Basic Structure Doctrine Has Debatable Jurisdictional Basis: Former CJI Ranjan Gogoi In Parliament, CJI Chandrachud Comments On It

On Monday, former Chief Justice of India Ranjan Gogoi delivered his maiden speech in Parliament regarding the proposed GNCTD Amendment Bill of 2023. During his speech, he commented on the basic structure doctrine, stating, “The doctrine of basic structure has a very debatable, jurisdictional basis”. 

Today, during the hearing of the batch of cases against abrogation of Article 370, the comment was highlighted by Senior Advocate Kapil Sibal.

"As it is, now one of your esteemed colleagues has said, if fact, basic structure theory is also doubtful," Sibal said.

"If you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, they are opinions, not binding diktats," CJI Chandrachud replied smiling.

"Of course, it is not binding. But I am surprised" Sibal then remarked. 

"Parliament does not discuss what goes on in Court and Court should not discuss what goes on in the Parliament. Everyone has freedom of view, freedom of expression," Solicitor General Tushar Mehta intervened and said. Kapil Sibal agreed that Gagoi is free to express his opinion. 

Ranjan Gogoi, a nominated member of the Rajya Sabha emphasized that the NCT of Delhi has a special status, where the state legislature makes laws on state subjects except for three. Still, Article 239 gives Parliament the power to frame laws beyond these three, which is what the bill proposes to do and, therefore, is in line with the law of the land and the views of the Apex Court, he said. 

“The legislative assembly of the NCTD has competence over entries in list two and list 3, except for the expressly excluded entries. In addition to entries in list 1, in addition to entries in the union list, Parliament government has legislative competence over all matters in list 2 and list 3 in relation to NCTD. This is the conclusion in paragraph 164. See, paragraph 164, F, the executive power of the NCD with respect to entries in list two and list three shall be subject to the executive power expressly conferred upon the union by the Constitution or by a law enacted by Parliament. This is the conclusion of the Supreme Court... Therefore, what has the Supreme Court repeatedly held in the 2018 and 2023 judgments? Precisely this”, he said referring to the 2018 and 2023 judgments of the Apex Court. 

According to him, the power of the legislative competence of Parliament is not in dispute, so this law cannot be bad unless it violates fundamental rights, any other provision of the Constitution, or the basic structure of the Constitution. “The power of the legislative competence of Parliament is not in dispute. Then why would this law be bad? This law would be bad if it violates the fundamental rights, number one. Number two, if it violates any other provision of the Constitution, and if it violates the basic structure of the Constitution....In any case, Honourable Chairman, sir, I have come to the end of it. Violation of fundamental rights. The only fundamental right that can be violated is perhaps Article 14, and that too, the limited part of Article 14, that the law is arbitrary. Is this law arbitrary? This doesn’t appear to be so. The law may not be to my liking. That does not make it arbitrary”. 

He further outlined that the bill provides a diluted and asymmetrical form of federalism with a modified form of triple autonomy. He stated that the proposed bill is a diluted form of federalism because Delhi is a union territory, not a full-fledged state. He suggested that if one wants full-fledged federalism, a Constitutional amendment can be made to make Delhi a full-fledged state.

“There’s a book by Mr. Andhyarujina, the former Solicitor General, on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of basic structure of the Constitution has a very debatable jurisprudential basis. I would not say anything more than this. ......In any case, Hon. Chairman, sir, what the bill provides is diluted form of federalism because it’s a Union territory, not a full-fledged state. Therefore, what you have is a diluted form, asymmetrical form of federalism. The third thing is, does it violate any other part of the Constitution? The Supreme Court mentioned about triple autonomy. What you have under the bill is a modified form of triple autonomy. The bureaucrat is responsible to a Lieutenant Governor who is responsible to the Home Ministry, who’s responsible to the House. You have a modified form. If you want a full-fledged federalism, which today is a basic feature, though I have my own perceptions here. You can go for an amendment, for a Constitutional amendment, and make Delhi a full-fledged state”, He articulated.

Gogoi concluded his speech with his support for the bill. He stated, “Therefore, in my respectful submission, my contention, the bill is perfectly legitimately valid...To me, the bill is correct”.

In January this year, Vice-President Jagdeep Dhankhar had said that the Kesavananda Bharati judgment of 1973, which enunciated the principle of basic structure of the Constitution, set a bad precedent. Incidentally, the Vice-President was presiding over the Rajya Sabha while Ranjan Gogoi was speaking.

While dismissing a PIL against Vice President Jagdeep Dhankar over his said remarks against the basic structure doctrine, the Bombay High Court observed that fair criticism of a judgment is permissible.

Subsequently, Chief Justice D Y Chandrachud called the basic structure doctrine a "North Star" that guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted, while delivering a lecture in Mumbai.