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[No.97]
September 10, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The state Constitution's requirement that petitions for
ballot initiatives be accompanied by an affidavit of a registered voter that the
signatures were genuine and the signers were registered voters in the county of
their residence violated the core political speech protections of the First
Amendment. Although the state had a compelling interest in ensuring the
integrity and reliability of the initiative process, the affidavit requirement
was not narrowly tailored to further those interests.
Heller v. Give Nevada A Raise, Inc.
A suggestion of immunity entered by the Executive Branch
for the president of the People's Republic of China, as to an action brought by
members of a spiritual movement allegedly suppressed by the Chinese government,
was binding on a district court. Thus, the president was immune from suit even
though the action alleged that the president's actions violated jus cogens norms
of international law. Deference to the Executive Branch was motivated by the
caution appropriately exercised by the Judicial Branch where the conduct of
foreign affairs was involved.
Ye v. Zemin
An attorney, who was a city council member, had
legislative and official immunity from liability to his law firm's client
adversely affected by the attorney's support of moratorium on construction of
apartment buildings. The attorney engaged in legitimate legislative functions in
objective good faith within the scope of his authority as a council member and
not as attorney for city or citizens group. Since the attorney was not liable
for any conflict of interest or failure to disclose it, the firm also was not
liable.
Joe v. Two Thirty Nine Joint Venture
A Nebraska federal district court has ruled that the ban
on "partial-birth abortions" in the Partial Birth Abortion Ban Act of
2003 is unconstitutional. The ban placed a substantial obstacle in the path of a
woman seeking to abort a nonviable fetus because it did not allow, and instead
prohibited the use of the procedure when necessary to protect the health of the
woman. The court limited its ruling to cases in which the fetus is not viable or
where there is a doubt about the viability of the fetus in the appropriate
medical judgment of the doctor performing the abortion.
Carhart v. Ashcroft
North Carolina's Open Meetings Act, which required most
meetings of public bodies to be open to the public, did not authorize a city to
file a declaratory judgment against a newspaper publisher to resolve a dispute
as to whether a particular closed meeting held by the city council violated the
Act. The Act did not specifically provide for enforcement by the government, but
rather authorized only the person seeking a declaration that a public body had
violated the Act to institute judicial action to enforce the request. Moreover,
permitting the government to file declaratory judgment actions against
complaining parties who might not have initiated their own actions would have a
chilling effect on the public, thereby eliminating the very protections the Act
was intended to provide.
City of Burlington v. Boney Publishers, Inc.
The citizenship of an alleged German concentration camp
guard and Waffen SS member would be revoked, following a government showing that
the guard concealed his past history when applying for a visa to enter the
United States. The alleged guard entered under a Displaced Persons Act (DPA)
provision allowing for reallocation of immigration quotas for Germany and
Austria to ethnic Germans living in other countries. The alleged guard claimed
Rumanian residency. The DPA barred visas for persons who were members of a
movement hostile to United States, which included the SS. The court found
irrelevant the guard's claim that he did not volunteer for the SS and that he
did not personally perform any hostile acts.
U.S. v. Wittje
A satirical article entitled "Stop the
madness" about a six-year-old child placed in ankle shackles for having
sprayed a boy with juice and for sitting on her feet, in which a district
attorney was quoted as saying that "we're considering having her certified
to stand trial as an adult, but even in Texas there are limits," and in
which a judge was attributed to a statement that "any implication of
violence in school is reason enough for panic and overreaction,"
constituted protected speech, and thus, did not state a claim for libel against
the newspaper that published the article. The statements were clearly meant as a
parody, and a reasonable reader would not have understood that the article
purported to state an actual fact. Rather, the reasonable reader would
understand that the article was intended as a critical commentary on an actual
incident in which a seven-year-old boy was arrested for having written a story
about shooting a teacher and other students in response to a school assignment
to write a scary story. But even assuming that the satire did not constitute
protected speech, the attorney and judge failed to show that the fictional
statements attributed to them were motivated by actual malice, especially in
view of the testimony of the writer, editor, and editor-in-chief that the
article was clearly meant as a satire, and that they never intended for a reader
to understand that the story contained an account of actual events.
