Chief Justice of India DY Chandrachud on Tuesday remarked that once judges demit office whatever they say is just opinion and is not binding, after former CJI Ranjan Gogoi's comments that the basic structure doctrine was debatable was flagged in the Supreme Court.
On Monday, Justice (retd) Gogoi, now a nominated member of the Rajya Sabha, while participating in a debate on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, said, "There is a book by (TR) Andhyarujina, the former solicitor general, on the Kesavananda Bharati case."
"Having read the book, my view is that the doctrine of the basic structure of the Constitution has a very debatable jurisprudential basis. I would not say anything more than this."
In the landmark Kesavananda Bharati verdict of 1973, the top court had propounded the basic structure doctrine of the Constitution and held that certain fundamental features such as democracy, secularism, federalism and rule of law cannot be amended by Parliament.
During the hearing on Tuesday, senior advocate Kapil Sibal, appearing for National Conference leader Mohammed Akbar Lone who has challenged the abrogation of Article 370 of the Constitution which had accorded special status to erstwhile state of Jammu and Kashmir, referred to Justice Gogoi's statement made in the Upper House.
Sibal contended that the manner in which the Centre abrogated the special status of J and K cannot be in any way justified "unless a new jurisprudence is brought so that they (Centre) can do whatever they like as long as they have a majority".
He said, "Now one of your esteemed colleagues has said that in fact basic structure theory is also doubtful."
Responding to Sibal's submission, CJI Chandrachud said, "Mr Sibal, when you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, whatever we say, they are just opinions and are not binding."
It may be recalled that CJI Chandrachud had at a public event in January this year called the basic structure doctrine a 'North Star' that guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.
The basic structure principle became the ground for setting aside several constitutional amendments, including the quashing of the amendment and the corresponding NJAC Act on the appointment of judges in the higher judiciary.
Solicitor General Tushar Mehta, who is appearing for the Centre in the Article 370 case, intervened when Sibal made the submission and said proceedings in Parliament cannot be discussed before the court just like the court's proceedings are not discussed in Parliament.
"Mr Sibal is addressing here, since he wasn't there in Parliament yesterday. He should have responded in the Parliament."
Sibal, who is an independent MP of the Rajya Sabha, agreed with Mehta's submission and said he was not in Parliament on Monday during the debate on the GNCTD amendment bill.
Delivering the Nani A Palkhivala Memorial Lecture in Mumbai on January 21, CJI Chandrachud had said craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact.
”The basic structure of our Constitution, like the North Star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted,” he had said.
”The basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.”
The remarks by the CJI came days after Vice President Jagdeep Dhankhar had questioned the Kesavananda Bharati case verdict and said he does not subscribe to its conclusion that Parliament can amend the Constitution but not its basic structure.
Dhankhar, who is the Rajya Sabha chairman, had said the verdict set a bad precedent and if any authority questions Parliament's power to amend the Constitution, it would be difficult to say ”we are a democratic nation”.
He had asserted that parliamentary sovereignty and autonomy are quintessential for the survival of democracy and cannot be permitted to be compromised by the executive or judiciary.
Addressing the 83rd All India Presiding Officers Conference in Jaipur on January 11, Dhankhar had said the judiciary cannot intervene in lawmaking.
”In 1973, a wrong precedent (galat parampara) started. In 1973, in the Kesavananda Bharati case, the Supreme Court gave the idea of basic structure saying Parliament can amend the Constitution but not its basic structure. With due respect to the judiciary, I cannot subscribe to this,” Dhankhar, who has been a Supreme Court lawyer, said.
