|
Legislative and Regulatory Update
|
You
now have the option of customizing
your manupatra round-up .This means that you get updates
on the areas of interest that you select .You may change your
preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all
areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business Database
Bringing
forth new efficiency and unparalleled results to research
efforts. |
| In This Issue |
|
[No.112]
February 10,
2005 |
|
|
|
|
To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
etc.
About
manupatra.com
../
provides comprehensive and easy to use legal and related
information over the Internet .Our database covers Central
Laws , Judgments of Supreme Court and High Court (full
text of the judgments from 1950 onwards ), Orders of
Tribunals , Bills , Notifications, Circulars and
more
Key features of manupatra are
 |
Content is derived from reliable primary and
secondary sources |
|
Database is updated on a daily
basis |
|
Electronic Ready Reckoner to view the
judgments under a particular section of an Act /
Subject |
|
Powerful search engine with user friendly
interfaces |
|
Search in any one court/year or multiple
courts/year |
|
Hyper-linking of
documents |
|
Updated
modules on WTO, Anti Dumping, Arbitration,
Investment Destinations Abroad, Capital Markets,
Taxation, Environment, Cyber & IT Laws, IPR,
Corporate Laws, Industrial Policies, Foreign
Trade,
Forex & Banking and
more |
For subscription to manupatra.com or for more
details please log onto ../
or call us at 0120 2531811 or send an email to : contact@manupatra.com
If at any stage you wish to stop receiving the
e-roundup please click here to unsubscribe. |
|
| |
|
International Legal
News |
|
Cases
Source:
Westlawinternational.com
Procedural due
process did not require that an evidentiary hearing be held to determine whether
a convicted sex offender subject to sexual predator classification under the
Sexual Predators Act presented a danger to the community. Whether the sex
offender presented such danger was not material to the determination whether the
offender was a sexual predator and therefore subject to the Act's registration
and public notification requirements. Rather, the only material fact to the
adjudication as a sexual predator was whether the sex offender had a conviction
for a qualifying sex offense.
Milks v. State
Under the Turner
test, a state corrections department's policy banning the receipt of
non-subscription bulk mail and catalogs by prisoners who had requested such
items was unconstitutional, the Ninth Circuit has ruled. The Court of Appeals
found that the policy was not rationally related to the department's asserted
penological interests in preventing the receipt of contraband, reducing fire
hazards, increasing the efficiency of random cell inspections, and enhancing
prison security. Thus, the policy violated the First Amendment.
Prison Legal News v.
Lehman
Evidence that a
murder victim's foetus would not have survived, even in the absence of
defendants' shooting, because of a fatal medical condition, was not admissible
in a prosecution for murder of the foetus. A "foetus" was protected
under the plain language of the murder statute, with no distinction made between
a "foetus" and a "viable foetus." The Legislature did not
limit application of the statute to foetuses at stages of development that would
make them statistically more likely to survive until birth.
People v. Valdez
District of Columbia
residents did not have standing to challenge the constitutionality of firearms
provisions of the District of Columbia criminal code under the Second Amendment.
The plaintiffs alleged that, but for provisions that barred them from
registering and lawfully possessing pistols within the District, they would
obtain and register pistols to keep and carry in their homes. However, they did
not allege threats of prosecution had been made against them or any
characteristics indicating an especially high probability of enforcement against
them.
Seegars v. Ashcroft
A federal district
court ruled that the use of the punch card voting technology to count votes in
three Ohio counties did not violate the Due Process Clause, the Equal Protection
Clause, or the Voting Rights Act, even though the percentage of residual or
nonvoted ballots in the most recent presidential election ran slightly higher in
counties using the punch card technology. The court found that that technology
was neither confusing nor difficult to operate, that the portion of the
electorate which accidentally failed to cast a vote was de minimis, and that
such residual voting was not race-oriented.
Stewart v. Blackwell
The Texas Workers'
Compensation Commission's Hazardous Employer Program, under which employers are
identified as hazardous if their rate of workplace injuries exceeds the rate
reasonably expected for their business or industry, implicitly regulated
workplace safety issues and, thus, was preempted by the federal Occupational
Safety and Health Act (OSHA). Although there was no federal standard for
identifying hazardous employers, the practical effect of the Program was the
regulation of occupational safety and health issues for which federal standards
did exist. And, although identified private employers were not required to take
any action to alleviate the source of the hazard, the Program intimidated and
coerced private employers to take action to correct occupational health and
safety issues, thereby subjecting employers to duplicative regulation.
