A harmonious development of body, mind and soul can enable you to fulfil the glorious role for which you have taken birth here.

***

Love God fully and intensely with all your mind, with all your soul.

You will be wholly absorbed in Him.

***

Feel the presence of God wherever you go for God is everywhere.

There is no place where is he is not. He is in you and you are in Him.

He is nearer than relatives and friends.

Live in Him.

Love for the Lord brings you all joy, bliss and blessedness in life.

***

Start the day with the thought of God;

Fill the entire day with the thought of God; and retire to bed with the thought of God.

***

Do all your work as a worship

As an offering unto the Lord.

— Swami Chidnanda, Eternal Messages

***

If God comes and says; "What do you want? Do you want me — or do you want to live a happy life full of name, fame, health and wealth for a hundred years with wife, children and grand children"" — you will find that, except, perhaps, for one in ten million, it will all eagerly pray for the latter.

— Swami Virajananda, Towards the Goal Supreme

***

He who abides in love abides in God And God abides in him.

— The Gospel According to St. John 4:16