JURISTIC ETHNOLOGY OF KESAVANANDA'S CASE1

1. Kesavananda
KESAVANANDA'*S CASE has come to stay. It has become part of our legal
vocabulary. There is nothing we can do about it. Even the judges who
had delivered dissenting judgments in Kesavananda's case have come to
accept the ratio decidendi of the case as binding upon them.2 Kesavananda's
case belongs to a series of cases3—one of which was described by a foreign
academic observer as "an expensive farce".4 The "expensive farce" has
become an almost indeligible part of our—and the Supreme Court's—juris-
prudence. This is not because the case was argued or adjudged with a
complete awareness of its juristic implications. The present writer has stated:
Kesavananda must inevitably be regarded as a clumsy proceedings.
Lawyers will speculate on the real basis of the decision, the voting
pattern of the judges and the many loose phrases and concepts used
in the judgements. The techniques used by the judges were the
traditional techniques that the Court had used over the past twenty
years, but the approach was new. A more positive declaration of
what the judges actually set out to do, and did, might have been
salutary. Instead, the judges were non-neutral in their use of techni-
ques and in their reference to 'legal' and 'non legal' materials.
That this case provides so much room for thought may not be due
to the actual judgments delivered, but much rather the unique
circumstances which gave rise to the litigation in the first place.
The insights that the case offers are not clearly presented; we are left
to discover them ourselves.6
He has also observed:
The case has been tackled with the approach of the proverbial six
blind men tackling a white elephant. The Court attempted a new

1. Kesavananda v. State of Kerala, (1973) 4 S.C.C. 225; A.LR. 1973 S.C. 1461.
2. The hard core minority who refused to sign the summary statement were Ray,
Mathew, Beg and Dwivedi, JJ. Dwivedi, J., died a few months after the judgment. Ray
(later C.J.), Mathew and Beg, JJ., accepted the implications of Kesavananda in Smt. Indira
Gandhi Nehru v. Raj Narain, (1975) S.C.C. 1. Supp. Indeed, on November 12, 1975.
Ray. C.J., refused to constitute a constitutional Bench to re-consider Kesavananda.
3. Shankari Prashadv. Union of India, A.I.R. 1951 S.C. 458; Sajjan Singh v. State of
Rajasthan, A.I.R. 1965 S.C. 845; Golak Nath v. State of Punjab, A.I.R. 1976 S.C. 1643
are the other cases.
4. J.D.M. Derrett, Lawyers as Leaders, Paper read at a seminar at the School of
Oriental and African Studies, June 1972. The remark was made on Golak Natffs case.
5. R. Dhavan, The Supreme Court and Parliamentary Sovereignty 245 (1976).

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4$0 JOURNAL OF TttE INDIAN LAW INSTITUTE [Vol. 19 :4

approach to constitutional law and judicial review but the manner

in which it was done makes the whole attempt highly questionable.6
But criticism apart, Kesavananda raises a host of jurisprudential questions.
It is necessary to examine these jurisprudential questions and assess some of
the wider implications of the case. But before we venture into discovering
the juristic ethnology of Kesavananda, we need to briefly outline the back-
ground of analytical theory in the context of ^a lot of jurisprudential
discussion which takes place in the common law world.
II. The analytical separation of law from morals
One of the most important questions which has plagued analytical juris-
prudence has been the question: what is law? Analytical jurisprudence
has tried to answer this question in various ways and even to this day
controversy abounds on whether the analytical approach to the definition of
law is either valuable or necessary. But leaving aside these controversies
for the moment, it is important to understand that this definitional quest
uses as its starting point the concept of the separation of law and morals.
The strategy behind the conceptual separation of law from morals can
be explained in two ways. Firstly, the main purpose of analytical jurispru-
dence has been to distinguish 'law' or 'legal rules' from moral and other
equally obligatory rules. Such other rules impose obligations, but these
obligations or feelings of obligations may not be the same as the obliga-
tions or feelings of obligation in relation to legal rules. These so-called
'legal rules' are not distinguished because they are necessarily more
important or persuasive. They are distinguished because the officials of the
legal system are forced to regard and enforce these rules as authoritative.
The separation of law from morals, therefore, seeks to clarify and delineate
certain rules as 'legal' and authoritative.
But there is a second and deeper political reason why the separation
of law from morals was found to be necessary. This second political
reason has a link with the doctrine of separation of powers. The doctrine
of separation 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 of
law creation. The political legislative function determines which rules
should be regarded as legal and binding even though certain cognitive
functions as regards determining what is law are also given to the judiciary.
This, at least, is the theoretical approach. There are, of course, problems
with both the theory and practice of this approach. These problems are
quite well known and need not be reiterated here. The essential point
that needs emphasis is this: the law making function is entrusted under the
doctrine of separation of powers to political legislative bodies. It is these

6. R. Dhavan, The Supreme Court of India: A Socio-Legal Analysis of its Juristic

Techniques (1977).

