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Thursday, September 23, 2010

Upright judges needed for image makeover: SC- Public Perception Of Judiciary Important,Says Apex Court

Concerned at the dipping image of the judicial system due to growing incidents of corruption,the S C has said all round efforts were needed urgently to recruit upright and honest persons as judicial officers to effect an image makeover for the judiciary. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of the litigants but also to sustain the culture of integrity,virtue and ethics among judges, said a Bench comprising Justices Mukundakam Sharma and Anil R Dave.Writing for the Bench,Justice Sharma said: Public perception of judiciary matters just as much as its role in dispute resolution.The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench,and therefore it is imperative to maintain a high benchmark of honesty, accou-ntability and good conduct. The Bench gave vent to its feeling while upholding the dismissal of a Jammu and Kashmir district judge.It said the officer was in the probation period and that the high court was right in not confirming his services after scrutinising his track record.Not taking this incident as an isolated one,the Bench reflected upon the solemn duty cast on the HCs to consider and appreciate the service of a judicial officer before confirming him in service so as to weed out the deadwood and corrupt from the judiciary.
Terming district courts as the bedrock of the judicial system,the Bench said this was the primary level of entry to the doors of justice for a litigant and hence the persons discharging duties as judges in trial courts must officiate in a manner that was befitting their position and responsibility towards the society.
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Tuesday, September 21, 2010

All India Bar Examination Methodology

The All India Bar Examination will have one hundred (100) multiple-choice questions spread across various subjects. The subjects are taken from the syllabi prescribed by the Bar Council of India for the three-year and five-year Ll.B. programmes at law schools in India (as set out under Schedule I to the Bar Council of India Rules).

These subjects are divided into two categories: the first comprises subjects that may be considered ‘foundational’ in nature, those that form the basis for large areas of law; the second comprises other subjects, which a new entrant to the legal profession must also have a basic understanding of. Schedule I to this document contains the list of subjects that would be tested in the All-India Bar Examination and the weightage ascribed to each of these areas.

The All India Bar Examination shall be structured with multiple-choice questions (that is, the correct answer would have to be marked out in the Optical Mark Recognition (‘OMR’) format answer sheet provided, and no writing of an answer would be required.) These questions will be divided into ‘knowledge-based’ and ‘reasoning’ questions, and advocates will be allowed a maximum of three hours and thirty minutes (3 hours 30 minutes) to complete the All India Bar Examination. The emphasis throughout is on assessing an advocate’s understanding of an area of law, rather than on the ability to memorise large texts or rules from different areas of law.

The All India Bar Examination will be ‘open-book’, which means that advocates may bring in any reading materials or study aids that they choose, such as the preparatory materials provided for the All India Bar Examination, textbooks and treatises, and even handwritten notes. Advocates may not bring in any electronic devices, such as laptop computers, mobile phones, or any device equipped with a radio transceiver (such as pagers) at the examination centre.

The results generated after the answer scripts are corrected will simply state whether an advocate has or has not qualified for practice (that is, whether the advocate has passed or failed the All India Bar Examination); no percentage, percentile, rankings, or absolute marks will be declared.

(Source : BCI, http://www.barcouncilofindia.org/)

Monday, September 20, 2010

The Many Meanings Of Azadi - New Delhi must understand what Kashmiris are fighting for before demanding their allegiance- By Madhu Purnima Kishwar

It is a great irony that azadi a word with so many positive associations should evoke such fearful images among our political establishment and a large section of the intelligentsia in India when uttered by Kashmiris.It was Lokmanya Tilak who gave us the slogan,Freedom is my birthright.Gandhi went a step further and defined Swaraj,as opposed to mere ousting of the British,as the raison detre of our freedom movement. Most of us have been conditioned to believe that when Kashmiris come on streets demanding azadi,they do so only at the behest of Pakistani agents.There is no denying that Pakistan has injected a lot of poison into Kashmiri politics by fomenting religious strife.But it is the irresponsible deeds of our own politicians that create a conducive environment for converting the urge for azadi into a pro-Pak secessionist upsurge. Even in states that do not harbour secessionist forces,we witness daily outbursts of discontent on a range of issues from absence of basic civic amenities to forcible acquisition of peoples lands,human rights abuses,extortion rackets patronised by police and politicians,electoral frauds and deaths in police custody.

