Monday, April 30, 2001,
Chandigarh, India






THE TRIBUNE SPECIALS
50 YEARS OF INDEPENDENCE

TERCENTENARY CELEBRATIONS
E D I T O R I A L   P A G E


EDITORIALS

Ties hot and sour
M
ANY could feel the steadily souring relations between Prime Minister Vajpayee and Opposition leader Sonia Gandhi. But on Friday they saw and heard angry words and rising temper. It was shocking beyond words. His was supposed to be a winding up speech, a footnote to the budget session. A formality. Not this time. Mr Vajpayee suddenly remembered the days and days of disruption on the Tehelka issue and CBI probe into charges against Mrs Gandhi and turned combative. First he virtually rejected a JPC to go into the tapes and then hinted that the CBI investigation might throw up unsavoury details about the Gandhi family. And he said this in an uncharacteristically threatening voice.

Laloo in dire straits
R
ASHTRIYA Janata Dal supremo Laloo Prasad Yadav continues to be the only leader in Bihar with a credible mass base despite the challenges he has faced from time to time. He has managed to keep intact his following among the Yadavs and the Muslims besides a section of the dalit voters. But the latest crisis in the RJD shows that he is in serious trouble. The ring leader of the RJD dissidents, Mr Ranjan Yadav, has succeeded in causing a split in the party’s Lok Sabha unit with the new group seeking recognition as the RJD (Democratic).



EARLIER ARTICLES

India’s lurching democracy
April 29
, 2001
Parroting master's voice
April 28
, 2001
An undebated budget
April 27
, 2001
Pre-election defeat
April 26
, 2001
Two losers in impasse war
April 25
, 2001
Wet wheat, dry FCI
April 24
, 2001
Rivals, not enemies
April 23
, 2001
Pakistan — a failed state?
April 22
, 2001
Akal Takht on girl-child
April 21
, 2001
Big leap in space
April 20
, 2001
Plane truths
April 19
, 2001
A hollow threat
April 18, 2001
 
OPINION

Dangers from trifling with democracy
How and where India has gone wrong
K. F. Rustamji
I
EXPECT our new doctors of astrology will be able to tell us why we are up to the neck in trouble. It seems to be a curse by someone in the higher regions, or a rare configuration of the stars, which has brought everything down — stock market crash, Tehelka expose, the uproar in Parliament, the BSF disaster, the stories doing rounds about those in authority, the drought which nobody seems to notice, farmers committing suicide and the horror in Orissa.

Tips for quake-resistant buildings
G. S. Dhillon

T
HE inherent desire of every individual is that the “nest” he builds should be strong enough to withstand disasters. But recent experience has demonstrated that most structures are not safe against earthquakes.

TRENDS AND POINTERS

Metal teeth for police dogs
POLICE dogs in the USA are being given metal teeth to improve their bite. The titanium false teeth are designed to make their bite stronger and to make it less likely a suspect will escape. Many Alsatians break their teeth during training and fitting false teeth is cheaper than training a new dog.

  • Top pregnant women’s cravings
  • Save the pay phones
  • Something fishy’s going on here
  • $1m lottery for second time
POINT OF LAW

Anupam Gupta
SC opens the pandora’s box of second appeal
“N
OTHING can be clearer,” said the Privy Council in 1890, “than the declaration in the Civil Procedure Code that no second appeal shall lie except on the grounds specified in Section 584 (now Section 100). No Court in India or elsewhere has power to add to or enlarge those grounds.”

75 YEARS AGO

Establishment of Board of Trade

 

SPIRITUAL NUGGETS



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Ties hot and sour

MANY could feel the steadily souring relations between Prime Minister Vajpayee and Opposition leader Sonia Gandhi. But on Friday they saw and heard angry words and rising temper. It was shocking beyond words. His was supposed to be a winding up speech, a footnote to the budget session. A formality. Not this time. Mr Vajpayee suddenly remembered the days and days of disruption on the Tehelka issue and CBI probe into charges against Mrs Gandhi and turned combative. First he virtually rejected a JPC to go into the tapes and then hinted that the CBI investigation might throw up unsavoury details about the Gandhi family. And he said this in an uncharacteristically threatening voice. After the Speaker adjourned the House Mrs Gandhi exploded. There is always her fixation with her family and how the BJP had behaved in the past like in being personal about her mother-in-law and husband and now her children. But she chose the wrong man to shout at – Mr L.K. Advani – and duly apologised. It is not clear why Mr Vajpayee used this occasion to go back on a JPC or revive the controversy over the CBI probe. But it is clear why she lost her cool and came out fuming. The script for the last three days of the session was written at the historic meeting between the two in the Speaker’s chamber. The Congress was to end its highly ill-thought-out disturbance by clinging to the “open mind” offer. And the government was to pretend normalcy and the two leaders were to mouth platitudes. She kept her part of the bargain but the Prime Minister rewrote the script and mounted a personal attack.

