Critically explain the Austin’s theory of sovereignty. Where does sovereignty reside in India


Q. 19(d). What do you mean by Sovereignty ? Critically explain the Austin’s theory of sovereignty. Where does sovereignty reside in India ? 

Ans. Meaning of Sovereignty-It is to be noted that the term Sover-eignty is one of the chief attributes of statehood. This term was for the first time introduced by the French political thinker Jean Bodin. The word `sovereignty’ is derived from French word `soverain’, which in its own turn was derived from the latin word `suprifus’ which meant a supreme authority having no other authority above it. This original notion of sov-ereignty, however, has no importance in the modern context because sovereignty now signifies supreme power of law-making.

In its popular sense, the term sovereignty means supremacy or right to command obedience. A sovereign State is one which is not subordinate to any other State and is supreme over the territory under its control. Its commands are necessarily to be obeyed by all men and associations within its territory.

Bryce is of the opinion that “Legal sovereignty lies in that authority, be it a person or a body, whose expressed will shall bind others, and whose will is not liable to be overruled by the expressed will of anyone placed above him or it”. Thus, in the modern sense the sovereign is that person or body which is the supreme legislative authority in a given State.

Austin’s Theory of Sovereignty—According to Austin, the nature of sovereignty may be explained as under —

“If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society and the society, including the superior is the society political and independent. To that determinate superior, the other members of the society are dependent. The position of its other members towards the determinate superior is a state of subjection or a state of dependence, the mutual relation which subsists between that superior and them may be styled the relation of sovereign and subject or the relation of sovereignty and subjection.”

Attributes of Sovereignty—

According to Bodin, Hobbes, Austin and Salmond there are following three attributes of sovereignty—

1. Essentiality —According to Austin, in every political commu-nity a sovereign power is indispensable or necessary. Austin thinks of “determinate person or persons” as sovereign in every politically organised society. In respect of a state’s relationship vis-a-vis its own subjects and international states and organisations, the existence of a supreme power from both angles ‘external; and ‘internal’ is essential. A State without a sovereign is like a man without soul. An essential feature of the indispensability of a sovereign is that it is continuous and, it is that determinate person or persons whose will ultimately prevails within that community. Austin has rejected the idea of `half or imperfectly supreme’. He says that, I believe that no Government is sovereign and subject at once : that no Government can be styled with propriety half or imperfect supreme.

2. Indivisibility—Austin is of the opinion that sovereign power is indivisible, it cannot be divided between different units and groups. If the power of the sovereign cannot be legally limited, it follows that it is inca-pable of division. That sovereign power must vest and rest in one single determinate person or body of persons like the British Parliament. In every State there is one and only one person or defined group which is politi-cally supreme and in whom the totality of sovereign power is vested. Sovereign power, in other words, is indivisible and cannot be shared be-tween two or more persons or bodies of persons.

3. Illimitability—Austin is of the view that sovereign power is unlimited for no sovereign can be controlled by its own commands. In other words, to Austin the authority of the sovereign is not only indivis-ible but also unlimited in extent and scope. By this Austin means that there can be no legal limitation on sovereign power. Does it mean can there be a de facto limitation ? Yes, Austin admits sovereign power may have de facto, limitation. The effective power of the sovereign is dependent on two factors: first, coercive force which he has at his command; and, second, the docile disposition of the people. Since there two things have practical limits, it follows that sovereignty too is limited de facto. What, however, Austin asserts that there can be no legal limitation on sovereign power. In the words of Austin, Monarchs and sovereign bodies have attempted to oblige themselves, or to oblige the successors to their sover-eign powers. But inspite of the laws which sovereigns have imposed on themselves, or which they have imposed on the successors to their sovereign powers, that position that ‘sovereign power is incapable of legal limitation’ will hold universally or without exception.

Criticism of Austin’s Theory of Sovereignty —

1. According to Bryce, Austin’s theory of indivisible sovereignty breaks down in case of federal States in which power is divided into legislative, executive and judicial sovereignty. These three branches are quite independent of each other in a federal Constitution. Thus, Bryce suggests that legislative sov-ereignty is divisible and it may be concurrently vested in different persons or bodies co-ordinating together wholly or partially, through acting in different spheres. For Example —In India, the executive sovereignty lies in the President of India as he is the supreme executive and his executive powers cannot be impaired. But in the legislative sphere, Parliament is supreme legislative authority since President’s power to withhold assent is limited.

2. According to Laski, there are three main implications of the Austin’s theory of sovereignty. Firstly, the State is a legal order in which there is a determinate authority acting as the ultimate source of power, its authority is unlimited even if it acts dishonestly or unwisely. Secondly, command is the essence of law, that is if the order comes from the sover-eign, it must be obeyed and its disobedience shall result into punishment. Thirdly, in every independent political society, there is a sovereign Dower which extracts habitual obedience from the bulk of the members of the society. Sovereignty is the source of law and its legal powers are unlim-ited.

3. Laski again pointed out that “no sovereign has anywhere pos-sessed unlimited power and the attempt to exert it has always resulted in the establishments of safeguards”. Even the British Parliament does not enjoy absolute powers in actual practice because though legally it can outrage public opinion, but its results are bound to be disastrous for its very existence. The influence of other associations within the State is no less important than the State itself as a sovereign.

4. Criticising Austin’s concept of monistic theory of sovereignty, Dicey pointed out that in a democratic State the legal sovereign is that person or body of persons who have power to make the law, i.e., Parlia-ment whereas the political sovereign is electorate whose will ultimately prevails and the legal sovereign is bound to act according the will of the people, by which he meant public opinion. Thus, in democratic States, although Parliament is the legal sovereignty but it is the electorate who are political sovereign and whose will expressed in the form of public opinion, the Parliament is bound to following in law-making.

Where. Does Sovereignty Reside in India ?—

It is to be noted that Austin’s theory of indivisibility and illimitability of the sovereignty does not find any support from Indian Constitution. India’s constitution is a federal one like that of U.S.A., but with some of its unique features which is not available even under the Constitution of U.S.A. In India ‘executive sovereignty’ is vested in the President.

So far as ‘legislative sovereignty’ is concerned it is vested in the Parliament of India constituting : the President, the Rajya Sabha and the Lok Sabha so also in State Legislatures. According to constitutional pro-visions, the legislative power is divided between the Parliament and the State Legislatures. Parliament can make the law on subjects listed in Union List. Similarly, State Legislatures can make the law on subjects listed in state list However, List-Ill, the concurrent list is open to both the Parliament as well as State Legislatures. But under certain cittumstances the Parliament can legislate even on subjects listed in State list. Thus, we can say that ‘legislative sovereignty’ is divided between the union and the states. Both are sovereign in their respective scope and sphere.

Thus, we can say that the concept of sovereignty as a supreme power, as an absolute power or an uncontrolled power does not find place unefcr Indian Constitution.