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Thursday06-11-2014“Blunt and Sharp Daily News Portal”
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M.S.Yatnatti : Editor and Video Journalist: D.V.Ramu News Reporter: Swarnamba .R.L Video Journalist and reporter
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BJP NEED TO STOP FIGHTBETWEEN COMPANIES ACT AND SEBI ACT
By : M.S.Yatnatti: Editor and Video Journalist Bangalore: Prime Minister Narendra Modi and BJP led NDA government must stop fight between Companies Act and SEBI Act .Reportedly in between Subrata Roy is illegally crushed in jail for several month as SEBI over shoots its powers and Ministry of Company affairs department is mute spectator in whole episode. Interestingly and presently MCA and SEBI are now under one finance department and are under one minister Mr. Arun Jaitely .He can Simplify the definition of Public issue and Private placements and he can pave the way for release of the veteran industrialist Subrata Roy from jail. Several lakh shara employees are affected. It is pertinent to note that no investor has complained against these companies about refund of money raised. Sahara India Real Estate Corporation Limited (for short 'SIRECL') and Sahara Housing Investment Corporation Limited (for short 'SHICL”) are separate companies registered under companies Act 1956 and are limited by shares . For day today affairs of company only directors are responsible as per companies Act. SEBI can issue contempt of court notice to only the directors of the company and not others. Promoters are not the responsible for affairs of the company.It is alleged that most of the SEBI officers does not have basic knowledge of Public Issue and IPO and FIPO which pertains to only to equity shares of the company and not about debt issues or debentures or OFCD which are not the shares of company or it has to only worry about dividends for shares for which SEBI has to monitor the capital market .SEBI owes its duty to provide explanation to the nation as it cannot send Indian citizens to jail by fraud or by providing misinformation to courts in respect of public issue of shares . Dr Anil Kumar Sharma CPIO SEBI Mumbai has declined to provide me explanations and reasons under RTI Act. “PUBLIC CAN FORCE PA TO CREATE INFORMATION UNDER 4(1) (a) (b) (c) OF RTI ACT EVERY DAY AND ASK PA TO GIVE REASONS TO AFFCTED PERSONS UNDER 4(1) (d) AND COPY OF THAT TO EVERYBODY UNDER 2(f) OF RTI ACT-2005”.I had asked him to provide me information and definition of “Public Issue” and Private placement issue to more than 49 persons When an issue / offer of securities is made to new investors for becoming part of shareholders’ family of the issuer. As per Companies Act and as per SEBI Act and regulations and I had asked him provide me information and reasons (as required under section 4(1) (a) (b) (c) (d) of the RTI Act ) how SEBI can initiate action on companies which have floated optionally convertible debentures to non-share holders of company and when an issue / offer of securities is made to new investors for not becoming part of shareholders’ family of the issuer . OFCDs is not a offer of equity share and OFCDs is not a share and it becomes share when it is converted until it is converted interest is paid or discharged as per offer and question of making them shareholders’ family of the issuer does not arise and invoking SEBIs jurisdiction is unwarranted at this stage when it is in hybrid stage and it is stated in the offering that it will end as OFCDs. In SEBI act OFCDs is not covered and question of illegality by company cannot be contemplated on assumption. As SEBI jurisdiction is invoked in only in Naked “Public issue: When an issue / offer of securities is made to new investors for becoming part of shareholders’ family of the issuer it is called a public issue”. This means if and when you issue / offer of securities is made to new investors for becoming shareholders only is “Public issue” and if you make such offer below 49 person it is private placement and if made to above 49 persons it is “Public issue” .and I had asked him to provide me information anywhere in SEBI Act issue of OFCDs are prohibited. Is SEBI a debt market regulator or equity regulator “Public issue” share market regulator or OFCDs regulator as required under section 4(1) (a) (b) (c) (d) of the RTI Act .I have asked SEBI Declaration free of cost under section 4(1) (a) (b) (c) (d) of the RTI Act .Dr Anil Kumar Sharma CPIO SEBI Mumbai declined to provide me reasons under 2(f) OF RTI ACT where as I had asked him information and reasons under 4(1) (a) (b) (c) OF RTI ACT EVERY DAY AND ASK PA TO GIVE REASONS TO AFFCTED PERSONS UNDER 4(1) (d) AND COPY OF THAT TO EVERYBODY UNDER 2(f) OF RTI ACT.
