CRITICALLY ANALYSE SOVEREIGNTY AND INDEPENDENT POLITICAL

SOCIETY AND LOCATE SOVEREIGN IN INDIAN LEGAL SYASTEM

INTRODUCTION

The concept of sovereignty is an aspect that requires a comprehensive understanding in

the studying of legal systems today present paper is to study relevancy of Austin’s
concept sovereignty and relevancy in present Indian legal system .
According to Austin "The matter of jurisprudence is positive law, law sim-ply and
strictly so called or laws set by political superiors to political inferiors. A law, in the
most general acceptance in which the term is employed may be said to be a rule laid
down for the guidance of an intelligent being by an intelligent being having power over
him.. Of the laws set by men to men, some are set by political superiors, sovereigns; by
persons exercising supreme government, in independent nations or independent
political societies”

According to Austin the superiority which is styled sovereignty and the independent
political society that sovereignty implies is distinguished from other superiority and other
societies by the following characteristics-

1.The bulk of the given society are in a habit of obedience to a determinate and common
superior, that common superior could either be an individual or a certain body aggregate
of persons.

2. This individual or body of individuals is not in habit of obedience to a determinate

individual, though laws set by opinion ( laws improperly so called according to Austin)
may affect the conduct of this body but there is no determinate person or aggregate of
person to whose command this individual renders habitual obedience

In the early 19th century when Austin gave the definition of sovereignty , in federal
system it is very difficult to locate sovereign . he created distinction between the
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sovereign and members of sovereign . While the principle is clear that federal system is
based on division of power among legislative , judiciary , executive in order to see where
sovereignty resides we have to analyze power given constitution in reference to Austin.

INDEPNDENT POLITICAL SOCIETY

The definition of the term independent political society can not be rendered in
expressions of perfectly precise import, and is therefore a fallible test of specific or
particular cases. In order that a given society may form a society political and
independent, the positive and negative mark must unite. The generality or bulk of its
member must be in habit of obedience to a certain and common superior who is not in
habit of obedience to a certain person or the body.

"If a determinate human superior not in a habit of obedience to a superior receives

habitual obedience from the bulk of a given society that determinate superior is
sovereign that society, independent political society."

According to the Austin independent political society is consist of political superior,

political inferior and law is the result of command of sovereign. Thus independent
political society is necessary for application of Austin’s theory.

On all this there are several observation to be made

(a) Austin remark that sovereign has to receive “the habitual obedience from the
bulk of a given society.”
(b) The bulk of given society are in habit of obedience or submission to a
determinate and common superior, it can be person or group of person.
(c) That certain individual or that certain body of individuals is not in habit of
obedience to a determinate human superior.
(d) Other members of the society are dependent on the sovereign . Thus position
of its other members towards that determinate superior is a state of
subjection or a state of dependence.

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 (e) According to Austin sovereign is part of independent sovereign but society is
not part of sovereignty. In order that a given society may form a society
political, the bulk of its member must habitually obey superior determinate as
well as common

The bulk of the given society are in a habit of obedience to a determinate and common
superior, that common superior could either be an individual or a certain body aggregate
of persons.

(i) Austin used the term bulk which means “ all most all “

(ii) Austin bleave subordinate is habit of obedience to a determinate and common

superior which means people follow command without any fear or coercion but have a
habit to follow the command e.g. people of Pakistan follow laws Ayub Khan replaced
constitution .

(iii) determinate human superior – Austin superior should be

determinate which means a person or body of person is capable of being
identified in given time period

(f) In order that an independent society may form a society political it must not
fall short of number which can not be fixed with precision, but which may be
called considerable or not extremely minute.

AUSTIN’S THEORY OF LAW

The work of the English jurist John Austin (1790-1859) remains the most comprehensive
and important attempt to formulate a system of analytical legal positivism in the context
of the modern state

Austin for his legal system has created a categorical classification of laws. The first
division of law is that into laws set by God to men (law of God), and laws set by men to
men (human laws). The former class of laws is of no real juristic significance in Austin’s
system, compared, for example with the scholastic teaching which establishes an organic

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relation between divine and human law. In Austin’s positivist system, which refuses to
relate law to goodness or badness, the law of God seems to fulfill no other function than
that of serving as a receptacle for Austin’s utilitarian beliefs. The principle of utility is the
law of God.

