Latest SEBI Salvo
An April 2019 amendment from SEBI has widened the applicability of insider trading norms. SEBI’s new insider trading norms places increased restriction, responsibility and liability on promoters and company management while dealing with unpublished price sensitive information (UPSI).
SEBI’s latest insider trading norms will now hold insiders - company management and promoters of listed companies, senior employees and or their relatives in the organization responsible if they know / have access to unpublished price sensitive information without any ‘legitimate purpose’ and trade based on the same. SEBI has confirmed that if a person who has traded in shares of the company is in possession of the UPSI, then his / her trade will be presumed to be based on knowledge of UPSI.
The amendment in Insider trading regulations which became effective from 1st April, 2019 has increased the window of time period during which promoters and company management are not allowed to trade in their company’s shares before earnings announcements. The same holds good for seeking clearance before trading in the company’s shares.
Therefore all listed companies have to specify the period during which the trading window is closed for insiders who are in possession of unpublished price sensitive information. This ‘trading restriction period’ (which was previously applicable to promoters and Management of the company) is now applicable to auditors, accounting firms, law firms and other consulting associates who professionally deal with the Management of the company and are hence also privy to UPSI. The trading window for insiders is closed during declaration of financials results (in accordance with SEBI (LODR) Regulations, 2015), dividend declaration, mergers & takeovers and buyback.
SEBI has reiterated that companies will have to formulate their own policies and internal norms on having access, holding and monitoring the flow or ‘leak’ of unpublished price sensitive information. This includes maintaining a register of information such as PAN, mobile number and other details of director, managers, employees and their relatives with whom they have financial relationship. The objective is to ensure the traceability of the transaction and leak of UPSI to the concerned person(s).
SEBI has clarified that sharing of UPSI ‘in the ordinary course of business’ shall be for ‘legitimate purpose’. This could be by insiders with service providers – bankers, auditors, lawyers and other associates of the company. This should also be done not with a view to benefit from trading in shares based on such UPSI. It should be in accordance with the prohibition of insider trading regulations.
Trading restriction period: Then and Now
Earlier, companies had to close trading for insiders a period of 48 hours before the Board meeting where results were declared and for 48 hours after declaration of results. So insiders were not allowed to trade for a total of 4 days.
With effect from 1st April, 2019 companies have to close trading for insiders from the end of every quarter till 48 hours after declaration of results. Typically companies declare results after a period of 20-22 days at the end of every quarter. So, insiders are now not allowed to trade at period of about at least 20 to 22 days every quarter which will may roughly translate to about 120 days in a financial year.
Why tighten the noose?
In the recent past, SEBI came across several instances of unpublished price sensitive information being shared on various social media platforms including Whats App. However, it was not possible to the zero in on the source of leaks as there were several people in the Management as well as the professional associates who had access to such confidential financial details prior to such information being public. The amendment seeks to plug this seemingly innocuous loop hole as there are challenges in ascertaining whether it was done in the ordinary course of business or with a malafide intention to benefit. As a result, SEBI has mandated for companies to maintain list of people with whom such UPSI is shared.
It has been noticed (thanks to the IL & FS case) that promoters pledge their shares to raise funds. The new SEBI amendment actually seems to tighten the noose around this as well. This gives rise to challenges of raising funds.
SEBI’s action: the need of the hour
The Securities and Exchange Board of India (SEBI) has moved swiftly by introducing the amendments with a view to curb the increasing instances of insider trading. It has been dynamic in regularly amending the prohibition of insider trading regulations the main objective of which is to prohibit trading in listed securities by insiders based on price sensitive information to which they have access to. Amongst a lot of amendments, the latest is to increase the window period of prohibition on trading by insiders.
However, the onus is entirely on the company, it management and promoters. It is up to the companies to put in place internal systems and controls for monitoring the movement of insiders as well price sensitive information ahead of it becoming public. Companies should also periodically review efficiency of such internal control policies. It is for the companies to monitor the insiders with UPSI and take decide on how much is too much.
BUREAUCRATIC RED TAPE AND THE UMBILICAL CORD
At present, the legally permissible gestational period for abortion or termination of pregnancy is up to a period of 20 weeks.
In 2014, a draft of the amendments to the archaic Medical termination of pregnancy Act, 1971 was proposed. The main amendment - the extension of the abortion period to 24 weeks.
Such an amendment has been proposed to address the increasing rate of children being born with abnormalities and or defects and the challenges faced by parents in raising such children and unwanted pregnancies of minor girls and or rape survivors.
The issue is not exclusively medical or legal. It is a combination of both with a moral and ethical angle to it.
