Opinion Express View: MP Gogoi v Justice Gogoi
On Delhi services bill, former CJI’s intervention could have been a guiding voice of constitutional wisdom. Instead, he took a partisan cue
While the Opposition argued, rightly, that the law undermines the power and disturbs the line of accountability, of an elected government, the Centre defended its prerogative. 
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Nearly three and half years after he was nominated by the government to Rajya Sabha, Ranjan Gogoi made his maiden speech. It came during a crucial debate, worthy of intervention by a former Chief Justice of India. The National Capital Territory of Delhi (Amendment) Bill, 2023 raises a range of constitutional issues, from the federal compact to Parliament’s power to undo judgements of the Supreme Court.
While the Opposition argued, rightly, that the law undermines the power and disturbs the line of accountability, of an elected government, the Centre defended its prerogative. As an independent member, unburdened by party views, Gogoi’s intervention could have been a guiding voice of reason and constitutional wisdom. It is disappointing that he, instead, chose to take a partisan cue — by attacking the Basic Structure Doctrine.
“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.
It is not that an independent member, even if nominated, cannot share the views of the government on an issue. But it is disconcerting — and it should certainly be seen as such by a former chief justice of the apex court — that the Centre’s argument rests on attacking the relevance and legitimacy of the Basic Structure doctrine.
The debate around it has been politically fraught recently, with Vice-President Jagdeep Dhankhar and former law minister Kiren Rijiju repeatedly raising questions. Gogoi’s comment was in response to the Opposition’s contention that the amendment violated the federal principle, which is part of the basic structure of the Constitution that even Parliament cannot change. Surely, as a former CJI, Gogoi knows well the sanctity of the 50-year old doctrine, which is not restrictive, does not tie the hands of governments as times change, but which upholds the scaffolding of the constitutional system and protects it against attempts to hurt its inviolable core.
As a judge of the Supreme Court, the institution tasked with custodianship of the constititional letter and spirit, Gogoi applied the very same doctrine in at least three crucial cases.
Outside the courtroom too, for instance while delivering the Third Ramnath Goenka Memorial Lecture on July 12, 2018, as CJI designate, he cited the SC’s development of the Basic Structure doctrine as an example of “very sound jurisprudence which we continue to reap from.” It is the same doctrine that his colleague and current Chief Justice of India D Y Chandrachud called “the north star,” providing invaluable guidance for the interpretation of the Constitution. Gogoi’s volte-face does not reflect well on the institution he served for over 30 years.
In interviews after his Rajya Sabha nomination in 2020, he had said his presence in the House would provide an opportunity to project the views of the judiciary before the legislature and vice-versa. He would do well to pause and dial back to his own words. Gogoi, the MP, should not need to abandon Gogoi, the judge.
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