-
The Basic Structure Doctrine-A Footnote Comment
RAJEEV DHAVAN*
I
To say that Kesavananda Bharati v, State ofKerala1 is a landmark
case onthe Indian Constitution is Dot enough. Even though the
cricumstanceswhich gave rise to the case are peculiarly Indian, the
"basic structure"doctrine enunciated in this case will, in time,
affect juristic learning in avery fundamental way. Broadly
speaking, the "basic structure" asserts theprovocative proposition
that even a sovereign legislativebody with plenarypowers cannot
'amend' the constitution of a country (in this instance,India) in a
manner which would weakenthe "basic structure" or
"principles"underlying that country's constitution.
We willbegin by analysing the judgements after setting them in
thepeculiar "Indian" circumstances from which they arose. Having
done this,we will consider the juristic implications of the "basi~
structure" doctrine,
II
Very few lawyers in England andAmerica have taken an interest in
theIndian Supreme Court's latest contribution to the discussion on
parliamen-tary sovereignty. What was at issue, of course, was not
just the sovereigntyquestion, but the nature and viability of the
Indian Constitution itself.The Indian Constitution was designed to
achieve certain social andeconomic goals,- and at the same time
contained certain provisions designedto protect individual rights.-
A few months after the Constitution waspromulgated, Parliament and
the state legislatures discovered that thelibertarian part of the
Constitution made certain nationalisation and
• M.A. (Cantab), B.A., LL.B. (Alld.), Ph.D. (London) Lecturer,
Brunei Uni-versity, Advocate, High Court of Allahabad, Visiting
Associate Research Professor,Indian Law Institute. of the Middle
Temple, Barrister.
1. (1973) 4 S.C.C. US hereinafter referred to as Kesavananda on
which seegenerally Dhavan: The Supreme Court of India and
Parliamentary Sovereignty: ACritique of its Approach to the Recent
Constitutional Crisis (Sterling, Delhi, 1976).
2. Articles 37-51, The Constitution of India, part IV: Directive
Principles ofState Policy.
3. te, articles 12-36, part III, Fundamental Rights.
-
The Basic Structure Doctrine 161
positive discrimination schemes impossible.' This necessitated
the FirstAmendment Act, 1951, which the Supreme Court declared not
to be invalidin a case decided in the same year. In fact, the Court
went one stepfurther and suggested that the plenary power to amend
the Constitutionwas unlimited.! Seventeen amendments later when the
question wallreagitated before the Supreme Court, at least two
judges were prepared toaccept that there were some implied
limitations on the otherwise plenarypower to amend the
Constitution." In 1957 in the famed Golak Nath case,
.the Supreme Court by a 6: 5 ruling decided that an "amendment"
was a"law" within the meaning of part III of the Constitution with
the resultthat the validity of a law to amend the fundamental
rights part of theConstitution had to be tested by the very
provisions it sought to amend,"But, aware that this new decision
would pose problems, the Court used arather twisted version of the
doctrine of prospective overruling to ensurethat the amendments
were valid both prospectively and retrospectively.The Court seemed
merely to assert that future amendments would be some-what more
strictly construed."
In order to deal with later and consequent amendments the Court
fellback on the theory of implied limitations. The theory, broadly
speaking,is that even plenary powers are subject to the broad
implied limitation thatthe basic structure and fundamental
principles of the Constitution cannotbe tampered with. This
argument can be traced back to Chief Justice
4. To some extent there w~re som i pr,J~I;m; on this in 1'1.:
Constituent Assembly.See III C.A.O. sos.is: V C.A.D. 372 and IX
C.A.D. 1194. The best account ofthis is in C. Austin, Tile Indian
Constitution: Cornerstone 0/ a Nation 87·99; (oxford196C,). H.C.L.
Merrillat, Land and tile COl/stitl/tion 52·78 (Tripathi, Bombay,
1970).H.C.L. Merrillat, "Compensation lor Takil/g Property," I
J.J.L./. 359 (1959). H.M.Jain: The Right to Property (I'I()\)
24·56; P. Ghosh, The Constitulton of India...9....106; (World
Press, Calcutta 19;,6); Jagat Narain: "fhe Indian Supreme Court
onProperty Rights and the Economic Objectives of tbe Constitution",
HI The Journal 0/Law and ECOMmic Development I-H, 149 (1968). The
High Court eases which led toFirst Arnend.nent of article 31 (on
property) were Surya Pal v, State 0/ V.P., A.I.R.1951 All. 674j
Kameshwar Singh v, State a/Bihar. A.I.R. 1951 Pat. 91. The
decisionson protective discrimination were St.III.' of Madras v,
Champakam, A.I.R. 1951 S.C.226 Venkataramanna v, Stale 0/ Madras,
A.J.R. 195I s.c, 229.
5. Sank arl Prasad v, Union of Lnlia, A.I.R. 195I S C. 458.6.
The judges were Justices Hid.lyatullah and Mudholkar in separate
concurring
judgements in Sajjan Singh v, State 0/ Rajasthan, A I.R. 1965
S.C. 845. The validityof the amendments were not impugned because
they violated fundamental rights, butthe judges were willing to
consider an argument in that regard if it were to be made.
7. A.I.R. 1967 S C. 1643.8. Contrast the discussion in (1970) I
S.C.W.R. 100 with Linkletter v. Walker
381 U.S. 618 (1965) and tbe discussion on prospective overruling
in Jones v. Sec)'.of Slate (1972) I All, E.R. 145.
-
162 Indian Constitution: Trends and Issues
Coke's famous fourth argument in Bonham's case,' arguments of
counsel ontbc..EighteenthAmendmentcases in America'" and Chief
Justice Kennedy'sdissent in Ryan's case in Eire.l oa The Supreme
Court considered this argumentin Kesavananda v, State ofKera/a.
This was a continuation of the GolakNath drama. The Constitution
was amended to make sure that there was nopossible way of asserting
either that the amendment was a law within themeaning of article 13
of the Constitution or that the process of amendmentwas a
legislative process." Another amendment dealt with the
compensa-tion provisions and made it possible for statutes to be
passed furtheringsome of the directive principles in such a way
that the fundamental rightswould not prove to be a stumbling
block.P Finally, a Kerala statute wasgiven similar protection."