Skilled Craftsmen of
Texas, Inc. v. Texas Workers' Compensation Com'n
In a challenge by a
lesbian couple who had been legally married in Massachusetts, a district court
in Florida has upheld the constitutionality of the Defense of Marriage Act (DOMA),
which provides that no State is required to give effect to an act of another
State recognizing a same-sex marriage. DOMA did not violate the Full Faith and
Credit Clause; to hold otherwise would create a license for a single State to
create national policy. DOMA was rationally related to the legitimate state
interest of encouraging the raising of children in homes consisting of a married
mother and father, and thus did not violate the couple's due process and equal
protection rights. The court also upheld the constitutionality of a Florida
statute withholding recognition for same-sex marriages entered into in Florida
or elsewhere.
Wilson v. Ake
The funds in a
separate account from which an authorized delegate transferred proceeds from its
sale of money orders to a licensed money transmitter were trust funds owned by
and belonging to the transmitter, under the New Jersey Money Transmitters Act,
until the proceeds were paid to the transmitter. Under the Act, the trust nature
of the proceeds did not change even though they had been commingled with the
delegate's other receipts. As a result, the account funds were not subject to
seizure by the delegate's bank to satisfy the delegate's debt to the bank.
Merchants Express
Money Order Co. v. Sun Nat. Bank
A judgment debtor
could not raise substantive defenses to an underlying breach of contract claim
in an enforcement action for a foreign judgment. The debtor was limited to due
process defenses to the judgment itself.
Sonntag Reporting
Service, Ltd. v. Ciccarelli
A copilot's claim
under New Jersey's Conscientious Employee Protection Act (CEPA) was not
"related to" the "service of an air carrier" within the
meaning of the Airline Deregulation Act's (ADA's) express preemption clause.
Moreover, the addition of the Whistleblower Protection Program (WPP) did not
expand the scope of the ADA's preemption provision to encompass state law
whistleblower claims. The copilot claimed he was discharged in retaliation for,
inter alia, his report of a pilot's lack of qualifications as well as the
pilot's past and potential future Federal Aviation Administration (FAA)
violations. The Third Circuit panel opted to follow the Eleventh Circuit's
Branche decision rather than the Eighth Circuit's earlier Botz decision.
Gary v. Air Group,
Inc.
News
The report concludes
that the conduct of program head Benon Sevan in soliciting oil deals on behalf
of a Panamanian-registered trading company was a grave conflict of interest, one
that was "ethically improper and seriously undermined the integrity of the
United Nations." Although Sevan was not specifically named for any criminal
wrongdoing however it was noted that he had received some $160,000 in large cash
payments. Secretary General Kofi Annan has assured that "If there are
things that can be fixed in the way the United Nations does business, he will
fix those things", his spokesman has said that "If there are
individuals against whom there are criminal accusations [Annan] would waive the
immunity of those people and he would cooperate with the prosecution as they
seek to defend themselves before whatever judicial authorities have jurisdiction
and decide to prosecute."
French MPs are to
vote on controversial plans to relax the country's 35-hour working week on
Wednesday. Proposals to allow private sector employees to do more voluntary
overtime have angered trade unions and prompted huge street protests. President
Jacques Chirac's centre-right government blames the current system for
stubbornly high 10% unemployment and rising labour costs. Workers' groups are
threatening further demonstrations over the plans. More than 300,000 marched in
protests at the weekend, according to an interior ministry count. Opponents of
the measures say they would effectively kill off France's legally mandated
35-hour working week - one of the key social reforms bequeathed by the
Socialists, who were in power until 2002. The changes would allow employees to
work up to 48 hours a week, the European limit.
A mentally retarded
man at his trial in 2002, was saved from death row by the Supreme Court. It
ruled that the execution of retarded prisoners was unconstitutional because it
breached the US 8th Amendment which prohibits 'cruel and unusual' punishments,
however owing to mental exercise his IQ has shot up He will return to court
later this year where a jury will decide whether he is officially retarded. If
the court decides he is not, he could be executed by lethal injection - in
effect, because of the work he did that resulted in other mentally retarded
prisoners being spared.
The Thomas Jefferson
Center for the Protection of Free Expression awarded Georgetown University Law
Center professor David Cole its coveted William J. Brennan Jr. Award at a
ceremony at the Supreme Court on December 16, 2004. The award is given to those 'whose
commitment to free expression is consistent with Justice Brennan's abiding
devotion,' says the Charlottesville, Va.-based center. Cole has been extensively
involved with defending aliens post-9/11 and challenging the USA
Patriot Act. He has also been instrumental in key First Amendment battles over
anti-flag-burning laws and content-based restrictions on government grants for
artists.
|
CBDT |
|
Notification No.