New Times, Inc. v. Isaacks
An alien's prior convictions, more than seven years
earlier, of alleged shoplifting offenses and his prior failure to appear in
connection with criminal proceedings did not establish either a risk of flight
or a danger to the community, such as would permit, consistent with the
requirements of due process, an alien's continued detention while he pursued a
nonfrivolous challenge to the removal order. The alien had not been afforded any
opportunity to explain, nor had any inquiry been made as to circumstances
surrounding the issuance of the bench warrants. Rather, the alien was denied
release based solely on a reading of his file.
Oyedeji v. Ashcroft
A universal transmitter that allowed consumers to access
copyrighted software embedded in a manufacturer's "rolling code"
garage door openers did not violate the anticircumvention provision of the
Digital Millennium Copyright Act (DMCA). The access provided by the transmitter
did not facilitate the infringement of any right protected by the Copyright Act,
which authorized the manufacturer's customers to use the copy of its copyrighted
software embedded in the openers that they purchased. Whether the DMCA
prohibited devices that merely allowed access to copyrighted materials without
permitting unauthorized copying was an issue of first impression.
Chamberlain Group, Inc. v. Skylink Technologies, Inc.
News
A court in Zimbabwe is expected to pass
sentence on some 70 alleged mercenaries accused of plotting a coup in the West
African state of Equatorial Guinea. Most of them have been convicted of minor
offences and may be allowed to return to South Africa but their alleged leader,
former British SAS officer Simon Mann, may be in a lot more trouble and could be
facing a prison sentence of up to 10 years. The main charges against him include
trying to buy weapons to use in Equatorial Guinea.
World Trade Organization, the apex trade
organization has backed Brazilian complaints against US cotton subsidies and
European Union support for sugar producers. The decision marks a victory for
Brazil which is the Latin America's biggest agricultural exporter. In the
ruling, the WTO said the US had paid illegal subsidies worth $3.2bn (£1.7bn) to
its cotton farmers. In a separate ruling, it said the EU had exported more sugar
than it was allowed to under world trade rules. The US announced that it would
launch an appeal against parts of the WTO cotton ruling within the next two
months although the EU said it would study the Geneva-based body's decision on
sugar before deciding whether to appeal.
The US government's bid to block
software giant Oracle's proposed hostile takeover of rival PeopleSoft has been
outrightly rejected by a Federeal Judge stating that US anti-trust authorities
had failed to prove that a takeover would stifle competition. Rather, Oracle has
been given a clearance to restart its $7.7bn (£4.3m) bid. Oracle has been after
PeopleSoft for last 14 months. The ruling has resulted into shares of PeopleSoft,
rising 15% in after-hours trading.
Former world chess champion Bobby
Fischer has won a court injunction against his deportation from Japan. The court
has allowed him to stay in Japan until it ruled on his challenge to a
deportation request from the US, a process which could take months. Mr Fischer
is wanted in the US for violating international sanctions against Yugoslavia in
1992. The controversial player was detained in Japan while trying to travel to
the Philippines on a revoked US passport.
A UK lawyer is opening a law firm in
Pyongyang to advise investors doing business there. The attempt is aimed at to
further the liberalisation of North Korea's economy. The Firm has been opened in
the name of Hay, Kalb Associates by Mike Hay and the North Korean government and
it offers legal advice, accounting services and help with repatriating funds
from the North.
Two British lawyers who have been
defending Slobodan Milosevic have asked permission to appeal against their
appointment, after their client refused to co-operate with them. The two lawyers
were imposed on the former Yugoslav president after the court decided he was too
ill to conduct his own defence. Mr Milosevic, who has heart problems, refuses to
meet or talk to his lawyers. The former Yugoslav president faces 66 charges of
war crimes during the 1990s Balkan wars.