We also witness simple agitations turning violent because of the ham-handed response of the police who often beat up even peaceful agitators.Lack of transparency and accountability of the governance machinery coupled with the absence of effective institutions for grievance redressal has made India a land of a million mutinies. In Patna or Mumbai,such protests are taken as a sign of disenchantment with state administration. But the same action in Kashmir is invariably interpreted as anti-national.People will respond to this by saying that in other parts of India, people dont start demanding azadi when they come out to protest against their regional governments.But in other parts of India,protests against local governments are not crushed through the deployment of security forces using deadly weapons as often happens in Kashmir.

The special status of J&K has ensured that unlike people in the rest of India,the people of Kashmir cannot take most of their constitutional rights for granted.For example,a common complaint in Kashmir is that in 60 years of independence,they have witnessed only two genuinely free elections in the Valley one in 1977 and the second one in 2002.Local bodies remained dead for decades. Lack of azadi is visible on every road,in every mohalla,every town and village.Arbitrary arrests,crackdowns,custodial deaths and disappearances are routine events.For example,this entire phase of violence erupted because people who came out to protest against the wanton killing by the J&K police of 17-year-old Tuffail Mattoo were met with bullets. That led to more protests,more injuries and more deaths.At such times,the cry for azadi is a desperate plea for a life of dignity,freedom from constant fear and assertion of democratic rights,including the right to protest against the denial of fundamental freedoms promised by the Constitution of India.

Kashmiris have proved their disapproval of terrorism by marginalising Pak-inspired militants.By mistaking their hunger for azadi,we only push them away from Indian democracy. Wahidur Rehman,a young journalist from Kashmir,provided a valuable insight on the message Kashmiris try to deliver to Delhi by shouting azadi.He said, From our childhood we have been taught by our elders that the most effective tool of blackmailing the New Delhi establishment into waking up is to start demanding azadi.They come to the dialogue table,start talking of concessions only when we rend the air with slogans of azadi.Otherwise,our pleas fall on deaf ears.

Mehbooba Mufti once told me that even when a group of women come to meet her,if they find she is not available,they will start shouting,We want azadi,when in fact they came for jobs or better civic amenities.This is not to belittle the urge for self-rule and having the power to call their politicians to account rather than depend on the mercy of Delhi durbar. The constituency for secession keeps shrinking or expanding depending on how well or poorly the central and state governments tune in to peoples legitimate grievances and aspirations.P Chidambaram recently remarked that the same young people who two years ago were demanding IITs and IIMs are today pelting stones.

During Atal Bihari Vajpayees prime ministership,the constituency for secession shrunk dramatically because he not only ensured free and fair elections in 2002 but also engaged with the entire political spectrum of Kashmir.He also gave the PDP-led coalition a free hand in defining the political agenda for the state.With such simple statesman-like gestures,he became the most respected political figure for Kashmiris.

Manmohan Singhs repeated statements offering dialogue to all those who abjure violence and operate within the constitutional framework act as irritants instead of giving people faith in the democratic process.Can the prime minister claim that the Omar Abdullah-led coalition government is operating within the constitutional framework Kashmiris are angry because the state government has trampled on their constitutional rights with unprecedented brutality with the approval and backing of the central government.It is the PMs duty to demonstrate that his government knows how to protect the fundamental rights of its citizens as promised by our Constitution,before he expects people to owe allegiance to it.(The writer is professor,Centre for the Study of Developing Societies,Delhi.)

They are fighting for the rights guaranteed to them by the Indian Constitution
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LEGALLY SPEAKING- Ayodhya or not,govts have scant regard for judgments

There are just four days to go for one of the most eagerly awaited judgments of this century the Allahabad High Court verdict on the 59-year-old title suits by Hindus and Muslims claiming ownership of the land where Ram Janmabhoomi-Babri Masjid disputed structure once stood. The structure,while it was standing and after its demotion,never ceased to test the core values of both communities.It will not after the HC verdict on September 24.Unlike the inflammatory speeches which preceded the demolition on December 6,1992,one can take heart from repeated calls to respect the HC judgment and maintain peace coming from political parties of all hues.

All is well, can one say this and await the verdict like one of the many which the HCs and the Supreme Court pronounce every day Past experience shows otherwise.Irrespective of the party in power,governments have seldom strived to implement crucial judicial verdicts. Immediately after the demolition of the disputed structure,a mad communal frenzy gripped several states.Orchestrated serial bomb blasts grievously wounded the spirit of Mumbai.More than a thousand perished.Justice Srikrishna inquired into it and sent a scathing report,which has still not been fully implemented.After all these years,the SC continues to look into this aspect.Its impossible to imagine the hardship and financial uncertainty of families whose bread-earners were butchered.But they did not attract any long-term attention from politicians and governments.Leaving that aside,lets talk about something as basic as food.The SC had repeatedly talked about all pervasive corruption in the PDS,the supply line created to reach foodgrain at highly subsidised rates to the poor.

