672. Equally, there is no substance in the contention that the relevant
clauses of the 39th Amendment are in total derogation of 'political justice'
and are accordingly unconstitutional. The concept of political justice of which
the Preamble speaks is too vague and nebulous to permit by its yardstick the
invalidation of a Constitutional amendment. The Preamble, as indicated
earlier, is neither a source of power nor of limitation.
673. The contention that 'Democracy' is an essential feature of the
Constitution is unassanable. It is therefore, necessary to see whether the
impugned provisions of the 39th Amendement damage or destroy that
feature. The learned Attorney-General saw an unsurmountable impediment
in the existence of various forms of democracies all over the world and he
asked. What kind and from of democracy constitutes a part of our basic
structure? The cabinet system, the Presidential system, the French, the
Russian or any other? This approach seeks to make the issue unrealistically
complex. If the democratic form of govenment is the corner-stone of our
Constitution, the basic feature is the broad form of democracy that was
known to Our Nation when the Constitution was enacted, with such
adjustments and modifications as exigencies may demand but not so as to
leave the mere husk of a popular rule. Democracy is not a dogmatic doctrine
and no one can suggest that a rule is authoritarian because some rights and
safeguards available to the people at the inception of its Constitution have
been abridged or abrogated or because, as the result of a constitutional
amendment, the form of government does not strictly comport with some
classical definition of the concept. The needs of the Nation may call for severe
abnegation though never the needs of the Rulers and evolutionary changes in
the fundamental law of the country do not necessarily destroy the basic
structure of its government. What does the law live for, if it is dead to living
needs? We cannot therefore, as lawyers and Judges, generalize on what
constitutes 'Democracy' though we all know the highest form of that idealistic
concept – the state of bliss – in political science.
674. The question for consideration is whether the provisions contained in
Articles 329-A (4) and (5) are destructive of the democratic form of
government. The answer does not lie in comparisons with what is happening
in other parts of the world, those that stake their claim to 'democracy'
because we are not concerned to find whether despite the 39th Amendment
we are still not better off democratically, than many others. The comparison
has to be between the pre-39th Amendment period and the post-39th
Amendment period in the context of our Constitution.
675. “Those of us who have learned humility have given over the attempts
to define law”. This statement of Max Radin* may be used to express a
similar difficulty in defining 'Democracy' but just as legal scholars, not
lacking in humility, have attempted to define 'Law', so have political
scientists attempted a satisfactory definition of 'Democracy'. The expression
is derived from the Greek word 'Demos', which was often used by the Greeks
to describe the many, as distinct from the few, rather than the people as a
whole. And Aristotle defined democracy as the rule of the poor, simply
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