On Tuesday, during the abrogation of Article 370 hearing, senior advocate Kapil Sibal, appearing for National Conference leader Mohd Akbar Lone who has challenged the abrogation of Article 370 of the Constitution 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&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 on this, 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.”

Here’s what Ranjan Gogoi said in Rajya Sabha:

Earlier on Monday, Justice (retd) Ranjan 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,” he said in Rajya Sabha.

He had added the bill to replace an ordinance for handling the transfers and postings of officials in the Delhi government is “perfectly, legitimately valid”.

Apart from the former CJI, Vice President and Rajya Sabha Chairman Jagdeep Dhankhar had also said 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.

While addressing the 83rd All India Presiding Officers Conference in Jaipur in January this year, Dhankhar 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.

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.

(With inputs from PTI)

Updated: 09 Aug 2023, 03:55 PM IST