The Supreme Court's attitude to this was not to resolve the
controversyin the manner in which they promised to do in Go/ak
Nalh. Instead, thewhole Court entered into a general discussion
about the nature of theConstitution. At least four judges took the
view that the Constitution wasa liberal document':' and that it had
to be interpreted in that light." Twojudges admitted that the
Constitution was goal oriented but that the goalslaid down in the
directive principles had to be achieved while respecting
thelibertarian emphasis that the Constitution was based on. 16 One
judge tookthe view that although the whole Constitution could be
amended to achievethe goals laid down in the Constitution, the
basic federal, democratic,secular, republican structure of the
Constitution should not be altered."Six judges generally took the
view that some kind of primacy had to begiven to the socio-economic
goals the Constitution was designed to serve."
9. 8. Co. Rep. 114 (1610). Contrast the altitude of Chief
Justice Holt in City ofLondon v. Wood (1701) 12 Mod. 669 see
further note 28 infra,
10. See Hawke v, Smith 253 U.S. 221 (1919); Rhode Island v,
Palmer 253 U.S.350 (1919); Dilloll v. Gloss 256 U.S. 370 (1920);
Leser v. Garnett 258 U.S. 130(1921); U.S. v. Sprague 282 U.S. 716
(1930).
lOa. The Stale (Ryan) v. Lennon ..• (1933) I.R. 170.11. See
section 2, The Constitution (Twenty-fourth) Amendmet Act, 1971.
Also
note tbat section 3 of the same statute makes suitable
corresponding amendments inarticle 368 (the amending article).
12. See sections 2 and 3 of The Constitution (Twenty-fifth)
Amendment Act, 1971.13. See section 2 of The Constitution
(Twenty-ninth) Amendment Act, 1971.14. These judges include
Justices Shelat, Grover, Hegde and Mukerjea. The basis
for tbis statement is explained, see Dhavan, supra note 1
Chapter V.15. Thus Justices Shelat and Grover argue that the
directive principles in fact
represent libertarian principles. See Shelat, The Spirit of tile
Constitution (BharatiyaVidya Bhavan, Bombay, 1967) 22 and
Kesavananada, supra note pro 533, p. 427,
16. Justices Hegde and Mukcrjea, in Kesavananda, supra note I at
pro 666, p, 486-7.17. Justice Khanna in Kesavananda, supra note I
at pro 1433, p. 769.18. These judges were Justices Ray, Beg,
Dwivedi, Mathew, Palekar and Chandrachud.
-
The Basic Structure Doctrine 163
Throughout the thousand odd pages of judgements the discussion
tendedto be very general and extended to questions as to whether
the people weresovereign or not,19 whether the power of amendment
was a constituentpower or not 20 and whether the democratic process
really worked asefficiently as it was thought it did. 21 But
notwithstanding the generality ofthe discussion the judges managed
to produce a summary statement whichoverruled Golak Nath22 and
admitted the validity of all but one of thechanges. The exception
related to the exclusion of judicial review fromdeciding whether a
statute purporting to further the directive principles was,in fact,
used for this purpose." But even though a degree of
consensusappears to have been reached, the summary statement
camouflages a vastdegree of dissensus which emerges only when one
reads the individualjudgements.
On closer examination it appears that Golak Nath has not
beenoverruled at all. All that seems to have happened is that the
whole Courtseems to have agreed that an amendment is not a law
within the meaning .of article 13.u But the Golak Nath was a wider
decision. It relied on theprinciple that there was no distinction
between the legislative power and'the constituent power, apart from
a minor procedural distinction." It is,
19. The "sovereignty of th~ people" argument was considc.ed by
several judges.Justice Mathew discussed it fully and protects
himself by using the theory that thepeople irrevocably delegated
the power to the amending body (See Kesavananda,supra, note 1 at
pro 1609·15, pp. 843.51; Justices Hegde and Mukerjea, seem to
enterinto a discussion of representative democracy in India,
Kesavananda supra note 1 at pro652-3, P. 481.
20. Chief Justice Sikri felt that the amending power was not a
legislative power, supranote 1 at pro 394, p. 387·8; Justices
Hegde, Mukerjea and Reddy, that it was a fact of theconstituent
power pro 674 p. 188-9 pro 1121, p. 621; The minority believed it
to bea constituent power: Justice Ray, at pro 913 p. 555-6; Justice
Palekar at pro 1231,p. 676; Justice Dwivedi, at pro 1878, p. 927;
Justice Chandrachud (as he then was)at pro 2068 p. 984.
21. Sec Justices Hegde and Mukerjea at pro 652-3, p. 481.22.
Supra note 1 at pro t. p, 1007.23. Ibid. The exception on the
exclusion clause is dlscussed in pro 5.24. The exact wording of
this part of the summary statement (p. 1007) reads: pr.I
"Go/ak Nath's case is overruled". This might suggest that all of
Golak. Nath isoverruled. But it is clear from the judgement that
this did not necessarily extendto the Golak. Natll-distinction
between constituent power and legislative power.
25. This is taken from Bribery Commissioners V. Ranansinghe,
(1965) A.C. 172 at197. Note Chief Justice Subba Rae's dtsucussion
in Go/ak Nath, supra note 7 at pro 27 p,1659 and pro 32, p. 1650.
It is submitted that ths Bribery Commissioners' case isnot an
authority for the proposition that the constituent power is the
same as thelegislative power apart from a difference in procedure.
It merely suggests that thereis a procedural distinction and that
the form of legislation is not determined by theprocedural
requirements but the nature of the exercise. Note the comment in
Karlappav, Wijesinha (1968), A.C. 711 ..Jt 743, "It is the
operation tbat the bill will have OD
-
164 Indian Constitution: Trends and Issues
clear from the majority judgements that the Golak Nath view on
thisdistinction has been retained."
Further, the summary statement tends to give the impression that
themajority have shifted away from Golak Nath view and taken a more
realisticview of the importance of the power of amendment. Once
again this is alinguistic illusion. In effect the basis of Golak
Nath has been strengthenedand the court has managed to invent a
whole new theory of impliedlimitations. This new theory suggests
that there are certain impliedlimitations on all exercise of power
within a constitutional system, includ-ing the plenary power to
amend the constitution. This is a truly fantastictheory and while
it has been very popular with political scientists andnatural law
protagonists, it has rarely been accepted by lawyers." It wasfirst
put forward by Chief Justice Coke in the seventeenth century, but
cameto be rejected later even though it found temporary popularity
in Americanstate courts." ' Oddly enough, this valuable seventeenth
century precedentwas not even mentioned. The theory was then put
forward in Eire in 1933and was accepted by only the dissenting
judge and rejected by the Privy
becoming law which gives it its constitutional character, not
any particular label thatmight be given to it". (Emphasis
added).
