Juris Centre

Explained: Concept of Sovereignty

Sovereignty, in political theory, the extreme overseer, or jurisdiction, in the decision-making mechanism of the state and in the maintenance of the order.

The idea of sovereignty, it is referred to as one of the maximum contentious ideas in the matter of political science and international law, it is intently associated with the difficult principles of state and government and of independence and democracy.

The term sovereignty has derived from the Latin superanus through the French souveraineté, the term was initially understood to aim the equivalent of supreme power. However, its application in practice frequently has departed from this traditional meaning.

Sovereignty is the ideal authority within a territory. Sovereignty encompasses hierarchy in the state, as well as outside liberty for states. In any state, sovereignty is authorized to the person, body, or group that has the eventual rule over different people in order to authorize a law or reform a present law.

Sovereign basically means the unbiased responsibility of a State. It means, that it has the power to legislate on any situation; and that it isn’t always subject to the manipulate of every other State / external power.

According to the preamble, the constitution of India has been pursuance of the solemn decision of the humans of India to represent India into a ‘Sovereign Democratic Republic’, and to secure well-defined objects set forth within the preamble. Sovereignty denotes an ideal and ultimate power. It can be real or normal, legal or political, person or pluralistic.

The idea of sovereignty have been examined all through history, and are still actively debated. The definition, idea, and the application has been modified throughout, particularly during the Age of Enlightenment. The current approach of the state sovereignty consists of four situations inclusive of territory, population, authority and recognition.

  • Domestic sovereignty –This is an actual control over a state exercised by an authority formulated in the state.
  • Interdependence sovereignty – This is an actual control of motion throughout the state’s borders, assuming that the borders are existing.
  • International criminal sovereignty – It is taken into consideration as an formal recognition by different sovereign states.
  • Westphalian sovereignty[1] –It is referred to as the lack of different authority over the state aside from the domestic authority.

Often, those four aspects all seem together, however this isn’t always the case – they may be not tormented by one another, and there are ancient examples of states that have been non-sovereign in one aspect whilst at the equal time being sovereign in any other of those aspects Sovereignty is more than anything else a matter of legitimacy that calls for reciprocal recognition. Sovereignty is a hypothetical trade, wherein probably conflicting sides, respecting de facto realities of power, alternate such recognitions as their least pricey strategy.

THE ORIGIN OF SOVEREIGNTY

Although the term sovereignty is modern, the idea takes back to, ”ARISTOLE” who spoke of supreme power of the state. The term sovereign and sovereignty were first used by the French jurists’ around on 15th century. In the 16th century, Jaen bodin what is the first writer to discuss the nature and the characteristics of sovereignty. Originally, perceived as in personal associate of the monarch, sovereignty came in the hands of bodin and to be regarded as a constant element of the state.

Authors and scholars like NICCOLO MACHIAVELI, THOMAS HOBBES, JOHN LOCKE AND MONTESQUIEU are also key figures in unfolding the concept of sovereignty.

The Preamble of India broadcasts India as a nation to be sovereign, it testifies to the reality that India is not a dependency or colony or any custody of British Crown. As a sovereign unbiased nation, India is free both internally and externally to take her very own choices and enforce those for her citizens and territories.

While we examine the legislature system then we say that the British Parliament is a sovereign legislature and the Parliament of India is non-sovereign legislature. The doctrine of “sovereignty of Parliament” is related to the British Parliament and this precept has 3 implications:

  • The Parliament could make, amend, replace or repeal any law.
  • The Parliament could make constitutional laws through the same method as ordinary laws.
  • The Parliamentary legal guidelines can’t be declared invalid through the Judiciary as being unconstitutional. In order words, there’s no system of judicial overview in Britain.

CHARACTERISTICS OF SOVEREIGNTY

  1. PERMANENCE:-
  2. The main characteristics of sovereignty  is permanence.
  3. Sovereignty what can last long until an independent state last long.
  4. State and sovereignty cannot be separated from each other
  5. UNIVERSALITY:-
  6. No group of people, association or people who are rich or poor however powerful they maybe, they cannot go against and disobey the sovereign authority.
  7. sovereignty makes no exception and allows no exemption to anyone.
  8. EXCLUSIVENESS:-
  9. This characteristics means that there cannot be two sovereigns in one independent state.
  10. If in case, two sovereigns exist in one state, the unity is considered destroyed.
  11. INALIENABILITY:-
  12. Sovereignty is considered as the life and soul of the state and it cannot be alienated without destroying the state.
  13. It cannot be separated by itself.
  14. INDIVISIBILITY:-
  15. Sovereignty cannot be divided into smaller parts, but its power can be distributed among various governmental units.
  16. Once it is divided, it no more remains a will.

KINDS OF SOVEREIGNTY

  1. Internal
  2. External
  3. Nominal and real
  4. Legal
  5. Political
  6. De facto
  7. De jure

SOVEREIGNTY IN RELATION TO RULE OF LAW

The topic relates whether the law is held to be sovereign, that is, whether it is above political or a different intervention. Sovereign law constitutes an detailed state of law, which means that the letter of the law) is advisable and enforceable, even if against the political will of the state, as long as not officially to modify following the constitutional procedure.