But there has seldom been political unanimity,except in speeches,on setting a deadline to root out corruption from PDS.What is the meaning of their right to life In the last nearly three decades,since SC pronounced its landmark judgment in Maneka Gandhi case telling the government that right to life did not mean animal existence but a life with dignity,thousands of poor have died of hunger and thousands of farmers have committed suicide.Where is that concern among governments to make right to life meaningful.  Ignoring SC judgments has become a way of life in political corridors,notwithstanding the mandate of the Constitution under Article 144 which says,All authorities,civil and judicial,in the territory of India,shall act in aid of the SC. If that was so,then why were repeated orders of the SC for construction of Sutlej-Yamuna link canal within Punjab defiantly ignored Not only that,the Punjab assembly passed a decision cancelling its existing water sharing agreements with neighbouring states.A helpless Union government sent a reference to the SC to adjudicate the legality of the Punjab law on water agreements in 2004.It is still pending adjudication.At least on four occasions in the last three decades,the SC had laboured to impress upon the Union government the importance of giving effect to Article 44 of the Constitution,which said,The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Where is that endeavour,which was mandated by the Constitution and desired by the SC

So,lets take the coming Ayodhya judgment as one of many important ones that has been pronounced by the HCs and the SC.Anyway,the HC verdict is just round one in 61 years.Surely,leaders of one or the other community will move SC.And how long will it take for the SC to decide it Take a guess.And when the verdict finally comes,you will find that the government may not even bother to implement the judgment.
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Respect Ayodhya verdict,AIMPLB urges community - Asks Govt To Issue Warning To Prevent Breakdown Of Law

Amid rising anxiety levels over Ayodhya title suit,the All India Muslim Personal Law Board has asked the community to desist from celebrations or protests over the Allahabad High Court ruling on September 24. AIMPLB is likely to make a public appeal on Monday in a bid to ensure that the court ruling on the sensitive issue is not used to whip up passions.It has urged the government to issue a stern mesage that people who break law and order will be strictly dealt with.

It has asked its members who participate in TV shows to be careful with their comments lest it send across a wrong message. The stock-taking on Sunday came after the Union Cabinet recently issued an appeal to citizens to respect the court order and to ensure communal peace over the judgment.Given the sensitivity of the issue,even the News Broadcasters Association has issued dos and donts for TV coverage. The AIMPLB reviewed the upcoming judgment on ownership of the disputed place,claimed by Hindus as birthplace of Lord Ram and Muslims as Babri mosque.The mosque was razed down by karsevaks in 1992.

S Q R Illyas,convenor of AIMPLB,said,Whatever the judgment,there should be peace and calm,and nobody should take law into his hands.We ask Muslims to neither celebrate if the judgment goes in favour of the mosque nor protest if it goes against it.We urge common citizens across religious groups to ensure that mischievous elements are not able to vitiate communal harmony.  The meeting,attended by Zafaryab Jilani, counsel for Sunni Waqf Board which is party to the title dispute,Syed Sahabuddin and Kamal Farooqui, decided to meet within a week of the judgment to decide on the future strategy.

AIMPLB,like the pro-temple camp,will appeal in Supreme Court if it is not satisfied with the order.Illyas said,We reiterate that we will respect the final judicial verdict,whatever it is,which means Supreme Court verdict.Also,if anybody goes to Supreme Court,we will fight the case there.
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People with criminal record worshipped: SC

New Delhi: In a striking indictment of the criminal justice system,the S C has expressed anguish over recent trend of eyewitnesses turning hostile,forgetting the dead and helping criminals and murderers go scot-free. So disturbed was a Bench comprising Justices Mukundakam Sharma and H L Dattu that it upheld conviction of two persons in a murder case on the sole evidence of victims wife even though most other eye-witnesses to the murder turned hostile. Witnesses not speaking up during trial did not come as a surprise for the apex court. Justice Dattu, writing the judgment for the Bench said, unfortunately, the trend in this country appears to be, as time passes, dead are forgotten and the living with a criminal record are worshipped and adored and no witness would like to speak against them.