The alleged creator of the virulent Sasser virus has
been formally charged. German prosecutors have laid charges of computer
sabotage, data manipulation and disruption of public systems against student
Sven Jaschan who has admitted writing the Windows worm. In total 143 victims of
Sasser have contacted prosecutors to report the damage they suffered as the
malicious program rampaged through computers. If found guilty, Jaschan could
face up to five years in jail. The worm exploited holes in Microsoft Windows and
made infected machines shut down.
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CBEC Excise non Tariff
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Notification No: 20/2004 NT
Dated 06.09.2004: The Central Government by virtue of the above notification
directs that rebate of the whole of the duty paid on the excisable goods falling
under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and
exported to Nepal shall be granted to Government of Nepal subject to certain
conditions and limitations. The conditions are that the rebate shall not, in
each case, exceed the aggregate of the duty of Customs and additional duty of
Customs levied by Government of Nepal on such goods when they are imported into
Nepal from any country other than India; that the excisable goods shall be
exported after payment of duty, directly from a factory or warehouse except as
otherwise permitted by the Central Board of Excise and Customs by a general or
special order; and that the excisable goods shall be exported within six months
from the date on which they were cleared for export from the factory of
manufacture or warehouse or within such extended period as the Commissioner of
Central Excise may in any particular case allow; also when the goods are
exported by land, the export shall take place through certain specified land
customs stations or such other check-post as may be specified by the Central
Board of Excise and Customs.
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Department of Economic Affairs
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Notification No: 4(8)-W&M/2004(ii)
Dated 06.09.2004: The Government of India notifies the sale (reissue) of ‘8.35
per cent Government Stock, 2022’ for an aggregate amount of Rs. 3,000 crore
(nominal) vide the above notification. The sale will be subject to the terms and
conditions spelt out in this notification (called ‘Specific Notification’)
and also the terms and conditions specified in the General Notification F No.4
(9)–W&M/2000,dated 6th May 2002 issued by
Government of India. The Government Stock will be
sold through Reserve Bank of India, Mumbai Office by a price based auction using
multiple price auction method.
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RBI
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Circular No: DBOD.No.BP.BC.37/
21.04.141/2004-05 Dated 02.09.2004: The Reserve Bank of India vide the above
circular notifies the member banks that it is setting up an Internal Group to
review the existing guidelines of classification of investments with a view to
bringing them in alignment with international practices and current state of
risk management practices in India, taking into account the unique requirement
of maintenance of statutory reserve requirement of 25% of Demand and Time
Liabilities (DTL) under Section 24 of the Banking Regulations Act, 1949. The
Report presented by the Group will be discussed in the Standing Committee on
Financial Regulation
Circular No: UBD.PCB.Cir
17/13.04.00/2004-05 Dated 04.09.2004: The RBI vide circular UBD.PCB. Cir No.
9/13.04.00/04-05 dated August 4, 2004 had advised all Urban Cooperative Banks
that the 90-day loan impairment norm will be applicable to gold loans and small
loans upto Rs. 1 lakh with effect from the financial year ending March 31, 2005.
The RBI vide Circular No: UBD.PCB.Cir 17/13.04.00/2004-05 Dated 04.09.2004
notifies that after taking into consideration the submissions made by banks and
Federation/ Association of UCBs in this regard, it has been decided that the
gold loans and small loans up to Rs. 1 lakh will be governed by the 90-day norm
with effect from the year ending March 31, 2007. Till then, they will be
governed by the 180-day norm as hitherto.
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DGFT
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Notification: 2/2004-09 Dated
31.08.2004: The Central Government vide the above notification notifies Schedule
2 (Export Policy) of the “ITC (HS) Classification of Export and Import Items”
which shall be effective from September 1, 2004. It states that Export Policy
indicated against each item of export and the conditions wherever applicable to
those items in amended Schedule 2 of ITC(HS) will supercede any earlier Export
Policy/ condition for that item if it is not consistent with the said
Notification.