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1977] JURISTIC ETHNOLOGY OF KESAVANANDA"S CASE 491

bodies which must determine which rules are legal and which are not
legal. This is not to deny that the executive and judicial bodies also
have cognitive functions. The executive and the judiciary must determine
which rules singled out by the legislature are legal and authoritative. They
must also determine which rules can be regarded as legal even though they
do not emerge from a legislative source. This cognitive function entails
devising some kind of formula or approach whereby officials and others can
distinguish between those rules which the legislative arm of the state sought
to consecrate as law and those rules which it did not seek to consecrate as
law. Thus, a statute may be law; but an unanimous resolution of one of
the Houses of the legislature may not be regarded as law. This formula or
approach would also have to determine, which rules, other than legislative
rules, are to be credited with the status of law. But undei the theory of
separation of powers such latter rules are few and subject to restrictions.
Now, the doctrine of separation of powers is very closely linked up with
the rise of analytical jurisprudence. An embryonic form of the doctrine
of separation of powers can be found in Blackstone's Commentaries. Re-
cent research7 has shown that Blackstone—despite Bentham's strictures in the
Fragment on Government—foreshadowed in many ways a positivistic analy-
tical approach to the definition of law. It is, however, with the rise of
what can only be called the Benthamite movement that positivism acquired
a mature theoretical respectability. It was also given a subtle political twist.
The doctrine of separation of powers was linked up with analytical
concerns about the definition of law. Bentham was a reformer par exce-
llence. He saw much of his reform as emanating from the legislative bodies
of the state. He wanted, and succeeded in procuring, the reform of the
legislature and designed several programmes for legislative reformative action.
All this fitted in very nicely with the doctrine of separation of powers.
Under the doctrine of separation of powers, the legislature was the law
creating body. It was for the legislature to determine what rules were law;
it was for the excecutive and judges to determine which rules of the legis-
lative arm of the state had to be earmarked for recognition as legal rules.
There was, of course, the problem of discretion. Bentham felt that a good
and proper legal system would lay down very clear guidelines as to how
discretion was to be excercised.8
And this takes us to the problem of the analytical definition of law. If
the legislature and the legislative process was going to determine what was
going to be law, it was necessary to make a clear distinction between the
process by which legal rules would be validated as legal rules and other
social and intellectual processes by which moral and other rules would be
validated in their own right. If this distinction was not made with clarity,
the whole purpose behind discovering legal rules, as well as the status of the
7. E.g. Vick, Rebuttal of Bentham and Austin on Blackstone, 13 Loyola L R. 71
(1966-67); Finals, Blackstone's Theoretical Intentions, 12 NaturalL.F. 163 (1967).
8. H.L.A, Hart (ed.), Of Laws in General 240. (1970).

