Justice Ranjan Gogoi’s nomination to the Rajya Sabha took place in March 2020, and even by the standards of a most diffident debutant, three and a half years is a long time to hear him talk. “My presence in Parliament will be an opportunity to project the views of the judiciary before the legislature and vice versa…” the former CJI had said, in response to the fierce controversy that raged over his accepting the nomination. That promised medium of communication was, however, not in evidence since then. The judiciary needed to be spoken up for in Parliament on many occasions, but the voice of its former head was never heard when it could have certainly helped.
It is now finally heard. But it is not that of a wise and knowledgeable elder, counselling the House on what the Constitution, as interpreted by the highest court, says. It is a partisan intervention on a contentious bill (we are not discussing its merits here) to throw doubts on the basic structure doctrine (BSD), which he had himself invoked in his years as a judge and as the Chief Justice of the Supreme Court.
The occasion was the debate in the Rajya Sabha over the Government of the National Capital Territory of Delhi (Amendment) Bill 2023, which was being opposed by large sections of the Opposition on, among others, the ground that it violated the principles of federalism, which is widely accepted to be a part of the basic structure of the Constitution. The BSD laid down by the Supreme Court fifty years ago in the celebrated Kesavananda Bharati case holds that Parliament, in exercise of its power to amend the Constitution under Article 368, cannot damage or destroy its ‘basic structure’. Justice Gogoi, speaking in support of the Delhi services bill, could have cited several points in its favour, brilliant lawyer and judge that he was. He, however, chose to cite the iconic lawyer TR Andhyarujina to argue that the BSD had a “very debatable jurisprudential basis”.
The late Andhyarujina had assisted his senior, the legendary HM Seervai, long-time Advocate General of Maharashtra and one of India’s most eminent constitutional lawyers, in the Kesavananda Bharati case to argue that the power of Parliament to amend the Constitution had no limitations whatsoever. Andhyarujina himself later served with distinction as the Advocate General of Maharashtra from 1993 to 1995 and became the Solicitor General of India from 1996 to 1998.
In a set of lectures delivered in 1992 and published under the title ‘Judicial Activism and Constitutional Democracy in India’ (N.M. Tripathi Private Limited), Andhyarujina had argued that the BSD had no constitutional justification and that it was ‘anti-democratic’ and ‘counter-majoritarian’ in character— the term ‘majoritarian’ here is to be understood as the will of the majority as expressed by Parliament, and not as the religious majoritarianism understood today. In 2014, Andhyarujina published another book titled Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (Universal), which gave, from his notes and his formidable memory, a ring-side view of the many dramatic happenings in the Kesavananda Bharati case.
Also read: Once we cease to be judges, whatever we say is just opinion: CJI on Ranjan Gogoi’s statement in RS
Learning is critical
A personal disclosure is now in order. Yours truly, whose credentials are puny compared to those of Andhyarujina — incidentally a close personal friend and guide — himself wrote a critique of the BSD, which was published in Supreme, but Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press, 2000), a volume brought out under the auspices of the Supreme Court to mark 50 years of its existence. In the 23 years that have elapsed since I wrote that critique, I confess that I have lived and learnt and am now a qualified and chastened critic of the BSD. I believe that with the return to the era of brute parliamentary majorities, the doctrine is the only safeguard against amendments, which could do away with the secular nature of the Constitution, for instance. But my views on the BSD are beside the point.
The point is that the former Chief Justice of India, as a judge of the Supreme Court, applied the doctrine as he was bound to do in his judicial career in the Rojer Mathew vs South Indian Bank Ltd case (2019) where writing for the Court, he found that Part XIV of the Finance Act 2017, which amended the conditions of service of chairpersons and members of tribunals, violated the basic structure of the Constitution. The Ayodhya verdict (2019), to which he was a party when he was Chief Justice of India, describes the Places of Worship Act as “an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.” Significantly, shortly before taking over as Chief Justice of India, Gogoi, during the third Ramnath Goenka Memorial Lecture, enthusiastically said the BSD has a “very sound jurisprudence which we continue to reap from.”
Andhyarujina’s books of 1992 and 2014 were available during Gogoi’s judicial tenure. Perhaps he had not come across those works then. If he had (and if he had been convinced by that viewpoint), he might have made an incidental reference to that scholarly criticism, while administering the BSD as a disciplined judge.
It would, therefore, appear that the critique came to his attention only recently and he finds some merit in it. And that is why, instead of using the attention of the House, which would have been his for the asking (in spite of the walk-outs) because of the high judicial position he held, he preferred not to guide the House on the existing state of constitutional law but to question its very basis.
The author is a senior advocate at the Supreme Court of India. Views are personal.
(Edited by Prashant)