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 DatabaseBringing forth new efficiency and unparalleled results to research efforts.
In This Issue [No.96] August 30, 2004
International SEBI RBI Telecom Regulatory Authority of India (TRAI) Press Information Bureau Supreme Court High Courts
Site Links
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.
Cases
Source: Westlawinternational.com
Civil Rights: Courthouse monument featuring open Bible violated Establishment Clause.
Harris County, Texas, violated the Establishment Clause by allowing the construction of a monument of a deceased citizen, near the main entrance of the courthouse, which contained an opened Christian Bible, not accompanied by any explanation. The alleged secular purpose of the display was to honor a distinguished citizen, which was belied by a statement of the leader of the group establishing that its purpose was to honor the citizen's strong Christian faith. Moreover, ceremonies at the dedication and the monument's rededication following refurbishment, and a rally in opposition to the current lawsuit, in which government officials participated, showed prohibited government endorsement of religion.
Staley v. Harris County, Texas
Government: Absentee ballots for special general election were void.
Absentee ballots sent to voters by the Board of Elections for a special general election, solely based upon the voters' absentee ballot applications for the prior, regular general election, were held void. The Board clearly abrogated that part of a court order, which directed the manner in which the special general election was to be conducted. Also, all statutory authority required an application indicating the specific reason the voter would be absent from the county on the day of the election. Even if the error was merely ministerial, counting such votes would invite continued "mischief" by the Board.
Gross v. Albany County Bd. of Elections
Labor and Employment: Employees "regarded as" disabled under ADA are entitled to reasonable accommodation.
Addressing an issue of first impression in the Eleventh Circuit, the Court of Appeals held that employees who are "regarded as" disabled are entitled to reasonable accommodation under the Americans with Disabilities Act (ADA) in the same way as are those who are actually disabled. The Court of Appeals based its decision on the plain language of the ADA, the legislative history, and a Supreme Court decision involving the Rehabilitation Act. There is a circuit split on the issue.
Williams v. Philadelphia Housing Authority Police Dept.
Native Americans: family law court had jurisdiction to order member of Indian tribe to pay temporary spousal support to nonmember
The family law court had jurisdiction to order a member of an Indian tribe to pay temporary spousal support to a nonmember, notwithstanding a tribal resolution that funds distributed by the tribe to its members should not be used to pay spousal support to nonmembers. The resolution was inconsistent with strong California public policy requiring spouses to support each other. Moreover, the money had lost its identity as immune Indian property when the member deposited it in a bank account or other securities accounts.
In re Marriage of Jacobsen
Torts: Television talk show did not owe duty to minor guest who was allegedly raped by show's employee.
A nationally syndicated talk-show program and television studio did not owe a duty to protect minor who was to appear on a segment of the show about "out-of-control" teens at the time she was allegedly raped by the show's employee. At time of the assault, taping of the show had ended and the minor had been returned to the custody of her parent and her guardian at a hotel room provided by the show.
Craver v. Povich
Immigration: IJ was required to consider whether stopover country made firm offer of resettlement.
An Immigration Judge (IJ) improperly ignored the applicable regulations in considering whether a Mauritanian asylum applicant had become firmly resettled in Senegal. The IJ did not consider whether Senegal made an offer of permanent resettlement, and instead relied on the factors of his four-year stay in Senegal, his work as a merchant, and the fact that he shared an apartment with a friend. Nothing suggested that the IJ was using those factors as indirect evidence of a formal offer. The question of how to determine whether a refugee had firmly resettled appeared to be an issue of first impression in the Seventh Circuit.
Diallo v. Ashcroft
Torts: Economic loss rule not applicable in tort action for defective repairs of apartments.
Products liability cases that require, under the economic loss rule, damage to "other" property, and do not permit recovery in tort for damage to the defective product itself, were not applicable to a defective construction case. The action was premised on fraud or negligence that did not arise from a defective product, but instead arose from negligent engineering and design services. Damages in tort would be recoverable on proof, among other things, that the defective design resulted in appreciable, nonspeculative, present physical damage to the repaired structure.
Shekhter v. Seneca Structural Design, Inc.
Military Law: Article prohibiting sodomy did not violate due process as applied to accused convicted of non-forcible sodomy.
The Article of the Uniform Code of Military Justice, which prohibits non-forcible sodomy, did not violate due process as applied to an accused who was convicted of non-forcible sodomy with a subordinate that he supervised and rated as supervising noncommissioned officer. The accused's conduct fell outside the liberty interest in private, consensual sexual activity between adults because a subordinate within the accused's chain of command was a person who might be coerced or who was situated in a relationship where consent might not easily be refused.
U.S. v. Marcum
Bankruptcy: DOMA precludes same-sex couple from filing joint bankruptcy petition.
