LI Network
Published on: 09 August 2023 at 12:30 IST
Chief Justice of India DY Chandrachud remarked that the opinions expressed by former judges are not legally binding once they cease to hold their judicial positions.
This statement came in response to the recent remarks made by former Chief Justice of India, Ranjan Gogoi, regarding the basic structure doctrine, which were discussed in Parliament.
During a debate on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, Ranjan Gogoi, now a nominated member of the Rajya Sabha (Upper House of the Indian Parliament), stated, “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.”
On Tuesday, senior advocate Kapil Sibal, representing National Conference leader Mohd Akbar Lone, who challenged the abrogation of Article 370 that granted special status to the erstwhile state of Jammu and Kashmir, referred to Justice Gogoi’s statement made in the Rajya Sabha.
Sibal argued that the manner in which the Centre revoked the special status of Jammu and Kashmir cannot be justified unless new legal principles are established that allow the Centre to make decisions without limitations as long as they have a majority in Parliament. He further mentioned, “Now one of your esteemed colleagues has said that, in fact, the basic structure theory is also doubtful.”
In the historic Kesavananda Bharati case of 1973, the Supreme Court established the basic structure doctrine of the Constitution, asserting that certain fundamental features like democracy, secularism, federalism, and the rule of law cannot be altered by Parliament.
In response to Sibal’s submission, CJI Chandrachud clarified, “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.”
Solicitor General Tushar Mehta, representing the Centre, intervened by stating that discussions from Parliament cannot be brought into the court, similar to how court proceedings are not debated in Parliament. He pointed out that Sibal should have addressed the matter in Parliament itself.
Sibal, an independent member of the Rajya Sabha, agreed with Mehta’s assertion, stating that he was not present in Parliament during the debate on Monday.
