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Transgression of Federalism: A Critique Of Supreme Court Decision in Kulwant Kaur V. Gurdial Singh Mann
by Balwant Singh Malik

Cite as : (2004) PL WebJour 20

About federalism incorporated in the Indian Constitution the nine-Judge Bench in S.R. Bommai v. Union of India1 declared thus:

276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.”2

Notwithstanding this injunction of the larger bench a two-Judge bench of the Apex Court has, in Kulwant Kaur v. Gurdial Singh Mann3 adopted the interpretation of a Central law and a State law whittling down the plenary powers of the States. A critical appraisal of the decision of the two-Judge bench by which it has struck down the provisions of Section 41 of the Punjab Courts Act, 1918 as “impliedly repealed” by amended Section 100 of the Code of Civil Procedure (CPC), appears necessary.

In the case under comment, the civil appeal by way of special leave arose from a judgment and decree passed in a regular second appeal by the Punjab and Haryana High Court which had set aside the judgment and decree passed by the first appellate court, which had decreed the suit of the appellant-plaintiff Kulwant Kaur. The suit was for partition of agricultural land on the basis of two conflicting wills of one Sahib Singh Mann. The two-Judge bench of the Supreme Court set aside the judgment and decree of the High Court.

It was argued that no regular second appeal was entertainable in the High Court under Section 41 of the Punjab Courts Act, 1918.4 After the amendment of Section 100 CPC5 by the CPC (Amendment) Act, 1976 a second appeal was maintainable only in the cases involving a “substantial question of law” and the provisions of Section 41 of the Punjab Courts Act which had become repugnant to the amended Section 100 CPC were liable to be struck down as impliedly repealed by Section 100 and Section 97(1) of the CPC (Amendment) Act, 1976 read with Article 254 of the Constitution.

The two-Judge bench accepted the contentions and allowed the civil appeal by recording the following findings:

(1) Section 97(1) of the CPC (Amendment) Act, 1976 has an overriding effect as against any amendment or provision being inconsistent with the provisions of the principal Act, namely, the Code of Civil Procedure, 1908.6

(2) It is on this score that Article 254 of the Constitution has a bearing, Article 254 maintains parliamentary supremacy on subjects or matters under List I and List III of Schedule VII. Where a particular provision cannot coexist or intended to subsist in the event of there being repugnancy between the Central and State legislations, the court cannot but declare it to be so on the ground of repeal by implication.7

(3) The question of inconsistency of Section 41 of the Punjab Courts Act with Section 100 CPC arose only upon amendment of the latter provision by the CPC (Amendment) Act, 1976. The scope of second appeal before the High Court stands restricted to hearing appeals involving a substantial question of law only.

(4) While it is true that on its plain reading Section 4 CPC on the first glance, the local law (Punjab Courts Act) seems to have been saved, but the local law has to be examined in the light of Article 254 and the doctrine of repugnancy read with Section 97 of the CPC (Amendment) Act.

(5) Incorporation of the CPC (Amendment) Act in the statute-book is by virtue of power under Entry 13 List III of the Seventh Schedule of the Constitution. Article 254 makes unequivocal the supremacy of Parliament in the matter of repugnancy of any matter falling under Lists I and III.

(6) The saving clause in Section 100(1) as amended also does not save the provisions of Section 41 of the Punjab Courts Act.8

It is submitted with respect, that this decision needs review and revision as explained below:

The Punjab Courts Act is a legislation under Entry 3 of the State List9: “Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Court.” It could also be under Articles 23336 and under Entry 65 in List II which is, as follows: “65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List (State List).” The suit in the present being a land suit it could also fall within the subject-matter of “Land ...” under Entry 18 of the State List.10

In Megh Raj v. Allah Rakhia11 the Punjab Restitution of Mortgaged Lands Act, 1938 was challenged before the Judicial Committee of the Privy Council as Ultra Vires Punjab Provincial Legislature under Section 107 of the Government of India Act, 1935 (equivalent of Article 254) for being repugnant to the Indian Contract Act, Sections 37, 69 and 70 and the Code of Civil Procedure, Section 4(1) and (2) and Section 9. The Privy Council rejected the challenge by upholding the legislative competence of the Punjab Provincial Legislature under Entry 21 and Entry 2 (equivalent of Entries 18 and 65) of the Provincial or State List and declaring the inapplicability of Section 107 (now Article 254) as the Provincial Legislature had not exercised any power in the Concurrent List. The Privy Council in this context observed:

“Section 107 (now Article 254) has no application in a case where the Province (or State) could show that it was acting wholly within its powers under the Provincial/State List and was not relying on any power conferred on it by the Concurrent List and accordingly question of repugnancy does not arise in such a case.12

The Supreme Court have had occasions to deal with similar question. A Constitution Bench of the Supreme Court in State of Bombay v. Narothamdas Jethabai13 interpreting the Bombay City Civil Court Act, 1948, held that all the Hon’ble Judges agreed (though wrote separate judgments) that the Bombay Act “was a law with respect to a matter enumerated in List II and was not ultra vires (the State Legislature)”.

