GOVERNMENT LAW

COLLEGE, MUMBAI

POLITICAL SCIENCE
ASSIGNMENT
(SEM-2)
(TOPIC- THEORY OF
SOVEREIGNTY)

Submitted By- Submitted To-

RITIKA KEDIA Mrs.Rooprekha
V-I-A/68 Chhabria Ma’am

THEORY OF SOVEREIGNTY
INTRODUCTION:
Sovereignty is a regarded as one of the important ingredient of State which
distinguishes the state from other political associations within a society.
Sovereignty is the quality of having supreme, independent authority over a
territory. It is also normally understood to be a state which is neither dependent
on nor subject to any other power nor state. It can be found in a power to rule
and make law that rests on a political fact for which no purely legal clarification
can be provided. A sovereign is a supreme parliamentary authority. This
authority is absolute both in internally as well as externally in all matters.
Sovereign not only act as a negotiator but also performs for the individual’s
interest in order to give justice fair and reasonable. It moderates and harmonizes
the conflicting claims of different individuals, groups and institutions. In the
external sphere the state is subject to no other authority and is independent of
any eternal compulsion or interference. Concept of sovereignty seems to be very
simple, but we have to accept the fact that it is one of the most complicated
notions in Political Science and elementary perceptive has no meaning for the
reason that state power is not something which is theoretical and confined to
books. While historians, international lawyers and political theorists tend to
operate with the notion of authority and right, political economists, and political
sociologists tend to employ the notion of power and capability. Therefore, there
is a need to go into details to study the concept of sovereignty very clearly and
precisely; for after all it is with this and other basic concepts and definitions that
are explained in the further course of article

What is Sovereignty?
Notion of sovereignty can also be explained as to be the power of one particular
class of society over another class 1. Derived from the Latin term Superanus,
which means supreme, sovereignty denotes the supreme power of the state to
extract obedience from the people who inhabit it. It means that the power of the
state is unquestionable and the state has a right to demand allegiance from its
citizens. Disobedience of set of laws and supremacy of state will led to sanction
of punishment. There are two types of Sovereignty internal Sovereignty and
external Sovereignty, where the state is supreme to any individual or
organisation, living or functioning, within its boundaries, and they have to
function under the laws and command of the state. The power of the state over
them is original, total, indefinite and all inclusive. External Sovereignty means
that in the comity of states, every state is supreme and is free to cast its destiny.
No other state or any international organisation can claim dominance to a state.
The state may be subjected to certain treaties or other obligations, but they are
self-imposed obligations on the part of the state. None can compel or enforce
any obligation on the state, which it is not willing to accept. Thus, the state is
equipped with internal and external sovereignty that gives it over-riding powers
over individuals, groups and organisations and makes it absolute.

Types of Sovereignty:
The word sovereignty has been used in many ways in Political Science that
makes its understanding very difficult. Therefore, it is necessary to understand
its varied uses. There are many types of sovereignty which can be explained as
follows:-

Legal Sovereignty: Legal sovereignty represents sovereignty as the supreme

law making power; that is, to issue the highest orders. It is bound neither by
moral nor by natural laws. Laws made by the sovereign are to be obeyed by all
compulsorily. Thus, in real political life, legal sovereignty, as undisputed
supreme power to make any law, is not generally seen. According to Garner,
"The legal sovereign, therefore, is that determinate authority which is able to
express in a legal form the highest commands of the state that power which can
override the prescriptions of the divine law, the principles of morality, the
mandates of public opinion, etc." The concept of legal sovereignty found the
most comprehensive treatment in Austin's theory of sovereignty known as
Monism.

Political Sovereignty: History has shown several instances of this

revolutionary political sovereignty destroying the legal sovereign It is defined
by Dicey that "Behind the sovereign which the lawyer recognises there is
another sovereign to whom the legal sovereign must bow That body is
politically sovereign, the will of which is ultimately obeyed by the citizens of
the state". If legal sovereignty has to survive, then it must work in close
cooperation with political sovereignty.

Popular Sovereignty: Modern democracy is based on the concept of popular

sovereignty which means that the source of all authority is the people. J.J.
Rousseau is credited with espousing it in modern times. But earlier also, the
concept of popular sovereignty was not unknown. Popular Sovereignty can
merely be understood as ‘people’s affairs’6 it means that people have supreme
power and ultimate authority rests with them. Rousseau calls it as “general
will". The concept of popular sovereignty was accepted as the basic principle of
governance in the American and French revolutions.

