While speaking in Rajya Sabha on Monday in support of the Delhi services bill, Justice Gogoi had quoted senior advocate T R Andhyarujina to express doubts about the manner in which then CJI S M Sikri, who headed a 13-judge bench that was confusingly divided over Parliament’s power to amend constitutional provisions under Article 368, had pulled out the ‘basic structure’ rabbit as ‘view of the majority’, which in the last 50 years has became the constitutional touchstone to test the validity of any legislation.
Appearing before a 5-J bench led by CJI D Y Chandrachud, Sibal said the decision to hollow the Article 370 without taking the views of people of J&K is very problematic. “See the consequence of this -Through an executive order every provision of the Constitution can be changed. Because you are the majority. This majoritarian culture cannot destroy the edifice of what our forefathe rs gave us.” “They cannot justify their action, unless some new jurisprudence comes to light that they can do what they like as long as they have ma jority. As it is now, one of your esteemed colleagues (ex-CJI Gogoi in Rajya Sabha) has said the basic structure principle is doubtful,” he added. CJI Chandrachud said, “Once we cease to be judges, what we say is only an opinion, not binding dictat.”
Solicitor general Tushar Mehta cautioned against debating in court what is said in Parliament, “Parliament does not discuss a judge and the court does not discuss what is debated in Parliament. Parliamentarians have full freedom of expression.”
Sibal, also a member of Rajya Sabha, this time elected with the support of Samajwadi Party, said, “Not my view. My view is clear and that is the same as that of the court. I can’t go beyond that because I am an officer of the court. In the court I have that constitutional view. Outside, I might have a different view. There must be some element of humour and mirth in the court as well and everything can’t be serious.” However, he said that all MPs have full freedom of expression in Parliament.
Andhyarujina, who had appeared with eminent constitutional authority in H M Seervai in the case, had revealed in his book the “stratagem adopted by CJI Sikri on the day of delivery of Kesavananda Bharati judgment on April 24, 1973 by which he formulated on a paper the so-called ‘the view of the majority’ of seven judges out of 13 judges in six propositions including the vital proposition — Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.”