The Hon’ble Supreme Court followed this Constitution Bench in another case: Indu Bhusan De v. State of W.B.14 under the Calcutta City Civil Court Act. In these cases among others, Entry 65 in State List was relied on. In the case under comments all these aforementioned provisions including Entry 65 have altogether been omitted from consideration.

In A.S. Krishna v. State of Madras15 one of the two objections was: Section 4(2) and Sections 28-32 of the Madras Prohibition Act, 1937 were void under Section 107 of the Government of India Act, 1935 (now Article 254 of the Constitution) because they were repugnant to the provisions of existing Indian laws with respect to the same matter to wit, Indian Evidence Act 1 of 1872 and Criminal Procedure Code Act V of 1898. The Constitution Bench did not agree. The Court ruled thus:

“For this section (Section 107 is present Article 254) to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law (State law) and those of the Central legislation must both be in respect of a matter which is enumerated in the Concurrent List.16

The Court concluded that the legislation was thus on a topic which was reserved to the Provinces (States) and would therefore fall outside Section 107(1) (Article 254) of the Constitution Act. (AIR p. 301, para 6)

The Constitution Bench also drew analogy (at AIR pp. 302-03, para 11) from a five-Judge bench decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar17 wherein the Court observed:

“Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same. It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List II would come within Item 37 (now Entry 64) of List II itself, and have been expressly excluded from Item 1 (criminal law) of the Concurrent List. The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain courts for that purpose would be covered completely by Item 2 of List II (now Entry 65 in List II) and it is not necessary for the Provincial (State) Legislature to invoke the powers under Item 2 (criminal procedure) of the Concurrent List.18

It was accordingly held that the entire legislation fell within Entries 1 and 2 of List II, and that no question or repugnancy under Section 107(1) (Article 254) arose.”

The same reasoning holds good in Kulwant Kaur case3 as the Punjab Courts Act as also the similar enactments of the other States, are referable to the sovereign powers of the State Legislatures in List II.

The Division Bench in Kulwant Kaur case3 has overlooked a large number of other relevant precedents19 also.

Besides, Article 254 is not applicable to the pre-Constitution Punjab Courts Act as the Article conceives of a post-Constitution law made by a State Legislature created under the Constitution as clarified by the Constitution Bench in Soma Singh v. State of Pepsu20. The precedents of Zaverbhai case7 and of M. Karunanidhi case7 were clearly misunderstood. They do not lay down any different principle of law from the precedents relied on herein. The other findings in Kulwant Kaur case3 are examined below.

Impact of Section 97(1) of the CPC (Amendment) Act

Section 97(1) of the CPC (Amendment) Act, 1976 — a transitional provision had nothing to do with the provisions of the Punjab Courts Act or any provision therein. Section 97(1), in terms, repealed the State amendments made to the CPC or any rules made by the High Courts and inserted — in the CPC, which would, upon amendment of the CPC, become inconsistent with CPC, Section 97(1) does not go beyond the CPC, which is within the Concurrent List (Entry 13) and the provision [Section 97(1)] could not, by any principle of interpretation, be extended to laws made by the States under the State List.

In the judgment under comment Section 97(1) was interpreted in para 28, at p. 276 (of SCC Report). The finding recorded thereon is quoted:

“28. Thus language of Section 97(1) of the CPC (Amendment) Act spells out that any local law which can be termed to be inconsistent (with CPC) perishes, but if it is not so, the local law would continue to occupy its field.”

A cursory glance at the finding would show that it is incorrectly made to cover a wider field. For, that local law only would perish under the impact of Section 97(1) which was enacted by a State in the Code of Civil Procedure pursuant to its power in the Concurrent List under Entry 13 (Code of Civil Procedure). No other local law made by a State Legislature under any of the entries in the State List like the Punjab Courts Act would perish. Moreover, Section 41 thereof which is specifically relatable to Entry 65 of the State List would not perish under any provision of the CPC (Amendment) Act including amended Section 100.

It is needless to reiterate that the States are supreme as regards their legislations falling within the State legislative field under List II. Section 97(1) does not extend the operation of Article 254 to State List in any manner whatever. This provision (Article 254) is confined only to cases when the clashing legislations of the Centre and States fall within the Concurrent List.