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 492 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 1$ : 4
legislature as a legislative body, would be undermined. In addition, the
legislature's monopoly in determining which rules are to be regarded as legal
and authoritative in a society would also be challenged. So, when all was
said and done, there was a clear link between the following:
(a) the doctrine of separation of powers, which sought to make the
legislature the primary source of legal rules;
(b) the Benthamite movement, whereby the legislature would be the
body primarily responsible to innovative economic, social and legal
reforms;
(c) the analytical separation of law from morals, whereby the legislative
monopoly of creating rules was preserved and other agencies of the
government were warned to recognise as law only those rules which
were validated by certain political processes and none other.
As time went on, this link came to be challenged. Marbury v. Madison9 in
the United States ensured that the judiciary's functions were not just
cognitive. The rise of constitutionalism necessarily entailed that the judi-
ciary itself be regarded as an important part of the law validation process.
Judges were not just concerned with whether rules alleged to be law had
come into being through a particular legislative process. They were also
concerned with whether rules alleged to be laws and which had passed
validly through the legislative process were also subject to some other
constitutional criteria—the determination of which was in the hands of the
judiciary. It was also clear that all the laws of a particular society did not
just emanate from the legislature alone. Various kinds of rules (e.g., custom)
were also designated as legal rules even though they did not have the
support of legislative action. Consequently, analytical theory had to change
its approach. Hitherto, it had spoken only of legislative rules as law.
Hereafter, it recognised that each society determined its legal rules in
various ways and by varied criteria; and that legislative activity was only
one method whereby certain kinds of legal rules were created.
But in order to keep the legal and political house in order, the separa-
tion of law from morals was strictly maintained. There were already
enough problems in identifying the process whereby legal rules were vali-
dated. 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
those rules which were validated by a certain process or criterion while
moral and social rules (other than law) were validated by some other
process or criterion.
But analytical theory came to recognise that law and morals cannot be
wholly separated. To begin with both Bentham and Austin were committed
to a theory of utilitarianism and—cognitive questions apart—judged laws by

9. Marbury v. Madison, (1803) 1 Cranch 137.

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1977] JURISTIC ETHNOLOGY OF KESAVANANDA'S CASE 493

moral criteria suggested and established by the theory of utilitarianism.

Much later, Kelsen argued that laws in order to be valid must not just
correspond to a certain criterion of validity but must also belong to a
legal system, which taken as a whole, was efficacious. Indeed, with this
additional caveat laws belonged not just to cloud-cuckoo land but also
enjoyed some minimal support from the people and officialdom. Hart—a
leading proponent of the analytical jurisprudence—admitted that the validity
of laws may itself be subject to the existence in society of a minimum
natural law content, whereby respect for the validation process was main-
tained. But all these clarifications leave the analytical theory intact.
Bentham and Austin's concern for the ultimate social aims of the legal
system in no way suggested that moral criteria were essential to the defini-
tion of law. Kelsen and Hart, in different ways, were really only suggesting
that the actual existence of law as a social entity necessitated the making of
certain social —including, incidentally, moral—suppositions.
Lon Fuller of Harvard University has, however, attacked the analytical
separation 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" must
contain an evaluative element. Drawing an analogy, Fuller says: "if we
are confronted by a dubious assemblage of mechanical parts and were to ask
of it, "Is it a steam engine?" and "Is it a good steam engine?" these
two questions might overlap mightily."10
Fuller's analogy is by no means perfect. While it is possible to visua-
lize a "dubious assembalage of mechanical parts" as an entity, it is less easy
to recognise a dubious law unless one is not clear about the criteria being
used. A dubious law can only be one which has not measured up to cer-
tain criteria—procedural or otherwise. Evaluative questions are not per se
part of these criteria even though there is no logical reason why they cannot
be included.
But, Fuller also argues that all laws must belong to a certain pedigree.
In particular, they must not be (a) ad hoc, (b) non publicised, (c) retroactive,
(d) incomprehensible, (e) contradictory, (/) require the impossible,
(g) introduce frequent changes and (h) perpetuate a failure of congruence
between rules and their actual administration. According to him:11
A total failure of any one of these eight directions does not simply
result in a bad system of law; it results in something that is not
properly called a legal system at all, except perhaps in the Pick-
wickian sense in which a void contract can still be said to be one kind
of contract.12

10. L. Fuller, A Rejoinder to Professor Nagel, Natural L.F. 83 at 89; Fuller, The
Law in Quest for Itself11-12 (1942).
11. L. Fuller: The Morality of Law 38-9 (1964).
12. 7</.at39,

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494 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 19 : 4