The concept of popular sovereignty is very attractive. But it is shrouded with

vagueness. It is very difficult to explain it in practical terms. It is good to say
that people are the basis of any political system and their will must be reflected
in the governance.
National Sovereignty: The principle of national sovereignty was first
formulated by the French revolutionists in their Declaration of the Rights of
Man. It means that sovereignty resides essentially in the nation, conceived as a
collective body of all the people enjoying independence from external control.

Real and Titular Sovereignty: Real and Titular Sovereignty both are
interrelated terms. Titular Sovereignty can be defined as sovereignty power
acceded by the Monarch. As the constitutional or ceremonial head of the state
he is called a titular sovereign. The monarchy in England still exists and all the
powers are exercised in the name of the king or the queen but the real sovereign
is the Crown. But comparing it with India, where the president is the titular head
while the real sovereign is the prime minister and his cabinet.

De Jure and De Facto Sovereignty: This aspect of sovereignty has been

established by international law. Whenever there is a political upheaval or a
civil war in a country or a similar situation, we have two types of government-
the legal government, which has been uprooted and the new government which
though not legal, holds actual power. In such a situation, the question of
recognition of (which) power arises. De jure sovereignty is one, which is legally
competent to issue the highest command of the state. It has the legal right to
exercise sovereign power and has the obedience of the masses. A de
facto(factual) sovereign is the one who has got actual power and who has real
command to go with it. His authority rests on his physical force and control.

It is the sovereignty which according to legal right is entitled to the obedience of

the people. Whereas De Facto means legal or accepted therefore it is the actual
sovereign which exercises control over the people and enjoys their real
obedience to its commands. But here one thing must be understood, viz., that
the distinction between de facto and de jure sovereignty is with regard to the
exercise of sovereign power. It is mainly important from the viewpoint of
international law and diplomacy. This question becomes important only in the
case of a revolution, a coup, a civil war, etc., in a state because in such cases
there exist too many political claims to sovereignty.

Theories of Sovereignty:
There are two diametrically opposite views relating to state sovereignty. The
first view known as "monism" is a classical defence of the determinate, absolute
and indivisible character of state sovereignty while the second known as
"pluralism" is an eloquent protest against the first and stresses the limited nature
of state sovereignty which must be shared between the state and a host of other
associations which are as natural and indispensable as the state.
Monistic Theory of Sovereignty:
Austin was the most important contributor to legal theory or Monistic theory of
Sovereignty9. The first theory which exerted wide influence was that of Jean
Bodin. In his view sovereignty was the highest power in a state which is subject
to no laws but is itself the maker and master of them. It may reside in either one
person or in a number of persons, but in either case it is above law, incapable of
any limitation and having an absolute claim to the obedience of all. He admitted
that in some way the sovereign is subject to Law of God and laws of nature, and
is therefore he is bound to respect the rights of property and personal freedom.
Nearly a century later a similar theory was put forward by Thomas Hobbes. He
based his sovereignty on a covenant of each member of a community with
another member to surrender all their rights and powers into the hands of one
person or body who thereby becomes the sovereign. Since the sovereign is not
himself a party to the contract it cannot be annulled by those who made it. The
authority of the sovereign is therefore permanent and unlimited. Jermy Benthem
revived Hobbes theory of absolute sovereign and justified it. Thus we see that
much before Austin, there were other great philosophers who had defined
sovereignty.
Austin’s sovereignty theory and its relevance in modern Indian political
and legal environment
Austin’s Theory of Sovereignty
The definition of law according to Austin was, “Law is a command of the
sovereign backed by a sanction.”Breaking this definition into its fundamentals:
–

Command, of
Sovereign, which if not followed attracts
Sanction.
Now in order to fully understand Austin’s theory of Legal positivism, let us
explain these elements in a concise and comprehensive manner.

Command: Commands are expressions of desire given by superiors (sovereign)

to inferiors (general public). There are commands which are laws and which are
not, Austin distinguishes law from other commands by their generality. Laws
are general commands, unlike commands given on parade grounds and obeyed
there then by the troops.
Observation: From the above definition we can conclude that Austin’s
definition of commands gives the sovereign authority status of ultimate
supreme, and imply that the authority of the sovereign is absolute which is the
opposite of the constitutional framework which prevails in India, and for that
matter in any peaceful democracy. This definition expresses that the sovereign,
that is, the person/people in power is politically superior, but in democratic
countries, it is not true. Every citizen has the same right same that of a
President/Prime Minister/Chief Justice.