Section 100(1) CPC itself saves Punjab Courts Act

The opening words of Section 100(1) “Save as otherwise expressly provided … or by any other law for the time being in force …” clearly keep the provisions of Section 41 of the Punjab Courts Act valid whereunder regular second appeals shall remain available without involving a “substantial question of law”, as heretofore.

In the case under comment, Section 97(1) of the CPC (Amendment) Act has been relied upon to nullify the saving clause in Section 100(1) aforesaid. It seems, Section 97(1) has been clearly misread in the case. Section 97(1) confines itself to the subjects or matters covered within CPC which falls in the Concurrent List (Entry 13). It has nothing to do with legislations under the State List.

As shown above by quoting from the precedents of Megh Raj11 and A.S. Krishna15 that as long as the State Legislature remains within its exclusive legislative field in the State List and does not resort to the Concurrent List, Parliament cannot override such State Legislation. For, according to settled law State List is a forbidden field for the Parliament.

A seven-Judge Bench in Union of India v. Harbhajan Singh Dhillon21 while determining the scope of legislative powers of Parliament observed as follows: (SCC p. 803, para 67)

“[W]e have the three lists and a residuary power and therefore it seems to us that in this context if a Central Act is challenged as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in List II. If it is not, no further question arises.”

In other words, if the Central law under challenge is found to be with respect to a matter in the State List, Central law would be ultra vires Parliament as the matters in the State List are a forbidden field for Parliament to enter. Section 100(1) CPC therefore, could not contain a provision affecting the provisions of Section 41 of the Punjab Courts Act. There are other several such decisions22 of the Apex Court which were left out of consideration in Kulwant Kaur case3.

Section 4(1) of CPC saves Section 41 of Punjab Courts Act

Section 4(1) CPC like Section 100(1) CPC also has an independent saving clause under which it saves Section 41 of the Punjab Courts Act. Therefore, the reasoning given for the saving clause in Section 100(1) equally applies to Section 4(1). The Division Bench in Kulwant Kaur case3 ought not to have overruled the Full Bench decision of the Punjab and Haryana High Court in Ganpat v. Ram Devi23, which correctly interpreted the saving clauses in Sections 4(1) and 100(1) CPC and ought to have upheld the validity of Section 41 of the Punjab Courts Act.

If Section 4(1) CPC is read after omitting from it the expression “In the absence of any specific provision to the contrary”, it would read:

“… nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.”

The expression “in the absence of any specific provision to the contrary” was enacted24, under Section 22 of the Indian Councils Act, 1861 by the then “Legislative Council of India” when it had vast powers to make laws “for all persons, for all courts of justice whatever, and for all places and things whatever within the said territories”. Now when the Central Legislature has been barred to interfere with the laws made by the legislatures of the States within their exclusive power under the State List, Parliament could not arrogate to itself the power to enact any specific provision to the contrary as to limit or otherwise affect any special or local law made by the States or limit or affect any special jurisdiction or power conferred or any special form of procedure prescribed by or under any law made by a State within its sovereign sphere.

Besides, the aforementioned expression Section 4(1) is in excess of parliamentary power under the new Constitution and the draftsmen ought to have modelled Section 4(1) CPC and Section 5 CrPC on the pattern of Section 5 of the Indian Penal Code which reads:

“5. Certain laws not to be affected by this Act.—Nothing in this Act shall affect … the provisions of any special or local law.”

Some other comments on Kulwant Kaur Case

The case of Kulwant Kaur3 involved the determination of substantial questions of law as to the interpretation of the Constitution. The minimum number of Judges prescribed under Article 145(3) of the Constitution to hear the cases involving a substantial question of law as to the interpretation of the Constitution is five. But the case was heard only by a Division Bench instead of a Constitution Bench. The judgment under comment is therefore, ultra vires the powers of Division Bench.

No provision of Central or State law (Section 41 of the Punjab Courts Act in the case) could be struck down as unconstitutional in a private litigation without giving a notice to the Attorney General in the case of a Central law and to the Advocate General in the case of a State law. The Division Bench failed to direct notice to be given to the Advocates General for the States of Punjab and Haryana under Rule 1 or Order XL III of the Supreme Court Rules, 1966 as interpreted in Basant Lal v. State of U.P.25

Having regard to the principles enunciated in A.R. Antulay v. R.S. Nayak26 a seven-Judge decision — the decision under comment amounts to a per incuriam opinion as the court omitted to consider a large number of constitutional provisions and binding precedents.