Human laws are divisible into laws properly so called (positive law) and laws improperly
so called. The former are either laws set by political superiors (either ‘supreme’ or ‘sub-
ordinate’) to political sub-ordinates (such as statutes and buy-laws), or laws set by
subjects, as private person’s in pursuance of legal rights granted to them.

The positive law or ‘law properly so called, which remains is characterized by four
elements, command, sanction, duty and sovereignty:
Laws properly so called are species of commands. But, being a command, every law
properly so called flows from a determined source . . . whenever a command is expressed
or intimated, one party signifies a wish that another shall do or forbear; and the latter is
obnoxious to an evil which the former intends to inflict in case the wish be disregarded. .

. . Every sanction properly so called is an eventual evil annexed to a command . . . Every

duty properly so called supposes a command by which it is created . . . and duty properly
so called is obnoxious to evils of the kind.

The science of jurisprudence is concerned with positive laws, or with laws strictly so
called, as considered without regard to their goodness or badness

All positive law is deduced from a clearly determinable law-giver as sovereign.

Every positive law, or every law simply and strictly so called, is set by a sovereign or a
sovereign body of persons, to a member or members of the independent political society
wherein that person or body is sovereign or supreme.

Austin subdivided laws ‘properly so called’ into laws set by God, Divine laws, and laws
set by men to men acting as political superiors or in pursuance of rights conferred by
political superiors. Then he applied the term ‘positive law’ to every law set by men to

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men or what he called the ‘law simply and strictly so called’ so as to distinguish them
from the laws of God. ‘Positive laws’ are the subject matter of jurisprudence. Separate
from all these are the laws set by men to men neither as political superiors, not in
pursuance of rights conferred upon them by such superiors. They are still ‘laws properly
so called’ because they are commands, but he distinguished them from positive law by
giving them the term ‘positive morality’

Under the head of laws ‘improperly so called’ Austin placed, first of all, ‘laws by
analogy’, i.e., laws set and enforced by mere opinion, such as the laws of fashion,
international law and so forth. These also Austin termed ‘positive morality’ – ‘positive’
so as to distinguish them from the laws of God, ‘morality’ so as to distinguish them from
positive law or law strictly so called. Laws ‘improperly so called’ also included ‘laws by
metaphor’.

CONCEPT SOVEREIGN AND AUSTIN:

Austin's Concept Of Sovereignty.

Austin's concept of sovereignty has been discussed in his book ' Province of
Jurisprudence Determined’ .He uses the concept of sovereignty to define law and the
content of jurisprudence. In his own words
"The matter of jurisprudence is positive law, law simply and strictly so called or laws
set by political superiors to political inferiors. A law, in the most general acceptance in
which the term is employed may be said to be a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.. Of the laws set by men
to men, some are set by political superiors, sovereigns; by persons exercising supreme
government, in independent nations or independent political societies [this is the
subject mater of positive science of law"
According to Austin the superiority which is styled sovereignty and the independent

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political society that sovereignty implies is distinguished from other superiority and other
societies by the following characteristics-

1. The bulk of the given society are in a habit of obedience to a determinate and
common superior, that common superior could either be an individual or a certain body
aggregate of persons.

(i) Austin used the term bulk which means “ all most all “

(ii) Austin bleave subordinate is habit of obedience to a determinate and common

superior which means people follow command without any fear or coercion but have a
habit to follow the command e.g. people of Pakistan follow laws Ayub Khan replaced
constitution .

(iii) determinate human superior – Austin superior should be determinate which

means a person or body of person is capable of being identified in given time period.

2. This individual or body of individuals is not in habit of obedience to a determinate

individual, though laws set by opinion ( laws improperly so called according to Austin)
may affect the conduct of this body but there is no determinate person or aggregate of
person to whose command this individual renders habitual obedience.

To define it in words of Austin "If a determinate human superior not in a habit of

obedience to a superior receives habitual obedience from the bulk of a given society
that determinate superior is sovereign that society, independent political society."

If there can be any limitation on sovereign’s power?-.

