“LAW AND MORALITY:

KESAVANANDA BHARTI’S JUDGMENT

(A Project submitted as a part of curriculum of subject ‘Jurisprudence &
Global Justice’ for the course of Masters of Laws)

Dr. Gurjinder Singh Mansi Thakur

Roll No. 23085
Semester- 1st
Masters of Laws (2Yrs)

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The detailed project on “LAW AND MORALTIY: KESAVANANDA BHARTI CASE” would not
have been possible without the kind support and help of many individuals. I would like to extend my
gratitude to all of them.

I am highly indebted to DR. GURJINDER SINGH for his guidance and constant help as well as for
providing necessary information regarding the project and, also for the support in completing the
project.

I would also like to express my gratitude to my parents and friends for their kind cooperation and
encouragement which helped me in completion of this project.
A sincere thanks to all of them.

-MANSI THAKUR

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ACKNOWLEDGEMENT..........................................................................................................2

INTRODUCTION..................................................................................................................4

LAW AND MORALITY.......................................................................................................5

THEORY OF SEPARATION OF LAW & MORALITY......................................................6-8

INDIAN PERSPECTIVE.......................................................................................................9-10

CONCLUSION...................................................................................................................11
REFERENCE........................................................................................................................12

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For living peacefully in a society an individual follows various norms, conducts, values, rules,
beliefs, etc. which tell how a person should behave in a society. It becomes important to create the
difference between them, in order to avoid ambiguity and conflict. One such deliberate effort is
always taken when distinguishing between law and morality. These are such concepts which on
some parts seem inter-related while in some other parts seem completely different concepts. It is
evident that both law and morality serve to channel our behaviour. Law accomplishes this primarily
through the threat of sanctions if we disobey legal rules. So too, on reflection, does morality involve
incentives of sorts. When we do the wrong thing, we may suffer guilt and disapprobation, and when
we do the right thing, we may experience virtue and enjoy praise; the push and pull of the moral
forces constitute an important influence on our conduct.

The presence of these two very different avenues of effect on our actions naturally raises the question
of how they compare. In addressing this question, I will adopt an instrumental approach: I will assess
the various costs associated with the establishment and use of legal and of moral rules; and I will
examine the effectiveness of the rules in regulating conduct- as determined by the magnitude of legal
and of moral incentives, by the probability of their application, and by certain informational factors.
In so doing, I will be making conjectures about number of issues, and it is quite possible that the
reader's judgment about some of them may differ from mine. But this should not unduly disturb the
reader nor cause him or her to discount the analysis, for its main purpose is to stimulate systematic
inquiry about law versus morality as regulators of conduct; in writing an article of such limited
compass, I could not realistically aspire to do more.

After investigating the relative character of law and of morality as means of control of conduct, I will
be able to consider their theoretically optimal domains -where morality alone would appear to best
control behaviour, where morality and the law would likely be advantageous to employ jointly, and
where solely the law would seem desirable to utilize.

It should be noted that the observed pattern of use of law and of morality displays all three
possibilities, at least in an approximate sense. Morality, but not law to any real degrees applies as a
means of control of much of our social discourse and daily interaction- for instance, regarding
whether we keep lunch engagements or ensure that our children do not make a nuisance of
themselves at the supermarket. However, law and morality work together to control a vast range of
behaviour; notably, most crimes and torts are not only legally sanctionable but are also thought
immoral, and often so are breaches of contract and violations of regulation. And law but not
morality, except in the particular form of the duty to obey the law, governs a nontrivial spectrum of
behaviour; consider especially many of our technical legal rules, such as a minimum capital
requirement that must be met for a company to be allowed to sell securities on an equity market.

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LAW
By law we can understand of, the body of rules that we term legal, that is, the rules that are
determined and enforced by the state and that are intended to channel behavior and to resolve certain
adverse events. Thus, a legal rule might forbid littering in the park and impose a some fine for a
violation, might impose expectation damages for breach of contract, or might declare murder a crime
and punish it with a sentence of at least ten years of imprisonment.