The hostility between the Prime Minister and the leader of the Opposition is not a personal affair. It has profound political and parliamentary implications. The Congress will from now on strike an implacably hostile posture. What passes off as political debate will become acrimonious. All this will spill over to the streets and then the “debate” will pass on to street lords. Both parties have trained and tested organisers. It is troubling to think of the possible developments. Anyway Parliament is a place for debate (or as Americans say, “advise and consent”) and a semi-permanent confrontation hardly promotes a free exchange of views. It is true that no serious and informed discussion takes place these days but it is still better than no discussion, as was the case with the budget. Personal rancour in an individual is natural but a political leader has to grow out of it simply because he or she is a leader, which is different from being an individual. 
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Laloo in dire straits

RASHTRIYA Janata Dal (RJD) supremo Laloo Prasad Yadav continues to be the only leader in Bihar with a credible mass base despite the challenges he has faced from time to time. He has managed to keep intact his following among the Yadavs and the Muslims besides a section of the dalit voters. But the latest crisis in the RJD shows that he is in serious trouble. The ring leader of the RJD dissidents, Mr Ranjan Yadav, has succeeded in causing a split in the party’s Lok Sabha unit with the new group seeking recognition as the RJD (Democratic). Of the total seven members of the party in the Lower House, three are no longer with Mr Laloo Yadav. Of course, the situation in the Rajya Sabha is different where Mr Ranjan Yadav led the RJD group till he was replaced by Mr Ramdev Bhandari on Friday. Only one Upper House member, a Buddhist monk, has come out openly in support of his expelled colleague. In the Bihar RJD Legislature Party too all those opposed to Mr Laloo Yadav’s style of functioning so far have fallen in line. This has happened despite the fact that seven state party presidents did not attend the RJD national executive meeting hurriedly convened by Mr Laloo Yadav in Patna on Saturday and Sunday.

The RJD chief went step by step to take on Mr Ranjan Yadav and his camp followers. First he removed his protege-turned-foe from the post of the RJD’s working president. After that the axe fell on two of the dissident leader’s key supporters — Mr Nagmani, an MP, and Mr Suman Sahay, the party’s two national general secretaries. Then Mr Ranjan Yadav was divested of his position as the leader of the RJD group in the Rajya Sabha. Now Mr Laloo Yadav says that the action against these people was necessary as they were “hobnobbing with communal elements”, and weakening the forces of social justice. This is a very damaging charge against Mr Ranjan Yadav, who has been his most trusted lieutenant till he became defiant. He knows his former mentor’s weaknesses more than any other person and, therefore, can be a source of serious threat for him. It all depends on the usefulness of Mr Ranjan Yadav to the scheme of things of the NDA allies. In the 1999 Lok Sabha elections Mr Laloo Yadav could win only seven of the 54 seats in Bihar following a good fight put up by the George Fernandes-Nitish Kumar duo and Mr Ram Vilas Paswan as part of the NDA. That the RJD leader succeeded in re-establishing his supremacy in the subsequent assembly elections is a different matter. Today the RJD chief’s cup of woes is full. He may go to jail any time, and then it may not be easy for him to run the show as smoothly as he has done now. The ranks of dissident MLAs, lying low for the time being, may swell. Mr Laloo Yadav’s legal problems arising out of the fodder scam and other cases will consume much of his time. The coming days are going to be quite crucial for this great political survivor. 
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Dangers from trifling with democracy
How and where India has gone wrong
K.F. Rustamji

I EXPECT our new doctors of astrology will be able to tell us why we are up to the neck in trouble. It seems to be a curse by someone in the higher regions, or a rare configuration of the stars, which has brought everything down — stock market crash, Tehelka expose, the uproar in Parliament, the BSF disaster, the stories doing rounds about those in authority, the drought which nobody seems to notice, farmers committing suicide and the horror in Orissa. How did all this come together and why is there no proper explanation for any of these disasters? Are we meeting all this in the correct democratic way? Or just trifling with democracy?