Since every law in an independent political society is set directly or indirectly by a

sovereign person to a person in a state of subjection to its author, therefore it follows
from the nature of sovereign that the power of a monarch is incapable of legal limitation.
If a monarch was bound by the commands of another superior he cannot be the sovereign.

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The power of the sovereign imposing restraints would be free from fetters of positive
law. According to Austin even though sovereign bodies have attempted to oblige
themselves or to oblige their successors to their sovereign powers the position that they
are incapable of any limitation will hold true universally. He clearly states that the laws
imposed by sovereign on themselves are merely "rules of positive morality", they are
merely principle that they adopt as guidelines, sovereign is not constrained to observe it
by a legal or political sanction, for if the sovereign was legally bound to observe it, the
sovereign would be in a sate of subjection to a higher superior or sovereign.

Rationale behind obeying a sovereign –

Why people accept the authority? –

According to Austin political inferior has habit to follow the command of sovereign.
The purpose for which the sovereign exists is the greatest possible advancement of
human happiness, of the people of the community which the deity has commanded it to
rule. From this proper purpose for which sovereign exists, Austin infers the cause of
habitual obedience which he says is bottomed in the principle of utility. If the enlightened
masses thought that sovereign accomplished its proper purpose, this would be their
motive to obey.

If they deemed the government to be faulty a fear that the evil of resistance might
surpass the evil of obedience would be their inducement to summit to the sovereign, for
they would not persist in obedience to a government which they deemed imperfect if they
thought a better government might probably be got by resistance. But Austin takes into
account also those who are not adequately informed or enlightened, he says that such
people render obedience as a consequence of custom, they pay obedience as they are in a
habit of obeying, here prejudice (prejudice here refers to opinion and sentiments which
have no foundation in the principle of general utility) and not utility is the factor that is
responsible for obedience. The habitual obedience arises from a perception by the bulk of
the community of the utility of the government or a preference of any government to

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anarchy. Thus according to him the general cause of permanence of government is that
the general masses were desirous of escaping to a state of government from a state of
anarchy. Thus they submit freely or voluntarily to a sovereign

If a determinate human superior, not in a habit of obedience to a like superior,

receive habitual obedience from the bulk of a given society, that determinate superior is
sovereign in that society, and the society (including the superior) is a society political and
independent.

Austin explains that the superior may be an individual or a body or aggregate of

individuals. The sovereign is not himself bound by any legal limitations, whether
imposed by superior principles or by his own laws. Any higher principles or self-
limitations are merely guides which the sovereign may discard.

If there can be any limitation on the sovereign?-

Power of sovereign is unlimited and in limitable Acc Dias” British parliament can do
every thing except changing man into women and women into man” . Since every law
in an independent political society is set directly or indirectly by a sovereign person to a
person in a state of subjection to its author, therefore it follows from the nature of
sovereign that the power of a monarch is incapable of legal limitation. If a monarch was
bound by the commands of another superior he cannot be the sovereign. The power of the
sovereign imposing restraints would be free from fetters of positive law. According to
Austin even though sovereign bodies have attempted to oblige themselves or to oblige
their successors to their sovereign powers the position that they are incapable of any
limitation will hold true universally. He clearly states that the laws imposed by sovereign
on themselves are merely "rules of positive morality", they are merely principle that
they adopt as guidelines, sovereign is not constrained to observe it by a legal or political
sanction, for if the sovereign was legally bound to observe it, the sovereign would be in a
sate of subjection to a higher superior or sovereign. Thus According to Austin sovereign
is can’t be limited , power is universal and power is undividable .

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Command: An Element Of Law

1. Law is command of sovereign. Dias said Law is law because it is made by sovereign
and sovereign is sovereign because he make the law
It is highly necessary to understand the meaning of command as referred by Austin
before proceeding any further. ‘Command’ is distinct from requests, wishes and so on. As
per Austin, all the rest are simply expression of desire, while commands are expressions
of desire given by superiors to inferiors. This creates an hierarchy of status among those
governed and those governing. The governed are bound by the desires expressed by the
superiors and cannot demur. This relationship of superior to inferior consists for Austin in
the power which the former enjoys over the latter, i.e. his ability to punish him for
disobedience. Consequently, the subjection of the inferior to the superior consists in his
ability to suffer a penalty for disobedience. In a sense, then, the idea of a sanction is built
into the Austinian notion of command.

