Dear Friends,
SEC. 23 OF THE RTI ACT, 2005, EMPHATICALLY STATES –
BAR OF JURISDICTION OF COURTS.
THE COURTS STILL ENTERTAIN - WHAT COULD BE THE REASON..................
Part II Continued .................
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?
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
.
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.
7. FINALLY:Every Law MADE as well as Every Law IMPLEMENTED is subject to Judicial Review.
Section 23 of the RTI Act, 2005 results into exclusion of one of the three branches of the government.
It thus abrogates the right of the citizens to seek Judicial Review thereby violating the Basic Structure of the Constitution of India and hence invalid.
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.
Best Wishes,
Sunil.
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