Any amendment to the Constitution of India shall require a concurrence from all the three branches of the government,

namely Legislature, Executive & Judiciary .. Index of Relevant Points: 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 ?
(For those of you, who are familiar with the RTI Act, may please refer to the present status of the implementation of section 23 of the Act).

4. Supreme Courts 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? 8. How this article connects to the Parliament of Indias recent attempt to amend the Right to Information Act, 2005?

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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), the summary of which is as given below: One of the features of the Basic Structure of the Constitution is that every constitutional amendment shall require concurrence of all the three branches of Government namely Legislature, Executive & 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: For example, 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 issue of governance? So to say, can Parliament make the following law: (a) Bar of President from this particular law: Presidents (Executives) signature is not required for this particular law to come into effect. OR (b) Bar of Parliament itself from enacting this particular law in future: Henceforth Executive / .... will legislate on this particular subject. OR (c) Bar of Jurisdiction of Courts from this particular law. (for example section 23 of the RTI Act, 2005).

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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 subject of governance, thereby violate the Basic Structure of the Constitution, which otherwise has laid down that there will be three branches of Government for every subject of governance? 4. Supreme Courts 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.
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 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. 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. WHY .. Because each of these branches is supposed to be a check and balance on the other two branches ! 8. How this article connects to the Parliament of Indias recent attempt to amend the Right to Information Act, 2005? Please click on the following link: Link: http://tinyurl.com/RTI-Act-Amend Sunil Ahya. sunilahya@gmail.com

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