26. Golak Nath, supra note 7 at pro 53, p. 1669. "The power of
Parliament to amendthe Constitution is derived from articles 245,
246 and 248 of the Constitution and notfrom the legislative lists".
See references, supra note 20.
27. For variations on this either as a result of natural law or
social contract, seeJohn Locke, T .....o Treatises on Government.
B.K. BlII, 95-99 ('of Civil Government'): J.Rousseau: Social
Contract 1,6; Hobbes: The Leviathan, pt. II, chapters 17and 18
where heargues that the sovereign must be all powerful. For a
recent use of rhe contract theory,see John Rawls: A Theory of
Justice (Oxford, 1972). For a discussion of the Indianapproach to
the contract theory, see B.A. Saletore: Ancient Indian Political
Thought andInstitutions 141 (Bombay, 1963). Discussion has centered
around Kautilya; ArthasastraBK I. chapter VIII, V. 2-3.
28. Chief Justice in Bonham's case, supra note 9, see further
S.E. Thorne: "Dr.Bonham's case," 54 L.Q.R. 543 (1938); T.
Plucknett, "Bonham's case and Judicial Review",40 Har. L,R.
30-70(1926) Coke's view was supported by Chief Justice Hobart in
Day v,Savage, (1614) Hobart 85 and Sheffield v, Radcliffe, (1615)
Hobart 334 at 346. LaterChief Justice Holt said in City of Londo"
v. Wood, (1701) 12 Mod 669. For a recentexample, see Jordon, (1967)
Crime L.R. 843. It is clear from the recent House ofLord's decision
in British Railways Board v. Pickin, (1974) 1 All E.R. 609 (H.L.)
that thedoctrine of sovereignty remains supreme in its procedural
and substantive contexts. TheAmerican case which followed the
principle in Bonham's case are: Trevett v. Weedclen,(1786) 10
Records of the State of Rhode Island 219; Bowman v. Middleton,
(1792) I Bay:?52(S.c.); Justice Beckin Hanson v, Vernon, 17 IOWA 28
at 73; Justice Deemer in Younger-man V. Murphy, 107 IOWA 686 and
JUStice Cooky in People ex rei. Roy v, Hurlbut,24 Mic. 44.
Seefurther, Plucknett, supra; E. Me Clain, "Unwritten Constitutions
in theUnited States," Hav L.R. 531 (19J2) Corwin, "The Higher Law
Background to theAmerican Conststitution", 42 Harv,L.R. 148
(1928).
-
The Basic Structure Doctrine 165
Council." The majority rely on this precedent heavily.t" Chief
JusticeSikri even forgets to mention that he is relying on a
dissenting judgement."!At least two other majority judges try to
get as much authority out of thecase as possible but it is clear
that in actual fact this does not amount tovery much.1I The broad
implied limitations argument was also put forwardin some American
cases; but it is clear that the American Supreme Courtrejected the
theory and seemed to insist that the only limitations that canbe
imposed on the power of amendment are procedural ones. The
majoritydo not rely heavily on the American cases but refer to the
American conceptof peoples' sovereignty." Some reliance was also
placed on a recent
- 29. Tire Stat« (Ryan) v. Lennon., supra note lOa and the
comments of the PrivyCouncil in Moore v, Att. Gen. (1935) l.R. 472
at 475; comment, O. Hood-Phillips 52L.Q.R. 24/ (1935).
30. Kesavananda, supra note I. Chief Justice Sikri at prs.
348-85, PI'. 376-85 JusticesShelat and Grover recognize that the
judgment was a minority judgment and overruledlater but explain
this on the ground that judges at the time, "were used to the
British ideaof the sovereignty of Parliament and notions of
fundamental law were foreign to theirtraining and tradition". (at
pro 573, p, 450). Justices Hegde and Mukerjea, do not refer toany
case law at all but like Justice Reddy adopt Chief Justice Sikri's
views on the case(ibid) per Justice Reddy, at pro 1139 PI'. 627-8
and per Justices Hegde and Mukerjea, atpro 662, 1'.485; contrast
Justice Ray at pro 921, p. 559; Justice Palekar, at pro 1294, p.
705and especially pro 1296, p. 706; Justice Khanna, at pro 1484, p.
795; Justice Mathew at pro1557, p. 829 where he stersses that Chief
Justice Kennedy did not deal with the meaningof the WOrd
"amendment" and also at pro 1633, PI'· 855·6; Justice Beg, (as he
thenwas) at pro 1841, 1'.914 Justice Chandrachud (as he then was)
at pro 2106, I' 995; andJustice Dwivedi did not concern themselves
with this precedent.
31. Supra note I at pro 370, p. 382 he refers to Chief Justice
Kennedy's "decision".He refers to the views of Justice Fitzgibbon
at prs, 371-2, 1'.383 and Justice Murnaghawat pro 373 but tends to
give the impression (especially when dealing with the latter's
views)that they did not totally contradict Chief Justice Kennedy's
stand.
32. Justices Shelat and Grover; per supra note 220.33. The
important cases are Hawke V. Smith. 253 U.S. 211 (1919) (referendum
provi-
sions of Slate Constitutions do not apply to amendments of the
U.S. Constitution);Rhode Is/and v. Palmer, 253 U.S. 350 (1919)(the
18th Amendment was a valid amendmenteven though it transferred some
of the police power from the States to the FederalGovernment);
Christian Feigenspall IIIC'. V. Bodine, 262 Fed. 186 (1920)
(alleging that the181h Amendment was invalid on substantive and
procedural grounds); Ex parte Dillon,262 Fed. 563 (1920) (should
the 18th Amendment have been ratified by a popular votef);Dillon V.
G/OSI, 256 U.S. 370 (1920) (Congress fixing a seven year period
within whichratification had to take place); Leser v, Garnett, 258
U.S. 130 (1921) (the 19th Amendmentrelating to women' suffrage was
valid as a substantive limitation of the Constitution); U.S.
v,Sprague, 282 U.S. 716 (1930) (it is not necessary to have an
amendment ratified by a conven-tion where the liberties of a
citizen are involved). For the majority's View, see
Kesavananda,supra note I, Chief Justice Sikri at pro 346, 1'.378;
Justices Shelat and Grover at pro 575,1'.451 (on U.S. V. Sprague);
Justices Hegde and Mukerjea at pro 659, p. 484; Justice Reddy,at
pro 1132, p. 626 (but not in this context). But note Chief Justice
Sikri's reference to thedelegation of the power of amendment at pro
336, p. 376; see also pro 344, p, 377.Justices Shelat and Grover's
use of the American popular sovereignty concept atpro 542 p, 433;
pro 545, p. 435. Even Justice Reddy, at pro 1154, 635 obliquely
-
166 indian Constitution : Trends and Issues
Australian caseM which seemed to impose the implied limitation
that thefederal power to tax must respect the right of the states.