The Medical aspect of abortion
Abortion is done either surgically by removing the foetus from the uterus or by inducing medicines that will expand and contract the uterus to push the foetus out.
Doctors especially gynaecologist’s world over state that many abnormalities/defects such as ones to the brain and spine cannot be fully detected within 20 weeks. While anomaly can be detected in an ultrasound scan in the early stages of pregnancy, the intensity and impact on the foetus can be ascertained only after 20 weeks of pregnancy.
There are several rural and under developed villages with no access to medical infrastructure and facilities. It then becomes challenging for expectant mothers to detect any abnormality before 20 weeks. By the time it is detected, invariably 20 weeks are crossed. Expectant mothers who have access to healthcare facilities would try other methods such as advanced detection and correction of abnormalities. Abortion is the very last resort. By that time it is too late.
The medical fraternity is also of the view that if risk is indeed involved in abortion, it may not change even after 20 weeks.
The legality of abortion
At present, the upper gestational limit for termination of pregnancy by way of abortion is 20 weeks. Any termination beyond the said period requires clearance from Court. Due to the increase in number of cases seeking permission with the Court, the Supreme Court urged the Centre and States to form medical boards to assist courts take an objective view in such cases. The Courts would rely on report(s) submitted by medical boards set up by various hospitals. Such medical Boards would constitute a host of experts in the relevant medical specialities. Based on the report, the Court would allow or deny permission for termination of pregnancy beyond 20 weeks.
In 2014, the Union health ministry drafted amendments to the MTP Act, 1971 primarily with a view to help women with pregnancies which are high risk as they are diagnosed with abnormalities and fatalities. The main amendment is to increase the legally permissible termination gestational period up to 24 weeks. However, these amendments are still pending approval by the government even after 5 years.
Pending approval of such amendments, women have been left with no alternative but to approach courts for permission to terminate pregnancies. On receipt of such petitions, Courts rely on reports submitted by Medical boards and then decide.
While deciding in favour of the termination, Courts will have to absolutely be convinced that: (i) there is irreversible foetal abnormality or anomaly; (ii) the decision to terminate is voluntary decision by the pregnant woman herself (iii) permitting such termination will not be detrimental to the health and life of the woman.
In 2017, the Kolkata HC granted permission to a woman to terminate her 26 week pregnancy. The woman had approached the Court seeking permission for such termination on the grounds that the foetus was detected with a cyst in the brain which could render the foetus neurologically challenged for life and also a possible early death. The HC granted permission after the medical board and the Director of the hospital confirmed the same. The HC was convinced that the by allowing the pregnancy to continue, it could jeopardise the life of the child as well as the mother.
Moral and ethical angle to abortion
The issue of abortion has been debated the world over since time immemorial. While it is not religiously permitted on the grounds that life given by God cannot be taken away by humans and suffering cannot be inflicted on a foetus which is considered a human being at 20 weeks, social activists argue that abortion should be integral part of the fundamental right of choice of women. Such right cannot be curbed by religious or other authorities. This should be all the more considered for foetus which are detected and diagnosed with fatal abnormalities that result in death or permanent disability of the child. Such physically or mentally challenged children face social stigma as they grow up. There are also cases of unwanted pregnancies of minor girls and rape survivors.
Recently, a 19 year old gang raped victim who became pregnant due to repeated sexual assaults died due to complications arising out of unsupervised abortion on her 8 month old foetus by taking an overdose of pills to get rid of the foetus. Such was the desperation of the woman and her family not to continue with the pregnancy fearing ostracizing and social stigma.
Need of the hour
Bureaucratic delays are costing lives. It is time the government approves the amendment of the Medical termination of pregnancy Act, 1971. In doing so, the government can take a leaf out of European countries which permit termination of pregnancy even after 20 weeks. Even better, countries such as Canada and Germany allow for termination at any time if it is based on social or medical reasons. The clock is ticking. The foetus is growing.
Supreme court admitting plea for allowing womens’ entry into mosques
Writ Petition (Civil) No.472/2019
Yasmeen Zuber Peerzade and Anr Vs The Union of India (For admission and IA No.60456/2019)
On 16th April, 2019 the Supreme Court admitted for consideration a writ petition to lift the ban on Muslim women’s’ entry into mosques across the country.
