conformity with the “judgment” delivered by the Parliament. The “separation of powers does not mean the equal balance of powers”, says Harold Laski, but the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances. 691. I find it contrary to the basic tenets of our Constitution to hold that the Amending Body is an amalgam of all powers–legislative, executive and judicial. “Whatever pleases the emperor has the force of law” is not an article of democratic faith. The basis of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the government will be discharged and the power of the State shall be used. 692. So much for the 39th Amendment. The argument regarding the invalidity of the Representation of the People (Amendment) Act. 58 of 1974, and of the Election Laws (Amendment) Act. 1975 has, however, no substance. The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution and (2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features' – this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. 693. Shri Shanti Bhushan thought it paradoxical that the higher power should be subject to a limitation which will not operate upon a lower power. There is no paradox, because certain limitations operate upon the higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the Legislatures of not less than one-half of the States as provided by Article 368 (2). An ordinary legislation can be passed by a simple majority. The two powers though species of the same genus, operate in different fields and are therefore subject to different limitations. 694. No objection can accordingly be taken to the Constitutional validity of the too impugned Acts on the ground that they damage or destroy the basic structure. The power to pass this Acts could be exercised restrospectively as much as prospectively.