The judges seemedto have overlooked that this was an interpretation
of a legislative power andnot of the power of amendments/"
Nor, is this all. There seems to have been considerable
disagreementas to what exactly a theory of implied limitations must
be taken to include.At least three interpretations seem to have
emerged. The first interpretationwhich was conceded by the
government and generally agreed upon by allthirteen judges, was
that the amending power cannot be used to repeal theentire
Constitution." The second argument which was accepted by onejudge
was that the basic federal, republican, democratic structure of
theConstitution cannot be altered." Six other judges seemed to take
the viewthat in certain areas (if not in the whole Constitution)
the whole hard coreof each article could not be corroded or eaten
away.3S Thus, the basic
hints that because of the preamble to the American Constitution,
the people of theUnited States were the legislative source of the
Constitution of the United States ofAmerica.
34. Victoria v. Commonwealth. (1969) 122 C.L.R. 353.35. For the
discussion on the case by the various judges, seeKesaWlnanda, supra
note
I. Justices Shelat and Grover, at pro 569, pp, 446·8; contrast
Justice Ray at pro993, p. 575;Justice Palekar at pro 1307, p. 712;
Justice Mathew at prs, 1652-9,pp. 861-2; JusticeChandrachud's (as
he then was) important though passing reference at pr.1839, p.
914.
36. This was conceded by the government. See generally the
argumet ts of H.M.Seervai in V.G. Ramachandran, "Summary of
Arguments in the Fundamental Rightscase", (1973) 4 S.C.C. Jnl, at
25-43, Niren De, Attorney General of India, at 43-S;L.N. Sinha, p.
46. Note the entire "repeal" point is not referred to in these
summaries;but it is obvious that it was made. See e.g, Kesavananda,
supra note I at pro 538, p. 431and pro 514, p. 422 (per Justices
Shelat and Grover). On the Question of the repealof the
Constitution, see Chief Justice Sikri at pro 81, p. 320; Justices
Shelat and Groverat pro 538, pp. 431-2; Justices Hegde and Grover
pro 1136, p, 627, pro 1149, pp. 631·2;pro 1149A, pp. 632-3; pro
1151, p. 633; Justice Palekar, at pro 1239 p. 680; pro 1258.pp.
688-9; pro 1310, pp. 715-6; Justice Khanna, at pro 1442, p, 778;
Justice Mathew,pro 1567, p. 832; pro 1784, p. 897; Justice Beg (as
he then was) at pro 1835, p. 915;Justice Dwivedi at pro 1885. p.
928.
37. Kesavananda, supra note I per Justice Khanna at pro 1537, p,
82 "The powerof amendment under Article 368 does not include the
power to abrogate the Constitu-tion; nor does it include the power
to alter the basic structure or framework of theConstitution.
Subject to the retention of the basic structure or framework of the
Con-stitution, the power of amendment is plenary and includes
within itslef the power toamend the varlous articles of the
Constitution, including those relating to fundamentalrights as well
as those which may be said to relate to essential features. No part
of afundamental right can claim immunity from (the) amendatory
process by being descri-bed as the essence or core of that right.
The power of amendment would also includewithin itself the power to
add, alter or repeal the various articles." This is really
anextension of the entire repeal argument. Kesavananda, supra note
1 at pro 1427, p, 768;pro 1434, p, 769; pro 1483, p. 794. See also
conclusion VIII at pro 1537, p. 824.
38. The discussion arose in relation to article 31C. Thus, while
Chief Justice Sikri,struck the article down for excessive
delegation at pro 475, p. 405 conclusion (g) he
-
The Basic Structure Doctrine 167
right to property-whatever that might mean-eould not be eaten
awayeven though the form which the article is clothed in was
subject to change.
In order to distinguish the essential from the non-essential
parts of theConstitution, the majority relied on the preamble." We
have alreadyexplained why this is not justified. They also seem to
have relied on consti-tutional history and the Constituent Assembly
Debates." While one is
does say .....(Pjarliarnent cannot under article 368 abrogate
Fundamental Rights.Parliament cannot enable Legislature to abrogate
fundamental rights and thereforemust be declared unconstitutional".
Justices Shelat and Grover accept ChiefJustice Sikri's delegation
argument, (pr, 603, p. 461) but further use the argumentthat the
essential core of an article cannot becorroded (see, pr 603, p,
461); Justices Hegdeand Mukerjea use the essential core argument
fairly and squarely (see pro 734, p, 509) butuse the
excessivedelegation argument as well (see, prs, 718-33, pp. 504-9).
Justice Reddy,does not rely on the excessive delegation argument
(pr. 1182,pp. 652-3); but uses onlythe essential core argument (pr.
1185,p. 653). Thus the current amendments are regardedas more
extreme than the previous ones (pr. 1192, p. 157) and taken to
emasculate theright to property (pr. 1204, p. 662). Justice Reddy's
argument is clear and it would havebeen nice, if the rnaiorty
judges had used this argument alone. After an, in order toapply the
excessive delegation argument, it has to be shown that the plenary
power toamendment is subject to the rules of
excessivedelegation.
39. On the preamble, see Kesavananda, supra note I per Chief
Justice Sikri at pro 252,p, 357; Justices Shealt and Grover at pro
513·525, pp. 421·426; Justices Hegde and Muker-jea at pro G
-
168 Indian Constitution: Trends and Issue},'
tempted to accept this teleological interpretation of the
Constitution," thereis a debris of conflicting rules of
interpretation which the case seems to leavebehind. Thus, it is
still not clear as to what the importance of a preambleis in the
interpretation of statutes." It is also not clear as to how
indiscri-minately one can refer to the legislative history of
statutes or for thatmatter the Constitution. Most importantly of
all, it is not clear as towhether the decisions ageeed upon in the
summary statement are really.majority decisions.