MCA and SEBI Simplify the definition of Public issue and Private placements .New progressive laws need to be made with clear and simple procedures but at the same time do away with archaic laws which are hindering efficient governance .Previous Congress UPA NDA Governments Between 1950 and 2001 over 100 Acts have been repealed. At one time, 100 such Acts were repealed. The BJP Government has proposed repeal of 36 outdated laws is nothing new as it is an ongoing process mandated by Law Commission. But it should be seen as a first, small step in the right direction. There are thousands of laws which would be considered obsolete by any reasonable person in a modern society. The Jain Commission, which reviewed administrative laws and Law Commissions over the years, has made the same point. All such laws must go, the sooner the better. This everyday law-making process is part of an historical process that is in human origin.Law-making at the national level and Law-making at the state level are both different.This is part of an ongoing exercise being undertaken by the law ministry as part of the poll promise made by Prime Minister Narendra Modi to do away with archaic laws which are hindering efficient governance," a law ministry source said.The need for laws goes back when humans first were on this earth. It gave a sense of order for the way things should be. Over time the laws became more defined to give a sense of order and decency. And after more time, the more archaic laws faded and evolved favoring the rights of each person. Although there are laws currently that seem to be antiquated, they go back to a time when morality ruled the day. A example of this would be "Blue Laws" such as no open businesses on Sunday. Natural laws are created by God,but country's laws are made by legislative body and the government.Country laws are made for legal certaintyorderly and similar treatment among people.Certainly such laws should fit and suite for the people.If it is not suite it should be revised by the bodies concerned which have the authority to do that.
Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!.Core question: All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?.Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?.The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.
India has one of the oldest legal systems in the world. Its law and jurisprudence stretches back into the centuries, forming a living tradition which has grown and evolved with the lives of its diverse people. India's commitment to law is created in the Constitution which constituted India into a Sovereign Democratic Republic, containing a federal system with Parliamentary form of Government in the Union and the States, an independent judiciary, guaranteed Fundamental Rights and Directive Principles of State Policy containing objectives which though not enforceable in law are fundamental to the governance of the nation.
The fountain source of law in India is the Constitution which, in turn, gives due recognition to statutes, case law and customary law consistent with its dispensations. Statutes are enacted by Parliament, State Legislatures and Union Territory Legislatures. There is also a vast body of laws known as subordinate legislation in the form of rules, regulations as well as by-laws made by Central and State Governments and local authorities like Municipal Corporations, Municipalities, Gram Panchayats and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory Legislature concerned. The decisions of the Supreme Court are binding on all Courts within the territory of India. As India is a land of diversities, local customs and conventions which are not against statute, morality, etc. are to a limited extent also recognised and taken into account by Courts while administering justice in certain spheres.
The Indian Parliament is competent to make laws on matters enumerated in the Union List. State Legislatures are competent to make laws on matters enumerated in the State List. While both the Union and the States have power to legislate on matters enumerated in the Concurrent List, only Parliament has power to make laws on matters not included in the State List or the Concurrent List. In the event of repugnancy, laws made by Parliament shall prevail over law made by State Legislatures, to the extent of the repugnancy. The State law shall be void unless it has received the assent of the President, and in such case, shall prevail in that State.