The enforcement of law will refer to three stages. The first is the identification and reporting of
violators to the state. This might be done by private parties who bring suits for violations or by
public enforcement agents, for example, safety inspectors or police officers. Second, law
enforcement requires adjudication. Third, law enforcement involves imposition of monetary
sanctions or imprisonment.1

Law enforcement entails social costs in these stages: the time and effort involved in suit or public
enforcement, adjudication expenses, and the resources devoted to the actual imposition of sanctions.
The effectiveness of law enforcement depends, other things being equal, on the magnitude of
sanctions and on the probability with which they are imposed for violations. The magnitude of
sanctions is chosen by the state and can be as high as the wealth of a violator if monetary and as high
as a life term if imprisonment. The probability of sanctions depends on the actions of private parties
who might bring suit if the violation is civil and on the effort of public enforcement agents,
otherwise.

MORALITY
The term ‘Morality’ can be understood as, the rules of conduct that are associated with certain
distinctive psychological and social attributes. In particular, a moral rule has the property that, when
a person obeys the rule, he will tend to feel the sentiment known as virtue, and, if he disobeys the
rule, he will tend to feel the sentiment known as guilt. A moral rule also has the property that, when
a person obeys the rule and is observed to have done so by another party, that party may bestow
praise on the first party, who will enjoy the praise, and if the person disobeys the rule and is
observed to have done so by another party, the second party will tend to disapprove of the first party,
who will dislike the disapproval.

Behaviour that comports with moral rules, so described, will be called good, and behavior that
deviates from the rules will be called bad. Moral rules may sometimes differ among subgroups of a
population. For instance, for one segment of our population, abortion is regarded as immoral,
whereas for most of the other abortion is seen as a woman's right. The establishment of moral rules
can be presumed to have come from, about in part through a complex process of socialization,
learning, and inculcation.

1
http://www.law.harvard.edu/faculty/shavell/pdf/4_Amer_Law_Econ_Rev_227.pdf

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AUSTIN
John Austin (1790-1859) was a nineteenth century British legal philosopher who formulated the first
systematic alternative to both natural law theories of law and utilitarian approaches to law. And
therefore, he is called the ‘Father of English Jurisprudence’.

Austin’s analytic approach to law offered an account of the concept of law, that is, what law is. This
was termed “Legal Positivism” because it set out to describe “what law is” in terms of what humans
posited it was, thus the link between “positive law” and “Legal Positivism.” Austin’s theory of law is
a form of analytic jurisprudence in so far as it is concerned with providing necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible world.2
Austin dominated the British positivism till 1945 when the Bentham’s work was first published. The
work of Austin was largely derived from Bentham’s. Austin applied analytical method- ‘law should
be carefully studied and analysed and the principle underlying therein should be found out’- and
confined his field of study only to the positive law – jus positivism (‘law, simply and strictly so
called’: ‘law set by political superiors to political inferiors’). Therefore, the school founded by him is
called by various names – ‘analytical’, ‘positivism’, ‘analytical positivism’.

POSITIVE LAW THEORY

Austin defined law as ‘a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.’ According to him, the law ‘properly’ so called includes law of God,
human laws and positive laws. The law ‘improperly’ so called includes laws of analogy and laws by
metaphor. Proper laws derived from authority, and there are two kinds of authority in Austin’s legal
universe: the authority of the Christian scriptures i.e., divine source and the authority of the political
superior i.e., the sovereign.3According to Austin, positive law comprises the commands of a political
sovereign supported by sanctions on those who disobey. There are three key elements of this concept
of law:
(1) a political sovereign,
(2) command and
(3) sanction.

