because they formed, always and necessarily, the more numerous class. But
the word is commonly used “in the sense of the rule of the majority of the
community as a whole, including 'classes' and 'masses'.........., since that is the
only method yet discovered for determining what is deemed to be the will of a
body politic which is not unanimous. This will is expressed through the
election of representatives”.** C.F. Strong defines democracy to mean “that
form of government in which the ruling power of a State is legally vested, not
in any particular class or classes, but in the members of a community as a
whole”. This may more aptly be called a description rather than a definition
of democracy because it is beyond human ingenuity to foresee the possible
permutations and combinations of circumstances to which a generalisation
may have to be applied.
676. Forgetting mere words which Tennysom said: 'Like Nature, half
reveal and half conceal the Soul within', the substance of the matter is the
rule of the majority and the manner of ascertaining the will of the majority is
through the process of elections. I find myself unable to accept that the
impugned provisions destroy the democratic structure of our government.
The rule is still the rule of the majority despite the 39th Amendment and no
law or amendment of the fundamental instrument has provided for the
abrogation of the electoral process. In fact it is through that process that the
electorate expressed its preference for Smt. Indira Gandhi over Shri Raj
Narain and others. Article 326 of the Constitution by which the elections to
the house of the People and to the State Legislative Assemblies shall be on
the basis of Adult Suffrage still stands. Article 79 which provides that “There
shall be a Parliament...... which shall consist of ........ two Houses”, Article 80
and 81 which prescribe the composition of the two Houses. Article 83 which
provides for the duration of the Houses, Article 85 which directs that six
months shall not intervene between the two sessions of Parliament, Article
100 (1) which provides that all questions shall be determined by a majority of
votes of the members present and voting article 105 which preserves the
powers and privileges of the members of Parliament and the counterparts of
these articles in regard to State Legislatures retain their pristine primacy.
These articles, unimpaired as they remain even after the 39th Amendment,
are enough assurance that the Parliament is not leading the country to a
totalitarian path.
677. This is not to put a seal of approval on the immunity conferred on
any election but it is hard to generalize from a single instance that such an
isolated act of immunity has destroyed or threatens to destroy the democratic
frame-work of our government. One swallow does not make a summer. The
swallow with its pointed wings, forked tail, a curving flight and twittering cry
is undoubtedly a harbinger of summer but to see all these in the 39th
Amendment and to argue that the summer of a totalitarian rule is knocking
at the threshold is to take an unduly alarmist view of the political scene as
painted by the amendment. Very often, as said by Sir Fredrick Bollock, “If
there is any real danger it is of the alarmist's own making”.*
678. The 39th Amendment is however, open to grave objection on other
grounds, in so far as clauses (4) and (5) of Article 329-A are concerned.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents