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Sec. 23 of RTI Act states – Bar of Jurisdiction of Courts, yet the Courts Entertain .. Why & How ?


Sunil Ahya

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SEC. 23 OF THE RTI ACT, 2005, EMPHATICALLY STATES – BAR OF JURISDICTION OF COURTS.

THE COURTS STILL ENTERTAIN –

WHAT COULD BE THE REASON..................

 

Index of Relevant Points:

 

Part - I

 

1. The Constitution of India has a Basic Structure.

 

2. Parliament (Legislature) has the power to amend the Constitution.

 

3. But can the Parliament amend the Constitution to the extent of amending the Basic Structure of the Constitution itself.

 

Part - II

 

4. Supreme Court’s position on the subject.

 

5. Case Laws by the Supreme Court.

 

6. Conclusion.

 

7. FINALLY - Can the Basic Structure of the Constitution ever be amended?

 

 

 

Part - I

 

1. The Constitution of India has a Basic Structure:

 

A 13 Judge Constitutional bench formulated under Chief Justice Sikri has defined the Basic Structure of the Constitution of India in detail in Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461).

 

One of the features of the Basic Structure of the Constitution is that every aspect of governance will be governed by three branches namely, The Legislature, The Executive & The Judiciary.

 

 

 

2. Parliament (Legislature) has the power to amend the Constitution:

 

One of the three branches of government, (Legislature) Parliament has been conferred under Article 368, the power to amend the Constitution itself.

 

 

3. But can the Parliament amend the Constitution to the extent of amending the Basic Structure of the Constitution itself:

 

So, Can (Legislature) Parliament, which is not the only branch of government (mind you) but one of the three branches of government, make a law which excludes any one of the three branches of the government, from an aspect of governance?

 

For Example, Can Parliament make the following law:

(a) Bar of President from this particular law:
President’s (Executive’s) signature is not required for this particular law to come into effect.

 

OR

 

(b) (Legislature) Bar of Parliament from this particular law:

Henceforth Executive / .... will legislate on this particular subject.

 

OR

 

© Section 23: Bar of Jurisdiction of Courts from this particular law.

 

 

As one can see, in each of the above examples, one of the three branches of the government has been excluded / barred from a particular aspect of governance.

 

REITERATE:

 

So, Can Parliament make Laws which either INDIRECTLY amends the Constitution (for example sec. 23 of the RTI Act, 2005) OR Invoke Article 368 and DIRECTLY amend the Constitution to exclude any one of the three branches of the Government from a particular aspect of governance, thereby violate the Basic Structure of the Constitution, which lays down that there will be three branches of Government for every aspect of governance?

 

 

Part - II

 

Index of Relevant Points:

 

4. Supreme Court’s position on the subject.

 

5. Case Laws by the Supreme Court.

 

6. Conclusion.

 

7. FINALLY - Can the Basic Structure of the Constitution ever be amended?

 

 

4. Supreme Court’s position on the subject:

 

Every law MADE is subject to Judicial Review:

 

Every law made by the Central (Parliament) or State Legislature is subject to Judicial Review, and if the law violates the basic structure of the Constitution, it will be set aside as null and void by the Judiciary under the Doctrine of Judicial Review, and thus the Supreme Court is the final arbiter and interpreter of all constitutional amendments

 

.

5. Some CASE LAWS on the subject:

 

Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)

 

A 13 Judge Constitutional bench was formulated under Chief Justice Sikri where the majority held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the ‘Basic Structure’ of the Constitution.

 

Minerva Mills V. Union Of India (AIR 1980 SC 1789):

 

Judiciary Strikes Down the Law Made By the Parliament.

 

Supreme Court struck down clauses 368 (4) & (5) of the Constitution of India inserted by 42nd amendment to the Constitution by the Parliament - Justification for striking down is that the clauses destroyed the basic structure of Constitution.

 

 

L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125):

 

Judiciary Strikes Down the Law Made By the Parliament.(similar to the enactment of the provision of sec. 23 of the RTI Act)

 

The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 and as such they abrogate the power of Judicial Review which is a basic feature of the Constitution.

 

 

6. CONCLUSION:

 

Every Law MADE as well as Every Law IMPLEMENTED is subject to Judicial Review.

 

If any law made by the Parliament violates the Basic Structure of the Constitution of India, then Judiciary (Courts) will strike down that law under the internationally well established Doctrine of Judicial Review.

