After former Chief Justice of India Ranjan Gogoi’s statements that the basic structural theory was arguable were raised in the Supreme Court, Chief Justice of India DY Chandrachud said on Tuesday that whatever judges say once they leave office is just opinion and is not binding.
During a debate on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, Justice (retd) Gogoi, now a nominated member of the Rajya Sabha, observed on Monday, “There is a book by (TR) Andhyarujina, the former solicitor general, on the Kesavananda Bharati case.” “After reading the book, I believe that the doctrine of the Constitution’s basic structure has a very debatable jurisprudential basis.” I wouldn’t say any more than that.”
The historic Kesavananda Bharati judgement of 1973 established the Constitution’s basic structure concept, holding that certain fundamental aspects such as democracy, secularism, federalism, and the rule of law cannot be altered by Parliament.
During the hearing on Tuesday, senior advocate Kapil Sibal referred to Justice Gogoi’s statement in the Upper House on behalf of National Conference leader Mohd Akbar Lone, who has challenged the repeal of Article 370 of the Constitution, which granted special status to the erstwhile state of Jammu and Kashmir.
Kapil Sibal argued that the manner in which the Centre revoked J&K’s special status could not be justified “unless a new jurisprudence is brought so that they (the Centre) can do whatever they want as long as they have a majority.”
“Now, one of your esteemed colleagues has said that basic structure theory is also doubtful,” he remarked.
CJI Chandrachud responded to Mr Sibal’s submission, saying, “Mr Sibal, when you refer to a colleague, you must refer to a sitting colleague.” Whatever we say once we stop being judges is only an opinion and is not binding.” It may be noted that at a public event in January of this year, CJI Chandrachud referred to the basic structure concept as a “North Star” that guides and directs the interpreters and implementers of the Constitution when the way ahead is perilous.
The basic structural principle was used to overturn various Constitutional changes, notably the repeal of the amendment and the associated NJAC Act on the nomination of judges in the higher courts.
“Mr Sibal is speaking here today because he was not present in Parliament yesterday.” He should have reacted in the House of Commons.” Kapil Sibal, an independent Rajya Sabha MP, agreed with Tushar Mehta’s reply and stated that he was not in Parliament on Monday during the GNCTD amendment bill debate.
CJI Chandrachud observed on January 21 at the Nani A Palkhivala Memorial Lecture in Mumbai that the craftsmanship of a judge lay in interpreting the text of the Constitution with the changing times while keeping its essence intact.
“The basic structure of our Constitution, like the North Star, guides and gives certain direction to the Constitution’s interpreters and implementers when the path ahead is convoluted,” he said.
“The basic structure or philosophy of our Constitution is premised on the supremacy of the Constitution, the rule of law, the separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual, and the unity and integrity of the nation.”
The CJI’s statements come just days after Vice President Jagdeep Dhankhar questioned the Kesavananda Bharati case ruling, saying he does not agree with its conclusion that Parliament can modify the Constitution but not its fundamental structure.
Vice President Dhankhar, the Rajya Sabha chairman, stated that the ruling established an unsafe precedent and that if any authority disputes Parliament’s competence to modify the Constitution, it will be difficult to claim that “we are a democratic nation.”
He claimed that parliamentary sovereignty and autonomy are crucial for the survival of democracy and must not be jeopardized by the administration or judiciary.
Mr Dhankhar stated on January 11 at the 83rd All India Presiding Officers Conference in Jaipur that the court cannot intervene in legislative matters.
“In 1973, a bad precedent (galat parampara) began. In the Kesavananda Bharati case in 1973, the Supreme Court established the concept of basic structure, ruling that Parliament could modify the Constitution but not its basic structure. “With due respect to the judiciary, I cannot subscribe to this,” Supreme Court advocate Jagdeep Dhankhar remarked.
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