The petitioners, Yasmeen and Zuber Ahmad have sought the apex court to declare the ban on women’s entry into mosques as illegal and unconstitutional. It was violative of Article 44 of the Constitution of India. They stated that there should not be any discrimination on the grounds of race, religion, caste, gender and place of birth. They have also stated in their petition that a life of dignity and equality are a fundamental right of every citizen. That being the case, no Muslim women can be prevented entry into mosques. The couple further petitioned that like men, women also have constitutional rights to offer prayers in accordance with their belief. At present, women are allowed worship in mosques only under few denominations or sects of the Muslim community. Even in mosques where women are allowed to worship, there are separate entrance and exit for women. The prayer enclosures are separate. This amounts to gender discrimination. The petitioners prayed that the women should be allowed to pray in mosques across all denominations / sects of the Muslim community. The petitioner further contended that this is all the more relevant since the Holy city of Mecca allows men and women to pray alike.
In 2016, the Supreme Court ruled that the Haji Ali Dargah Trust allowed entry of women into the dargah and also directed the Trust to make structural changes to provide women with unrestricted view and make women feel religiously inclusive and equal.
The Division bench headed by Hon’ble Justice SA Bobde and Hon’ble Justice S. Abdul Nazeer wanted to know whether a petition seeking right to equality can be filed against individuals and non State actors like people who manage the mosques. The question is whether a mosque, church or temple is a “State”? This means it is not the brick and mortar structure but the people managing such religious institutions. Observing that the provision of Article 14 commences with “State shall not deny…” Justice Bobde observed that Article 14 is expressly referring to relief against the State only. He reiterated that the fundamental right of equality is available only against the State and not individuals.
After ascertaining whether the practice of allowing women to worship in mosques is prevalent in other parts of the world, the Division Bench allowed for the petition to be admitted for hearing. The Court issued notice to the government and various religious bodies. The Division Bench orally remarked that the recent judgment passed in the Sabarimala temple case is the only reason that the petition is being admitted.
An article stolen, when found in the hands of the thief. A thief caught with the stolen goods in his possession is said to be taken “with the mainour” that is, with the property in manu, in his hands.
In the civil law, the master or owner of a merchant vessel.
In the civil law, a tender of money in payment of a debt made by debtor to creditor.
In international law, contracts between nations which are to be performed by a single act, and of which execution is at an end at once.
KRAMER Vs KRAMER (1979) (Movie)
This 1979 movie American family legal drama was widely regarded as the trend setter in gender equality – that the father was equally responsible as the mother in raising a child.
Ted Kramer (Dustin Hoffman) is a workaholic Ad executive in New York. He arrives home to share his professional achievements only to find his wife Joanna Kramer (Meryl Streep) leaving him and their son Billy. Being solely in the loving care of the mother, Billy and Ted find it hard to cope with each other. Over time, with help from their neighbour and another single parent Margaret, Ted and Billy forge a strong and loving father - son relationship. Fifteen months later, Joanna returns to file for separation and taking sole custody of their child Billy. A bitter legal drama unfolds with lawyers from both sides washing dirty linen in public. Right from Ted losing his high paying job to a lower paying one, to injuries suffered by the kid while playing (attributed to the father “carelessness” and incapability to raise a child), the courtroom witnesses it all. The Court finally awards sole custody to Joanna on the grounds that a child is best raised by the mother. This breaks Ted’s heart. He doesn’t want Billy to go through the ordeal of testifying in court and hence decided not to appeal. As Ted and Billy get ready to separate from each other, Joanna lands at their home only to tell them she realises that Billy is happiest and secure with Ted. Therefore she will not take Billy away from Ted. A poignant tale of love, separation and the psychological fallout it has on the concerned people especially children. The movie was commercially successfully and critically acclaimed. It won several awards for the lead actors including the Oscars and the Golden Globes.
PERSONAL INJURIES by SCOTT TUROW (1999) (Book / Novel)
From the stable of the award winning American Lawyer – author Scott Turow, the plot of the novel is set in the fictional Kindle county where almost all Turow’s novels are based. Many characters from his previous novels find place in this novel as well. Robbie Feaver a lawyer who strikes it rich by bribing judges and earning a fortune in the process. When the IRS snoops in on Robbie, he hires the best lawyer in Kindle County to represent him. Meanwhile the FBI assign an officer to watch Robbie. How Robbie deftly handles people and the situations forms the rest of the story.
JUDGING AMY (1999-2005) (TV Series)
An American legal courtroom drama, the TV series ran for a total of 138 episodes over a period of 6 years. The television series centred on Amy Brenneman, a Judge who serves in the family court and adjudicates family related cases. In that she draws from her own experiences as a divorcee and single parent and her mother’s experiences as a child care case worker.
If opportunity doesn’t knock, build a door.
– Milton Berle
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