 

One of the feature of the Basic Structure of the Constitution of India is that there will be three branches of government (Legislature, Executive & Judiciary) for every aspect of governance. Section 23 of the RTI Act, 2005 results into exclusion of one of the three branches of the government, it thus violates the Basic Structure of the Constitution of India and hence invalid.

 

 

7. FINALLY:

 

The big Question is: Can the Basic Structure of the Constitution of India ever be amended?

 

Answer: YES very much, the Basic Structure of the Constitution can definitely be amended, but only with the CONCURRENCE of all the three branches of the Government.

7 Comments


Recommended Comments

nk agarwal

Posted

Yes it appears so but, should there not be a mechanism to correct wrongs or miscarriage of justice. Should there not be provision of re-view/

If the answer is yes then some impartial mechanism is required for it and this mechanism exists as courts.

Yes it makes the procedure cumbersome, expensive and lengthy. We need more ICs, automation and stringent penalties on PIOS,FAAs and PAs to decrease number of reduce-able appeals to "zero"

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chanda_s

Posted

no article of indian constitution can "stand" amended. constitution has to be explicitly amended under article 368. there are a set procedures for making an amendment and the procedures have to be scrupulously followed.

 

one cant have a deemed amendment in the garb of passing an act. constitution of india is too sacrosanct to be amended inadvertently or through back door.

 

if the parliament of india wanted such an amendment, it would discuss in open and with full details and procedure and accordingly vote on it.

 

 

you can also refer to many articles like 243M, 243ZC, 244A, 312 which in similar grounds clearly emphasise that no act can make any deemed amendment to the indian constitution. kindly dont treat the constitution in the same breadth as the acts passed under the powers conferred by it.

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chanda_s

Posted

As per article 368 of the Constitution amendments to the Constitution are done in three ways.

 

By simple majority of the Parliament: Amendments in this category are be made by a simple majority of members present and voting,

By special majority of the Parliament: Amendments are done in this category by a 2/3 majority of the total number of members present and voting, which should not be less than half of the total membership of the house.

By special majority of the Parliament and ratification by at least half of the state legislatures by special majority.

 

in all the above cases, it is sent for the presidential assent and only after it is signed by the president does the amendment come into force.

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chanda_s

Posted

further, article 226, 226A and 227 being part of the constitution by themselves would supercede any law passed by the parliament.

 

the supreme court of india also had clearly enunciated that the basic structure of the constitution cannot be meddled with in its land mark judgements in the golaknath vs state of punjab, keshavananda bharti vs state of kerala, minerva mills ltd vs union of india.

 

separation of powers is an integral part of the basic structure of the indian constitution and this has been recorded in the proceedings of the keshavananda bharti case by hon'ble chief justice Mr.Sikri.

 

the parliament can't usurp the powers of the judiciary and restrict the effectiveness of the high courts by way of curtailing writ jurisdiction under article 226. some governments have infamously tried doing the same and were promptly thwarted in their attempts.

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  • Super Moderator
karira

Posted

If so many matters related to orders of the SIC/CIC have been heard by the Courts and also stayed/orders given, I am sure the Courts know what they are doing !

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Dear abhi987,

 

In my copy of the Constitution of India, downloaded from a Govt of India site and claiming to be updated up to 01 Dec 2007, the following appears:

 

226A. [
Constitutional validity of Central laws not to be considered in proceedings under article 226.
]
Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8 (w.e.f.

13-4-1978).

 

But there is a footnote at the bottom of the page regarding this article which says:

2 - Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 39 (w.e.f. 1-2-1977).

 

Thus Article 226A of the CoI disallowing High Courts from considering the constitutional validity of Central laws led a very brief existence between 1-2-1977 and 12-4-1978. It was introduced by the 42nd Amendment and repealed by the 43rd Amendment.

 

regards,

SomeGuy

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SomeGuy

Posted (edited)

I agree with chanda_s that you can't have "deemed amendments" back-doored into the constitution. The constitution can only be amended by way of the specific provisions provided within it.

 

Bars to the jurisdiction of courts similar to that specified in section 23 of the RTI Act are often present in laws that specify some sort of alternate remedy (like appeal to ICs). However, this is understood to refer only to the lower courts and has been repeatedly held to not include the writ jurisdictions of High Courts and the Supreme Court. The one exception is the Administrative Tribunals Act, which specifically excludes the jurisdiction of High Courts as well, but I believe this provision was included in consonance with a constitutional amendment.

 

In fact, High Courts generally insist that such bars to jurisdiction be strictly construed and have even held that civil suits are maintainable when the precise conditions of exclusion are unmet.

Edited by SomeGuy
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