This judgment from the apex court came in a case where one Fanilal was murdered by Sambhu Das and his associates in a town in Assam in June 1997. When the accused persons were assaulting the victim, a witness informed his wife, who rushed to the spot. With the help of police, she took her husband to hospital but he died. In this case, both the witnesses the person who informed the wife and the rickshaw puller who took the victim to hospital turned hostile. Yet, the trial court convicted the accused for murder on evidence from the wifes testimony. It had sentenced them to life imprisonment.

The HC upheld the decision and the SC refused to interfere with the rulings though a case was made out before it that the eye-witnesses had turned hostile and there were contradictions in the wife's statements during her cross-examination.
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Who will protect the whistleblower -The muchawaited Whistleblower Bill cannot protect those it should or punish those it must

About a month after activist Amit Jethava was murdered, Central Govt came up with a legislative proposal to prevent such tragic killings. The dead man was an environmentalist and died because he campaigned to save Gujarats Gir lion reserve from the ravages of illegal mining.The Bill introduced in the Lok Sabha on August 26 expanded the definition of whistleblower. It said anyone who makes a public interest disclosure is a whistleblower.

It was a great leap forward from where we stood till then. Under the 2004 Cabinet resolution,only a public servant could be a whistleblower. But the expanded definition is the only real positive change in the official attitude towards whistleblowing. In other respects, the public interest disclosure and protection to persons making the disclosure Bill, 2010, to call it by its real name, is anodyne.The Bills biggest weakness is that it retains the Central Vigilance Commission as the designated agency or competent authority to deal with complaints filed by whistleblowers. The CVC is also meant to protect whistleblowers. Both provisions are carry-overs from the 2004 Cabinet resolution on whistleblowing.

Both carry over the problems of the past into an era meant that is meant to be more free and fair. The CVC,  apex body for all vigilance cases at the Centre, is embroiled in controversy. Moreover, it is a toothless body and can only ever give advice rather than registering a criminal case or issuing any direction to CBI. The CVCs recommendations are routinely rejected by many Govt departments. The CBI too pays it little heed. In its current form then, the Whistleblower Bill, will make no difference to the culture of impunity in corruption cases. The CVC can only make recommendations when instances of corruption are brought to light by whistleblowers. What use will that be to anyone, particularly a society that wants to clean up.

But there is an even bigger problem with making the CVC the Bills designating agency. Of late, there is a question mark over its independence. Telecom secretary PJ Thomass September 7 appointment as its head triggered the row. There were allegations that the government appointed Thomas to the CVC in order to shield telecom minister A Raja in the 2G spectrum scam. Just a month before Thomas arrived in his new job, he signed a document that claimed the spectrum allocation was impervious to investigation by any agency because revenue considerations play a secondary role in government policy on telecommunications.

Clearly, the Whistleblower Bills expectations of the CVC are misplaced when it deems the agency trust worthy enough to recommend appropriate administrative steps for redressing the loss caused to the Govt as a result of corrupt practice or misuse of office or misuse of discretion. Given the way Thomas sought to justify revenue losses in the 2G spectrum scam, what recommendation would the CVC he heads make if the public servants named by whistleblowers came up with similar arguments in their own defence.  But there is one area in which the Bill empowers the CVC to issue binding orders protecting whistleblowers from victimization and/or physical attack. It also gives the CVC the authority to issue interim orders to stop any corrupt practice highlighted by the whistleblower. But these limited powers are likely to prove inadequate as long as the CVC remains no more than an advisory body when it comes to sensitive matters such as whether or not a corruption case is to be registered against a public servant.

Experts, enlightened and the eminent a loose coalition of concerned citizens have been asking that the Govt call a spade a spade and redress the many problems in the anti-corruption mechanism. The group, which includes the Karnataka Lok Ayukta, Santosh Hegde, said nomenclature was irrelevant. Call it CVC or Lok Pal or anything else, but it should have the necessary authority and resources to register cases based on whistleblower complaints. They have a point. The scale of corruption in India calls for an ambitious rethink. Sadly, this Bill is only a tiny step in the right direction. There is a long way to go.