Repeatedly, we have been giving blows to democracy and it surprises me to see that politicians of all sides cannot see it. First, take the demonstrations in Parliament for holding up proceedings. If any politician believes that it helps the party to get votes, he does not know what people think. Democracy is meant for debate, and the correct venue is Parliament. Parliament is unable to provide it, and into this void has stepped television. The people no longer wait for a Parliament debate, they want to hear the discussions on TV, which are anchored competently and are easier to follow. Besides, a tradition of parliamentary indiscipline is being established which is slowly permeating into all aspects of life. And what a damnable cost the nation has to pay for uproar in Parliament and obstruction of work, and all the time and money spent on tea and snacks.

Is it normal for people in a democracy to be disgusted with all politicians? Or is this the normal process of democratic freedom which enables everyone to go to the devil in his own sweet way, and be given a “Rest in Peace” at the election?

Have you noticed that discerning people or those wanting to keep in touch with events do not consider debates in legislatures important. Imperceptibly, certain journals have come to acquire more relevance to our problems. The editors of most newspapers are as good as Moraes and men of the past but without Nehru, Sardar Patel and Deshmukh to overshadow them. Side by side, television debates are slowly taking over democratic discussion in a manner that the British parliamentary system could never have anticipated. Does it mean a sidelining of politicians, or is this the normal feature of every vibrant democracy?

The brokers swindled the bankers and recklessly led them into bankruptcy, and millions of small investors lost all that they had. Once again after 10 years the same cycle of greed, stupidity and lack of proper supervision brings us again to the edge of ruin. Each time the small man loses. Those who make millions by daylight dacoity at the expense of the small investor not only keep their ill-gotten gains, but also they are protected by a system which does not seem to see anything wrong in fraud and deception. What a lot of citizens today want but are reluctant to say is that all those who defraud the nation should be lined up and shot, and the bankers who went astray should be put in the first batch.

My dearest hope is that the CBI will not betray us. We will have no face to show if that happens. The CBI seems to be seeking publicity and its public disclosures seem to want to inflict ignominy rather than judicial punishment. The integrity of our CBI is of utmost importance today and I pray that the CBI chief and his officers do not let the nation down. If they can stand up and confirm their integrity, the nation will ever be grateful to them, and to the police.

There are a few nations in which people are undergoing rapid transformation. One nation that is emerging out of the medieval mould is India. The British brought it out from the past but perpetuated communal animosities. British systems and the English language opened up the modern world to us. In this process of change, we seem to be losing one quality which was the main constituent of Hinduism, and that is a certain spiritual quality, based not only on religion but more on deep philosophical insight. Along with it was a tradition of gentleness which made non-violence easily acceptable to the people. All that is being abandoned.

For the last 75 years the Muslims have believed in wrong doctrines. First they believed they would find salvation in Pakistan. That turned out to be a grievous mistake. Now they are striving to find a new ideology and a new hope — one ideology that seems to satisfy those who have grown bitter is jehad. That may turn out to be another cardinal mistake in which many young men and their families will perish, and at the same time worsen the fate of the entire community. How absurd it is to think of fanaticism when secularism offers a decent life.

Three important elements of our society — women, Dalits and farmers will never get a fair deal because the majority of us believe that no injustice has ever been done to them. They have to wait till aggressive leaders arise to prepare the public mind.

Democracy has fitted easily into the Indian ethos. It is in essence a revival of what is basic to India — a panchayat. The ruler was distant, demanding and was often changed. The panchayats held the villages together but perpetuated differences and permitted the “malguzars” to make exactions. There was a clear distinction between social obligations which were within the panchayat ambit and political exactions which were the rulers prerogative.

Health and education were nobody’s concern. Panchayati raj is one of the best ways of preserving democracy, and that means the top levels of government and the panchayats must learn how to live together. In the past whenever the panchayats passed into the hands of the opposition, one excuse or the other was brought out to suppress them. That must not occur again. Competent supervision is what is required, and in this we Indians have a weakness. We do not know how to supervise. Every department suffers from this defect.

Today all politicians stand exposed. If this dismal slide continues and people lose faith in the major political parties, we will have to depend, for a long time, on small parties’ coalitions. Many nations have had this for years and have progressed. We have not yet learnt how to work coalitions. Ms Mamata Banerjee has shown us a form of politics which is degrading but has probably come to stay in our democracy. I call it trifling with democracy.