According to him, “law is the command of a sovereign”4, requiring his subjects to do or forbear from
doing certain acts. A command is not a request but an imperative that creates a duty by the presence
of a sanction. A command involves (i) a wish or desire conceived by a rational being that another
rational being shall do of forbear; (ii) an evil in case of non-compliance; and (iii) intimation of the
wish by words or other signs. A command cannot be separated from duty and sanction. They are
aspects of a single event. Where there is a duty there is a command, and where there is command
there is a duty. Laws producing commands may be general, in the sense that they constitute rules of
conduct applying to classes of persons or events. The rules of criminal laws are general commands.
They are impersonal and not directed to particular individuals. Commands are also occasional and
particular. There is an implied threat of a sanction if the command is not obeyed. A command is an

2
https://people.brandeis.edu/~teuber/Summary_of_John_Austin_s_Legal_Positivism.pdf
3
John Austin, The Province of Jurisprudence Determined, Cambridge University Press, 1995, p.109.
4
Ibid.

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expression of a wish by a determinate person, or body of persons that another person shall do or
forbear from doing an act subject to an evil in the event of disobedience i.e., ‘sanction’. So every law
is a command, imposing a duty, enforced by a sanction.

This is one of the main reasons for Austin’s view that customary law is not positive law. Customary
law is the product of generally held opinion of an indeterminate community of persons. The persons
who create customary law and the persons who are obliged by customary law are to a large extent the
same individuals. The basis of sovereignty is the fact of obedience. According to Austin, the
sovereign’s power is unlimited and indivisible. For him, the notion of a divided sovereign is absurd.
The sovereign is not bound by any legal limitation or by his own laws. It cannot be limited by
positive law, although it may be constrained by positive morality. Austin maintained that the
constitutional rules are rules of positive morality that the sovereign may disregard. If a sovereign’s
power is limitable it is because there is a superior power that can impose limits. In that case the
superior power is the real sovereign.5

HIS VIEW POSITIVE LAW AND MORALITY

Austin distinguishes positive law from positive morality which is devoid of any legal sanction. He·
identifies law with command, duty and sanction. According to Justice Holmes, Austin's distinction
between positive law and positive morality seeks to exclude the considerations of goodness or
badness in the realm of law. In Austin's positive law there is no place for ideal or justness in law. In
his own words, "the existence of law is one thing, its merit and demerit another ... A law which
actually exists, is a law, though we happen to dislike it or though it may vary from the text by which
we regulate our approbation or disapprobation.”

The major thrust in Austinian positive law, was therefore, on separation of law from morals. As a
5
https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=ZzUApmBk4i7kYctp+aiP1w==

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corollary of it, he distinguished science of jurisprudence from ethics. The former is concei:ned with
positive laws irrespective of their goodness or badness. Commenting on this point Amos observed
that a positive law, as Austin has shown, must be legally binding though it may be unjust. Austin
thus, made his system of law logical, coercive and enforceable as distinct from law as it ought to be.
For him, command was 'the key to the science of jurisprudence."6

Austin, however, accepts that there are three kinds of laws which though not commands, may be
included within the purview of law by way of exception. They are:
1. Declaratory or Explanatory Laws
2. Laws of Repeal
3. Laws of Imperfect Obligation.

CRITICISM OF THEORY
Austin’s theory has been criticized on the following grounds:

1. He totally outlooked the customs.

2. To entirely rejected the significance of judge-made laws.
3. Due to the lack of sanction in International Laws, he considered them as mere Morality7.
4. He completely ignored the permissive character of law.
5. His idea of indivisibility of sovereignty was criticized, as it is against separation of powers.
6. He completely ignored the relationship between law and morality.

6
Dr. N. V. Paranjape, Jurisprudence and Legal Theory, 8th Edition, Central Law Agency, 2016, Page 32.
7
Austin: The Province of Jurisprudence Determined p. 9.

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India being a democratic country where the government (sovereign) is for the people, from the
people and by the people, Positive Law and Positive Morality go hand in hand. Unlike the
Austin’s theory where he believed that sovereign is above everything, even law, the generally
accepted law and practice of the country, suggests otherwise. India follows the concept of
‘Separation of Laws’ where all the three pillars, i.e., Legislature, Executive and Judiciary stand
at an equal footing. Furthermore, all of them individually stand independent of the other and
are even regulated by the other two and even the general public through provided redressal
mechanisms, to run its functions arbitrarily. In other words, no pillar or organs is given
absolute powers or is considered supreme of the others. Thus, totally differing from the John
Austin’s theory of Separation. And the same can be seen from the judicial precedents set up by
the Indian Judiciary, over the time.

