During a debate on the bill, which was later passed by the upper house, former CJI Gogoi had said that the proposed law by the Centre does not “violate the basic feature of the Constitution and is not arbitrary”.
Senior lawyer Kapil Sibal cited Gogoi’s remarks in the Supreme Court on Tuesday during a Constitution bench hearing on abrogation of Article 370, reported Bar and Bench.
Addressing a CJI DY Chandrachud-led bench, Sibal said that “their colleague” has cast doubts on basic structure theory.
“As it is, now one of your esteemed colleagues (Gogoi) have said that the basic structure theory is also doubtful…” Sibal remarked.
To this, CJI Chandrachud responded that opinions of retired judges “are not binding diktats”.
“If you refer to a colleague, you have to refer to a sitting colleague. Once they cease to be judges, they are opinions, not binding diktats,” CJI Chandrachud said, according to the Bar and Bench report.
“I am surprised.. of course, it is not binding,” Sibal responded.
Solicitor General Tushar Mehta, who was also present during the proceedings, said that Parliament does not discuss what happens in the court and the court does not do the same, adding that “everyone has a freedom of speech and expression.”
Former CJI Gogoi had expressed reservations over the basic structure doctrine on Monday while supporting the passage of the Government of NCT of Delhi (Amendment) Bill, 2023.
Addressing concerns that the bill violates the basic structure of the Constitution, Gogoi referred to a book by former Solicitor General of India (SGI) TR Andhyarujina on the Kesavananda Bharati case to assert that the doctrine of basic structure has a very debatable jurisprudential basis.
“Does it violate the basic features of the Constitution? There is a book by Mr (TR) Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of basic structure of the Indian Constitution has a very debatable jurisprudential basis,” Justice Gogoi had said.