43/2005 Dated 04.02.2005: The Central Board of Direct Taxes has amended Rule
18BBB and modified Form Number 10CCB, vide this notification. These amendment
rules are to be known as Income-tax (Third Amendment) Rules, 2005 and shall come
into force on 4th February, 2005.
Notification No.
23/2005 Dated 02.02.2005: Amendments in the Notification No. G. S. R. 173(E),
dated 2nd of April, 1996, relating to convention between India and Philippines
for avoidance of double taxation, have been made via this notification.
|
| PIB
|
|
Dated 02.02.2005:
The Union Cabinet has approved a proposal to enhance composite foreign holding
in Telecom sector to 74 per cent. With this development, the current FDI ceiling
in the Telecom Sector in certain services such as Basic, Cellular, Unified
Access Services, National/International Long Distance, V-SAT, Public Mobile
Radio Trunked Services (PMRTS), Global Mobile Personal Communications Services (GMPCS)
and other value added services, would increase from 49 per cent to 74 per cent.
Dated 03.02.2005:
With a view for accelerated development of the power sector, providing supply of
electricity to all areas and protecting interests of consumers and other
stakeholders, balancing all this with availability of energy resources,
technology available to exploit these resources, economics of generation using
different resources, and with an eye for energy security issues, the Ministry of
Power has launched new National Electricity policy.
|
RBI |
|
Notification No.
GSR53(E) Dated 11.01.2005: The Reserve Bank of India has amended the Foreign
Exchange Management (Manner of Receipt and Payment) Regulations, 2000, in
respect of imports and exports made to and from Myanmar. Now, the exchange of
money could be made in any freely convertible currency or through the ACU
mechanism to Myanmar.
|
| CBEC Customs Tariff
|
|
Circular No. 6/2005
Dated 03.02.2005: The Central Board of Excise and Customs, has firmly put
forward its perspective of supplies made to the SEZ by the DTA units, assuming
them to be at par with physical exports and that they are eligible for duty
drawback.
|
| Ministry of Finance
and Company Affairs - Department of Economic Affairs |
|
Notification No.
GSR56(E) Dated 31.01.2005: The Central Government, vide this notification, has
notified the Securities Appellate Tribunal (Procedure) (Amendment) Rules, 2005,
amending the amount of fees to be payable. The dress code for the Presiding
Officer and two other members of the Tribunal has also been published.
Notification No.
GSR55(E) Dated 31.01.2005: The Central Government has further amended the
Depositories (Appeal to Securities Appellate Tribunal) Rules, 2000 and brought
to the fore Depositories (Appeal to Securities Appellate Tribunal) (Amendment)
Rules, 2005. Contemplating the 'Member', the notification says it means the ‘Member’
of the Securities Appellate Tribunal appointed under section 15 L of the
Securities Exchange Board of India Act, 1992. Then, in the temporary absence of
the Presiding Officer, Government may authorise one of the two other Members to
preside over the sitting of the Tribunal. Further, it says, an appeal against
the order of the Registrar under sub-rule (4) shall be made within 15 days and
every memorandum of appeal against adjudication orders shall be accompanied with
a fee. The amount of fees payable in congruence with the penalty imposed has
also been notified.
Notification No.
GSR54(E) Dated 31.01.2005: The Central Government, vide this notification, has
notified the Securities Appellate Tribunal (Procedure) (Amendment) Rules, 2005,
bringing about a few amendments in the Securities Contracts (Regulation) (Appeal
to Securities Appellate Tribunal) Rules, 2000.
|
| Ministry of Consumer Affairs,
Food and Public Distribution |
|
Notification No.
GSR50(E) Dated 01.02.2005: The Central Government, vide this notification, has
amended the Consumer Protection Rules, 1987, in relation to Procedure for
selection of Members of National Commission, and brought forward the Consumer
Protection (Amendment) Rules, 2005.
|
| Ministry of
Mines |
|
Notification No.
GSR49(E) Dated 28.01.2005: The Central Government, vide this notification, has
brought forward the Mineral Concession (Amendment) Rules, 2005, amending the
Mineral Concession Rules, 1960.
|
| Ministry of
Power |
|
Notification No.
