The Supreme Court Of India

The Supreme Court

The Supreme Court is the highest court of India. It is at the apex of the Indian judicial system. Union legislature, which is known as Parliament, makes laws for the whole country in respect of the Union and the Concurrent Lists and the executive comprising the President, Council of Ministers and bureaucracy enforces them. Judiciary, the third organ of the government, has an equally important role to play. It settles the disputes, interprets laws, protects fundamental rights and acts as guardian of the Constitution.

Single Unified and Integrated Judicial System

The distinct feature of our judiciary is that it is a single unified integrated judicial system for the whole country. A single judiciary represents a hierarchy of courts. The Supreme Court stands at the top of this single integrated judicial system with High Courts at the State level. Below the High Courts, there are several subordinate courts such as the District Courts which deal with civil cases and the Session Courts which decide criminal cases.

The Supreme Court

The Supreme Court is the highest judicial authority of India. It consists of the Chief Justice and 25 other judges. The Parliament may increase the number of judges if it deems necessary. To begin with, besides the Chief Justice, there were only 7 other judges. The Parliament has increased the number of judges from time to time. As in 2005, there are 25 judges besides the Chief Justice who is also called the Chief Justice of India.

The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges, if he deems proper.

Whenever there is vacancy or a likely vacancy in the Supreme Court, the Chief Justice and four other senior most judges consider various names and recommend the names of the persons to be appointed as judges of the Supreme Court. This system is based on a ruling of the Constitutional Bench of a Supreme Court (handed down in 1993 and reinforced in 1999). Thus, while the Constitution still provides that the President is the appointing authority of the Supreme Court judges, the ruling of the Supreme Court, has since 1999, become virtually binding on the President. The power of selection of judges has passed on to a group of Supreme Court judges, called the Collegium of the Court. The President now performs the formality of appointing the nominee of the Supreme Court, after the Law Ministry formally recommends these names to him.

Qualifications, Tenure and Removal of Judges

A person is qualified for appointment as a judge only he/she is a citizen of India and if he/ she fulfil one of the following conditions:

a) he/she has been for at least five years a Judge of as High Court or two or more than two such courts; or

b) he/she has been for at least ten years an advocate of a High Court or of two or more than two such courts; or

c) he/she is, in the opinion of the President, a distinguished jurist.

The Chief Justice of India and other judges of the Supreme Court hold office till they attain the age of 65 years. A judge may voluntarily resign before expiry of his term. In exceptional cases a Supreme Court judge may be removed before the age of retirement, according to the procedure laid down in the Constitution. Thus a judge of the Supreme Court can be removed from office by an order of the President passed after an address by each House of the Parliament supported by a majority of total membership of the House and not less than two-third majority of the members of the House present and voting, passed in the same session, has been presented to the President for such removal on the ground of proved misbehavior or capacity. So far, proceedings for removal were initiated only in one case against a judge of the Supreme Court. But he/she could not be removed because the resolution could not be passed by the Parliament. It is clear that Supreme Court judges enjoy security of tenure, and the executive cannot arbitrarily remove them.

No person who has held office of a judge of the Supreme Court is allowed to plead as an advocate in any court or before any authority within the territory of India. The judges of the Supreme Court are paid such salaries as are determined by the Parliament from time to time.

A Court of Record

The Supreme Court is a Court of Record. It has two implications. All its decisions and judgments are cited as precedents in all courts of the country. They have the force of law and are binding on all lower Courts, and indeed the High Courts. As a Court of Record, the Supreme Court can even send a person to jail who may have committed contempt of the court.

Jurisdiction of The Supreme Court

The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction. The Supreme Court has three types of jurisdictions namely original, appellate and advisory.

Let us now examine the three jurisdictions.

Original Jurisdiction

There are certain cases which fall within the exclusive jurisdiction of the Supreme Court. It means that all such cases begin or originate in the Supreme Court, only. It also means that such cases cannot be initiated in any other court. The cases or disputes that come under the original jurisdiction are given below:

(i) (a) Disputes between the Government of India on the one side and one or more States on the other side.