The record suggests that there is, in fact, only a hard core of
six judgeswho really fully accept the summary statement. There are
at least twojudges who may have sided with the majority because
they disagreed withthe minority on relatively minor issues
pertaining to the exclusion of judicialreview." One of these judges
seems to have accepted that the basic structureof the Constitution
cannot be altered, but he does not assume the "hardcore" argument
of the rest of the majority." One judge seems to havesigned the
summary statement by accident." The remaining four judgesconstitute
a minority." But of these at least two judges accept some of
thepremises on which the majority judgements are based. One of
these judgesis in favour of a teleological interpretation of the
Constitution" and theother is notionally in favour of the doctrine
of popular sovereignty." Thusat the end of the day we have six
majority judges: three judges who can reallybe described as cross
bench judges and four minority judges. But on most ofthe important
issues the majority is really in a minority.
cases but the point to be noted is that there was an excellent
chance to sort out all therules. This chance was not taken.
41. The idea behind a teleological interpretation is to look at
the context-purpose ofa statute rather than the literal words. This
idea was brought out very well by JusticeDwivedi in Kesavananda who
said the Constitution should not be seen as if in a state
of"being"; but as if it were in a state of "becoming". He said at
pr. 11>60, p, 921. "Atbottom the controversy in these cases is
as to whether the meaning of the Constitution isin its being or its
becoming".
42. On the status of a preamble, see MIs. Bu.rakur Coal Co, v .
Union of India,A.I.R. 1961 s.c. 954 at 956-7: SI,Il" of Rajasthan v
. Lee/a, A.I.R. 1%5 S.C. 1296 at1299; Sec further the limited role
played by the preamble in cases on delegated legis-lation like
Imler Singh v. SIal" of Rajasthan, A.I R. 1959 S.C'. 478 at 485-6.
Seegenerally G.P. Singh; Principles of Statutory Iuterpretation
78-85 (Bharut Law House,Allahabad. 1966).
43. Justices Khanna and Chandrachud,44. Justice Khanna.45. Ju
uice Palekar. There seems to be nothing in his judgement which
supports
the basic structure argument in the summary statement.46.
Justices Ray, Mathew, Beg, Dwivedi.47. Justice Dwivedi usc, a
teleological approach, supra note I.48. Justice Mathew in
Kesavananda, supra note 1 at PI's. 1609-15, pp. 848-51; pro
1603, p. 845 j pro 1612, p. 849, pr. 1614, p. 850.
-
The Basic Structure Doctrine 169
Thus there are six issues on which the judges could have
divided. Thefirst three (A-I, A-I I and A-Ill) related to the
theory of implied limitations:the last three (B, C and D) to other
matters. These issues are as follows:
A-I. The power of amendment extends to the repeal of the
entireConstitution.
A-II. The basic framework of the Constitution including its
republicanand democratic nature cannot be changed.
A-HI. Each article in the Constitution (and especially those in
the funda-mental rights) have an essential element and core meaning
whichcannot be eroded by an amendment.
B. Can the courts say despite the clear words of the amendment
of the• Constitution that they cannot inquire as to whether the
amount of
compensation given by the government for property acquired
wasillusory?
C. Can the Courts inquire as to whether an Act made for the
purposesof the directive principles, was enacted for that
purpose?
D. Were the addition of some more Acts to the Ninth Schedule of
theConstitution to further the purposes of agrarian reform,
valid?
All the judges voted differently on these issues. A-I was
answered bythe judges negatively having been conceded by counsel.
A-II was answeredin the affirmative by seven judges out of
thirteen, A-III by six judges, Bby six judges, C by seven judges, D
by all thirteen judges." Kesavanandu'scase tried to do too much.
The judgements were written in a hurry eventhough arguments lasted
65 days.50 There appears to have been an incom-plete discussion
amongst the judges themselves.!' It is clear from ourdiscussion
that the techniques used by the courts are incompletely workedout.
At the end of the discussion it still remain.. unclear as to
whether theamending power is a constituc nt power. The answer to
this question is nota logical one. The reason why one power is left
uncontrolled is not becausethere must of necessity be an
independent sovereign. The basis of theplenary po ... er must be
found in the common sense assumption that practi-calities demand
that some such power should be left uncontrolled. Todiscuss the
issue in terms of the location of sovereignty is to lose sight
ofthe issues. Indeed as Justice Reg, (as he then was) said the
legal sovereigntyof the Constitution can be traced back to the
English Parliament.w Thecase seems to have tackled a white elephant
with the strategy of the
49. See Dhavan, supra note I, chapter V generally.50.
Kesuvananda. supra note I. per Justices Hegde and Mukerjea at pro
610. p. 463.51. Kesavanatda, id. per Justice Chandr.ichud (as he
then WJs) at pro 1997. p. 960.52. Kesavancnda, id pro 1798. p,
901.
-
170 Indian Constitution : Trends and Issues
proverbial six blind men. The attempt to create a whole new
approach toconstitutional law and judicial review is interesting;
but the manner inwhich it was done makes the whole attempt highly
questionable.
III
Kesavanandas'" case has come to stay. It has become part a of
our legalvocabulary. There is nothing we can do about it. Even the
judges whohad delivered dissenting judgments in Kesavananda's case
have come toaccept the ratio decedendi of the case as binding upon
them." Kesavananda'scase belongs to a series of cases65-one of
which was described by a foreignacademic observer as "an expensive
farce.?" The "expensive farce" hasbecome anjalmost indelible part
of our-and the Supreme Court's-juris-prudence. This is not because
the case was argued or adjudged with acomplete awareness of its
juristic implications. One academic, the presentwriter, says:
.. , Kesavananda must inevitably be regarded as a clumsy
proceeding.Lawyers wilI speculate on the real basis of the
decision, the votingpattern of the judges and the many loose
phrases and concepts usedin the judgments. The techniques used by
the judges were thetraditional techniques that the Court had used
over the past twentyyears, but the approach was new. A more
positive declaration ofwhat the judges actually set out to do, and
did, might have beensalutary. Instead, the judges were non-neutral
in their use of techni-ques and in their reierence to 'legal' and
'non legal' materials. Thatthis case provides so much room for
thought may not be due to theactual judgments delivered, but much
rather the unique circumstanceswhich gave rise to the litigation in
the first place. The insights thatthe case offers are not clearly
presented; we are left to discover themourselves."
53. Supra note I.54. The hard core minority who refused to sign
the summary statement were Justices
Ray, Mathew, Beg and Dwivedi. Justice Dwivedi died a few months
after the judgement.Justice Ray, (as he then was) Justices Mathew
and Beg accpted the implications ofKesavnananda in Smt, Indira
Gandhi Nehru v, RafNarain [1975] SIIPP. S.C.C.1. Indeed onNovember
]2,1975, Chief Justice Ray refused to constitute a Constitution
Bench tore-consider Kesavananda.