The writer is a former member of the Police Commission.

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Tips for quake-resistant buildings
G. S. Dhillon

THE inherent desire of every individual is that the “nest” he builds should be strong enough to withstand disasters. But recent experience has demonstrated that most structures are not safe against earthquakes.

The Ministry of Urban Development, Government of India, has issued amended bylaws for the Delhi area to ensure the coming up of earthquake-resistant buildings. The incorporation of safety measures will be the responsibility of owners.

The amended bylaws are to serve as the model for the states which have been directed to enact similar bylaws. It has been made mandatory to provide a certificate along with building plans and an undertaking that the plans submitted for approval “satisfy the requirements as stipulated by the NBC (National Building Code).

The certificate, as also the building plans, will have to carry the signatures of the building owner, the architect and that of a structural engineer. A similar certificate will have to be furnished at the time of obtaining the completion certificate for the building that it has been built strictly according to the plans and design approved.

So, a person desiring to build a house will have to be fully aware as to what constitutes a safe design for an earthquake-resistant building. This write-up is an attempt to list the common pitfalls which make a building vulnerable to earthquakes.

An interesting publication on the subject has been brought out by the Indian Standards Institute (renamed the Bureau of Indian Standards), New Delhi, entitled “Earthquake-Resistant Design and Construction of Buildings”. Several expert agencies have worked together in bringing out this book. The various recommendations listed in it have been verified experimentally on models tested on the “shake-tables tests”.

The earthquake force imparted to a building is a function of mass. So, the building should be designed as light as possible, consistent with structural safety and functional requirements. Thus the roof and the upper storeys of the building in particular should be designed in this manner. The different components of the building should be tied together in such a manner that it acts as one unit. The concrete slabs should be rigidly connected or integrally cast with the support beams.

Additions and alterations to the building should be accompanied by the provisions of “separation” of the “crumple” section between the new and the existing structure.

Cantilever or projected parts should be avoided as far as possible. But where necessary such a construction should be properly reinforced and fully tied to the main structure and adequately designed. A prefabricated construction has been found, after the American earthquake of 1988, to be prone to collapse due to the post-tremor impact.

Ceiling plaster should be avoided as far as possible, but where necessary, such a plaster should be kept as thin as possible. Suspended ceiling should not be provided as such a construction is most prone to falling down during tremors. Where provided, suspended ceiling sections should be adequately framed and secured.

In order to minimise “torsion and stress concentration”, a building should have a simple rectangular plan, and should be symmetrical, both with respect to the mass and the rigidity of the structure. The length of the rectangular section should be kept not more than three times its width.

The centre of rigidity is defined as the point where a lateral force, if applied, would produce equal deflections of its components as at any one level in any particular direction.

If the symmetry of the structure is not possible in the plan, elevation or the mass, provision should made for torsion and other effects due to an earthquake in the structural design, or parts of different rigidities should be “separated through the crumple section”.

No structure should be founded on loose soil (such as fine sand, silt). In case loose fine soil or expansive clay soil cannot be avoided, we should either provide a “raft foundation” or a “pile foundation” with the piles transferring the load to the firm soil. The other option available is the “foundation improvement” by either “sand piling” or by “vibro-compaction” of the loose soil.

All the “individual footings”, or the “pile caps” where adopted in soft soil, should be connected by reinforced concrete ties extending in at least two directions at right angles to each other.

For buildings with a basement, the ties be placed at the level of the basement floor. These ties should be designed to carry the load of the panel walls also if located on them.

Such ties will not be needed where the structural floor connects the columns at or below the plinth level. These ties should be designed to “tension” and “compression” loads, in addition to the axial load not less than the earthquake force acting on the heaviest column connected. While working out the “buckling strength” of the ties, the lateral support provided by the soil should be taken into account.

Where necessary a complete separation of different parts of the building should be made except below the plinth level.

The foundations have to be equipped to face the lateral force whose magnitude may be found from the “design seismic coefficient” or from dynamic model tests on shaking-tables.

It may be mentioned that the commonly adopted individual footings have virtually no strength to meet the lateral forces. But if the individual footings are tied together with structural members of adequate strength to transmit tension or compression forces, from one footing to the group, the chances of survival increase.

Basement walls provide a “thrust area” which reduces the lateral force required to be carried by the foundations. Raft foundations located on the well-compacted soil require less rigid lateral support to ensure greater “damping” and absorb a greater amount of energy.

