Whether High Courts have jurisdiction over Orders passed under the RTI Act, 2005? An argument, A Point of View.
1) Constitution of India supersedes all other laws in this country.
2) Parliament, Supreme Court and High Courts, they all have come into existence by virtue of the Constitution of India and are governed by it's various provisions.
a) Parliament (Part XV –Elections – Article 324 to 329)
b) Supreme Court (Chapter IV - Articles 124 - 147)
c) High Courts (Chapter V - Articles 214 - 231)
3) Having come into existence Parliamentarians have been conferred upon the powers to amend the Constitution itself, by way of addition, variation or complete repealing of any or all the Articles of the Constitution.
In fact Article 368 (5) of the Constitution is very emphatic.
Article 368 (5) - “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”
4) By virtue of Article 368 the collective wisdom of Parliament has the power to REPEAL Chapter IV Articles 124 - 147 and like wise Chapter V Articles 214 - 231 and thereby do away with the present justice system altogether (Maybe to replace the existing judicial system)(Just to prove the point of supremacy in a hierarchy)
5) How will then existing High Courts or Supreme Court sit in judgment?
6) Parliamentarians, have been elected from across the country by the people of India and they represent all the citizens of this country and hence they are the supreme authority.(Please read Article 368(5)- For removal of doubts.......)
7) A Court cannot decide on what the people of this country wants but the Parliament can.
8) Hence if Parliament has explicitly passed in an Act that Courts have been barred from a particular issue or for that matter Courts have been barred completely from any and every issue, the word of the Parliament shall be final.
9) Although Parliament can sit into a loop and amend the Constitution by virtue of which it has come into existence but the Courts cannot sit into a loop and decide on the decision of the Parliament, except that a proper procedure was followed while making/passing those decisions.
The hierarchy goes like this:
Constitution < > Parliament < Supreme Court < High Court.
10) An individual Parliamentarian if at fault, is not above the law and can be prosecuted in any Court of law, but collective Parliamentarians have the power vested in them to create or discontinue a law as well as create Courts and if necessary altogether discontinue them too.
11) Right to Information Act, 2005 has been passed in the Parliament of India.
12) Sec. 22 of the RTI Act, 2005 states that it is to have an overriding effect over all other existing laws prevalent in the country.
13) Sec. 23 of the RTI Act, 2005 categorically bars the jurisdiction of Courts in respect of any order/s passed under it's Act.
14) Sec. 22 & 23 of the RTI Act, 2005 fall well within the meaning of power of Parliament to amend by way of addition and variation to the provisions of the Constitution under Article 368.
15) Article 329 of the Constitution is a precedent to Sec. 23 of the RTI Act, wherein jurisdiction of Courts have been particularly barred in electoral matters.
16) Hence,
By virtue of powers conferred to the Parliament under Article 368 of the Constitution and taking Article 329 as a precedent,
It can be reasonably inferred,
That by virtue of sec. 22 & 23 of the RTI Act,
The Articles 226, 226 A & 227 of the Constitution which defines the powers of a High Court within it's jurisdiction, stand amended to the extent of any orders passed under the RTI Act, 2005.
Especially Article 226 A w.e.f. 13-4-1978 particularly stands amended by virtue of RTI Act, 2005 w.e.f. 15-06-2005, because the RTI Act is recent.
[Article 226 A "Constitutional validity of Central laws not to be considered in proceedings under article 226."]
17) Hence,
No Court can entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
18) If the Courts were to entertain proceedings in respect of orders passed under the RTI Act, the road to information will become long and expensive.
The author of the RTI Act had envisaged this and hence introduced sec. 22 & 23 in the Act.
19) I would like to believe, that when such an act is put up before the Parliament, :
a) Experts in legal field must have drafted various provisions of the act.
b) Legal advisors to the Parliament,
c) Legal advisors to the President of India,
d) President of India himself,
e) The Prime Minister of India,
f) .......
must have gone through each and every word and line of the act and above all, they surely could not have overlooked hugely emphatic titles of the act SEC. 22 ACT TO HAVE OVERRIDING EFFECT AND SEC. 23 BAR OF JURISDICTION OF COURTS and must be aware of the amendment effected to the Constitution of India before the bill Right to Information Act, 2005 was enacted.
2) Parliament, Supreme Court and High Courts, they all have come into existence by virtue of the Constitution of India and are governed by it's various provisions.
a) Parliament (Part XV –Elections – Article 324 to 329)
b) Supreme Court (Chapter IV - Articles 124 - 147)
c) High Courts (Chapter V - Articles 214 - 231)
3) Having come into existence Parliamentarians have been conferred upon the powers to amend the Constitution itself, by way of addition, variation or complete repealing of any or all the Articles of the Constitution.