55. Shankar; Prasad v, Union of India supra note 5 458; Sajjan
Singh v. Slate ofRalastan, SIIP"/ note 6. Golak Nath v. State
ofPunjab, supra note 7 with the other cases.
56. See Derrett, "Lawyers as Leaders," Paper at a Seminar at the
School of Orientaland African Studies, June 1972. The remark was
made on Goluk Nath:» case supranote 7.
57. R. Dhavan, The Supreme Court and Parliamentary Sovereisntv,
supra bote 1 at245.
-
The Basic Structure Doctrine 171
But criticism apart, Kesavananda raises a host of
jurisprudential questions.It is necessary to examine these
jurisprudential questions and assess someof the wider implications
of the case. But before we venture into discoveringthe juristic
ethnology of Kesavananda, we need to briefly outline the ~ackground
of analytical theory in the context of a lot of
jurisprudentialdiscussion which takes place in the common law
world.
IV
One of the most important questions which has plagued
analyticaljurisprudence has been the question: what is 'law'?
Analytical jurisprudencehas tried to answer this question in
various ways and even to this daycontroversy abounds on whether the
analytical approach to the definitionof 'law' is either valuable or
necessary. But leaving aside these controversiesfor the moment, it
is important to understand that this definitional questuses as its
starting point the separation of law and morals.
The strategy behind the conceptual separation of law from morals
canbe explained in two ways. Firstly, the main purpose of
analytical jurispru-dence has been to distinguish 'law' or 'legal
rules' from moral and otherequally obligatory rules. Such other
rules impose obligations, but theseobligations or feelings of
obligations may not be the same as the obligationor feelings of
obligations in relation to legal rules. These so-called
'legalrules' are not distinguished because they ale necessarily
more important orpersuasive. They are distinguished because the
officials of the legal systemare forced to regard and enforce these
rules as authoritative. The separationof law from morals, therefore
seeks to clarify and delineate certain rules aslegal and
authoritative.
But there is a second and deeper political reason why the
separation oflaw from morals was found to be necessary. This second
political reasonhas a link with the doctrine of separation of
powers. The doctrine ofseparation of powers treats as separate the
three functions of law making,law enforcement and adjudication.
This means that the judicial and exe-cutive functions are,
theoretically, only marginally involved in the task oflaw creation.
The political legislative function determines which rulesshould be
regarded as legal and binding even though certain
cognitivefunctions as regards determining what is law are also
given to the judiciary.This, at least, is the theoretical approach.
There are, of course, problemswith both the theory and practice of
this approach. These problems arequite well known and need not be
reiterated here. The essential pointthat needs emphasis is this:
the law creation function is entrusted underthe doctrine of
separation of powers to political-legislative bodies. It isthese
bodies which must determine which rules are legal and which
rules
-
172 Indian Constitutlon : Trends and Issues
arc not legal. This is not to deny that the executive and
judicial bodiesalso have cognitive functions. The executive and the
judiciary must deter-mine which rules singled out by the
legislature are legal and authoritative.They must also determine
which rules can be regarded as legal even thoughthey do not emerge
from a legislative source. This cognitive function entailsdevising
some kind of formula or approach whereby officials and others
candistinguish between those rules which the legislative arm of the
State soughtto consecrate as law and those rules which it did not
seek to consecrate aslaw. Thus, a statute may be law; but an
unanimous resolution of one of thehouses of the legislature may not
be regarded as law. This formula orapproach would also have to
determine which rules, other than legislativerules, are to be
credited with the status of law. But under the theory ofseparation
of powers such latter rules are few and subject to
restrictions.
Now, the doctrine of separation of powers is very closely linked
up withthe rise of analytical jurisprudence. An embryonic form of
the doctrine ofseparation of powers can be found in Blackstone's
Commentaries. Recentresearch" has shown that Blackstone, despite
Bentham's strictures in theFragment on Government-foreshadowed in
many ways a positivistic analy-tical approach to the definition of
,law,' It is, however, with what can onlybe called the Benthamite
movement that positivism acquired a maturetheoretical
respectability. It was also given a subtle political twist.
The doctrine of separation of powers was linked up with
analyticalconcerns about the definition of law. Bentham was a
reformer par excellence.He saw much of his n:JoTIII as emanating
from the legislative bodies of theState. He wanted and succeeded in
procuring-the reform of the legislatureand designed several
programmes for legislative reformative action. Allthis fitted in
very nicely with the doctrine of separation of powers. Underthe
doctrine of separation of powers, the legislature was the law
creatingbody. It was for the legislature to determine what rules
were law; it wasfor the executive and judges to determine which
rules of the legislative armof the State had to be ear marked for
recognition as legal rules. There was,of course, the problem of
discretion. Bentham felt that a good and properlegal system would
lay down very clear guidelines as to how discretion wasto be
exercised.Pv
And this takes us to the problem of the analytical definition of
' law.' Ifthe legislature and the legislative process were going to
determine what wasgoing to be law, it was necessary to make a clear
distinction between theprocess by which legal rules are validated
as legal rules and other social andintellectual processes by which
moral and legal rules are validated in their
58. E.g. Vick, "Rebuttal of Bentham and Austin on Blackstone:'
13 Loyola L.R. 71(1966-7): Finnis, "Blackstone's Theoretical
Intentions," 12 Nt/flll'lll L.F. !t,3. (11)67).
58a. I-I.C.A. Harl (Ed) 0/Law ;/1Ge/leral ~40 «(970).
-
The Basic Structure Doctrine 173
own right. If this distinction were not made with clarity, the
whole purposebehind discovering legal rules, as well as the status
of the legislature as alegislative body, would be undermined. In
addition, the legislature'smonopoly in determining which rules are
to be regarded as legal andauthoritative in a society would also be
challenged. So, when all was saidand done, there was a clear link
between the following:
(a) the doctrine of separation of powers which sought to make
thelegislature the primary source of legal rules;
(b) the Benthamite movement whereby the legislature would be
thebody primarily responsible for innovative economic, social
andlegal reform;
(c) the analytical separation of law from morals whereby the
legislativemonopoly of creating rules was preserved and other
agencies of thegovernment were warned to recognise as law only
those rules whichwere validated by certain political processes and
none other.