Doors and windows in the walls reduce their lateral load resistance and hence these should preferably be small and centrally located. The top of all openings in any one storey should be at the same level so that a continuous band is provided.

Band of reinforced concrete or reinforced brick work, provided in the walls is to tie together and to impart horizontal bending strength, which is a desirable feature against earthquake forces. One such band should be located near the plinth level and other just below the roof. Such bands provide the overall integrity of the building so that all the walls act simultaneously together under the earthquake force which then get distributed on the walls.

The bands at the plinth level, the lintel level and the roof level should be joined by the vertical steel (MS bar of 12 mm diametre for a single-storey house, and an 18 mm bar located at the junction of the walls is considered adequate.

The writer, a retired civil engineer, is a water resource consultant.

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Metal teeth for police dogs

Police dogs in the USA are being given metal teeth to improve their bite.

The titanium false teeth are designed to make their bite stronger and to make it less likely a suspect will escape.

Many Alsatians break their teeth during training and fitting false teeth is cheaper than training a new dog.

The teeth cost around £400 each — a bargain compared with the £6,800 it costs to obtain and train a new dog. Around 600 dogs a year are being equipped with the new teeth.

Jim Watson, secretary of the North American Police Work Dogs Association, said: “The four big canines are what you see first when a dog opens its mouth or bares its teeth. So, having metallic canines will draw a person’s attention and scare them more.

“If the dog is barking and someone sees the sunlight sparkling on his metal teeth, it may encourage the person to back down.”

Civil rights groups have expressed alarm at the trend.

Emily Whitfield, of the American Civil Liberties Union, said: “Innocent bystanders and witnesses to crimes have been attacked by police dogs by mistake.

“It’s bad enough being chased by a dog with just an ordinary set of teeth. Metal fangs just up the ante and seem to us to be overkill.” The Sunday Telegraph

Top pregnant women’s cravings

Research has found that spicy food and sex are the two things women crave most when pregnant.

A survey of 500 mums-to-be for supermarket chain Somerfield has found that curry is the number one desire for women in the early stages of pregnancy.

Three-quarters of those questioned said they craved bizarre combinations of food, such as salmon and jam sandwiches or tuna with peanut butter.

Two-thirds said their cravings started around the 16th week of pregnancy.

Half of respondents experienced daily desires for certain foods while pregnant.

And the study discovered the top non-food craving for pregnant women was more sex.

The top five foods were curry, pickled vegetables, tomato sauce, chocolate and biscuits. The top four non-food cravings were more sex, petrol, varnish and vinegar. Reuters

Save the pay phones

British Telecommunications, concerned that folks are using cell phones more and pay phones less, is renting space in booths of many of its 140,000 pay phones for mobile phone transmitters.

That’s right, BT is offering its competitors rental space on its properties for small mobile phone base stations in pay phones.

In other phone news from Old Blighty, Prime Minister Tony Blair urged Motorola not to close its plant there, after reading rumours it would. Motorola has not denied the rumours. Reuters

Something fishy’s going on here

According to a report in New Scientist, female trout fake orgasms. “They trick the males into releasing their sperm,” says Torbjoern Jaervi of Sweden’s National Board of Fisheries.

The more they fake it, the more males that swim up before they release their eggs, Jaervi says, allowing them to choose the best mate to fertilise them. During the study of brown trout, the researchers found that the females faked spawning behavior in 69 out of 117 matings. AFP

$1m lottery for second time

An Ontario couple has won a $1 million lottery jackpot for the second time in three years.

Angel and Mercedes Rojas, from Scarborough, are enjoying their second win of around £450,000 on the Lotto 6/49.

Mr Rojas plans to keep most of the cash this time after giving away a lot of his first win.

The political refugee from Chile said: “We came to Canada in 1976 with two suitcases, and in one corner of one of those suitcases was a package of dreams.

“Canada has made all of my dreams come true.”

When he realised he’d won again, he said: “I started to scream, I yelled for my wife, we were so happy.”

Don Pister, of the Ontario Lottery and Gaming Corporation, said the odds of winning the big jackpot were about 14 million to one.

He added that experts said the odds of winning two separate jackpots were in the billions.