In fact Article 368 (5) of the Constitution is very emphatic.
Article 368 (5) - “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”
4) By virtue of Article 368 the collective wisdom of Parliament has the power to REPEAL Chapter IV Articles 124 - 147 and like wise Chapter V Articles 214 - 231 and thereby do away with the present justice system altogether (Maybe to replace the existing judicial system)(Just to prove the point of supremacy in a hierarchy)
5) How will then existing High Courts or Supreme Court sit in judgment?
6) Parliamentarians, have been elected from across the country by the people of India and they represent all the citizens of this country and hence they are the supreme authority.(Please read Article 368(5)- For removal of doubts.......)
7) A Court cannot decide on what the people of this country wants but the Parliament can.
8) Hence if Parliament has explicitly passed in an Act that Courts have been barred from a particular issue or for that matter Courts have been barred completely from any and every issue, the word of the Parliament shall be final.
9) Although Parliament can sit into a loop and amend the Constitution by virtue of which it has come into existence but the Courts cannot sit into a loop and decide on the decision of the Parliament, except that a proper procedure was followed while making/passing those decisions.
The hierarchy goes like this:
Constitution < > Parliament < Supreme Court < High Court.
10) An individual Parliamentarian if at fault, is not above the law and can be prosecuted in any Court of law, but collective Parliamentarians have the power vested in them to create or discontinue a law as well as create Courts and if necessary altogether discontinue them too.
11) Right to Information Act, 2005 has been passed in the Parliament of India.
12) Sec. 22 of the RTI Act, 2005 states that it is to have an overriding effect over all other existing laws prevalent in the country.
13) Sec. 23 of the RTI Act, 2005 categorically bars the jurisdiction of Courts in respect of any order/s passed under it's Act.
14) Sec. 22 & 23 of the RTI Act, 2005 fall well within the meaning of power of Parliament to amend by way of addition and variation to the provisions of the Constitution under Article 368.
15) Article 329 of the Constitution is a precedent to Sec. 23 of the RTI Act, wherein jurisdiction of Courts have been particularly barred in electoral matters.
16) Hence,
By virtue of powers conferred to the Parliament under Article 368 of the Constitution and taking Article 329 as a precedent,
It can be reasonably inferred,
That by virtue of sec. 22 & 23 of the RTI Act,
The Articles 226, 226 A & 227 of the Constitution which defines the powers of a High Court within it's jurisdiction, stand amended to the extent of any orders passed under the RTI Act, 2005.
Especially Article 226 A w.e.f. 13-4-1978 particularly stands amended by virtue of RTI Act, 2005 w.e.f. 15-06-2005, because the RTI Act is recent.
[Article 226 A "Constitutional validity of Central laws not to be considered in proceedings under article 226."]
17) Hence,
No Court can entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
18) If the Courts were to entertain proceedings in respect of orders passed under the RTI Act, the road to information will become long and expensive.
The author of the RTI Act had envisaged this and hence introduced sec. 22 & 23 in the Act.
19) I would like to believe, that when such an act is put up before the Parliament, :
a) Experts in legal field must have drafted various provisions of the act.
b) Legal advisors to the Parliament,
c) Legal advisors to the President of India,
d) President of India himself,
e) The Prime Minister of India,
f) .......
must have gone through each and every word and line of the act and above all, they surely could not have overlooked hugely emphatic titles of the act SEC. 22 ACT TO HAVE OVERRIDING EFFECT AND SEC. 23 BAR OF JURISDICTION OF COURTS and must be aware of the amendment effected to the Constitution of India before the bill Right to Information Act, 2005 was enacted.
Total Comments 7
Comments
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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"Posted 03-26-2009 at 11:03 AM by nk agarwal
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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.Posted 03-28-2009 at 09:10 AM by chanda_s - 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.Posted 03-28-2009 at 09:38 AM by chanda_s - 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.Posted 03-28-2009 at 09:39 AM by chanda_s -
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 !Posted 03-30-2009 at 05:33 PM by karira - 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.
But there is a footnote at the bottom of the page regarding this article which says:
13-4-1978).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,
SomeGuyPosted 06-26-2009 at 11:27 PM by SomeGuy - 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.Posted 07-05-2009 at 09:04 PM by SomeGuy
Updated 07-06-2009 at 12:02 AM by SomeGuy
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