It was evident that in A.K. Gopalan v. State of Madras8 the Indian judiciary was following
analytical positivistic thought. Positivism, in general, denotes that law must be identified
independently without any moral or evaluative arguments. In this case, the literal interpretation
of ‘Law’ by the Indian Judiciary reflected the idea of Analytical Positivism. Here, the validity
of the Preventive Detention Act, 1950 was challenged. This case was heard by the Bench
consisting of 6 judges. The detenue contended that sections empowering the Govt. to detain a
citizen under the Preventive Detention Act, 1950 violated Article 13, 19 and 21 of the
Constitution of India. It was also stated that the section 12 of the Act of 19509 was
contradictory to the Article 22 (4) of the Constitution of India10. Moreover, the condition
enumerated in section 14 of the Preventive Detention Act 1950 disentitled any court of Law
from requiring any public officer making such detention order to disclose or communicate any
document of such detention order or the report of the Advisory Board.11 The apex court, in this
case, acknowledged the right of an aggrieved to approach the court under Article 32 of the
Constitution of India. In such a case the person approaching the court must prove it
substantially that the law enacted by the Parliament violated the fundamental rights of the

8
A. K. Gopalan v. State of Madras AIR 1950 SC 27.
9
Section 12 of the Preventive Detention Act, 1950 Duration of detention in certain cases.--(1) Any person detained in
any of the following classes of cases or under 'my of the following circumstances may be detained without obtaining the
opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his
detention, namely, where such person has been detained wish a view to preventing him from acting in any manner
prejudicial to-- (a) the defence of India, relations of India with foreign powers or the security- of India; or (b) the
security of a State or the maintenance of public order.
10
Article 22 (4) of the Constitution of IndiaNo law providing for preventive detention shall authorise the detention of a
person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have
been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period
of three months that there is in its opinion sufficient cause for such detention.
11
Section 14 of the Preventive Detention Act, 1950- Disclosure of grounds of detention, etc.--(1) No court shall, except
for the purpose of a prosecution for an offence punishable under sub-section (9,), allow any statement to be made, or any
evidence to be given. before it of the substance of any communication made under section 7 of the grounds on which a
detention order has been made against any person or of any representation made by 'him against such order; and
notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce
before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an
Advisory Board or that par of the report of an Advisory Board which is confidential. (2) It shall be an offence punishable
with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or
publish without the previous authorisation of the Central Government or the State Government, as the case may be, any
contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section
(1): Provided that nothing in this sub-section shall apply to a disclosure made' to his legal adviser by a person who is the
subject of a detention order.

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aggrieved. But, in the present case the Supreme upheld the impugned Act and declared section
14 of the impugned Act void.

In Maneka Gandhi v. Union of India12 the issue was impounding of passport of Maneka Gandhi
thereby restricting her movement outside India. This case was presided over by seven judges bench.
The petitioner, Maneka Gandhi, contended that impounding of her passport was not in accordance
with the law and she was not given any opportunity to represent her side. This case is significant as it
led the Bench re-consider the phrase ‘except according to the procedure established by law’ as stated
in article 21 of the Constitution of India. According to the decision in A.K. Gopalan in 1950 the
‘procedure established by law’ would mean law enacted by the sovereign and such law could not be
subject to judicial scrutiny. However, from 1950 to 1978 India underwent several changes and each
and every incident contributed to the development of the legal system in 1978. Thus, it became
incumbent upon the Bench to deliver a judgment pertinent to the then political, economic and social
condition of India. The significant contribution of this case is the concept of ‘Golden Triangle’ of
fundamental rights which was left untouched after A.K. Gopalan judgment.13

Under this case, though the Bench did not interfere with the impounding of passport and ruled in
favor of the passport authority, but defect in the order of impounding passport was asked to be
removed and to be made according to the procedure established by law. The contribution of this
case is that of overruling 6 judges Bench decision in A.K. Gopalan case. Maneka Gandhi case is
significant because in this case it was conformed that fundamental rights are natural rights inherent
to an individual (not made by anyone in command or sovereign).

