• Ms. Vanshika Jaiswal

The concept of 'Sovereignty' and 'Law'.

The first and foremost feature of Indian sovereignty is that constitution is the supreme law of the land , and all state organs including parliament, judiciary, states etc are bound by it. This article deals with the meaning of sovereignty and law along with the authority which is associated with the concept of sovereignty and need to be analysed. Without principles there are no legal definition completes so the article also contains the principles of sovereignty and the definition of law by different jurist.

Sovereignty:

Sovereignty in simple words is a supreme power but it’s not as simple as it looks. Sovereignty is the full right and power of a governing body over itself without interference from outside source of body.


PREAMBLE: We the people of India , having solemnly resolved to constitute India into SOVREIGN, SOCIALIST , SECULAR, DEMOCRATIC REPUBLIC and to secure to all the citizens JUSTICE, LIBERTY, EQUALITY AND FRATERNITY.


Sovereignty as observed is the legal authority which is supreme by nature or may be defined as supreme authority within a territory. Following the first step of clarification, each of the terms associated with the concept of sovereignty needs to be ‘analyzed’. First, the holder of sovereignty possesses ‘authority’.


Authority:

Authority as defined as the right to command and correlatively the right to be obeyed.” The term ‘Authority’ comprises of ‘power’ to command and the word right connotes ‘legitimacy’. Power gives competence to rule against the will of the people but when it gets augmented with legitimacy people accept and follow the laws spontaneously considering it in the welfare of the society. Thus, people obey will of the authority but when sometimes they ignore or challenge it they are liable to punishment implying that when legitimacy fails, power controls the situation. A holder of sovereignty derives authority for some mutually acknowledged source of legitimacy like natural law, a divine mandate, hereditary law, constitution etc. The term ‘legal’ associated with sovereignty means a sovereign has the authority to makes laws and everyone without exception needs to follow it. Sovereignty being ‘supreme’ implies that it is supreme not only to the other agencies or associations in the state but also to the custom, the norms of the society and even to the natural and divine law.


Basic aspects of Sovereignty:

  • EXTERNAL

  • INTERNAL

Internally speaking it means that state has supreme power over the people within its domain and externally it implies complete freedom from foreign rule. Thus, in a state, sovereign power is indispensable so as to free it from both the internal and external control. The concept of sovereignty as it developed includes a number of general features and also a series of distinctions. All of this helps to arrive at the correct meaning of sovereignty.


Distinction between (legal and political) and (De jure and De facto)

  • ‘Legal’ and ‘Political’ sovereignty: The first of this is the distinction between ‘legal’ and ‘political’ sovereignty. While legal sovereignty implies to the supreme law-making authority of a state, the political sovereignty means the will of the people. These terms are though superficially different but they are closely related to each other that is, though the legal sovereign has its unlimited power it cannot ignore the will of the ruled people. But at the same time, it is only possible in indirect democracy that the will of people and formation of law go together otherwise this connection between legal and political sovereignty indicates only the type of law which the public opinion demands.


  • De Jure and De Facto: Another distinction is made between ‘De jure’ and ‘De facto’ sovereignty. A De jure sovereign is given supreme power by the law. He rules and people obey him, although he may be less in physical strength. On the other hand, De facto sovereign is one whom the law of country does not recognize as a sovereign but he enjoys supreme power either by virtue of his physical strength or moral force. Thus, he may be a military dictator, a spiritual priest, traditional ruler etc. It is often seen that in due course of time a De facto sovereign obtains legal status and ultimately becomes De jure sovereign. This can be illustrated with the example of Bolshevik regime in Russia which from a De facto became a De jure regime.


Theory of Sovereignty:

According Austin’s Theory of Sovereignty the law is a command of the sovereign backed by sanction. For your better understanding breaking this definition:

'Command', 'Sovereign' and 'Sanction'


The first and foremost feature of Indian sovereignty is that constitution is the supreme law of the land , and all state organs including parliament, judiciary, states etc are bound by it. Before moving further first let’s discuss about definition of law, there are my schools of laws consist of many jurist defined law in a different manner let’s see in brief:

There are four schools:

  1. Analytical School of law: According to analytical school of law, law is a code of conduct to bind individual to behave in a particular manner and this is only possible when sovereign is absolute in nature. Law is a command of sovereign supported by sanction. Law cannot be mould according to his/ her perspective.

  2. Historical school of law: According to historical school of law follows the concept of man-made laws. Law is formulated for the people and by the people means law should be according to the changing needs of the people.

  3. Sociological school of law: According to sociological school of law means law which takes care about the society and then formed. Roscoe Pound (Jurist) said that law is a box of knowledge and this law is used to solve the problem of society for peaceful living.

  4. Natural school of law: According to natural school of law, comes from nature or morality and not created by society or judges.


Important Principles of Law:

Sovereignty includes various important principles or laws which are essential for its legitimate power-exercise over people;

  1. In the sphere of sovereignty when one owes his duty to the state, the state in turn is expected to provide complete protection to his life and property.

  2. In sovereignty there exists a logical relationship between duty and right. 3)

  3. Sovereignty refers to supreme power of the sovereign but this power is not employed without use of rationality and it gives due regards to custom, social values etc.

  4. All these factors gives sovereignty its legitimacy, otherwise it would perish in due course of time. Thus, sovereignty though by nature is absolute and unlimited but it is by no means an arbitrary power or is coercive by nature.


Law and Sovereignty:

Law is commonly refers to a system of rules crated and enforced through social or governmental institution to govern behaviour. The principles and regulation established in a community by some supreme authority (sovereign) and applicable to its people. Law is what sovereigns command and it cannot limit their power. Sovereign has an absolute power. In the consequences of such development, sovereignty ceased to be considered as synonymous with unrestricted power. States have accepted a considerable body of law limiting their sovereign right to act as they need.


In Mirza Ali Akbar Kasani vs United Arab Republic, the five judge bench of the supreme court held that section 86(1) CPC civil procedure code, modifies the international doctrine of sovereign immunity to a certain extent, and when a suit is instituted against a foreign state with the consent of the government, it is not open for a foreign state to rely upon the doctrine of sovereign immunity under international laws. See the case consist of the power of the sovereign, the role of the legislation in making laws fit for our country.

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