In what it called the first published opinion by a federal court addressing the constitutionality of the Defense of Marriage Act (DOMA), a Washington bankruptcy court has ruled that, under rational-basis review, DOMA does not violate either the due process or equal protection clause of the Fifth Amendment. In upholding the statute, which limits "marriage" and "spouses" to opposite-sex couples, for purposes of federal law, the court reasoned that authority exists that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents was a legitimate congressional concern. Despite the court's personal view on the subject, it was within the province of Congress, not the courts, to weigh the evidence and legislate on such issues. The issue arose when a lesbian couple who had married in Canada filed a joint bankruptcy petition. Because, in light of DOMA's definition, the women were not "spouses" within the meaning of 11 U.S.C.A. § 302, the court concluded that they could not file a joint Chapter 7 case.
In re Kandu
Commercial Law: Failure to disclose profit on exchange rate could be deceptive act or practice.
A customer's allegation that the transaction slip for the transfer of funds to Mexico stated a "net sale fee" and a peso-to-the-dollar exchange rate for the transaction, without disclosing that the money transfer service had paid much less than the stated exchange rate for pesos, so that the higher exchange rate charged to the customer would be a source of profit to the money transfer service, sufficiently alleged a deceptive act or practice, as an element for stating a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act. While a merchant would not ordinarily be required to disclose its profit, the statement of a "net sale fee" could be viewed as a representation that such fee represented the money transfer service's profit on the transaction.
Covarrubias v. Bancomer, S.A.
Copyrights: Dances created by Martha Graham were works for hire.
Dances created by choreographer Martha Graham while she was employed by the dance center she founded as its full-time artistic director were "works for hire," under either the 1909 or 1976 Copyright Act. That the corporation was created primarily to foster a supportive environment for Graham's creative endeavors was not dispositive. The choreographer chose to be employed by the center, to insulate herself from the legal and financial aspects of her work.
Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc.
News
Trial For 'Betrayal'
A US soldier, Ryan Anderson, has undergone trial on charges of trying to give away secrets to undercover agents who he allegedly thought were Islamic militants. Ryan, a Muslim convert serving in the US National Guard, was charged with trying to pass on information to the Al-Qaeda movement. It is expected that Ryan will have to face life imprisonment if two-thirds of the officers on the panel in Fort Lewis, Washington State, find him guilty of the charges.
Pinochet Lawyer Asks For Removal Of Judge
A lawyer for former Chilean president Gen Augusto Pinochet has called for the judge investigating him to be removed from the case on the charges of showing antagonism towards his client The comments of the lawyer may in effect be termed as a declaration of war against Judge Juan Guzman who is investigating the human rights violation charges.
Lawyer Gets Permission To Visit Guantanamo Pair
A lawyer is to visit two British men held at Guantanamo Bay this week but will not be allowed to say or discuss anything to their families about the visit. Strict gagging orders surrounding the visit to the camp in Cuba have been put in place by the US Government. US lawyer Gita Gutierrez will meet Moazzam Begg and Feroz Abbasi for the first time since their imprisonment after their arrest by the authorities in Pakistan over two years ago before being moved to Cuba.
Howard In 'Spamming' Row
Australian Prime Minister John Howard is at the centre of a growing row over using unsolicited e-mails, or spam, to promote his election campaign. He used the services of his son's firm to send e-mails to voters in his Sydney seat of Bennelong ahead of national elections expected in the coming weeks. The opposition has charged him of violating his own government's anti-spam laws and has urged for an inquiry into the matter. However, Mr. Howard said he acted legally as he used his own money for the campaign.
Portugal Refuses Permission To Dutch Abortion Ship
Portugal has refused permission for a Dutch "abortion ship" to enter its territorial waters as the group operating the trip planned to hand out pills to end early unwanted pregnancies - a procedure prohibited in Portugal. In Portugal, abortions are allowed only in exceptional circumstances, such as when the mother's life is at risk and there is no other way to save life.
Murderers Get Life Sentence In Bangladesh
A court in Bangladesh has condemned 10 people to death and sentenced 12 others to life imprisonment for killing five politicians in the western part of the country. The verdict came after a long going legal battle following the murders in 1999. After the five murders, police has implicated a number of people. But charges against a governing MP have been dropped.
Secondary Market Division
Implementation of Securities Transaction Tax
Circular No: MRD/DoP/SE/Cir-28/2004 Dated 23.08.2004: The Secondary Market Division of SEBI issued the above circular regarding the Implementation of Securities Transaction Tax. The circular makes it clear that as per the provisions of the Finance Bill, the stock exchanges have been entrusted with the responsibility of levy, collection and remittance of the STT on all transactions from the date of notification by the Government of India and so the stock exchanges will have to ensure that necessary systems and procedures are put in place for proper implementation. SEBI vide the above circular therefore advises the stock exchanges to note that from the date of notification of STT by the Government of India, no stock exchange shall permit trading activity unless it implements necessary software and procedures for the levy, collection and remittance of STT and that the MDs/EDs/Administrators of the respective exchanges certify to the effect that necessary systems and procedures are in place for the said purpose. This circular is being issued to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.