2. Austin himself said that ‘law is a species of command’, and not vice versa. Thus, it
again becomes important to understand what is the characteristic feature of law which
distinguishes it from rest of the commands . Here, reference can be made to Salmond ,
where he tries explaining this with the help of an illustration. Suppose a state governed by
an absolute ruler R. Here the law is what R commands. But the converse might not be
true. All commands by R are not law. He may command his servants to prepare for the
banquet. This is not law. We have to distinguish law and instructions, e.g., to close the
window, to turn up the heater, etc. R being an absolute ruler could have his servants
executed for disobedience even otherwise . Austin distinguishes laws from other
command by their generality, and laws he classified are general commands . But then he
himself says that there can be exceptions. Generality alone, then, is neither necessary nor
sufficient to serve as the distinguishing feature of law.

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3. Command is different from request thus even request may in form but subject is bound
by it thus it is psychological process which generate in mind . E.g. subordinate courts are
bound by recommendations of inferior courts

4 Austin has said that jurisprudence is concerned not with what law ought to be but with
the question what law is, and seeks to define law, not by reference to its content but
according to the formal criteria which differentiate legal rules from other rules such as
those of morals, etiquette, and others. Though this approach is often criticized as sterile
and inadequate because it fails to take moral considerations into account, it was never
intended by such exponents as Austin to exclude the problem of evaluating law; but in
fact analysis was considered as the first of the preliminary task of critical assessment.

According to Austin, positive law has three characteristic features:

(a) it is type of command
(b) it is laid down by a political sovereign
(c) it is enforceable by a sanction

For to qualify as law, a command must have been given by a political superior, or
sovereign. This is what he calls ‘laws properly so called’. Following then above
discussion, 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 person or
persons. The latter proviso serves to exclude viceroys, colonial governors and so forth,
who are obeyed by those whom they rule, but who are not there own masters but are
subordinate to a higher ruler. Accordingly, one difference between the order of a gunman
and the decree of a dictator is that the latter enjoys a general measure of obedience while
the former secures a much more limited compliance

5. Austin believe there is no restriction on power of sovereign yet he said general

command alone constitute law not specific

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CRITICISMS AND THEIR EVALUATION

Austin was a positivist thinker of his time.His theory has been criticised by various
authors.

To start with, Dias in his writings have criticized Austin. First he said that Austin could
not explain the existence of international law; and secondly, he said that linking means of
securing obedience to identification of law was to confuse law with functioning of it.
Today we see that various other principles of international law seem to have cored the
concept of sovereignty. A sovereign does not 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.

.Friedman has also been among those who have criticized Austin for his theory. His
main critisim of Austin has been on the aspect of law being the species of command.
Austin considered all kinds of legal acts, whether statutes, decrees, by-laws, contracts,
administrative and judicial acts, represent different stages in the unfolding of the law and
acquire the character of legal acts by the sanction of the ultimate law giving authority.
But why not consider the fact that all these are further subject to the mechanism of
judicial control which may then condemn the actions by the all powerful State. Austin did
not provide an explanation to this. Might be, under the conditions under which he wrote,
the parliament in England was all-supreme and the courts could not have gone beyond the
express provisions of the law. But today, after the cases of Wednesbury Corporation Case
and Ridge v. Baldwin the position has changed and the judiciary has let out the task to
correct inaction on part of the mighty State. The recent example of Bihar Assembly

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Dissolution can be taken into account, which authenticates that today the rule is not the
classical of ‘might being right’.

Regarding international law also Austin has been severely criticized. The sovereign to
exist has to have a relation with the world at large and have to have a dealing with them.
We cannot in todays world create two pigeon holes with one having a international law
and the other with municipal law; and both being exclusive from one another. Austin has
been perplexed in appreciating and contemplating the future situations. A sovereign is
one who is internally supreme and externally free.