Laws exist, simply put, to ensure the greater good for the greater number of people. This in turn ensures a fairly well organized and safe society. If people were not bound by laws, our society would be full of citizens doing what they most felt like doing (for their own needs and desires.) At the risk of sounding cliche, this would lead to anarchy. I agree that people will always act in their own best interest, and this is not likely to be in the best interest of the many. There are some people who will act according to their own moral code, but even morality varies. For the sake of the greater good and in order to reign in those who act without moral, we have laws.Laws exist because people are selfish and greedy and would steal from and kill each other if they could. That, at least, is how most thinkers see the question.This is the answer given by political philosophers like Locke and Hobbes. They wondered why people live in societies with laws and such. They decided it was because societies without laws were places where people's lives were, in Hobbes' words, "nasty, brutish and short."According to Locke, laws come about because people want their lives, liberties, and property to be protected. Laws are made to prevent other people from violating those basic human rights.Laws created under the Harm Principle are written to protect people from being harmed by others. Laws against violent crime and property crime fall into this category. Without basic Harm Principle laws, a society ultimately degenerates into despotism--the rule of the strong and violent over the weak and nonviolent. Harm Principle laws are essential, and every government on Earth has them. In addition to laws intended to discourage people from harming each other, some laws are written to prohibit self-harm. Parental Principle laws include compulsory attendance laws for children, laws against neglect of children and vulnerable adults, and laws banning the possession of certain drugs. Some Parental Principle laws are essential to protect children and vulnerable adults, but even in those cases they can be oppressive if they are not narrowly written and sensibly enforced. Some laws are based not strictly on harm or self-harm concerns, but also on promoting the personal morality of the law's authors. These laws are usually, but not always, grounded in religious belief. The most dangerous laws are those intended to protect the government from harm, or to increase its power for its own sake. Some Statist Principle laws are necessary--laws against treason and espionage, for example, are essential to the stability of government. But Statist Principle laws can also be dangerous--laws restricting criticism of the government, such as flag burning laws that prohibit the desecration of symbols that remind people of the government, can easily lead to a politically oppressive society full of imprisoned dissidents and frightened citizens who are afraid to speak out.
Minimum BJP government and maximum people governance .All obsolete acts pertaining to any department need to be to be dumped and one Act should to made which is applicable to all department and other Acts should be department specificwith simple procedures and forms. Now colleges need to be replaced with Labs and factories and Manufacturing hubs for success of make in India slogan. Convert UGC AICTE NCTE MCI DEB into a single body and Rename it as Higher Education Commission with simple mechanics of digital education with outsourced Labs.Let the government make the matter simple as Higher Education Commission approves University should give affiliation for five years and within that period let that institution gets NAAC approval and leave students free to join any NAAC accredited institution.The government will repeal at least 287 amending acts in the coming winter session of Parliament, law minister Ravi Shankar Prasad reputedly said .The law minister said the government has also referred 22 state acts to the states for their opinion before repealing them. These 22 state acts are part of a list of 72 obsolete laws recommended by the Law Commission for their repeal.There are 35 laws which are central acts recommended by the law panel for repeal, Prasad said, adding that the government is meanwhile, studying other obsolete laws recommended by other committees in the past for their repeal. “While a bill is pending in Parliament to repeal 32 amendment acts and four principal acts, we plan to bring another bill to repeal 287 similar acts,“ the law minister told reporters .One of the unique features of the Indian Constitution is that, notwithstanding the adoption of a federal system and existence of Central Acts and State Acts in their respective spheres, it has generally provided for a single integrated system of Courts to administer both Union and State laws. At the apex of the entire judicial system, exists the Supreme Court of India below which are the High Courts in each State or group of States. Below the High Courts lies a hierarchy of Subordinate Courts. Panchayat Courts also function in some States under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri, etc. to decide civil and criminal disputes of petty and local nature. Different State laws provide for different kinds of jurisdiction of courts. Each State is divided into judicial districts presided over by a District and Sessions Judge, which is the principal civil court of original jurisdiction and can try all offences including those punishable with death. The Sessions Judge is the highest judicial authority in a district. Below him, there are Courts of civil jurisdiction, known in different States as Munsifs, Sub-Judges, Civil Judges and the like. Similarly, the criminal judiciary comprises the Chief Judicial Magistrates and Judicial Magistrates of First and Second Class.
On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being.