SCAM BUSTERS - Famous names from India and further afield

Satyendra Dubey. The IIT-Kanpur civil engineer accused his employer,NHAI,of widespread corruption in a letter to then Prime Minister Atal Behari Vajpayee.He was killed on November 27,2003

S Manjunath - The Indian Oil Corporation manager was shot dead on November 19,2005 for exposing a racket in adulterated petrol

Satish Shetty - RTI activist who exposed land scams in Maharashtra was killed on January 13,2010

Kallol Sur - The Block Development Officer in W B West Midnapore district suffered death by hanging in 2008 after he filed FIRs against CPM and Trinamool leaders for siphoning off funds from NREGS

Joseph Darby - US military police official who alerted the American military command to prisoner abuse in Abu Ghraib prison six years ago

Cynthia Cooper - A former vice president of internal audit at WorldCom,she unearthed a fraud of $3.8 billion at her company in 2002

Colleen Rowley - FBI staff attorney who accused her employer of dismissing her concerns about Zacharias Moussaoui,often referred to as 9/11s 20th hijacker

W Mark Felt (Deep Throat) - A former FBI man,he leaked information about American president Richard Nixons involvement in Watergate in 1972
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Friday, September 17, 2010

HC judge quits over lawyers stir - Justice C V Nagarjuna Reddy Forwards Letter To Prez,CJ;T-Advocates Stall Court For The Third Day

Hyderabad: Anguished over the disrespect shown to him by the agitating Telangana lawyers in the last three days, High Court judge Justice C V Nagarjuna Reddy reportedly resigned late on Thursday.Justice Reddy is believed to have forwarded his resignation to both President Pratibha Patil and AP High Court Chief Justice Nissar Ahmad Kakru,sources told TOI. I was very upset to see so many anti-social elements entering the sacred court hall and hurling abuses against the judiciary, Justice Nagarjuna Reddy reportedly wrote in his resignation letter.As a judge of this High Court,my inability to protect the institution and the innocents made me to take this decision.No one has taken enough care even when the judiciary as an institution was under attack for the last three days, he said in his letter.However,efforts are on by Supreme Court and HC judges to dissuade Justice Reddy from pressing his resignation.

In an unprecedented day of high drama,the AP High Court remained stalled - for the third day running -with agitating Telangana advocates running amok in the corridors of the court.Even as all courts in Telangana area including Hyderabad city observed total bandh,pandemonium broke out in the courts of a few judges of the High Court who insisted on carrying on with the proceedings.Another judge had to sit on dharna in the court to force the agitators out.This is crazy.Truly,the constitutional provisions have broken down and we can say this because one of the pillars of democracy is not being allowed to function, said a senior adovcate. But striking Telangana advocates were not convinced by niceties.They continued their demand for 42 per cent reservation for people from their region in all government legal posts.The biased government has appointed all sorts of non-deserving candidates from Andhra and Rayalaseema areas in legal posts.We demand that our competent people also be given positions, said a Telangana lawyer.Since the government is misrepresenting the truth,we have no way but to agitate.We know we are lawyers and expected to litigate but there is no other way, he added.

Meanwhile,the hunger strike by the three Telangana lawyers entered the fourth day on Thursday,two advocates belonging to the SC/ST High Court Advocates of AP joined the hunger strike in support of quota for the Telangana advocates but added that there should be a reservation of 16 per cent for SCs and 7 per cent for STs as well. Even before the HC could begin work on Thursday morning,Telangana advocates gathered in strength both inside the courts and outside the premises.On outside, slogan-shouting advocates gathered near the main gate and at least one advocate from Karimnagar,G Venkateshwarlu, attempted self-immolation by pouring kerosene over himself.However,he was prevented by his colleagues.
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Act firmly: Judges

The full court of the AP High Court presided over by Chief Justice Nisar Ahmad Kakru decided to deal with lawyers stir with an iron hand.CJ Kakru who cut short his visit to Jammu and Kashmir,his home state, summoned a meeting of the full court on Thursday.Of the 32 judges,27 were present.According to sources, the full court resolved to remove all the fasting advocates from the HC premises immediately.TNN
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Mantri backs lawyers

Queering the pitch for the state government in resolving the strike by the Telangana advocates,IT minister from Nalgonda Komatireddy Venkat Reddy threw in his lot with the lawyers and said their demand was genuine and should be conceded to.P4
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Wednesday, September 15, 2010

Tuesday, September 14, 2010

SC to bypass govt,rebuild crumbling courts on its own-Says Courts Condition Has Led It To Ignore PMs Advice On Policy

New Delhi: Infrastructure of trial courts is one issue where Supreme Court is not going to heed Prime Minister Manmohan Singhs advice to higher judiciary not to venture into policy decisions as that fell within the exclusive domain of the executive. Chief Justice of India S H Kapadia,presiding over a three-judge Bench comprising Justices Aftab Alam and K S Radhakrishnan,made an overt reference to the PMs advice and said it was making an exception and foraying into the policy domain because for decades judicial infrastructure of trial courts had been in a shambles,threatening to put rule of law in jeopardy.The court said rule of law was part of the basic structure of Constitution.Justice delivery system is the bedrock of rule of law,which is held to be the basic structure of the Constitution and it is our view that in the absence of adequate judicial infrastructure,particularly for subordinate courts,it would not be possible to sustain rule of law in this country, the Bench said in its order on Monday.