Regarding Global Trust Bank Ltd.
Circular No: MRD/DoP/SE/Dep/18916/2004 Dated 25.08.2004: The above circular issued by SEBI deals with the amalgamation of the Global Trust Bank Ltd (GTB) with Oriental Bank of Commerce (OBC). The OBC has fixed August 31, 2004 as the Record Date for the purpose of determining the shareholders of erstwhile GTB. By virtue of this circular SEBI notifies that on account of Scheme of Amalgamation and the fixation of August 31, 2004 as the record date, trading in the equity shares of GTB would be suspended w.e.f August 27, 2004 (i.e closing hours of August 26, 2004). Further, in light of the above, the depositories shall also freeze the ISIN of GTB after the specified record date i.e w.e.f September 1, 2004. This would be necessary to ensure that no further transfers take place in the GTB scrip, including off market transactions, after the specified record date
SC Disallowed Withdrawal of Money from the Accounts of Golden Forests (I) Ltd.
Circular No: DBODNo.Dir.BC.31/13.20.02/2004-05 Dated 16.08.2004: The Reserve Bank of India vide Circular No: DBODNo.Dir.BC.31/13.20.02/2004-05 Dated 16.08.2004 has directed the member banks that none of the accounts of Golden Forests (I) Ltd. or any of its subsidiary/ associate companies in any of the banks in the country shall be operated for withdrawal of any money from the accounts, by GFIL, its subsidiaries and associate companies either by themselves or through their officers or agents unless otherwise permitted by the Supreme Court. The Hon’ble Supreme Court of India had earlier by its order dated July 28, 2004 passed orders disallowing withdrawal of any money from the accounts of Golden Forests (I) Ltd. or any of its subsidiary/ associate companies.
Capital Investment Subsidy Scheme for Construction/Renovation/Expansion of Rural Godowns
Circular No: UBD No.SUB.CIR.1/16.26.00/2004-05 Dated 18.08.2004: A credit linked Capital Investment Subsidy Scheme for Construction / Renovation / Expansion of Rural Godowns is being implemented by NABARD. Under the scheme NABARD will release back-ended subsidy for all projects financed by institutions eligible for availing refinance from NABARD. The subsidy admissible to promoters under this scheme will be retained in the "Subsidy Reserve Fund Account" (borrower- wise) in the books of financing banks till the loan component (net of subsidy) is fully repaid. The Reserve Bank of India vide Circular No: UBD No.SUB.CIR.1/16.26.00/2004-05 Dated 18.08.2004 advises banks that the balance lying to the credit of the above Subsidy Reserve Fund Account will not form part of Demand and Time Liability (DTL) for the purpose of Statutory Liquidity Ratio (SLR)/ Cash Reserve Ratio (CRR) under Section 24 of the Banking Regulation Act, 1949 (AACS)/ Section 42 of the Reserve Bank of India Act, 1934.
Repayment Schedule of Rural Housing Loans
Circular No: DBOD.BP.BC.34/21.04.048/2004-05 Dated 26.08.2004: The RBI vide the above circular states that as announced by the Hon’ble Finance Minister in the Union Budget 2004-05, it has been decided to revise the norms for repayment for rural housing loans extended by banks under Indira Awas Yojana and Golden Jubilee Rural Housing Finance Scheme by linking repayment to the crop cycles. Accordingly, by virtue of the above circular, it advises the banks that while fixing the repayment schedule in case of rural housing advances granted to agriculturists under Indira Awas Yojana and Golden Jubilee Rural Housing Finance Scheme, banks may ensure that the interest/ instalment payable on such advances are linked to crop cycles.
Acceptance of Nomination in Form ‘A’ or ‘B’ - Central Civil Pension
Circular No : DGBA.GAD.No.H-94/45.05.031/2004-05 Dated 24.08.2004: According to the Scheme for Payment of Pensions to Central Government Civil Pensioners by Public Sector Banks regarding Arrears of Pension on the death of Pensioner and manner of disposal of such Pension Payment Order (PPO), in the absence of nomination, the payment of arrears to the heir(s) of deceased pensioners is made after completion of certain prescribed formalities. The Central Pension Accounting Office (CPAO), Ministry of Finance, New Delhi had advised the RBI that due to non-submission of the nomination form by the pensioners/non-acceptance of the nomination form by the pension paying banks, the heir(s) of pensioners are experiencing difficulties in receiving payment of arrears of pension on death of the pensioners. The RBI by virtue of Circular No : DGBA.GAD.No.H-94/45.05.031/2004-05 Dated 24.08.2004 advises the banks that in order to avoid inconvenience to the pensioners and their heir(s), it has been advised by the Government that all pension paying bank branches should accept nomination in Form ‘A’ or ‘B’ as the case may be, submitted by the pensioners for the payment of arrears of pension to the heir(s).
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