GSR48(E) Dated 28.01.2005: The Central Government, vide this notification, has
made rules regarding preparation and submission of annual report, naming them the Central Electricity Regulatory Commission (Preparation of Annual
Reports) Rules, 2004. These rules shall come into force from 28th of January,
2005.
|
| Ministry of Railways |
|
Notification No.
GSR44(E) Dated 27.01.2005: Further amending the Railways (Opening for Public
Carriage of Passengers) Rules, 2000, the Central Government, has brought forward
the Railways (Opening for Public Carriage of Passengers) (Amendment) Rules,
2005. These rules shall come into force on 28th January, 2005.
|
| Ministry of
Law and
Justice – Legislative |
|
Notification No.
SO163(E) Dated 04.02.2005: Vide this notification, order of the President
regarding a petition of Shri S.N. Khatib alleging disqualification of Shri
Sanjay Raja Ram Raut for being a Member of the Rajya Sabha, has been notified
for general information. This petition was made under articles 102 and 103 of
the Constitution of India, and the President rejected it, relying on the opinion
made by the Election Commisssion.
|
| Supreme
Court |
|
The applicant who by
birth did not belong to backward community filed nomination and got elected from
the ward reserved for backward community on the basis that since she got married
to a person belonging to backward community she belonged to the said community.
The question discussed by this Court was whether the appellant got her lineage
from the person to whom she got married or from her father.
The Supreme Court
while dismissing the appeal held that the appellant who by birth did not belong
to backward community could not be said to be belonging to backward community
just because she was married to a person belonging to the said community and
hence her election from the ward reserved for backward community invalid.
Five employees of
various corporations of the states of Bihar/Jharkhand had died due to
non-payment of salaries, they approached the Court for directions to the
Government for disbursement of Salaries. It was the case of the state of Bihar
that it could not be directed to pay salaries, however directions were issued to
it for payment of salaries under extra ordinary jurisdiction under section 65 of
the States Reorganization Act.
The Supreme Court
held that although it could not be stated that the State Governments were bound
to pay the salaries of the employees of the public sector undertaking, still
since the employees have a human right as also a fundamental right under Article
21 which the State is bound to protect, therefore the State of Bihar/Jharkhand
were bound to disburse salaries to the employees of the corporations.
|
| High Courts |
|
Andhra Pradesh
The petitioners case
for promotion to the next rank was considered and declined by the selection board and based
on his overall service profile and overall comparative batch merit. Since
promotion was declined, he preferred a statutory complaint to the Government of
India, which was rejected.
Aggrieved, the
petitioner filed a writ petition challenging the said order, on the grounds that
his Annual Confidential Reports were written by officers who had not even
interacted with him and had no knowledge of his professional grading, therefore
their comments are liable to be ignored.
High Court of Andhra
Pradesh refused to interfere with the matter, since no relevant aspect has been
ignored in reaching their conclusion.
Jammu and Kashmir
The petitioner had
been dismissed from service on charges of misappropriation of money and
misbehaving with a senior. A separate enquiry was initiated against him on
allegations of shooting dead a colleague.
Petitioner
challenged order of dismissal on the ground that enquiry had been conducted in
his absence as such was clearly violative of the principles of natural justice.
Respondents on the other hand stated that since criminal case against the
petitioner was getting unduly prolonged, disciplinary proceedings were conducted
while the petitioner was in judicial custody.
High Court of Jammu
and Kashmir allowed the petition directing the respondents to reinstate the
petitioner, however they were at liberty to initiate a fresh enquiry against the
petitioner.
Kerala
A criminal trial was
initiated against the respondent a Police official, on the complaint of a
journalist, a preliminary objection that the case was barred by limitation and a
violation of the Right to speedy trial was disallowed by the Lower Court however
single judge of the High Court quashed the complaint.
Petitioners
challenged the order before a Larger Bench on the grounds that delay was caused
by the endless litigation initiated by the accused and no prejudice was caused
to them by the delay.
The Kerala High
Court, allowed the appeal with the observations that it depends on the totality
of circumstances to a given a case if quantum of time consumed upto a given time
amounted to violation Article 21 of the Constitution of India.
|
|
|
|
Disclaimer |
|
(1) While
all reasonable care has been taken to ensure that the
information provided in the "round up" and on the website is
fair and accurate the company and its promoters and employees
shall not in any way be responsible for the consequences of any
action taken on the basis of reliance upon the contents of this
"round up". |
|
(2) This is not a Spam
mail. You have received this mail because you have either
requested for it or someone must have suggested your name under
our various referral programs. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing list.
Feedback
| |