(b) Disputes between the Government of India and one or more States on one side and one or more States on the other side.

(c) Disputes between two or more States.

(ii) The Supreme Court has been invested with special powers in the enforcement of Fundamental Rights. In this connection, it has the power to issue directions or writs.

(iii) Cases under Public Interests Litigation (PIL) can also be heard directly. (This is an extra Constitutional practice; there is no mention of PIL in the Constitution).

Appellate Jurisdiction

The power of a superior/higher court to hear and decide appeals against the judgment of a lower court is called appellate jurisdiction. The Supreme Court has vast appellate jurisdiction. It hears appeals against the judgment of the High Courts. Thus, it is the highest and the final Court of Appeal. If one of the parties to a dispute is not satisfied with the decision of the High Court, one can go to the Supreme Court and file an appeal. The appeals can be filled in Civil, Criminal and Constitutional cases.

(i) Appeals in Civil Cases

Disputes relating to property, marriage, money, contract and service etc are called civil cases. If a civil case involves a substantial point of law of public importance needing interpretatation of the Constitution or law, an appeal against the High Court decision can be made to Supreme Court. Earlier the financial limit of such civil cases was Rs. 20,000/

- but now according to the 30th Amendment of 1972, there is no minimum amount for taking a civil appeal to the Supreme Court. If substantial question of interpretation of law or Constitution is involved, appeal may be made against the decision of the High Court.

(ii) Appeals in Criminal Cases

An appeal may be brought to the Supreme Court against a High Court decision in a criminal case in a number of situations. Firstly, if a High Court sets aside an appeal or an order of acquittal passed by a lower court and awards death sentence to the accused, he may bring an appeal to the Supreme Court by right.

Secondly, appeal can also be made to the Supreme Court if the High Court withdraws a case from a lower court to itself, declares the accused guilty and awards death sentence.

In this situation also appeals can be made as a matter of right and without certificate from the High Court.

The appeal in cases other than these two categories may also be brought to the Supreme Court provided the High Court grants a certificate that the case is fit for appeal to the Supreme Court.

In case where the High Court refuses to certify a case to be fit for appeal to the Supreme Court, one may seek special leave to appeal from the Supreme Court itself. The Supreme Court may grant such a special leave in its discretion but only in rare cases.

(iii) Appeals in Constitutional Cases

A constitutional case is neither a civil dispute, nor concerning a crime. It is a case arising out of different interpretations of Constitution, mainly regarding the fundamental rights. In such Constitutional Cases an appeal can be taken to the Supreme Court only if a High Court certifies that the matter in dispute involves a substantial question of law.

If the High Court denies a certificate of fitness to appeal to the Supreme Court, the Supreme Court can use its discretion and grant special leave to appeal to itself in any case it deems fit.

Advisory Jurisdiction

This power implies Court’s right to give advice, if sought. Under advisory jurisdiction, the President of India may refer any question of law or public importance to Supreme Court for its advice. But the Supreme Court is not bound to give advice. In case, the advice or the opinion of the Court is sent to the President, he may or may not accept it. The advice of the Court is not binding on the President. So far, whenever the Court has given its advice, the President has always accepted it. The Court refused to give its advice on the question whether a temple existed at the spot, where Babri Masjid was built at Ayodhya.

Guardian of The Constitution

The Constitution of India is the supreme law of the land and the Supreme Court is its interpreter and guardian. It does not allow the executive or the Parliament to violate any provision of the Constitution. It can also review any action of the Government, which allegdly violates any provision of the Fundamental Rights. This power of the Supreme Court is called Judicial Review about which we shall study later. If it finds violation of any provision of the Constitution, it may declare the concerned law as ultra-vires, or null and void. It is on the basis of this power of Judicial Review of the Supreme Court that it is called guardian of the Constitution. It is also called ‘a champion of liberties’ and ‘a watchdog of democracy’.