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Department of Revenue
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Notification No: 237/2004 Dated
02.09.2004: The Central Board of Direct Taxes vide the above notification
notifies the Income-tax (tenth Amendment) Rules, 2004 which shall be effective
from the 1st day of April, 2004. The Income-tax (tenth Amendment) Rules, 2004
amends the Income-tax Rules, 1962.
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Press Information Bureau
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PIB Release Dated 03.09.2004:
The Ministry of Commerce and Industry vide the above PIB release states that the
Union Minister for Commerce & Industry, Shri Kamal Nath has approved 7 cases
of Foreign Technology Collaboration/Franchise Agreement/Industrial Licence. The
approved proposals include foreign technology collaboration of M/s Hindustan
Petroleum Corporation Limited with M/s AXENS France for up-gradation of NIU
& FCC GHT Unit to meet the Bharat-II/Euro III emission norms. The proposal
of M/s Kochi Refineries Limited with U.O.P. LLC, USA for setting up of Gasoline
MEROX treatment facilities has also been approved. The foreign collaboration
agreement of M/s ITC Limited (Hotels Division) for international marketing,
publicity and reservation services with M/s Sheraton International Inc., USA and
that of M/s Hero Honda Limited with M/s Honda Motors Company Limited, Japan, for
two new models have also been approved. Also the proposal of M/s Mahindra &
Mahindra for grant of an Industrial Licence for manufacture of some defence
items has also been approved.
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Supreme Court |
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The assessee carried on
the business of manufacturing cement. He had been granted a mining lease
by the Government of Rajasthan and the limestone excavated from the
mines was used for manufacture of cement. The mining area was at a
distance of few kilometers from the plant where the cement was
manufactured. Explosives were used for blasting purpose in the mines.
The Assistant Commissioner, Central Excise, issued a notice to the
assessee on the ground, that the explosives used for blasting purpose in
the mines had not been used in the factory premises for production or in
relation to the manufacture of final product i.e. cement; that as per
Rule 57AB, the input must be used within the factory of production, and,
therefore, the explosives did not qualify to be inputs for the
manufacture of excisable goods in terms of the aforesaid rule. The
contention of the assessee was that the mining area as well as the
cement factory, were not only interdependent, but had a direct nexus
with each other; that the mining activity and the manufacturing activity
could not be considered as isolated events as without mining limestone,
the cement plant could not be run and that for all practical purposes
the mining area was an extension of the factory area. The Hon’ble
Court while allowing the appeal held that in view of the definition of
Factory in Section 2(e) of the Central Excise Act, 1944 which read as
"Factory"
means any premises, including the precincts thereof, wherein or in
any part of which excisable goods other than salt are manufactured,
or wherein or in any part of which any manufacturing process
connected with the production of these goods is being carried on or
is ordinarily carried on."
a mine from where the
raw material was extracted and was situate at some distance, but no
manufacturing process was carried on, could not qualify to be a factory.
In the matter, the
Respondent was appointed in the U.P. State Horticultural Produce,
Marketing and Processing Corporation Ltd. (in short the 'HORTICO'). The
said Corporation was closed. At the time of closure, respondent was
drawing pay in the pay scale of Rs. 900-1770 and was drawing a basic pay
of Rs. 1060/-. By an order the Government provided for appointment of
retrenched employees of HORTICO on posts available for direct employment
and which were outside the purview of U.P. Public Service Commission (in
short the 'Commission') as a compassionate measure. The Government order
provided that the last pay drawn by the concerned employee of HORTICO
would be protected. The respondent was given temporary appointment and
was placed in the pay scale of Rs. 1400-2300. Against this, the
respondent made a representation stating that he should be covered by
the revised pay scale of Rs. 2200-4000. The contention of the Respondent
was that the pay protection in respect of last pay drawn was assured by
the Government. The natural corollary was that when the pay scale was
revised the same should have been made applicable to the respondent.