Salmond has critically examined Austin and has provided for various criticisms against
his theory. The first of his criticism being that the greater part of a legal system consists
of laws which neither command nor forbid things to be done, but which empower people
by certain means to achieve certain results. For this he cites the example of those laws
which empower the citizens the right to vote, laws concerning making of wills etc. At this
point the theory could be saved by arguing that a rule conferring a right on one person is
really an indirect command addressed to another: a law empowering the citizen to vote is
really an order to the returning officer to register the vote. But this saves the theory at too
high a price. To regard a law conferring power on one person as in fact an indirect order
to another is to distort its nature. Thus, Salmond says that such rules shall be different
from the commands which are made directly addressed to a person like “do not steal”.
Hence it is very remote to justify law in such a fashion.

Further, the word command suggests the existence of a separate commander. But this
may not be true for the modern day nation state. The power has been dispersed in the
hands of various agencies of the State. The State itself is divided into federal structure,
thereby making a dent in the original theory of Austin where he said that the sovereignty
is indivisible and is immutable. Thus, the definite ascertained body which reaps
uncontrolled power does not exit in reality.

Moreover, command conjures the picture of an order given by one particular commander
on one particular occasion for the recipient I.e., the masses. But laws do continue even

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after the law giving sovereign ceases. How can Austin justify such a situation. One can
defend this by arguing that the continuation of the laws will depend on the will of the
present sovereign. He is free to repeal the existing laws and is also free to bring in some
new law replacing the earlier laws. And if he allows the continuation of the existing laws,
means he has commanded the continuation. This should be taken as the tacit command
and hence, the theory is defended. But one should not forget the point that there may be
laws and legal provisions which the sovereign cannot change and no repealing power is
left for the present and changing sovereigns. Few examples can be given that of the
constitutional provisions. There are certain provisions which even if the parliament
wishes, cannot change or repeal. Austin cannot justify this being in his theory. The
judiciary has created the ‘basic structure’ of the Constitution in Kesavanand Bharati Case
and the provisions enumerated there are beyond the amending powers of the parliament
and the house. The list was not exhaustive and the list is increasing day by day. They
cannot entrench this line. Thus, Austin’s theory ceases here.

There further exists a confusion that Salmond highlights regarding sovereign. He says
that sovereignty lies not in power but in having authority. Austin was bewildered when
he setout to identify sovereign in England. At first he sights the sovereign is a composite
body comprising the Crown, the House of Lords and the House of Commons. But since
the latter house is elected and must therefore ultimately obey the electorate, the House of
Commons cannot on Austin's theory qualify as part of the sovereign. Accordingly he
concludes that the real sovereign is that body which consists of the Crown, the House of
Lords and the commons themselves. In fact, however, this larger body never issues any
orders or decrees, nor, if it did, would they qualify as law under our present constitution.
The real sovereign is, in fact, the Crown, the House of Lords and the House of Commons,
whose enactments, whether made at the instance of or at the request or under the pressure
of the electorate, the city, the trade unions or in general, what the electorate wills,
continue to count as law. Hence it now becomes difficult to accept the preposition that
sovereign is not in the habit of obeying others.

Hart says, in many societies, it is hard to identify a “sovereign” in Austin's sense of the
word .Additionally, a focus on a “sovereign” makes it difficult to explain the continuity

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of legal systems: a new ruler will not come in with the kind of “habit of obedience” that
Austen sets as a criterion for a system's rule-maker. A few responses are available to
those who would defend Austin. First, some commentators have argued that Austin is
here misunderstood, in that he always meant “by the sovereign the office or institution
which embodies supreme authority; never the individuals who happen to hold that office
or embody that institution at any given time” Secondly, one could argue (Harris 1977)
that the sovereign is best understood as a constructive metaphor: that law should be
viewed as if it reflected the view of a single will

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958,
1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory
did not try to reduce all laws to one kind of rule, but emphasized the varying types and
functions of legal rules; and Hart's theory, grounded partly on the distinction between
“obligation” and “being obliged,” was built around the fact that some participants within
legal systems “accepted” the legal rules as reasons for action, above and beyond the fear
of sanctions.

THE NATURE OF AUSTIN’S SOVEREIGN AND INDIAN LEGAL SYSTEM

In his lecture Austin asserts that subjection is the correlative of sovereignty and
sovereignty is inseparable connected with expression ‘independent political society’. The
sovereign in the independent political society is divided into two parts; the portion of the
sovereign and the portion to which its member are subject. Austin contends that in order
to merge the latter with the former it would necessary to find a political sovereign in
which all the members are adults of sound mind.