Explaining again why it was venturing into forbidden territory,the SC said it was aware that judiciary should not be passing orders relating to financial issues.But to keep rule of law alive,there was an urgent need to pump in money,especially from what was being collected as court imposed fines and fees. Rule of law assures the citizen of an effective justice system and judicial infrastructure is the cornerstone of justice delivery system without which rule of law will fail, it said.Reiterating it would go ahead with its plan to constitute a special purpose vehicle from money collected from court fees and fines to revamp judicial infrastructure,the Bench decided to start the exercise of auditing infrastructure in Karnataka and AP.

It said,We find from the statements submitted by Karnataka,through the monitoring committee,that as far as court houses are concerned,414 projects are in the pipeline,whereas for residential quarters,282 projects are pending clearance. Similar statistics for AP revealed that 22 and 16 proposals respectively were pending clearance of government.We direct the chief secretary of the states concerned to put on affidavit as to since when all these proposals are pending and the reasons why, the Bench said while giving two weeks to file a status report.
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Monday, September 13, 2010

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Friday, September 3, 2010

(source-andhrajyothi)

SC brings relief to accident victims - Says Compensation Must Take Into Account Future Income

If a person suffers permanent disability in an accident caused by a vehicle,then the compensation due to him should be computed taking into account not only his present earnings but also future loss of income, Supreme Court has ruled. The SC distinguished between claim for damages and compensation and said damages were given for an injury whereas compensation stood on a slightly higher footing. While damages were given for atonement of injury caused,the intention behind compensation was to put back the injured party as far as possible in the same position,if the injury has not taken place,by way of grant of pecuniary relief,it said.

The case before a Bench comprising Justices G S Singhvi and A K Ganguly was of a painter,Yadava Kumar,who in a road accident in Karnataka suffered 30-40 % permanent disability preventing him from resuming his profession or even taking up manual labour.The High Court had granted him a compensation of Rs 72,000 rejecting his plea to consider the future loss of income as he could no longer do painting jobs.The SC took serious view of this incompassionate approach of the HC. Justice Ganguly,writing the judgment for the Bench,said,In this case,the approach of the HC in totally refusing to grant any compensation for loss of future earnings is not a correct one. While ordering National Insurance Company to pay Kumar Rs 2 lakh,which was computed by the SC after taking into account future loss of earnings,Justice Ganguly said,In the determination of the quantum of compensation,the court must be liberal and not niggardly in as much as in a free country,law must value life and limb on a generous scale.

It added,It goes without saying that in matters of determination of compensation,both the Motor Accident Claims Tribunal and the courts are statutorily charged with a responsibility of fixing just compensation.It is obviously true that determination of a just compensation cannot be equated to a bonanza.At the same time,the concept of just compensation obviously suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and courts.
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Thursday, September 2, 2010

The Personal Laws (Amendment) Act, 2010

The President has assented to the Personal Laws (Amendment) Act, 2010 on 31st August, 2010 and it is published in the Gazette of India as Act 30 of 2010 on 1st September, 2010. The Act has amended the Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956.

The Act is aimed at bringing gender equality in the matter of guardianship under the Guardians and Wards Act, 1890 and in the matter of giving in or taking in adoption a son or a daughter by father or mother under the Hindu Adoptions and Maintenance Act, 1956.

Under Clause (b) section 19 of the Guardians and Wards Act, 1890, mother was not included as Guardian along with father. The Law Commission of India in its Eighty-third Report on “the Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and Guardianship Act, 1956”, vide paragraph 6.83, had inter alia recommended amendments in clause (b) of section 19 of the said Act to include mother along with the father for the purpose of removing the gender inequality. The recommendations has been accepted and implemented by the enactment.

Clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956 incapacitates a married woman from taking in adoption merely on the basis of her marital status and is discriminatory in nature. Therefore, section 8 has been amended to give similar right to a female Hindu, irrespective of her marital status, as that of a male Hindu.

Similarly, sub-section (2) and (3) of section 9 curtails the right of mother to give in adoption if father is alive or is of sound mind or has not renounced the world completely and finally. The rights of father and mother under sub-sections (2) and (3) are discriminatory in nature. Therefore, section 9 of the Hindu Adoptions and Maintenance Act, 1956 has been suitably amended to give similar right to a female Hindu. ***
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