In this context the role and the functions of the Supreme Court are wide and comprehensive

Protector of Fundamental Rights

The Supreme Court has concurrent right with the High Courts to issue directions, orders and writs for enforcement of fundamental rights. These are in the nature of the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. These writs make the Supreme Court a protector and guarantor of fundamental rights. The idea is that in case of violation of a law or right, the Court may issue directions for compliance with the Constitution. Thus, the citizens of India are secure as far as fundamental rights are concerned.

The Supreme Court has the right to declare a law passed by the legislature null and void if it encroaches upon our fundamental rights. It has rejected many legislations, which violated fundamental rights. This shows how the Supreme Court has always served as the guardian of fundamental rights.

Writ: It is an order issued to a lower Court or a functionary of the State to take steps

to restore rights of the people.

Review of Its Own Judgment

If the Supreme Court discovers that there are some new facts or evidences or if it is satisfied that some mistake or error took place in its previous decision, it has the power to review the case and alter its previous decisions. This is generally done when a review petition is filed. Normally, review is done by a bigger bench than the one that originally decided the case.

Public Interest Litigation (PIL)

Earlier, the judiciary, including Supreme Court, entertained litigation only from those parties that were affected directly or indirectly by it. It heard and decided cases only under its original and appllate jurisdiction. But subsequently, the Court permitted cases on the ground of public interest litigation. It means that even people, who are not directly involved in the case, may bring to the notice of the Court matters of public interest. It is the privilege of the Court to entertain the application for public interest litigation (PIL). The concept of PIL was introduced by Justice P.N. Bhagwati.

PIL is important because justice is now easily available to the poor and the weaker sections of society. The Supreme Court on the basis of letters received from journalists, lawyers and social workers and even on the basis of newspaper reports has taken up a number of matters of public interest. Let us take some examples to know how PIL has helped the people to get justice.

Under PIL, the rights of under trials held under illegal detention have been restored. The Supreme Court ordered the release of many detenues without trial on the ground of their personal liberty, which could not be curbed due to judicial or bureaucratic inefficiency.

The Supreme Court has also taken up steps to free bonded labourers, tribals, slum dwellers, women in rescue homes, children in juvenile homes, child labour etc. In case of environmental pollution, the Supreme Court has ordered closure of a few factories near Kanpur, Delhi and other places.

With more and more decisions coming from the Supreme Court, the scope of PIL has widened. Now a person can approach the Court through a letter and if the Supreme Court believes that the matter is of public interest, it can consider the letter to be a petition and direct the hearing of the matter so that public interest may be protected. The process of PIL has led to increased judicial activism.

2G spactrum scam and CAG report.

What is 2G SPECTRUM?

2G is short form of Second generation; 2G stands for the second generation phones. The first introduced mobile phone series were named "1G", 2G is the successor of 1G phones which was introduced in Finland by Radiolinja in 1991. 2G phones are specified by the standard GSM.GSM stands for Global system for Mobile phones, this standard enabled the user to use handset in any part of the world called Roaming Facility.The actual difference of 1G phones was in its Signaling and it used digital Channel to communicate, .This enabled the data communication (text messaging).The frequency range of 2G Spectrum is from 900MHz to 1800MHz.

What is 2G Spectrum Scam..??

India upgraded from 1G phones only from 2008, the 2G phones was going to be introduced. Govt planned to allocate the spectrum for the Service providers. Telecoms minister A.Raja introduced unique procedure for allocation, he allocated by first in first served policy. What Mr A. Raja has done is that, he given away the spectrum to his favorites, important thing to note that Karunanidhi's family holds large share of Telecoms and Television Networks in Tamilnadu. The spectrum was sold in the price of 2001,in 2008. The loss from 2G spectrum allocation is about Ra 1.76 lakh Corers, Rs 1400 per man in the country.What makes this big is that,the amount country loose in 2G Spectrum allocation is more than India annual income From Export Business.