People Of India Are Sovereign?

The preamble begins with words, “we the people of India” thus clearly indicating the
source of all authority of the constitution. The constitutional significance of the insertion
of these words in the preamble needs hardly be emphasizes the sovereignty of the people
and the fact that all powers of government flow from the people. I t is the people of India
from whose authority the constitution rest. The preamble surmises that it the people of
India who are the authors of the constitution. Dr. Ambedkar stated “I would like hon’ble

14
 members to consider also the preamble of the constitution of the United States ‘we the
people of united states……….’ Therefore it also refers that sovereignty vested in peoples
similarly in case of India.”
1) It was held in the Keshavnanda bharti’s case that preamble is the basic structure of
the Indian constitution and therefore it can not be amended. But according to he Austin
sovereign should be determinate human superior but this point lacks in this context.
2) People transplant their power to the legislature and they follow the orders of the
political superior so they can’t be sovereign. According to the Austin the sovereign is
unlimited and inlimitable, but the peoples have to follow the laws of legislature.
Ultimately we can say that according to Austin sovereignty can’t be vested in
peoples.

IF PARLIAMENT IS SOVEREIGN?
How far parliament satisfies the Austin’s basic requirement for the sovereignty-
1. Parliament is a body of person so it satisfies the Austin’s basic requirement for the
sovereignty;
2. Parliament also has the power to command the people of India.
3. Bulk of society yield habitual obedience towards it.
Points which parliament does not satisfy-
1. As per the Austin the sovereign is unlimited and illimitable. According to AV
Dicey “british parliament can do anything except changing the man into women
and women into men” this shows the parliament should be supreme and should
not be backed by any limitation, but in case of India has to work within four
walls of the constitution(Article246,21,14 etc.).
2. Any law made by the parliament can be declared void by the judiciary if it
violates any of the of the fundamental rights of the individual under the concept
of judicial review. So here we can say that the parliament do not have the
unlimited powers.

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  Indira Gandhi v/s Raj Narain,1
In this case Court had the daunting task to address the issue of parliamentary
sovereignty and checks and restrains on the powers of parliament. Emphasizing that
absolute sovereignty does not exist in India, the court looked into the nature of sovereign
and stated that ‘sovereign’, if conceived of as an omnipotent being, has no existence in
the real world. Several thoughtful writers have deprecated the use of the expression in
legal discussion as it has theological and religious overtones. Nevertheless as the practice
has become inveterate it will only create confusion if any departure is made in this case
from the practice. If it is made clear that sovereign is not a ‘mortal God’ and can express
himself or itself only in the manner and form prescribed by the law and can be sovereign
only when he or it act in a certain way also prescribed by law, then perhaps the use of the
expression will have no harmful consequences.
Legal Sovereignty according to court , is the capacity to determine the action of
person in certain intended way by means of a law were the action of those who exercise
the authority, in those respect in which they do exercise it, are not subject to any exercise
by other person of the kind of authority which they are exercising. The parliament in
India does not have sovereign power to make any law it wishes, but is sovereign over the
law that is just by procedure. Understanding the above by an Austinian notion of
sovereignty, the Parliament is just a member of sovereign and not the sovereign itself. Its
powers are subject to some higher authority, which in the opinion the court is the
Constitution and more specifically article 13[2] of the Constitution.

 Golak Nath v/s State of Punjab2

In sum the Golaknath case decided that the constitution did not provide for a specific
power to take away or abridge the fundamental right enshrined in the part III of the
constitution, even by an amendment under article 368 and suggested that a constituent
assembly could be summoned for this purpose by parliament in the exercise of its

