Pandora's Box : Former CJI Gogoi said - "the doctrine of basic structure of Constitution debatable" .... Sibal drags Supreme Court

This was a loaded statement made on the floor of Rajya Sabha, --- "....the doctrine of the basic structure of the Constitution has a very debatable jurisprudential basis. I would not say anything more than this", Mr Ranjan Gogoi said on Monday, Aug 7 during the debate on high profile Delhi Services Bill, and the Pandora's Box was thrown open. 

Congress leader K C Venugopal, a trusted aide of Rahul Gandhi, immediately joined the issue and tweeted making a lengthy remark. The next day, that is Tuesday, Aug 8th, 2023, senior counsel Kapil Sibal raised the matter in the Supreme Court.

Kapil Sibal, appearing for Mohd 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.

Kapil 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 Mr 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."  

The issue is much bigger perhaps! 

"I am surprised.. of course, it is not binding," Sibal said. 

Solicitor General Tushar Mehta retorted sharp - 

"Parliament does not discuss what happens in court and court does not do so.. everyone has a freedom of speech and expression," Solicitor General Tushar Mehta chimed in.

In what is usually regarded as a landmark Kesavananda Bharati verdict of 1973, the top court had propounded the concept of "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.

Addressing concerns that the bill violates the basic structure of the Constitution, Gogoi referred to a book by former Solicitor General of India (SGI) TR Andhyarujina on the Kesavananda Bharati case to assert that the doctrine of basic structure has a very debatable jurisprudential basis.

"Does it violate the basic features of the Constitution? There is a book by Mr (TR) Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of basic structure of the Indian Constitution has a very debatable jurisprudential basis," Justice Gogoi said.

Justice Gogoi ended his maiden speech in parliament by underlining that Article 239AA was not under challenge before the Supreme Court. Therefore, he contended that the bill was perfectly, legitimately valid.

The hearing in the Article 370 case is ongoing before a five-judge bench of the Supreme Court. The case involves a batch of petitions challenging the Central government's decision to delete Article 370 of the Constitution, thereby withdrawing the special status earlier accorded to Jammu and Kashmir.

One of the arguments by the petitioners in the case is that the abrogation violates federalism, which is considered to be part of the basic structure of the Constitution, reports 'Bar and Bench' 

Importantly, Justice (retd) Gogoi, now a nominated member of the Rajya Sabha, was the CJI heading the bench when the much talked about Ayodhya Ram temple verdict was delivered by the apex court on Nov 9, 2019.