It also disregards other sources of law, like laws made by judges (considered as
mere delegates) in form of precedents, laws made by the executive as statutory
instruments, etc which hinders the growth of not only the jurisprudence of the
country but also of the society, government and private institutions and
economy.

Sovereign: A sovereign is any person or body of persons, whom the bulk of a

political society habitually obeys and who does not himself habitually obeys,
some other persons or persons.

Observation: From the above definition of the sovereign, we can conclude that
according to John Austin, the sovereign is not accountable to anyone but the
whole realm has to follow whatever the sovereign dictates which are in stark
contrast with the idea of democracy and Indian federalism. Also, Austin’s
theory has mentioned that the powers of the sovereign are indivisible, i.e.
sovereign will make laws, the sovereign will execute the laws and the sovereign
only will administer the law. This philosophy is also in contravention with the
idea of democracy and the Indian federal structure.

Sanction: This term is derived from Roman Law. According to Salmond

“Sanction is the instrument of coercion by which any system of imperative law
is enforced. Physical force is the sanction applied by the state in the
administration of justice
In a modern democracy, people don’t abide by laws merely out of the fear of
sanctions, but they do so voluntary as well out of morality and responsibility.
This leads to the cooperation between the state and the subjects and this
cooperation and understanding between the people and the state helps in the
effective execution of the law and smooth introduction of social change. Also,
we should not ignore the fact that in the modern era, even the sovereign can’t
implement everything on brute strength or influence, especially in a country like
India which is so diverse in its every facet.
Relevance in modern Indian politics & legal society/Criticism
From the critical analysis of Austin’s theory of sovereignty and legal positivism,
the author has made the following inferences and has tried to establish the
relevance of the same to the modern Indian political and legal society.

1. Presumption about the subjects

Austin’s theory of sovereignty presumes that people will exactly obey what the
sovereign will command which is not true in the present scenario in India
politics.His theories put the habitual obedience by subject on the bottom line of
the philosophy. Those who deem the sovereign as the fit will obey voluntarily.
Those who think sovereign as faulty will obey in the fear that the evil of their
resistance will surpass the evil of obedience. And those who are not certain
about will obey sovereign out of custom. Also, Austin’s theory presumes that
people are perfectly educated politically.

But that is not true in the modern scenario. The people who deem the
government as unfit criticize, protest and resist the government and its policies.
Which sometimes causes even the total failure of constitutional machinery like
one observed in 1975 when Indira Gandhi (then PM) imposed emergency.
There are many other examples in India only where we have seen people like
Anna Hazare, Ramdev and Kejriwal protesting and organizing marches against
the government and demanding changes in its structure or introduction of new
laws or amendment of existing. Also, in a country like India, where one-third of
the country (35million people approx) can’t read and write and where people
can kill each other because of fake news and propaganda, it would be lethal and
unfair to presume that most population is politically educated.

Thus, we can say that the presumption of habitual obedience, which is at the
very basis of Austin’s sovereign theory can’t prevail in the present Indian
political and legal society.
2. Doesn’t give room to common law other law-making bodies
According to Austin, only those commands that are given by a political superior
i.e. sovereign are laws the real sense. He has tried to define the law from the
sources of its origin than its functions. Though, there is a subtle acceptance of
law made by judges (precedents) unless except it goes against the laws made by
the sovereign but it is not appropriate in any sense.

In India, the Supreme Court is the keeper of the constitution and it has the
power to declare any legislation as void if it contravenes any of the provisions
of the constitution and thus protects the fundamental rights of the people of the
country. But according to Austin, courts/judges are the mere the subordinate
sources of law and they have to function within the parameters set by the
sovereign. Also, executive bodies like CBI, police, MCDs which are directly in
touch with the public and understand their needs better, can’t make laws for the
public’s benefit because statutory instruments are the recognized source of law.
If all this is applied in the modern scenario it can lead to serious chaos and
disrupt the country.

Thus, we can infer that Austin’s theory is incompatible with modern political
and social scenario of India as it doesn’t give room to the very basic ideas of
democracy, constitutionalism and de-centralization and separation of power.

3. Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human
elements like mutual understanding and cooperation between the state and the
subjects and on the other hand, we can see that he has made vague presumptions
about the subjects like habitual obedience, which is an extremely rare
phenomenon in the modern world. He hasn’t established the right balance
between the role of the state and citizens and their relationship with each other.
Thus, we can infer from the above information that Austin’s theory can’t be
applied in the modern political and legal Indian society because of being very
rigid and short-sighted approach towards running the state and ignorance of the
core values of democracy.
4. Absolute, unrestricted and indivisible powers to sovereign
Austin has postulated that the sovereign is free from all restraints of any kind of
law and that no sanctions of any nature can be imposed on him. The command
of sovereignty is superior to overall individuals and associations. The zero
accountability of the sovereign in Austin’s theory brings the whole country and
its people at the mercy of a single person who can decide someone’s life and
death according to his mood and personal whims. Also, because there is only
one body as sovereign, it is more prone to attacks and outside pressure from
foreign leading to political instability.

Austin seems to inject an anarchical element into the world order and was
probably giving an excuse for the worst excesses of 19th-century sovereigns
like Nazi Germany, slaughtering of Jewish people, world war, etc by imparting
sovereign absolute power. Sovereign is not bound to obey anyone’s order.
There is no question of right or wrong, just or unjust, all his commands are to be
obeyed. Again, the epitome of absolute power can corrupt absolutely. In modern
times, if such things into existence into any country, it will become much more
vulnerable to rebels, riots or even full-fledged war.

Also, Austin’s theory has mentioned that the powers of the sovereign are
indivisible, i.e. sovereign will make laws, the sovereign will execute the laws
and the sovereign only will administer the law. This philosophy is also in
contravention with the idea of democracy and the Indian federal structure.

In Golak Nath v. State of Punjab, it was clearly laid down that separation of
power is uncompromisable provision of the constitution by C.J. Subba Rao in
the following words: –

“The three organs of the government have to exercise their functions keeping in
mind certain encroachments assigned by the constitution. The constitution
demarcates the jurisdiction of the three organs minutely and expects them to be
exercised within their respective powers without overstepping their limits. All
the organs must function within the spheres allotted to them by the constitution.
No authority which is created by the constitution is supreme. The constitution of
India is sovereign and all the authorities must function under the supreme law of
the land i.e. the Constitution.”
Thus, we can infer from the above facts that all Austin’s theory is not suitable
for the modern Indian political and legal scenario because it leads to political
instability, anarchy, and social chaos.

5. Not cognizant of international law

In the modern era, there are multiple international laws every country has to
follow. The importance of international laws can be understood from the fact
that nowadays procedures exist to make the state liable for injuries caused to
foreigners in their land.

Various other principles of international law seem to have cored the concept of
sovereignty. A sovereign doesn’t have the power to perpetuate inhumane action
against his citizens as the same shall come into great criticism from the world
order and it shall soon have to face the consequences of surviving in a hostile
world atmosphere if it continues to do so.[9] Also, violation of International
laws is also not good for a nation’s socio-economic well-being leading to
serious crises and various other restrictions in terms of imports/exports.
Especially, in case of a country like India which is trying to boost its economy
and GDP by means of foreign investment and exports in recent times under the
campaign like Make in India. But Austin’s theory doesn’t give any room to
international laws/relations and makes sovereign the supreme and all-pervasive
authority of the land who is not answerable to any.

Thus, from the above facts, we can say that Austin’s theory is a bit impractical
to apply in the modern era of globalization and the influence of international
organizations like United Nation Security Council (UNSC), International
Monetary Fund (IMF), United Nation Human Rights Commission (UNHRC).

Conclusion
In the light of the above discussion, we can say that Austin’s theory is not quite
relevant to India in modern times as it does not take into consideration multiple
things like international law, separation of power, democratic form of
government, etc which have let India maintain its integrity, unity & prosperity
and flourish over the course of time from the colonial British rule to the biggest
democracy of the world. Also, because of India’s vast cultural, religious
heritage and having the most youth in the world, not everything can be done in
accordance with the almost 150 years old theory formed under extreme
legislative conditions.

But it can’t be denied that Austin’s work has made a very significant
contribution in the evolution of law and Jurisprudence as a subject. Austin was
the one of the jurists who were able to articulate law with such simplicity and
clarity which has opened up the way for other jurists to evolve that work in
modern day legal system.