The couple plan to buy new cars for their four adult children and possibly visit their native Chile. The Star
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SC opens the pandora’s box of second appeal
Anupam Gupta

“NOTHING can be clearer,” said the Privy Council in 1890, “than the declaration in the Civil Procedure Code that no second appeal shall lie except on the grounds specified in Section 584 (now Section 100). No Court in India or elsewhere has power to add to or enlarge those grounds.”

Of all the dicta of that highest court of appeal for India before independence, a court manned by some of the ablest British judges possessing — despite the geographical distance and the famed insularity of the English mind — an uncanny ability to grasp the essence of Indian law, these words of Lord Macnaghten are amongst the most well-known.

And yet, even as the Supreme Court effaced Section 41 of the Punjab Courts Act from the statute-book — as I wrote last time — and restricted second appeals in Punjab and Haryana to a “substantial question of law”, it clearly ignored the warning sounded by Lord Macnaghten.

And added to Section 100 of the Civil Procedure Code a ground of appeal that it does not contain. Perversity.

“Admittedly,” ruled the Supreme Court on March 21, “Section 100 has introduced a definite restriction on the exercise of jurisdiction in a second appeal ..... but the fact remains (that if) there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue ..... (P)erversity itself is a substantial question worth adjudication.”

It is essential however, the Supreme Court added, that a “categorical” finding as to perversity be recorded by the High Court while entertaining a second appeal “so as to make it evident that Section 100 of the Code stands complied with.”

But Section 100 of the Code does not speak of “perversity” at all. It speaks only of a substantial question of law and of the High Court’s satisfaction that such a question is involved in a second appeal filed before it.

It is followed immediately by Section 101, which has remained the same for more than a century and which reads: “No second appeal shall lie except on the grounds mentioned in Section 100.”

The provision which the Privy Council obviously had in mind when it embargoed judicial enlargement of the grounds of second appeal.

While thus engrafting “perversity” onto Section 100, the Supreme Court on March 21 made no attempt whatsoever to indicate what that term meant.

On the contrary, it spoke nebulously, even warmly, of the “issue of perversity vis-a-vis the concept of justice”.

To contend, said the Supreme Court, that “scrutiny of evidence will be totally prohibited in the matter of jurisdiction in second appeal, would be too broad a proposition and too rigid an interpretation of law”.

“If the concept of justice so warrants,” it observed, “we do not see any reason why such an exercise (sh)ould be deprecated.”

Judicial approach being justice-oriented, it added, exclusion of the High Court’s jurisdiction as contended “would lead to an incongruous situation, being opposed to the concept of justice.”

Here we have, then, the notion of perversity as part of the concept of justice, on the one hand, and the concept of justice superimposed on the notion of perversity, on the other.

Both, jointly if not severally, serving as a judicially-created ground of appeal under Section 100.

The lay reader cannot be blamed for understanding little of this. But I’ll be damned if even a lawyer, an experienced lawyer on the civil side, can make much of it. Or guide his client with any degree of assurance as to the proper scope of second appeal hereafter.

Intended originally to be a legal synonym for the grossly unreasonable or the grossly unwarranted, the term “perverse” or “perversity” tends nonetheless to be used rather loosely and liberally in actual practice. “Justice” or “concept of justice” is still worse and knows literally no boundaries even as “justice, equity and good conscience” has, with the passage of time and the departure of English judges, lost all shape.

Employing such terms in a substantive sense as sources of judicial power carries with it the risk of their becoming, in the best of hands, mere figures of speech.

To hold, therefore, that a second appeal can be entertained by the High Court if the judgement appealed against happens to be “perverse” or opposed to the “concept of justice”, for that also raises a substantial question of law, is to render Section 100 hostage to the anarchy of language.

The irony is that the dovetailing of the concept of second appeal with the concept of justice is precisely what the Law Commission hit out against in its 54th report, the report on the basis of which Parliament amended Section 100 of the Code in 1976.

“High Courts do sometimes,” said the Law Commission, “unwittingly or even deliberately enlarge the scope of their jurisdiction under Section 100 in pursuance of what they honestly regard as the requirements of justice.”

Some Judges of the High Court, the commission elaborated, honestly believed that if, in any second appeal brought before them, evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they “seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice.”

“However laudable and commendable such an approach may ethically claim to be,” observed the Commission, “it overlooks the fact that courts administer justice according to law; and where limits have been prescribed for the exercise of the High Court’s powers under Section 100, in trying to redress injustice by interfering with questions of fact, the court, in effect, is violating the express provisions of Section 100 itself.”