This deal was in the interest of top Corporates in the Country, telecoms Ministry brushed aside all the the Guidelines and proceeded to issue 122 new license for 2G spectrum at 2001 price. The major beneficiary of this deal was Reliance and Tata, it is evident from the tapes that having the conversation between Corporate middle men and Minister A.Raja.

WHAT ARE THE CHARGES ON FORMER TELECOM MINISTER A RAJA?

CHEAP TELECOM LICENSES

Entry fee for spectrum licenses in 2008 pegged at 2001 prices

 Mobile subscriber base had shot up to 350 million in 2008 from 4 million in 2001

 NO PROCEDURES FOLLOWED

Rules changed after the game had begun

Cut-off date for applications advanced by a week

Licenses issued on a first-come-first-served basis

No proper auction process followed, no bids invited

Raja ignored advice of TRAI, Law Ministry, Finance Ministry

TRAI had recommended auctioning of spectrum at market rates

FAVOURITISM, CORPORATES ENCASH PREMIUM

 Unitech, Swan Telecom got licenses without any prior telecom experience

Swan Telecom given license even though it did not meet eligibility criteria

Swan got license for Rs 1537 crore, sold 45% stake to Etisalat for Rs 4200 crore

Unitech Wireless got license for Rs 1661 crore, sold 60% stake for Rs 6200 crore

All nine companies paid DoT only Rs 10,772 crore for 2G licences

Who is to Blame..??

The Ruling party can never shy away from this, because they are the authority to make decision. Congress party president and Prime Minister manmohan singh never commented on this issue until the supreme court asked, it is a Question mark on the Credibility of Manmohan singh. He took 16 months to reply Janatha Pary President Mr Subramaniam Swami's letter on 2G Scam.

It is always the DMK ministers who are corrupts in First UPA Govt it was Mr Balu now it is A.Raja. Congress will hesitate to take action against DMK, because if DMK withdraws support to the center the govt may collapse. Congress wont wont stand by the national interest because they have their own, indian corporates are the financial source of Congress. It is this corporates who even decides the ministers at the center, and how Congress can act against them.

How the Scam Came Out..!

The Nexus Between the Media and Corporates are so strong that, the top English channel in India even ignored the 2G Spectrum Scam. The whole credits to bring out the scam in to light goes to Janatha party president Mr Subamaniam Swami who filed an affidavit in the Supreme court, CPI(M), CPI,BJP and all the left parties who raised this issue in the Indian parliament, and the Malayalee media person J Gopikrishnan who brought the Nexus between Media and Corporates.

CAG report

"85 of the 122 licenses were issued to companies which suppressed facts, disclosed incomplete information and submitted fictitious documents to DoT and thus used fraudulent means of getting licenses and thereby access to spectrum"  -this is one of the more biting conclusions of the report prepared by the government's auditor, the Comptroller and Auditor General (CAG).

It is unflinching in its indictment of Raja, blaming him for violating guidelines, indulging in favouritism and costing the government Rs. 1.76  lakh crores by mishandling the allocation of 2G spectrum in 2008.

"2G spectrum was allocated beyond contracted quantity to 9 firms including Bharti, Vodafone, Idea, BSNL, Reliance, Aircel," the report said.

It says that the Department of Telecommunications (DoT) circumvented the rules to help Swan Telecom, which effectively acted as a front for Reliance Telecommunications.   The charges in the CAG report are that Swan should not have been considered for a license because Reliance Communications held 10.7% stake in Swan - and according to the rules, a telecom operator cannot own more than 10% stake in another telecom company operating in the same service area. "Email ID of Swan Telecom was shown as that of a Reliance ADA group official," said the report.

The application should have been rejected by the Department of Telecom (DoT), according to the CAG report. "DoT did not follow its own practise of first-come-first-serve in letter and spirit," it said.

The report also says that Reliance Telecommunications was among those who got undue benefits, and that Reliance was allotted spectrum ahead of the others.  According to CAG, Idea and Spice were wrongly denied spectrum on the grounds of a proposed merger.

