Sovereignty is a legal/political concept which ensures that a state remains significant in the geo-political world. It is supreme, unchallenged power of a state which allows it to make any laws or rules unrestrictive of either internal or external interference. Sovereignty as a concept is indivisible, indestructible, non-transferable and universal. Hence, if the sovereignty of a country is lost then it loses its status and power in international relations. Example-Tibet, Palestine, Taiwan. Is Sovereignty a real concept? In Indian constitution, the Preamble starts with "We the People of India". It signifies that the people are the one who are real source of power in the The President of India is the head of State on whose name all the orders are taken. Thus, President should be sovereign. But in real, President do not have substantive power in India. It is a symbolic post or symbolic sovereignty. Since, sovereignty is a continuous concept, thus the president post can never remain vacant.
Therefore, no one in India is sovereign but still India is a sovereign state. Same is for every other nation. So in real world sovereignty is an imaginative and legal concept. No single body can be sovereign. Sovereignty is different in theory and practical. But it is important to run a state, to organize the society towards common goal of nation building. Thus, the post of President is theoretical sovereignty not practical. Are all country equally sovereign? India vs Nepal, US vs Pakistan. Theoretically they are equally sovereign but in practical India and the US is more sovereign than Nepal and Pakistan. Sovereignty is directly proportional to power. More the power more will be the practical sovereignty. Therefore, Power is an important determinant of sovereignty
Jean Bodin, a French thinker was first to give the concept of sovereignty. He defined it as unchallenged power of the state which cannot be questioned by anyone superior or inferior authority But his sovereignty was not absolute as he applied certain restrictions on the sovereign. He said that sovereign must obey customary rights and moral principles. This limitation was removed by John Austin in his Positive sovereignty Positive sovereignty means authority "as it is" not "as it should be". He discarded any moral, historical, customary, religious obligation from the sovereign. For him sovereignty has three components: 1. A determinate human superior - It means whoever is sovereign must be easily located (determinate) in the society responsible and accountable to anyone. disobedience will lead to punishment. Therefore, sovereign is the only source of 2. He must not be in habit of obedience means he is not answerable, 3. People must habitually obey him - people should know that any violence in the society.
Thus, Asutinean sovereign is a determinate human superior who is not in habit of obedience and has habitual obedience from the bulk of the society unrestrained by any law Criticism of Austin Austin never explained the limitation of his sovereign which is seen in the real world. A determinate human superior of Austin can not be located in practical. The habitual obedience from the society is not seen very often in the democracy. People do not follow many rules. He said that "law is the command of sovereign" but in countries like Switzerland, Australia, Indian the laws are made as society want not as sovereign wants. Austin's sovereignty is only legal sovereignty not political. 1. Pluralist thinkers like Robert Dahl, Harold Laski said that policy making is influenced by various pressure groups in the society. Thus, power is decentralized. 2. Federal democracies like India, the USA, Australia, power is not concentrated but divided among the centre and states.
3. Edmund Burke said that laws are the result of evolution of history but not the command of sovereign 4. Ernest Barker said Austin's sovereignty is legal not political. Such legal sovereign is created by the people of the country. We the People in the Preamble dictates that it is people who are political sovereign. structure, judicial review, financial and technical strength. WTO, the EU, FATF etc. such organization has power to influence and make 5. States sovereignty is limited internally by many constraints like basic 6. Externally, sovereignty is limited by supranational organizations such as rules of conduct of member states 7. Power relationship in the world is very dynamic. Due to the presence of superpower and great powers, all nation-state are not independent to decide their own policies. 8. Globalization has restricted both the internal and external sovereignty of nation-state to a great extent. Hence, Austin sovereign is only theoretical or legal which is necessity of rule of law, to run a country. But in practical there are many power centres in the world. In order to have peaceful world order countries should identify the extent of their legal and practical sovereignty like Bhutan did.
De-facto vs De-jure sovereignty De-facto means "by fact" whereas de-jure means "by law". De-facto and de-jure sovereignty is identified in the society on the basis of the location of authority/power. When the legal authority (authority by law) is different from the actual authority (on ground), it is called de-facto sovereignty. Example- Pakistan govt. and its military. When the legal authority is same as the actual authority, it is called de-jure sovereignty. Example- India
Manoj Singh Khetwal
I am a power engineer with 3 years of work experience with L&T. Currently, preparing for civil services and working with study iq.