The constitutional draftsmen pretty well knew it that Entry 13 in List III Civil Procedure Code like the Criminal Procedure Code did not provide for creation and organisation of Subordinate Courts, appointment of the presiding officers of such courts and the conferring of jurisdiction and powers on such courts or on High Courts for trial of suits, appeals and other proceedings and such matters have been appropriately left to the legislatures of the States. The State legislative field is a forbidden territory for Parliament to enter. Therefore, CPC rightly has double saving clauses for unhindered operation of all State laws on aforesaid subjects or matters. It was because of this position that the Punjab and Haryana High Court in its Full Bench decision has saved the Punjab Courts Act as against CPC.

The statement of law: “Uniformity of law is a basic characteristic of the Indian jurisprudence” is, no doubt an ideal to be achieved. But the representatives of the people in the State Legislature have to cater to another national objective: “Unity in diversity” and to provide for people at different socio-economic levels. Besides, the Division Bench was not to substitute its opinion for that of the people’s representatives. The High Court in its Full Bench has appropriately left the matter to the State Legislatures of Punjab and Haryana. The decision in Kulwant Kaur3 therefore strikes at Indian federalism. It is therefore submitted with respect, that the decision should be re-examined by the Supreme Court.


1. (1994) 3 SCC 1 Return to Text

2. Ibid., at pp. 216-17, para 276. Return to Text

3. (2001) 4 SCC 262 Return to Text

4. Punjab Act 6 of 1918 — Section 41 lays down: Return to Text

41. Second appeals.—(1) An appeal shall lie to the 6[High Court] from every decree passed in appeal by any Court subordinate to the 6[High Court] on any of the following grounds namely:

(a) The decision 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 custom or usage having the force of law;

(c) A substantial error or defect in the procedure provided by the Code of Civil Procedure, 1908, or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits.

3[Explanation.—A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this section.]

(2) An appeal may lie under this section from an appellate decree passed ex parte.

5. Section 100 as amended lays down: Return to Text

100. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, 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.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

6. Ganpat Giri v. II ADJ, Ballia, (1986) 1 SCC 515 Return to Text

7. See Zaver Bhai Amaidas v. State of Bombay, (1955) 1 SCR 799 and M. Karunanidhi v. Union of India, (1979) 3 SCC 431 Return to Text

8. Entry 3 of List II transferred as Entry 11-A in List III by the Constitution (Forty-second Amendment) Act, 1976 Section 57 (w.e.f. 3-1-1977). Return to Text

9. Except Entry 3, see Note 8 above. Return to Text

10. In the Seventh Schedule to the Constitution. Return to Text

11. AIR 1947 PC 72 Return to Text

12. Ibid., at p. 74, para 12 Return to Text

13. See 1951 SCR 51 Return to Text

14. (1986) 3 SCC 682 Return to Text

15. 1957 SCR 399 Return to Text

16. Ibid., at pp. 403-04 Return to Text

17. 1949 FCR 693. In this case the question related to the validity of the Bihar Maintenance of Public Order Ordinance, 1949. The contention was that though the sections of the Ordinance relating to maintenance of public order might be covered in Entry 1 (“Public Order”) in List II (Provincial/State List), the sections constituting the offences and providing for search, seizure and trial of offences fell within Entry 1 (“criminal law”) and Entry 2 (Code of Criminal Procedure) in the Concurrent List and they were void as being repugnant to the provisions of the Criminal Procedure Code. The Federal Court rejected the contention, as observed in paragraph 14 of its judgment, which is extracted at pp. 409-10 in Supreme Court judgment in A.S. Krishna v. State of Madras15. Return to Text

18. Ibid., paragraph 14 quoted at pp. 409-10, SC judgment in note 15 Return to Text

19. State of A.P. v. McDowell & Co., (1996) 3 SCC 709; State of Rajasthan v. Vatan Medical & General Store, (2001) 4 SCC 642; Khandelwal Metal and Engg. Works v. Union of India, (1985) 3 SCC 620; P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC 187; Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562 Return to Text

20. See 1954 SCR 955 Return to Text

21. (1971) 2 SCC 779 Return to Text

22. Attorney General for India v. Amratlal Prajivan Das, (1994) 5 SCC 54; See fn 19, (1996) 3 SCC 709, (2001) 4 SCC 642, (1985) 3 SCC 620 Return to Text

23. See AIR 1978 P&H 137 (FB) Return to Text

24. In sub-section (2) of Section 1 CrPC, 1861 (Act 25 of 1861) and continued in CrPC, 1898 (Act 5 of 1898). Now Section 5 CrPC, 1974. Return to Text

25. (1998) 8 SCC 589 Return to Text

26. (1988) 2 SCC 602 Return to Text

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