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The Basic Structure Doctrine- A Footnote Comment RAJEEV DHAVAN* I To say that Kesavananda Bharati v, State of Kerala 1 is a landmark case on the Indian Constitution is Dot enough. Even though the cricumstances which gave rise to the case are peculiarly Indian, the "basic structure" doctrine enunciated in this case will, in time, affect juristic learning in a very fundamental way. Broadly speaking, the "basic structure" asserts the provocative proposition that even a sovereign legislativebody with plenary powers cannot 'amend' the constitution of a country (in this instance, India) ina manner which would weakenthe "basicstructure" or "principles" underlying that country's constitution. We will begin by analysing the judgements after setting them in the peculiar "Indian" circumstances from which they arose. Having done this, we will consider the juristic implications of the structure" doctrine, II Very few lawyers in England andAmerica have taken an interest in the Indian Supreme Court's latest contribution to the discussion on parliamen- tary sovereignty. What was at issue, of course, was not just the sovereignty question, but the nature and viability of the Indian Constitution itself. The Indian Constitution was designed to achieve certain social and economic goals,- and at the same time contained certain provisions designed to protect individual rights.- A few months after the Constitution was promulgated, Parliament and the state legislatures discovered that the libertarian 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 see generally Dhavan: The Supreme Court of India and Parliamentary Sovereignty: A Critique of its Approach to the Recent Constitutional Crisis (Sterling, Delhi, 1976). 2. Articles 37-51, The Constitution of India, part IV: Directive Principles of State Policy. 3. te, articles 12-36, part III, Fundamental Rights.

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  • 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.