1
AIR 1975 sc 2299.
2
AIR 1967 SC 1643

16
residuary power contained in entry 97 of list I of the seventh schedule read with article
248. This decision lead to the passing of the constitution [twenty-fourth amendment] Act
1971, which made significant changes in article368.
Chief Justice, Subba Rao supported his judgment on the following reasoning-
1. The chief justice rejected the argument that power to amend the
constitution was the sovereign power and the said power was supreme to
the legislative power and that it did not permit any implied limitation and
that amendments made in exercise of that power involve political question
and that therefore they were outside the judicial review.
2. The power of parliament to amend the constitution is derived from article
245, read with entry 97 of list I of the constitution and not from article
368. Article 368 lays down merely the procedure for amendment of the
constitution. Amendment is the legislative process.
3. An amendment is the ‘law’ within meaning of article 13[2] and therefore
if it violates any of the fundamental rights it may be declared void. The
word ‘law’ in article 13[2] includes every kind of law, statutory as well as
constitutional law and hence a constitutional amendment which
contravene article 13[2] will be declared void.
The chief justice said that the fundamental rights are assigned transcendental
place under our constitution and therefore they are kept beyond the reach of parliament.
The chief justice applied the doctrine of prospective overruling and held that this decision
will have only prospective operation and, therefore, the 1st, 4th and 17th will continue to be
valid. It means all cases decided before Golak Naths case remain valid.
Keshavananda Bharti v/s Union of India3
In this case while laying down the structure for the basic structure doctrine, Nani
Pakiwala argued that all organizations are the very creation of the constitution and hence
non of these bodies can place themselves above it. In a sense every legal authority is
Subject to the provision of the constitution and the parliament, which is one of its
outcomes cannot destroy its basic foundation. It is not surprising then that all the eleven

3
AIR 1973SC 1461

17
judgments in some way or the other recognized this theory and the majority completely
abided by it.
Emphasizing that certain aspects of the constitution are inalienable, the court also
propounded the basic structure doctrine. Seven of the thirteen judges in the
Keshavananda Bharti case, including chief justice Sikri who signed the summary
statement, declared that parliament’s constituent power was subject to inherent limitation.
Parliament could not use its amending power under Article 368 to damage, emasculate,
destroy, change or alter the basic structure or framework of the constitution.
Basic structure doctrine has established the supremacy of the constitution
and that no member of the sovereign i.e. the legislature, judiciary or executive shall place
himself above it. All organization are subject to constitution and its principles are non-
derogable. The idea of sovereign has been subjected to certain exceptions. Questions are
raised if rights ascribed in the constitution are to be given priority over the exercise of
government control, why it is that we ourselves create the exceptions to the principle in
the times of emergency and in dealing with acts like terrorism. Another perturbing issue
is the abrogation of the fundamental laws by the armed force in various areas that seeks
to place them above the constitution in certain circumstances.

exception
State of exception in the Indian context involved many aspect, here I would like to focus
on the three main issues; emergency, terrorism, and armed forces.
 Emergency-
 ADM Jabalpur v/s Shivkant Shukla4
In this case Supreme Court held that a Presidential order issued during the
proclamation of emergency taking away the fundamental rights guaranteed under the
article 14, 21, and 22 was perfectly constitutional in nature. Here the Supreme Court
became the guardian of sovereign action and not the protector of fundamental rights.
This case brings an ambiguity to the point as to whether the constitution is an
instrument to further sovereign interest or the guardian on fundamental freedoms? Can
member of the sovereign who are subjected to the constitution violate the exceptions that

4
AIR 1976VSC 1207

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they created to the basic structure and place themselves above law? Agamben rightly
pointed out in this regard that the state of exception is the creation of sovereign to
exercise greater control and reduce citizen to bare life or homo sacer.5

 Terrorism-
 Kartar Singh v/s State of Punjab6
In this case court upheld the validity of the Terrorist and Anti- Disruptive Activities
Act, 1985 and 1987 claiming them to be the need of hour to handle the menace of
terrorism. The consequence was legalizing confessions made before a police officer,
extending the limit of habeas corpus, limitless search power and discretion by the officer
to declare anyone as a terrorist and an area as a terrorist affected area. Main point
emphasized in this case is that if a law ensures and protects the greater social interest,
then such a law will be regarded as a wholesome and beneficial law although it may
infringe the liberty of some individual. Such a law will ensure the liberty of a greater
number of the members of the society at the cost of one or few.

