Journalism of Courage
Attacking the invocation of the Basic Structure doctrine by the Opposition on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, former Chief Justice of India and nominated Rajya Sabha member Ranjan Gogoi said Monday that the doctrine is on “very debatable jurisprudential basis.”
“Does it violate the basic features of the Constitution?…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,” he said.
The Basic Structure doctrine mandates the court to review and restrict Parliament’s powers to amend the Constitution’s foundational principles.
Gogoi’s comments were part of his maiden speech in Parliament since he was nominated by the President to Rajya Sabha in March 2020.
Gogoi spoke in favour of the NCT Bill brought by the BJP Government to replace the ordinance meant to undo the Supreme Court ruling.
In sharp contrast, Gogoi, when he was judge of the Supreme Court, invoked the very same Basic Structure doctrine in key cases.
In November 2019, Gogoi-led a five-judge bench in Roger Mathew versus Union of India which struck down the law restructuring tribunals for violating Basic Structure.
“We are in agreement with the contentions of the Learned Counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. The doctrine of separation of powers has been well recognised and re-interpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala, and several other later decisions,” Justice Gogoi wrote.
In November 2019, another five-judge bench, led by Justice Gogoi himself, invoked the Basic Structure doctrine to allow opening the office of the Chief Justice of India to scrutiny under the Right to Information Act.
“That the independence of the judiciary forms part of our basic structure is now well established,” the court said.
The 2019 Ayodhya verdict, which was delivered by a bench headed by Justice Gogoi, had underlined that secularism is a basic feature of the Constitution that is inviolable. The verdict cites a long line of precedents which applied the Kesavananda ruling that established the basic structure test.
Delivering the Third Ramnath Goenka Memorial Lecture on July 12, 2018, as CJI designate, Gogoi cited the SC’s development of the Basic Structure doctrine as an example of “very sound jurisprudence which we continue to reap from.”
“If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from,” he said.