Reacting to the charge, Reliance Communications spokesperson stated: "Our Group had no shareholding in Swan Telecom Ltd. (now known as Etisalat DB Ltd.) at the time of grant of license to them or any time thereafter, and that issue is accordingly not relevant to our Company. Reliance Communications has always been in full compliance with all applicable laws, rules and regulations, and there has been no violation of our license conditions at any stage on account of cross-holdings in excess of 10%."

CAG indicts Unitech Wireless

Another big beneficiary of the 2G spectrum allocation was Unitech Wireless, which had no experience in the telecommunication sector. After Unitech got the license for a throwaway price of Rs. 1,661 crore, it sold 60 per cent stake to  Telenor Asia for a whopping Rs. 6,200 crore. In its report, CAG indicts Unitech saying the high value paid by Telenor was for the 2G spectrum, and not for other inputs as claimed by Unitech. It also says that such huge equity infusion, which should have accrued to the public exchequer, went as a favour to the new licensees for enriching their business.

Raja Ignored PM's Advice, Says CAG Report

"The Honourable Minister of Communication & IT, for no apparent logical or valid reasons, ignored the advice of Ministry of Law and Ministry of Finance, avoided the deliberations of the Telecom Commission to allocate 2G spectrum, a scarce finite national asset at less than its true value on flexible criteria and procedures adopted to benefit a few operators."

The report also says Raja ignored the PM's advice. "The PM had stressed on the need for a fair and transparent allocation of spectrum..... Brushing aside the advice, the Department of Telecom (DoT) in 2008 proceeded to issue licenses for 2G spectrum at 2001 prices, flouting all rules and procedures," said the CAG report.

View full CAG report on

http://drop.ndtv.com/pdf/CAG.pdf

The Bhopal Gas Tragedy - who was responsible ??

"Around 1 a.m., I started coughing. My eyes started burning. As I stepped out, it started burning even more"

“I felt being choked. Waking up, I saw a huge black cloud of smoke in my room. Unable to understand, I hugged my two children tightly in my arms and ran outside, leaving all my belongings behind. I tried to save my children but darkness soon enveloped everything. I started vomiting felt giddy and lost consciousness. Next day when I woke up, I was partially blind, my eyes were itching and my husband and son were dead. That frightening night brought a lot of suffering in my life”

This is the experience of people who fortunately (say ‘unfortunately, because they could never achieve normal health levels afterward) survived the Bhopal Gas Tragedy in 2-3 December 1984.

Introduction

In the early morning hours of December 3, 1984, a poisonous grey cloud (forty tons of toxic gases) from Union Carbide India Limited (UCIL's) pesticide plant at Bhopal spread throughout the city. Water carrying catalytic material had entered Methyl Isocyanate (MIC) storage tank No. 610. What followed was a nightmare.

The Bhopal disaster was an industrial catastrophe that took place at a pesticide plant owned and operated by Union Carbide India Limited (UCIL) in Bhopal, Madhya Pradesh, India on December 3, 1984. Around 12 AM, the plant released Methyl IsoCyanate (MIC) gas and other toxins, resulting in the exposure of over 520000 people.

During the night of December 2–3, 1984, large amounts of water entered tank 610, containing 42 tones of methyl isocyanate (MIC). The resulting exothermic reaction increased the temperature inside the tank to over 200 °C (392 °F), raising the pressure to a level the tank was not designed to withstand. This forced the emergency venting of pressure from the MIC holding tank, releasing a large volume of toxic gases into the atmosphere. The reaction sped up because of the presence of iron in corroding non-stainless steel pipelines. A mixture of poisonous gases flooded the city of Bhopal, causing great panic as people woke up with a burning sensation in their lungs. Apart from MIC, the gas cloud contained poisonous gases such as phosgene, hydrogen cyanide, carbon monoxide, hydrogen chloride, oxides of nitrogen, MonoMethyl Amine (MMA) and carbon dioxide, either produced in the storage tank or in the Atmosphere.

.

Timeline, summary

 At the plant

· 21.00 Water cleaning of pipes starts.