As time went on, this link came to be challenged. Marbury v.
l\{adisoll,,9in America ensured that the judiciary's functions were
not just cognitive.The rise of constitutionalism necessarily
entailed that the judiciary itself beregarded as an important part
of the law validation process. Judges werenot just concerned with
whether rules alleged to be law had come into beingthrough a
particular legislative process. They were also concerned
withwhether, rules alleged to be law had come into being through a
particularlegislative process. They were also concerned with
whether rules alleged tobe laws and which had passed validly
through the legislative process werealso subject to some other
constitutional criteria- the determination ofwhich was in the hands
of the judiciary. It was also clear that all the lawsof particular
society did not just emanate from the legislature alone.Various
kinds of rules (e.g, custom) were also designated as legal rules
eventhough they did not have the support of legislative action.
Consequently,analytical theory had to change its approach.
Hitherto, it had spokenonly of legislative rules as law. Hereafter,
it recognised that each societydetermined its legal rules in
various ways and by varied criteria; and thatlegislative activity
was only one method whereby certain kinds of legal ruleswere
created.
But in order to keep the legal and political house in order,
theseparation of law from morals was strictly maintained. There
were alreadyenough problems in identifying the process whereby
legal rules were valida-ted. Arguendo, fusing the process by which
social and moral rules(other than law) with the process by which
legal rules were validated,was undesirable and would create
confusion. Legal rules were regarded as
59. 1 Crunch 137 \l80J).
-
174 Indian Constitution : Trends and Issues
those rules which were validated by a certain process or
criteria while moraland social rules (orther than law) were those
rules which were validated bysome other process or criteria.
But analytical theory came to recognise that law and morals
cannot bewholly separated. To begin with, both Bentham and Austin
were committedto a theory of utilitarianism and-cognitive questions
apart-judged laws bymoral criteria suggested and established by the
theory of utilitarianism.Much later, Kelsen argued that laws in
order to be valid must not justcorrespond to a certain criterion of
validity must also belong to a legalsystem, which taken as a whole,
was efficacious. Indeed, with this additionalcaveat laws belonged
not just to cloud-cuckoo land but also enjoyed someminimal support
from the people and officialdom. Hart-a leading propo-nent of
analytical jurisprudence-admitted that the validity of laws
mayitself be subject to the existence in society of a minimum
natural lawcontent,whereby respect for the validation process was
maintained. But all theseclarifications leave the analytical theory
intact. Bentham and Austin'sconcern for the ultimate social aims of
the legal system in no way suggestedthat moral criteria were
essential to the definition of law. Kelsen and Hart-in different
ways were really only suggesting that the actual existence oflaw
asa social entity necessitated the making of certain
social-including,incidentally, moral-suppositions.
Lon Fuller of Harvard University has, however, attacked the
analyticalseparation of law from morals. He has argued his case on
the basis of
'several inter-connected arguments. To begin with, he rejects
the 'fact-value'distinction and argued that the cognitive question
"what is law" mustcontain an evaluative element. Drawing an analogy
Fuller says:
[I]f we are confronted by a dubious assemblage of .mechanical
partsand were to ask of it, "Is it a steam engine?" and "Is it a
goodsteam engine?" these two questions might overlap mightly.GO
Fuller's analogy is by no means perfect. While it is possible to
visualizea 'dubious assemblage of mechanical parts' as an entity,
it is less easy torecognise a dubious law unless one is not clear
about the criteria beingused. A dubious law can only be one which
has not measured up tocertain criteria-procedural or otherwise.
Evaluative questions are notper se part of these criteria even
though there is no logical reason why theycannot be included.
But, Fuller also argues that all laws must belong to a certain
pedigree.In particular, they must not be (0) ad hoc, tb)
non-publicised, (c) retroactive,
60. L. Fuller, CIA Rejoinder to Professor Nagel," 3 Natural L.F.
83 at 89 (1958). ibid:The Law in Quest for Itse/fII-12 (1942).
-
The Basic Structure Doctrine 175
(d.1 incomprehensible, (e) contradictory, (/) require the
impossible, (g)introduce frequent changes and (h) perpetuate a
failure of congruencebetween rules and their actual
administration." He says:
A total failure of any of these directions does not simply
result in abad system of law, except perhaps in the Pickwickian
sense in whicha void contract can still be said to be one kind of a
contract."
While it is true to say that a totally inefficacious legal
system wouldundermine its own validity, retroactive, impossible, ad
hoc and non-publicisedlaws have been known to exist. Even
contradictory laws have beenpromulgated and the legal system
resolves them as best it can.
But Ful1er does-perhaps, unwittingly-raise a very fundamental
ques-tion. It is this: even though the law cognition process does
not necessarilyentail the asking of moral questions, is it not
possible that the criteria ofvalidity of any particular society may
contain moral elements, in that, a lawwould not be regarded as law
unless and until it falls within the ambit ofcertain moral
criteria?
Logically, there is no reason why the recognition of law should
notcontain both:
(a) procedural criteria (i.e., has the law been passed by a
certainprocess, as for example, the King or Parliament") and
(b) moral criteria (i.e., the law must satisfy requirements of a
moralnature laid down in the Constitution or natural law or some
otherfixed or variable moral yardstick).
V
In some senses this sort of cognitive argumentation exists under
thedoctrines of constitutionalism. Under the doctrines of
constitutionalismthat were evolved in the United States and also
exist in India a statute canbe invalidated if it is ultra vires the
powers of legislature and if it infringessome other evaluative
criteria.
But the view that laws must measure up to some evaluation
criteria isnot just limited to modern constitutionalism. It may
have more far-reaching pedigree. We will briefly survey some of the
material. The primeexample is Bonham's case63 which decided very
early in the seventeenthcentury that procedural1y valid
parliamentary statutes, were, nevertheless,
61. L. Fuller, Tile Morality of Law 38-9 (Yale University Press,
New Haven, l st. cdn.1969).
62. [d. at 39.63. Supra note 9 at 118.
-
176 Indian Constitution : Trends and Issues
invalid if they violated the notions of justice of the common
law. Themerits and demerits of Bonham's case have been much
debated." Butthere is no doubt that Chief Justice Hobart pronounced
a similar doctrinea few years later in Day v. Savage"; Bonham's
case was followed inAmerica" even though Chief Justice Holt in
England, saw the Bonhamstyle of inquiry much more as to support a
rule of construction rather thanas a firm, independent and
substantive limitation on the powers of plenarylegislative
bodies."
By the nineteenth century the impact of this kind of approach
was lostto legal history. In any event, apart from the British
legislature, therewere very few legislatures with full plenary
powers. Plenary powers cameto be associated with the power of
amendment. Attempts to circumscribethe powers of amending bodies to
amend by a theory of implied limitationsof the Bonham variety
proved to be unsuccessful in America," where thevalidity of the
Eighteenth and Nineteenth amendments were unsuccessfullychallenged.