While it is true to say that a totally inefficacious legal system would

undermine its own validity, retroactive, impossible, ad hoc and non-publi-
cised laws have been known to exist. Even contradictory laws have been
promulgated and the legal system resolves them as best it can.
But Fuller does—perhaps, unwittingly—raise a very fundamental ques-
tion. It is this: even though the law cognition process does not necessarily
entail the making of moral questions, is it not possible that the criteria of
validity of any particular society may contain moral elements, in that, a
law would not be regarded as law unless and until it falls within the ambit
of certain moral criteria?
Logically, there is no reason why the recognition of law should not
contain both
(a) procedural criteria (i.e., has the law been passed by a certain pro-
cess, as for example, the King or Parliament?); and
(b) moral criteria (i.e., the law must satisfy requirements of a moral
nature laid down in the constitution or natural law or some other
fixed or variable moral yardstick).
III. Kesavananda*s theoretical ancestry
In some senses this sort of cognitive argumentation exists under the
doctrines of constitutionalism. Under the doctrines of constitutionalism
that were evolved in the United States, and also exist in India, a statute can
be invalidated if it is ultra vires the powers of legislature and if it infringes
some other evaluative criteria.
But the view that laws must measure up to some evaluative criteria is
not just limited to modern constitutionalism. It may have more far-reaching
pedigree. We will briefly survey some of the material. The prime example
is Bonham's case13 which decided very early in the seventeenth century that
procedurally valid parliamentary statutes were, nevertheless, invalid if they
violated the notions of justice of the common law. The merits and de-
merits of Bonham's case have been much debated.14 But there is no doubt
that Hobart, C.J., pronounced a similar doctrine a few years later in Day v.
SavageP Bonham's case was followed in the United States16 even though
Holt, C J., in England, saw the Bonham style of inquiry much more as to
support a rule of construction rather than as a firm, independent and subs-
tantive limitation on the powers of plenary legislative bodies.17

13. 8 Co. Rep. 114 at 118 (1610).

14. E.g, S.E. Thorne: Dr Bonham's Case, 54 L.Q R. 543 (1938); T. Plucknett,
Bonham's Case and Judicial Review, 40 Har. L.i?. 30 (1938); R. Berger, Congress v. The
Supreme Court, (1969) Appendix B.
15. (\614) Hobart S5.
16. E. g., Trevett v. Wheeden (1786) reported in 10 Records of the State of Rhode Island
219 (1865); see further Corwin, The Higher Law Background to American Constitutional
Law, 42 Har. L.R. 149 (1928).
17. City of London v. Wood, 12 Mod, 669 (1701).

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1977] JURISTIC ETHNOLOGY OF KESAVANANDA'S CASE 495

By the nineteenth century the impact of this kind of approach was lost
to legal history. In any event, apart from the British legislature, there
were very few legislatures with full plenary powers. Plenary powers came
to be associated with the power of amendment. Attempts to circumscribe
the powers of amending bodies amendments by a theory of implied limita-
tions of the Bonham variety proved to be unsuccessful in the United States,18
where the validity of the eighteenth and nineteenth amendments were un-
successfully challenged. But Chief Justice Kennedy's powerful dissent in
Ryan's case from Eire suggested that moral criteria (other than the
recognition that an amendment was passed by a certain prescribed procedure)
could be used to test the validity of an allegedly uncontrolled excercise of
the plenary power of amendment.19
There were also some cases from post-Hitler's Germany which suggested
that courts would not recognise as law any of Hitler's decrees which
violated the judge's sense of natural law or naturrecht.20 This attitude has
been accepted as a valid principle of public policy in a recent House of
Lords decision in the United Kingdom.21
And then came Kesavananda. Bonham's case was lost in history and
Kennedy, C.J., 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 also had to,
in its substantive effect, stay within what was described as the basic struc-
ture of the Constitution. It was up to the judges to determine what the
basic structure was or is. We can see that Kesavananda has a very respect-
able juristic pedigree. It not only ensures that moral criteria can be part of
the criteria by which the validity of amendments and laws can be judged but
also makes a fissure into the doctrine of separation of powers in that the
judicial arm of the state has, in some senses, become part of the legislative
arm. In that sense, Kesavananda seems to attack both the analytical
separation of law from morals as well as the supportive doctrine of the
separation of powers.
IV. Kesavananda: separation of powers and democracy
But, more recently, M.H. Beg, the Chief Justice of India, seems to have
discovered an ingenious way of dealing with the problems created by

18. E.g., Hawke v. Smith, 253 U.S. 221 (1919); State of Rhode Island v. Palmer, 253
U.S. 350(1919); Christian Feigenspan Inc. v. Bodine 264 Fed. 186 (1920); Ex. p. Dillon,
(1920) 262 Fed. 563 (1920); Dillon v. Gloss, 256 U.S. 370 (1920); Leser v. Garnett, 258 U.S.
130 (1921); U.S. v. Sprague, 282 U.S. 716 (1930).
19. The State v, Ryan, [1935] I.R. 170.
20. The early cases suggest that the courts were more concerned with an abuse of
power rather then the issue of validity. Later cases support the proposition that a law
opposed to naturrecht would be unrichtiges recht and should give way to justice.
21. Oppenheimsr y. Cattermole {Inspector of Taxes), [1972] 1 Ch. 584; [1973] 1 Ch. 264;
[}975] 2. W.L.R. 347 H.L.

