Ranjan Gogoi’s statement in RS | Once retired, judges’ opinions are not binding diktats, CJI tells Kapil Sibal

Though Sibal did not name Justice Gogoi, it was apparent that his reference was to the latter’s statement in Rajya Sabha wherein he said the Basic Structure Doctrine evolved by the SC has a “debatable jurisprudential basis”.

Responding to Sibal’s comments, the CJI said, “Mr. Sibal, if we refer to a colleague, we have to refer to a sitting colleague. Once we cease to be judges, they are opinions, not binding diktats.”

“But I am surprised”, said Sibal.

Solicitor-General Tushar Mehta was quick to intervene and remind Sibal that “Parliament does not discuss what goes on in the court” and that courts should also stay out of discussing what is discussed in Parliament.

Mehta said Gogoi “has the freedom of expression” to say what he wants. “Sibal is responding to the Parliamentary debate here because he was not possibly in Parliament yesterday,” the S-G said, adding that “it is that place where he should have expressed his views on Basic Structure”.

Sibal, who sought to question whether the changes made to Article 370 were an act of majoritarianism, responded that “we are starting a debate on that because of this majoritarian culture again”.

He said, “My view is clear because my view is the court’s view. I can’t go beyond that. I am an officer of the court. In court I have that constitutional view, outside I may have a different view.”

On Monday, Gogoi had objected to the invocation of the Basic Structure Doctrine by the Opposition on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 in the Rajya Sabha, saying, “There is a book by (Tehmtan) Andhyarujina, the former Solicitor General of India on the Kesavananda Bharati (1973) case. Having read the book…my view is that the doctrine of the Basic Structure of the Constitution has a debatable, a very debatable jurisprudential basis.”