But Chief Justice Kennedy's powerful dissent in Ryall'S casefrom
Eire suggested that moral criteria (other than the recognition
thatan amendment was passed by a certain prescribed procedure)
could be usedto test the validity of an allegedly uncontrolled
exercise of the plenary powerof amendment.69
There were also some cases from post-Hitler Germany which
suggestedthat courts would not recognise as law any of Hitler's
decrees which violatedthe judges' sense of natural law or
naturrechtl" This attitude has beenaccepted as a valid principle of
public policy in a recent House of Lordsdecision in the United
Kingdom."
And then came Kesavananda. Bonham's case was lost in history
andChief Justice Kennedy had, after all, delivered a dissenting
judgment.Kesavananda clearly established that procedural criteria
were not enough.Some other criteria were also needed. A
procedurally valid amendment
64. See supra note 28 and R. Berger, Congress v. The Supreme
Court (1969) AppendixB.
65. (1614) Hobart 85.66. c.g. Trevett v, Wheeden (1786) reported
in (1865) 10 Records of the State ofRhode
island; see further Corwin, "Higher law Background to American
Constitutional Law,"supra note 28.
67. See supra note 9.68. See supra note 10.69. The Slate v. Ryan
(1935) \.R. 170.70. The early cases suggest that the courts were
more concerned with an abuse of
power rather than the issue of validity. Later cases support the
proposition that a lawopposed to nat urrecht would be unrichtiges
recht and should give way to iusticc. See R.Dhavan: "Nazi Decrees
and their Validity," Banaras Law Journal 151-1~'( (1%6).
71. Oppel/heimer v, Cottermole (lnspector of Taxes), [1973] I
Ch, 264; [1975] 2 W.L.R.347 (l'l.l.),
-
The Basic Structure Doctrine 177
also had to, in its substantive effect, stay within what was
described as the"basic structure" of the Constitution. It was up to
the judges to determinewhat the "basic structure" was or is. We can
see that Kesavananda has avery respectable juristic pedigree. It
not only ensures that moral criteriacan be part of the criteria by
which the validity of amendments and lawscan be judged but also
makes a fissure into the doctrine of separation ofpowers in that
the judicial arm of the State has, in some senses, becomepart of
the legislative arm of the State. rn that sense, Kesavananda
seemsto attack both the analytical separation of law from morals as
well as thesupportive doctrine of the separation of powers.
VI
But, more recently, Chief Justice Beg, seems to have discovered
anIngenious way of dealing with the problems created by Kesavananda
in arecent judgment. He says:
This Court has never abandoned its constitutional function as
thefinal judge of (the) constitutionality of all acts purported to
bedone under the authority of the Constitution. It has not
refusedto determine questions either of fact or of law so long as
it hasfound itself possessed of power to do it and the cause of
justice tobe capable of being vindicated by its actions. But, it
cannot assumeunto itself powers the Constitution lodges elsewhere
or undertaketasks entrusted by the Constitution to other
departments of stateswhich may be better equipped to perform them.
The scrupulouslydischarged duties of all the guardians of the
Constitution include theduty not to transgress the limitations of
their own constitutionallycircumscribed powers by trespassing into
what is properly called thedomain of other constitutional organs.
Questions of political wisdomor executive policy could not be
subject to political control. Nodoubt executive policy must also be
subordinated to constitutionallysanctioned purposes. It has its
sphere and its limitations. But solong it operates witbin that
sphere, its operations are immune fromjudicial interference. This
is also a part of the doctrine of a roughseparation of powers under
tbe supremacy of the Constitutionrepeatedly propounded by this
Court and to which the Court unswer-vingly adheres even when its
views differ or change on the correctinterpretation of a particular
constitutional provision."
In fact, Chief Justice Beg in this case took his argument one
stepfurther. He argued that if the doctrine of separation of powers
is an essen-tial ingredient of the "basic structure" doctrine
consecrated in Kesavananda,
72. State 01 RajaS~I}m, v, Union ofIndia, A.I.R. \977 S.C. 136\
at pro 35, pp. 1377-8.
-
178 Indian Constitution : Trends and Issues
judges must in due deference to the "basic structure" doctrine
refuse toexercise the powers granted by Kesavonanda because the
doctrine ofseparation of powers was an essential ingredient of the
"basic structure"doctrine. Kesavananda pushed the judges into open
politics-e-by askingthem to evolve evaluative criteria to test the
validity of amendments andlaws. If the doctrine of separation of
powers itself is the basic structure-orat least, an important
cornerstone of the Constitation-s-the judges can pushpolitics back
to the legislature by refusing to entertain a Kesavananda
styleinquiry on the basis that such an inquiry itself would
militate against thedoctrine of separation of powers and,
therefore, the basic structure of theConstitution. Whether al1 the
judges of the Court will do this remainsto be seen. There is no
doubt that the doctrine of separation of powers ispart of the basic
structure of the Constitution. How the judges wil1qualify the basic
structure and what ernphsis they will give to the doctrineof
separation of powers also remains to be seen.
We have seen that analytical theory and separation of powers
wereinvented and used to enforce the importance of the legislature
and supportBenthamite solical and economic reform. The theory was
convenient eventhough it suffered from logical and practical
defects. One of the greatestchallenges to the theory is the
challenge of morality. It has been arguedthat morality can, and
should be, part of the criterion of validity.Kesavananda is a very
important decision in this regard. But the realproblem is whether a
decision like Kesavananda can survive in a constitutionalsystem
which virtually runs on the doctrine of separation of powers. It
isclear that there are innumerable difficulties. Chief Justice
Beg's approachseems to suggest that the moral attack on analytical
theory cannot survivethe preponderant importance of the doctrine of
separation of powers. Wemay have made an important fissure into the
Bentham-Austin separation oflaw from morals. We are, however, still
struggling to reconcile the conse-quences of this important inroad
into analytical theory by practical1yapplying it ina constitutional
system which is based on the doctrine of theseparation of
powers.
One last word: jurists and judges in India must make up their
mindsabout the implications of Kesavananda. They must either learn
to trust theamending process or repose their faith in non-elected
judges who willmonitor every exercise of the plenary power of
amendment with ayardstick which is, in the ultimate analysis, of
their own choosing. Whileconsidering this question, it is important
to bear in mind one factor: judgesmay be the citadels of democracy;
they are not a substitute for it.