Why Rajya Sabha MP Ranjan Gogoi’s remarks have stirred a row in Supreme Court

Rajya Sabha MP and former Chief Justice of India Ranjan Gogoi is known for making the news. He’s at it once again, and this time, it’s because of his statement in the Upper House of Parliament. His defence of the Delhi services bill, passed on Monday (7 August), found mention in the Supreme Court the following day and even prompted sitting Chief Justice of India DY Chandrachud to say that once judges demit office whatever they say is just opinion and is not binding. Let’s take a look at the chronology of events – what Gogoi said in the August House and how did CJI Chandrachud react to the remark. Gogoi and the Delhi services bill Three years and four months since he was nominated to the Rajya Sabha, the former Chief Justice of India Ranjan Gogoi made his first speech in the House – in support of the Union government’s contentious Delhi services bill, formally known as the Government of National Capital Territory of Delhi (Amendment) Bill, 2023. Incidentally, as he rose to make his arguments in support of the legislation, five women MPs – Jaya Bachchan, Priyanka Chaturvedi, Vandana Chavan, Sushmita Dev and Kanimozhi – walked out of the Rajya Sabha. Chaturvedi later told the Deccan Herald, “We walked out because of sexual harassment charges against him. It was a mark of protest against such individuals, however senior, not respecting women and having used their position of power to wipe off their sins.” Speaking on the legislation, introduced by Home Minister Amit Shah, Gogoi said that the basic structure of the Constitution has a “debatable jurisprudential basis”. “The law may not be to be my liking but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by (former Solicitor-General of India) Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis. I would not say anything more than this,” said the ex-CJI in Rajya Sabha.

#WATCH | "...To me the bill is correct, right...," says Rajya Sabha MP and former CJI Ranjan Gogoi on The Government of National Capital Territory of Delhi (Amendment) Bill, 2023. pic.twitter.com/uDZYZMbLdM

— ANI (@ANI) August 7, 2023

His remark received a thunderous applause from the Treasury benches, with members thumping the desks loudly. Gogoi further added that the Centre’s Ordinance as it stands today cannot be called an encroachment against the Supreme Court’s decision. He said the Bill was perfectly legitimate and that he fully supported the Bill. “If you want full-fledged federalism (for Delhi), you can go for an amendment and make Delhi a full-fledged state. The most important thing is that Article 239 (AA) is not under challenge… In my view, the Bill is perfectly, legitimately valid,” he was quoted as saying. Gogoi’s comment echoes in Supreme Court After being debated for six hours, the bill was put to a vote and was passed with 131 votes in favour of it, and 102 against on Monday itself. On Tuesday, however, Gogoi’s comments were still fresh in people’s mind and even found a mention in the Supreme Court. Senior Advocate Kapil Sibal, who was appearing before the apex court in the Constitution bench hearing of the Article 370 case, said: “As it is, now one of your esteemed colleagues have said that the basic structure theory is also doubtful.” Though Sibal didn’t name Gogoi, it was apparent that his reference was to the latter’s Rajya Sabha statement. Responding to 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.” “I am surprised… of course, it is not binding,” Sibal said, in turn. Solicitor General Tushar Mehta also chimed in, saying to Sibal, “Parliament does not discuss what goes on in the court” and that courts should also stay out of discussing what is discussed in Parliament. As per a report in the Indian Express, Mehta said Gogoi “has the freedom of expression” to say what he wants. [caption id=“attachment_12976282” align=“alignnone” width=“640”] Chief Justice of India-Justice DY Chandrachud has hailed the basic structure doctrine as a ‘North Star’. File image/PTI[/caption] Basic Structure Doctrine explained But what exactly is this Basic Structure Doctrine that is being mentioned? The doctrine evolved by the Supreme Court in the 1973 landmark ruling in Kesavananda Bharati v State of Kerala. In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament. What it means is that if a law is found to “damage or destroy” the “basic features of the Constitution”, the Court can declare it unconstitutional.The test is applied to constitutional amendments to ensure the amendment does not dilute the fundamentals of the Constitutional itself. According to the apex court, the “basic features of the Constitution” are: judicial review, rule of law, federalism, and the democratic republic structure. Interestingly, while on Monday, Gogoi questioned the jurisprudence of the Basic Structure Doctrine, he has in the past invoked it to adjudicate cases. In 2019, Gogoi had led a five-judge bench in a case during which it struck down the law restructuring tribunals for violating the basic structure of the Constitution. In the same year, Gogoi had invoked the doctrine to rule that the chief justice of India’s office was within the ambit of the Right to Information Act. Additionally, he led the bench of judges that had passed the verdict in the Ayodhya land dispute case, underlining that secularism is a basic feature of the Constitution that is inviolable. CJI Chandrachud has also hailed the doctrine as a ‘North Star’ that guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted. Delivering the Nani A Palkhivala Memorial Lecture in Mumbai on 21 January, the CJI had said: “The basic structure of our Constitution, like the North Star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.” He added, “The basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.” With inputs from agencies