Aiming to give full effect to the intention of Parliament in amending Section 100, the Supreme Court turned a blind eye to the saving clause with which the Section opens and declared Section 41 of the Punjab Courts Act void and unenforceable.

Aiming in the same breath to do full justice between the parties, however, it has prised open once again the pandora’s box of second appeal — where questions of law wrestle with questions of fact, concurrent findings of fact and mixed questions of fact and law — a box which Parliament intended to shut and lock up forever.

“Questions of law and of fact are often difficult to disentangle,” said the Privy Council in 1918, in an appeal from Calcutta. “The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other”.

But the question, said Lord Buckmaster, speaking on behalf of a Bench that included Syed Ameer Ali, the first Indian judge of the Privy Council, “whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact.”

I will be obliged, indeed, to the reader who can tell me what all that means. But that is not all.

“The great question between the parties,” said the apex colonial court nine years later in 1927, is as to the nature of the appellants’ interest in a plot of land, 2250 sq yards large, in Delhi’s Sadar Bazar.

Were they, as the respondents contended, mere tenants at will, or did they enjoy a permanent inheritable right therein subject to payment of a fixed rent?

“(T)heir Lordships would be the last,” assured Lord Blanesburgh, another Indian judge, Lord Sinha, among those giving him company, “to seek to abridge the effect of Sections 100 and 101 of the Code of Civil Procedure or weaken the strict rule that, on second appeal, the appellate court is bound by the findings of fact of the courts below.”

And yet, he said, the question whether a tenancy is permanent or precarious “seems...in a case like the present, to be a legal inference from facts and not itself a question of fact. The High Court described the question here as a mixed question of law and fact, a phrase not unhappy if it carries with it the warning that, insofar as it depends upon fact, the finding of the court on first appeal must be accepted.”

Will anyone dare to translate this legalese into common, comprehensible English?

Speaking finally after independence in a judgement that remains to be bettered on the point, the Supreme Court in 1957 acknowledged:

“In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other.”

It is to steer clear of such perilous enclaves that Parliament amended the CPC in 1976.

A quarter of a century after that amendment, however, the court has destroyed its sanctity in the guise of paying it homage.

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75 YEARS AGO

Establishment of Board of Trade

The Punjab Chamber of Commerce met today and re-elected Mr V.P. Gray, M. L. C., as Chairman, and Hon'ble Lala Ramsaran Dass as Vice-Chairman. The Chamber considered the suggestion made by the Punjab Minister of Agriculture and Industries for the constitution of a Board of Trade and is understood to have deputed Mr Gray to take part in the Conference to be convened by the Minister for the purpose. The Chamber could not express any opinion on the subject without having an outline of the constitution and the functions of the proposed board.
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SPIRITUAL NUGGETS

The dead are not the dead; But The dead are those, Who, without dying, Live, With palms outstretched For alms,

And who are the living, My friend, If not the givers, Who, though dead, Live for ever?

***

Matter, which is descended from Ether, pervades the whole of the limit-disdaining expanse of space; And God dwells in this expanse, infusing and transcending it, even as soul and consciousness infuse the flesh, yet transcend it.

That Godhead is no other than that prince of princes, that wearer of the warriors anklets, who teased and ill-treated by his queenly stepmother and a hunchbacked hag, abdicated the sceptre, crossed jungle and sea and saved the celestials from tyranny.

— From Kamban's Ramayana: Bala Kanda: Mahabali's words; Ayodhya Kanda, invocation.

***

Through the Word, I realised the supreme objective, the

perfect Master sustained me.

Through the Guru's Word I meditated on him;

Through His grace I attained the state of bliss

Through listening to and reciting the Guru's Word,

I had a vision of Him.

Through the Guru's Word,

Ambrosia was on my lips;

Through the Guru's Word

I was raised high from lowly depths;

Through the Guru's Word,

my illusion was dispelled;

Through the Guru's word I found God all-pervading.

Through the Guru's Word, I was in union with God

while dwelling in the world as a householder.

Through the Master all are sustained.

Through the Guru's Word all comes right;

Through the Guru's Word I found all boons.

He whose thoughts are centered on Him

is free from the noose of death.

Through the Guru's Word my good fortune awakened;

Through the Guru I realised the Transcendent God, said Nanak (the fifth).

— Sri Guru Granth Sahib, Gaudi Mohalla 5, page 239.

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