 Armed Forces-
 Masooda Parveen v/s Union of India7
In this case Supreme Court made important revelation as to the state of exception
and its application in the Indian context. It is infact shocking to even imagine the court
can create such an exception and give unbridled power to the army to handle the situation
in Kashmir.
Thus, Austin's notion that all laws come from the sovereign may be true theoretically,
and laws in our country (i.e. statue made laws at least) are a result of the act of the
politically superior that is the legislators but the same is not true practically as they are
not a reflection of the will of the superior in the real sense. Though many laws come
directly from the parliament , but they merely reflect the desire of these politicians to
maintain support of the major organized groups in the country and to meet their interests
satisfactorily. Under the conditions of the day the huge combination of labor capital ,
5 st
Giorgio Agamben, STATE OF EXCEPTION,1 ed. 2005, Univ. of Chicago Press.
6
1994 SCC[4] 569.
7
WP[Civ] 275 of 1999

19
capital , with their expert lobby sit and wealthy treasuries any group is able to compel
recognition and secure desired legislation. Only the fact that these groups are competing
amongst themselves prevents the government from becoming a helpless tools in their
hands. Even then the grinding impact of competing pressures upon the government
requires political astuteness of a high order to keep them satisfied and prevent the
withdrawal of support in the next elections. Thus we can say that Austins emphasis that
sovereign is the main stream of law is not just.. Law emanating only from the sovereign
may be fit for a totalitarian regime (which is soon becoming a rare phenomena in present
world order) where the government can use its monopoly of law making and executive
powers for the re shaping of laws in disregard of the democratic processes, but in a
democratic country like India the same is not possible. The interplay between the public
opinion and state action has become very complex these days whether we are concerned
with the abolition of dowry, the creation of legal remedies against administrative action
or the introduction of a new ground of divorce there is always some interrelation between
the state machinery that produces these changes and social opinion of the community in
which they are intended to operate. public opinion on vital issue is expressed through the
elected representatives in the house, and also through public discussion in press , radio,
public lectures .it can thus be concluded that legislative practices in our country provide
for opportunities to the public to participate in the legislative activities of those to whom
these powers are delegated.

IF CONSTITUTION OF INDIA IS A SOVERIGN ?

Constitution delegate power to different organs of some authors bleave sovereignty
vested in constitution as such organs get authority from constitution but it does not
satisfies many characteristics of sovereign .
Determinate human superior –
To define it in words of Austin "If a determinate human superior not in a habit of
obedience to a superior receives habitual obedience from the bulk of a given society
that determinate superior is sovereign that society, independent political society."

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Austin superior should be determinate which means a person or body of person is capable
of being identified in given time period. So as per Austin constitution is not a person or a
body of person and is not a determinate so it can’t be sovereign.
Thus we can say that sovereignty does not rest in one ordain of system but it rest in whole
so Austin’s sovereignty theory not apply .

Conclusion

Thus we can say as per above discussion that Austin’s theory of sovereignty did not seem
to be applicable in modern day democracies. Modern democracy based on division of
power every organ is free and supreme in its field, so there is no question of supremacy.
These organ work to establish welfare state
1. Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in
the Indian set up or any democracy. The sovereign does not have the power to
command anything that it desires. It is as much bound by rules and regulation
embodied in the constitution and other laws as any common man. Legislature is
bound by the constitution and in almost all cases court has the power to decide
whether an act done by the government is constitutional hence valid otherwise it
can be struck down.
2. Austin 's theory that law emanate only from the sovereign authority in India as
much as it would fail in other common law countries. There are various other very
important sources of law which cannot be ignored at all.
3. Austin does not include in his definition of law is Judge made laws , in this era of
judicial activism where judiciary does not only interpret law but also makes law this
category cannot be ignored. principles of justice, equity, good conscience are
important principles that are always kept in mind while implementing any law none
of them.
4. Austin postulates a political superior in a political society who is habitually obeyed
by the majority of the population. This means that sovereign is the highest authority

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 , the strongest authority in a political system. According to Austin sovereign is the
person who has the last word in a particular connection. But the issue is that how
can one determine the 'highest authority' in a democratic country like India , to
identify the strongest power would involve an investigation of a lot of legal as well
as well extra legal forces which determine how a state shall operate
"...at the Revolution, the sovereignty devolved on the people; and they are truly the
sovereigns of the country, but they are sovereigns without subjects...with none to
govern but themselves; the citizens of America are equal as fellow citizens, and as
joint tenants in the sovereignty."8
e.g. even though dowry is prohibited but it is still under practice which indicate that
sovereign command not only ground to decide behavior of people

8
CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp471-472

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