The Hon’ble Court
held that at no point of time HORTICO had adopted the revised scale of
pay. Mere prescription of a revised scale of pay was really of no
consequence unless adopted by the concerned employer. In the instant
case, revised scale of pay was not adopted by the time the Corporation
was closed. That being so, the claim of the respondent that he was
entitled to the revised scale of pay was clearly untenable. The appeal
was allowed |
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High Courts |
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Bombay
The State Government
had made huge investments in the development of infrastructures such as
tunnels, roads, bridges etc. and therefore was suffering from a
financial crunch. To overcome this financial crunch the State
Government adopted the “Build, Operate and Transfer” concept. Under
this concept, the government handed over the work to a private
sector/undertaking, who would construct the said infrastructures, and
collect toll in accordance with the policy of the government.
The petitioners by way of a
public interest litigation under Article 226 challenged the sudden enhancement of the toll charge
w.e.f 01st March 2003, on the grounds of being arbitrary, unreasonable
and ultra vires Article 14, 19 and 21 of the Constitution.
The Bombay High Court
while dismissing the petition held that since the agents had not even
collected the “capital outlay” amount; they could not be prevented
from collecting toll charges at the enhanced rate.
Delhi
The appellants had
copyrights in cinematographic films and sound recordings. There music
was either produced by there own studios or was acquired by way of
assignments and were considered sound recordings under s. 2(xx) of the Copyright
Act, 1957. The respondent on the other hand was a leading FM broadcaster
“RADIO MIRCHI”, having nation wide listnership.
The main contention of
the appellants was that the sales of audio cassettes and CD’s was maximum when a new movie
was being released. But since these songs were exploited by FM radio stations during this crucial period, by playing
these songs around the clock, it greatly hampered the sale of the audio
cassettes and CD's manufactured by the appellants. The appellant also contended
that all this was being done by the appellants without obtaining any
license or authorization. Later the respondents also filed an application
for grant of compulsory licensing under section 31(1)(b) of the
Copyright Act, 1957. This grant of compulsory licensing was challenged by the appellants before the Copyright
Board.
The Delhi High Court
while allowing the appeal restrained the respondent from infringing the
copyright of the appellant. In addition they also directed the
respondent to stop playing the songs/sound recordings belonging to the
appellants.
The husband of the
petitioner earned 72, 000 US dollars per annum with perquisites. The
wife on the other hand was living with her parents and had no movable
or immovable property or assets in her name except a very nominal
amount of interest from her deposits. Therefore the wife contended that
that she had no income to support herself or to meet the basic
necessary expenses.
The Delhi High Court
while dealing with question regarding the amount of maintenance that
should be granted in such circumstances, held that the safer and surer
method to be employed was to look at the status of the parties, since
the incomes can be concealed, but the family status cannot be concealed
an is evident to one and all.
The Court while
considering all the relevant circumstances held that Rs. 15, 000/-
should be paid to the wife as part of maintenance, on a monthly basis,
so that her normal status and lifestyle can be preserved to some
extent.
Andhra Pradesh
The case of the
complainant was that a premature baby was born, and was
therefore put under incubator. During the treatment the baby developed
gangrene as a result of which his right hand elbow had to be amputated.
The father of the said minor filed a complaint in the District Forum,
alleging deficiency in service in rendering treatment on part of M/s.
G.E.M Hospital.
The District Forum
while allowing the complaint directed the hospital to pay Rs 1 lakh as
compensation and Rs. 500/- towards cost. Feeling dissatisfied by the
above-mentioned order, the complainant asked for enhancement of
compensation.
The National Consumer
Dispute Redressal Commission while considering the fact that the doctor
treating the newborn was a child specialist and had taken education in
England, held that she should have taken due care of the newly born
child. Also since no complications arose in the first three days after
birth, it clearly implied that the problems arose because of the
treatment given in the incubator.
While allowing the
appeal, the Commission ordered the respondent to pay Rs. 10,000/- as
costs to the petitioner, as against the earlier ordered costs of Rs.
500/-.
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