Sovereignty (In Jurisprudence)

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🔷 What is Sovereignty?

• The word “Sovereignty” means supreme power or authority.

• In Jurisprudence, sovereignty refers to the ultimate power to make, change, and enforce laws in a state.

• The sovereign is the highest authority in a legal system.

"Sovereignty is that power which is absolute, unlimited, and supreme over all individuals or institutions in a state."

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🔶 Definitions

❖ John Austin:

“Sovereignty is the supreme power in a state over citizens and subjects, which is not bound by any human law.”

❖ Jean Bodin:

“Sovereignty is the supreme power over citizens and subjects, unrestrained by law.”

❖ Blackstone:

“Sovereignty is the supreme irresistible power in the state to which all others are subordinate.”

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🔷 Characteristics of Sovereignty

1. Supreme – Highest authority; no one above it.

2. Absolute – Cannot be challenged by anyone within the state.

3. Permanent – It does not end with a ruler’s death or government change.

4. Indivisible – Cannot be shared; one sovereign power.

5. Inalienable – Cannot be transferred or given away.

6. All-comprehensive – Applies to all areas of law and governance.

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🔶 Types of Sovereignty

1. Legal Sovereignty

• The law-making authority of a state.

• Example: In India, Parliament is the legal sovereign.

2. Political Sovereignty

• The power behind the law, like the people or electorate.

• Example: Voters elect leaders; people have political sovereignty.

3. Internal Sovereignty

• Power within the country over its own citizens.

4. External Sovereignty

• Power to act independently in international affairs.

• No other country should interfere in another country’s affairs.

5. Popular Sovereignty

• Power lies with the people.

• Seen in democratic countries like India, USA.

6. De Facto Sovereignty

• Power held in practice (but not legally recognized).

• Example: A military dictator.

7. De Jure Sovereignty

• Power held legally and officially.

• Example: The government recognized by the Constitution.

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🔷 Sovereignty in India

• The Preamble of the Indian Constitution declares that India is a Sovereign country.

• This means:

  • India can make its own laws.

  • India is not controlled by any foreign power.

  • People of India have the ultimate power.

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🔶 Views of Different Jurists

Jurist	View on Sovereignty
John Austin	Sovereignty is absolute and resides in a person or group who gives law to others (Command theory).
Jean Bodin	First to introduce the concept of sovereignty in modern sense – supreme power over citizens.
H.L.A. Hart	Sovereignty is not only about power but also about rules and institutions.
Duguit	Denied absolute sovereignty. Power should serve the society.
Kelsen	Sovereignty is found in the basic norm (Grundnorm) – the highest rule in a legal system.

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🔷 Austin’s Theory of Sovereignty (Command Theory)

John Austin's theory is also known as the Command Theory:

• Law = Command of the Sovereign.

• Sovereign = The one whom people obey but who obeys no one.

• Sovereign is:

  • Human superior

  • Unlimited

  • Indivisible

❌ Criticisms of Austin's Theory

• Not suitable for democracies.

• Ignores public opinion and fundamental rights.

• Doesn’t explain constitutional limitations.

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🔶 Modern Concept of Sovereignty

In modern times, sovereignty is not absolute. It is limited by:

1. Constitution – Even Parliament must follow the Constitution.

2. Judicial Review – Courts can strike down unconstitutional laws.

3. Fundamental Rights – People's rights must be protected.

4. International Law – Countries follow UN Charter, Treaties, etc.

5. Globalization – World organizations like WTO, IMF also influence national decisions.

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🔷 Difference Between Sovereignty and Power

Sovereignty	Power
Legal and political authority	Ability to influence or control people
Recognized officially	May not be recognized
Long-term and stable	Can be temporary

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🔶 Significance of Sovereignty

1. Law-making Power – Helps in creating and enforcing laws.

2. Maintains Order – Ensures discipline and legal structure.

3. National Security – Protects independence and unity.

4. International Relations – Deals independently with other nations.

5. People's Welfare – Used to serve citizens in a democracy.

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🔷 Sovereignty vs Constitution in India

• In India, Constitution is supreme, not Parliament.

• Parliament is not sovereign in the absolute sense like Austin said.

• Basic Structure Doctrine – Parliament cannot destroy basic features like democracy, secularism, etc.

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🔶 Important Case Laws

✅ Kesavananda Bharati v. State of Kerala (1973)

• Parliament cannot destroy Basic Structure of the Constitution.

✅ S.R. Bommai v. Union of India (1994)

• Explained federal structure and limits of state sovereignty.

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🔷 Conclusion

• Sovereignty is the backbone of a legal system.

• It gives authority to the state to make laws and govern people.

• In modern democracies like India, sovereignty belongs to the people.

• Sovereignty is now seen as limited, guided by Constitution and law.

• It must be used to protect rights, justice, and welfare of citizens.