In Kesavananda Bharati v. State of Kerala14, the Edneer Mutt in Kerala challenged the Kerala Land
Reforms Act, which placed a limit on the extent of land that could be held by a single individual. The
Court was called upon to determine issues including whether Parliament had unlimited powers to
amend the Constitution or whether there were certain fundamental features of the Constitution that
could not be amended.

It was held that Parliament had the power to amend the Constitution, but at the same time, it did not
have the power to destroy or hinder its basic structure. The 7:6 majority held that certain
fundamental features of the Constitution, such as the sovereignty of India, democracy, secularism,
the federal character of the Constitution and the rule of law, formed part of its basic structure and
could not be abrogated or abridged by Parliament.15 This landmark case became the basis in Indian
law on which the judiciary can strike down any amendment passed by Parliament that is in conflict
with the basic structure of the Constitution. And through this case judiciary gave us the “Basic
Structure Doctrine”, that clearly states that the basic structure of the law of the land cannot be
altered or hampered even by the legislature.

12
Maneka Gandhi v. Union of India AIR 1978 SC 597.
13
https://ir.nbu.ac.in/bitstream/123456789/4233/14/14_chapter%204.pdf
14
Kesavananda Bharati v. State of Kerala, 1 AIR 1973 SC 1461.
15
https://www.barandbench.com/columns/50-years-of-kesavananda-bharati-why-basic-structure-matters

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Therefore, in the light of the above discussion and the given statement that, “Constitutional law,
which seeks to limit the sovereign power is seen as mere ‘guide’ or ‘positive morality’ and thus,
does not fall within the category of ‘laws properly so-called’ from Austin’s positivist viewpoint”,
it can be safely concluded that statement stands incorrect, especially in the context of Indian
democracy. The theory of Austin considered ‘sovereign’ at the superior most place, powerful
enough to even alter or deviate the law. According to this theory sovereign had absolute
unchecked powers, that can be said, is unrealistic in any democracy of the world. But as per the
observation in the above-mentioned judgments it can be safely drawn that, India does not follow
the Positivist Approach. It does not confer any unchecked and arbitrary powers to the Legislature.
It can obviously amend the laws to suit the changing factors, from time to time, but it is not
allowed to touch the basic structure of the law of the land, indirectly giving the ‘law of the land’ a
position higher than Legislature, in the hierarchy.

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BOOKS
 Dr. N. V. Paranjape, Jurisprudence and Legal Theory, 8th Edition, Central Law Agency,
2016.

INTERNET:
 https://lawcorner.in/law-and-morality-in-jurisprudence/, retrieved on 22nd November, 2023 at
3:47 pm.
 http://www.law.harvard.edu/faculty/shavell/pdf/4_Amer_Law_Econ_Rev_227.pdf, retrieved
on 21st November, 2023 at 8:47 pm.
 https://people.brandeis.edu/~teuber/Summary_of_John_Austin_s_Legal_Positivism.pdf,
retrieved on 22nd November, 2023 at 2:20 pm.
 https://plato.stanford.edu/entries/austin-john/, retrieved on 21st November, 2023 at 12:47 pm.
 https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=ZzUApmBk4i7kYctp+aiP1w==,
retrieved on 21st November, 2023 at 1:49 pm.
 https://ir.nbu.ac.in/bitstream/123456789/4233/14/14_chapter%204.pdf, retrieved on 21st
November, 2023 at 12:22 pm.
 https://www.barandbench.com/columns/50-years-of-kesavananda-bharati-why-
basic- structure-matters, retrieved on 21st November, 2023 at 2:33 pm.

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