· 22.00 Water enters tank 610, reaction starts.

· 22.30 Gases are emitted from the vent gas scrubber tower.

· 00.30 The large siren sounds and is turned off.

· 00.50 The siren is heard within the plant area. The workers escape.

 Outside

· 22.30 First sensations due to the gases are felt suffocation, cough, burning eyes and vomiting.

· 1.00 Police are alerted. Residents of the area evacuate. Union Carbide director denies any leak.

· 2.00 The first people reached Hamidia hospital. Symptoms include visual impairment and blindness, respiratory difficulties, frothing at the mouth, and vomiting.

· 2.10 The alarm is heard outside the plant.

· 4.00 The gases are brought under control.

· 6.00 A police loudspeaker broadcasts: "Everything is normal".

Some facts:-

The killer gas spread through the city, sending residents scurrying through the dark streets. No alarm ever sounded a warning and no evacuation plan was prepared. When victims arrived at hospitals breathless and blind, doctors did not know how to treat them, as UCIL had not provided emergency information.    

It was only when the sun rose the next morning that the magnitude of the devastation was clear. Dead bodies of humans and animals blocked the streets, leaves turned black, the smell of burning chili peppers lingered in the air.

The Tragedy killed 4000 immediately, 10000 within 72 hours and more than 25000 have died since then. Others who survived had one or other disabilities or diseases. Even the children born after that war affected with varying degree of birth defects.

The pesticide factory was built in the midst of densely populated settlements. UCIL chose to store and produce MIC, one of the most deadly chemicals (permitted exposure levels in USA and Britain are 0.02 parts per million), in an area where nearly 120,000 people lived.

The MIC plant was not designed to handle a runaway reaction. When the uncontrolled reaction started, MIC was flowing through the scrubber (meant to neutralize MIC emissions) at more than 200 times its designed capacity. MIC in the tank was filled to 87% of its capacity while the maximum permissible was 50%.

MIC was not stored at zero degrees centigrade as prescribed and the refrigeration and cooling systems had been shut down five months before the disaster, as part of UCC's global economy drive.

Vital gauges and indicators in the MIC tank were defective. The flare tower meant to burn off MIC emissions was under repair at the time of the disaster and the scrubber contained no caustic soda.

As part of UCC's drive to cut costs, the work force in the Bhopal factory was brought down by half from 1980 to 1984.

This had serious consequences on safety and maintenance. The size of the work crew for the MIC plant was cut in half from twelve to six workers.

In February 1989, the Supreme Court announced that it was approving a settlement for Bhopal victims under which Union Carbide agreed to pay Rs 713 crore for compensation to victims, while the government agreed to drop all criminal cases against it. However, due to intense public shock and anger at letting off the culprits, the court agreed to reopen the criminal cases in 1991. nearly 20,000 people have died, and 5.7 lakh have suffered injuries. The compensation amount — Rs 713 crore, paid by Union Carbide — was meant for about 1 lakh persons but has been distributed among nearly 6 lakh people. Of the Rs 713 crores, Rs 113 crores was for loss of livestock and property. The balance Rs 600 crore distributed among 5.74 lakh persons works out to about Rs 12,410 per victim on average. In contrast, in the Uphaar tragedy in Delhi, families of those who died got between Rs 15 lakh to Rs 18 lakh each, while injured persons got Rs 1 lakh each. In addition, they got interest at the rate of 9% per annum for the roughly six years that the legal proceedings took.

Who was responsible??

          In my opinion this is a system failure i.e. company, govt. of India, our judiciary   all fails.

          Company neglects the govt. safety guidelines; reduce labour so putting additional stress on workers, not informing the public about gas leak, doing production in dangerous manner, no evacuation plan and for many reasons given above. Govt. of India is responsible as it allow company to establish in populated area even after knowing that the gas is dangerous to health, before giving license it does not check whether is full fill all the safety requirements etc. last but not leas Indian judiciary system for making Indian life so cheap Rs. 12,410. So I feel that all are responsible.

What do you think?????