Samir N. Divatia
Advocate

38. Judicial Discipline

It must be grasped that judicial discipline - is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. Because of the position that we occupy and the enormous power we wield no other authority can impose a discipline on us. All the more reason judes exercise self discipline of high standards. The character of a judge is tested by the power he wields. Justice delivery sustem like any other system in every walk of life will fail and crumble down, in the absence of integrity.

There is nothing wrong in judge to have ambition to achieve something, but if the ambition to achieve is likely to cause compromise with his divine judicla duty, better not to pursue it. Because if a judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be tendency to compromise between his divine duty and his personal interest. There will be conflict in between interest and duty."

Again like any other organ of the State, the judiciary is also manned by human beings - but the function of the judiciary is distinctly different from other organs of the State - in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors failed proper approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex of place of birth. Because of the power he wields, a judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside. Which will lead to a catastrophe in the justice - delivery system resulting in the failute of public confidence in the sustem. We must remember that woodpeckers inside pose a larger threat than the storm outside."

39. Computer softWAre - goods - sales-tax

In India the test to determine whether a property is "goods", for purpose of sales tax, is not whether the property is tangible or intangible or incorporeal. The test is whether the item concerned is capable of test is whether the item concerned is capable of abstraction, consumption and use and whether it can be transmitted, transferred, delivered, stored, possessed, etc.

Intellectual property, once it is put on to a medium, whether it he in the from of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become "goods". A software program may consist of various commands which enable the computer to perform remain with the originator of the that program may remain with the originator of the program. But the moment copies are made and marketed, it becomes goods. which are susceptible to sales tax. There is no difference between a sale of a software program on CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the intellectual property has been incorporated on a media for purposes of transfer. Sale is not just of the media. Which by itself has very little value. The software and the media cannot be split up. What the buyer purchases and pays for is not the disc of the CD. As in the case of paintings or books or music or films, the buyer is purchasing the intellectual property and not the media i.e. the paper of cassette or disc or CD. Thus, a transaction/sale of (Canned/Branded/off the shelf) computer software is clearly a sale of "goods" within the meaning of term as defined in the said Act. The term "all materials, article and commodities" includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed etc. The software program, both canned and uncanned have all these attributes.

40. Genuineness of will - proof of -

The onus of proving the will is on the propounder and in ansence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law is sufficient to discharge the onus. Once the propounder proves that the will was (a) signed by the testator and (b) that he was at the relevant time in a sound disposing state of mind and (c) that he understood the nature and effect of the disposition and put his signature out of his own free will and (d) that he signed it in the presence of the witnesses who attested it in his presence. the onus which rest on the propounder is discharged, the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from the conflict of testimony which becomes apparent on an investigation of the transaction.