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Kesavananda. In a recent judgment, Beg, C. J., says:

This Court has never abandoned its constitutional function as the
final judge of (the) constitutionality of all acts purported to be done
under the authority of the Constitution. It has not refused to
determine questions either of fact or of law so long as it has found
itself possessed of power to do it and the cause of justice to be
capable of being vindicated by its actions. But, it cannot assume
unto itself powers the Constitution lodges elsewhere or undertake
tasks entrusted by the Constitution to other departments of States
which may be better equipped to perform them. The scrupulously
discharged duties of all the guardians of the Constitution include the
duty not to transgress the limitations of there own constitutionally
circumscribed powers by trespassing into what is properly the domain
of other constitutional organs. Questions of political wisdom or
executive policy only could not be subjected to judicial control. No
doubt executive policy must also be subordinated to constitutionally
sanctioned purposes. It has its sphere and limitations. But, so long
as it operates within that sphere, its operations are immune from
judicial interference. This is also a part of the doctrine of a rough
separation of powers under the Supremacy of the Constitution
repeatedly propounded by this Court and to which the Court
unswervingly adheres even when its views differ or change on the
correct interpretation of a particular constitutional provision.22
In fact, Beg, C.J., in this case took his argument one step further. He
argued that if the doctrine of separation of powers is an essential ingredient
of the basic structure doctrine consecrated in Kesavananda, judges must in
due deference to the basic structure doctrine refuse to exercise the powers
granted by Kesavananda because the doctrine of separation of powers was
an essential ingredient of the basic structure doctrine. Kesavananda pushed
the judges into open politics, by asking them to evolve evaluative criteria to
test the validity of amendments and laws. If the doctrine of separation of
powers itself is the basic structure—or at least, an important cornerstone of
the Constitution—the judges can push politics back to the legislature by
refusing to entertain a Kesavananda style inquiry on the basis that such an
inquiry itself would militate against tfie doctrine of separation of powers and
therefore, the basic structure of the Constitution. Whether all the judges
of the court will do this remains to be seen. There is no doubt that the
doctrine of separation of powers is part of the basic structure of the Consti-
tution. How the judges will qualify the basic structure and what emphasis
they will give to the doctrine of separation of powers also remains to be seen.
We have seen that analytical theory and separation of powers were
invented and used to enforce the importance of the legislature and support

22. State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361 at para. 35, p. 1377-8.

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1977] JURISTIC ETHNOLOGY OF KESAVANANDA'S CASE 497

Benthamite social and economic reform. The theory was convenient even
though it suffered from logical and practical defects. One of the greatest
challenges to the theory is the challenge of morality. It has been argued
that morality can, and should, be a part of the criterion of validity. Kesa-
vananda is a very important decision is this regard. But the real problem
is whether a decision like Kesavananda can survive in a constitutional
system which virtually runs on the doctrine of separation of powers. It is
clear that there are innumerable difficulties. Chief Justice Beg's approach
seams to suggest that the moral attack on analytical theory cannot survive
the preponderant importance of the doctrine of separation of powers. We
may have made an important fissure into the Bentham-Austin separation of
law from morals. We are, however, still struggling to reconcile the conse-
quences of this important inroad into analytical theory by practically
applying it in a constitutional system which is based on the doctrine of
seperation of powers.
One last word: jurists and judges in India must make up their minds
about the implications of Kesavananda. They must either learn to trust
the amending process or repose their faith in non-elected judges who will
monitor very exercise of the plenary power of amendment with a yardstick
which is, in the ultimate analysis, of their own choosing. While considering
this question, it is important to bear in mind one factor: judges may be the
citadels of democracy; they are not a substitute for it.

Rajeev Dhavan*

•M.A. (Cantab.), B.A., LL.B. (Alld,), Ph.D. (London), Lecturer, Department of

Law, Brunei University, Advocate, High Court at Allahabad, of the Middle Temple,
Barrister, Visiting Associate Research Professor, Indian Law Institute.

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