New Delhi: Chief Justice of India DY Chandrachud noted on Tuesday that the opinions voiced by judges after they retire are expressions of personal belief and do not carry legal obligation. This comment followed former CJI Ranjan Gogoi’s statements regarding the debatability of the basic structure doctrine during a Supreme Court discussion.
During a debate on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, Justice (retd) Gogoi, now a nominated Rajya Sabha member, mentioned a book by former solicitor general TR Andhyarujina on the Kesavananda Bharati case. He indicated that, having read the book, he finds the doctrine of the basic structure of the Constitution to have a highly disputable jurisprudential basis.
In the significant Kesavananda Bharati ruling of 1973, the Supreme Court introduced the basic structure doctrine of the Constitution, asserting that fundamental elements like democracy, secularism, federalism, and the rule of law cannot be altered through parliamentary amendments.
In the course of Tuesday’s hearing, senior advocate Kapil Sibal, representing National Conference leader Mohd Akbar Lone, who contested the abrogation of Article 370 granting special status to Jammu and Kashmir, referred to Justice Gogoi’s statement in the Rajya Sabha. Sibal argued that the Center’s abrogation of Jammu and Kashmir’s special status can only be justified through a new legal framework that aligns with the majority’s mandate.
Responding to Sibal’s submission, Chief Justice Chandrachud remarked that references to colleagues should pertain to those currently in service. He emphasized that once judges retire, their statements are mere opinions and lack binding legal force. This viewpoint aligns with his earlier characterization of the basic structure doctrine as a ‘North Star,’ offering guidance to interpreters and implementers of the Constitution in complex situations.
The concept of the basic structure principle has played a pivotal role in invalidating several Constitutional amendments, including the nullification of the NJAC Act, which pertained to the appointment of judges in the higher judiciary.
During the Article 370 case, Solicitor General Tushar Mehta, representing the Center, intervened when Sibal made his argument. Mehta drew a parallel between discussing parliamentary proceedings in court and court proceedings in Parliament, stating that the two should not be mixed.
Sibal acknowledged Mehta’s intervention, agreeing that he was not present in Parliament during the debate on the GNCTD amendment bill on Monday. Sibal, an independent Member of Parliament in the Rajya Sabha, supported Mehta’s perspective.
In a lecture delivered in Mumbai on January 21, Chief Justice Chandrachud emphasized the role of a judge in interpreting the Constitution in the context of evolving times while retaining its core essence.
He likened the basic structure of the Constitution to a ‘North Star,’ offering guidance to interpreters and implementers when navigating complex situations. This structure is founded on principles like the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, individual freedom, and national unity.
Chief Justice Chandrachud’s remarks came shortly after Vice President Jagdeep Dhankhar questioned the Kesavananda Bharati case verdict. Dhankhar expressed disagreement with the conclusion that Parliament could amend the Constitution but not its basic structure.
As the Rajya Sabha chairman, Dhankhar cautioned that such a verdict could set a negative precedent. He stressed that the power of Parliament to amend the Constitution is vital for a functioning democracy.
Dhankhar asserted that preserving parliamentary sovereignty and autonomy is crucial for the democratic system and should not be compromised by the executive or judiciary.
Addressing the 83rd All India Presiding Officers Conference in Jaipur on January 11, Dhankhar stated that the judiciary should not interfere in the legislative process.
Reflecting on the Kesavananda Bharati case of 1973, Dhankhar expressed his disagreement with the basic structure doctrine introduced by the Supreme Court. He stated that Parliament should have the authority to amend both the Constitution and its fundamental structure, disagreeing with the notion that the basic structure cannot be altered.