SOVEREIGTY UNDER INTERNATIONAL LAW

The idea of sovereignty is complex: in phrases of international law, the state seems as a sovereign power, as a political organisation of the society, undermining distinctive bodies more like authorities with an particular legislative, executive, jurisdictional powers; in the international society in every country it participates withinside the international relations on the premise of sovereign equality, which motives every other meaning of sovereignty, which complements the one specific to the international life.

For the international legal order, the sovereignty is a constituent detail of the state and the international identity requires that the general public power is independent, which offers the quality of sovereign state. Sovereignty is commonly considered, that standard characteristic of the state, which represents the state supremacy and independence of state power in expressing and attaining the governors’ will as an preferred will, obligatory for the complete society.

Sovereignty can be seen from the international as well as domestic point of view, in political and legal terms targeting at explaining the need to restrict the state’s sovereignty or drawback of powers, in desire of international bodies.

In phrases of international relations it requires the presence of competing sovereignty, which ends up in “legal equality of sovereignty” because the saying “some freedoms stop where the freedom of others begins” each state has the identical sovereign power in relation to international relations management.

Sovereignty is an ideally suited authority, which at the international plane means legal authority, which is always not in law dependant on another earthly authority. Sovereignty in the strict sense and in an precise sense of the term implies, therefore, independence is all around within and without the borders of the country.

THE EVOLUTION OF THE SOVEREIGNTY CONCEPT

It is comprehensible that the state sovereignty is in the procedure of evolving from an absolute approach of limitless freedom and independence to a relative approach in which the freedom and independence of states are confined both by the freedom of different states and through the international law. This evolution continues to be an ongoing system.

The evolution of sovereignty in the overdue 19th century seemed to affirm its power and significance in understanding the internal governance of the state and the position of the sovereign in international affairs. From the point of view of the international law, the strain on the constrains on the exercise of sovereign power targeted on agreements that sovereigns should voluntarily enter into. The Austinian view has frequently been called the traditional view of law. This can be because, anything that flaws withinside the theory, it had positive goals that would be comfortably comprehended and, therefore, given operational impact in the practice. The Austinian version is a reminder that an classic and comparatively simple concept expressed in a coherent and constant way could have traction and essential consequences in the actual world wherein it is invoked, regardless of its inherent validity.

In the practice of states, the idea of sovereign absolutism persisted to exert a effective influence on the state craft during the 19th century. Since there have been few restraints on sovereigns apart from morality or values, at the close of the century the global association sought to more aggressively seek sovereign agreements among the states. Early in the 20th century efforts have been made to bolster using arbitration through sovereign participants. Additionally, a formidable move was made to a subject on the critical characteristic of sovereignty to the rules mandated through the international law. These have been contemplated in the agreements that emerged as the Hague Conventions were dealing with the regulations of war. However, through 1914, notwithstanding increased stages of codification of sovereign agreement, sovereigns nevertheless held the power of war with the confined restraint. It became obvious that whatever that limits there were at the power of sovereigns to make war on each other, none of these limits ought to trump their implicit declare to sovereign absolutism.

Moreover, in case of Marbury v. Madison[2], The Supreme Court of United States held itself to have an embedded power to claim any law unconstitutional through the procedure of judicial review. Even if this case did not result in any considerable judicial sovereignty, however it gave sovereign power to the essential law of the state, that is the Constitution. The constitutional sovereignty kept on advancing thereafter, because the power to amend the constitution and to accede it was not handiest in the hands of congress, but also in the states. So it is possible to apprehend that sovereignty persisted to occupy within the states in addition to in the humans of the states , the power that isn’t always simply delegated by the constitution or expressly prohibited by the constitution relevant to the territory through the Tenth Amendment.

The idea of the sovereignty has currently come to be a main bone of rivalry within international law and international relations theory. More recent scholarship has targeted on the changing meanings of this idea throughout quite a few historic and political contexts. Moreover due to a procedure that has increasingly positioned constraints on the freedom of action of states; the substance of the perception of sovereignty has modified and could in addition change in future. The very concept of absolute sovereignty is in many respects an previous concept in contemporary-day international law and there are numerous elements causative to its destruction. As an end result of specifically globalization, there may be a developing trend of interdependence and cooperation amongst the states.

The 20th century will mark the evolution of the concept of sovereignty, the conversion from classical senses taken into consideration the greater lenient perceptions, greater flexible, the emphasis given with the aid of using the interstate cooperation, of respecting the international responsibilities assumed by the States as international actors. In the first half of the 20 th century, many authors already have been talking approximately relative sovereignty of the state.

RELATED CASE LAWS

BHUPINDER SINGH NIJJAR V. UNION OF INDIA[3]

JUDGEMENT

The behaviour of the petitioners in making use of for political asylum need to be considered within the above perspective. The, essential, test is to be carried out, whether such an act is defamatory to the supremacy of our Constitution or is biased to this Nation’s power of self-governance. In this case, there is no accusation that petitioners are engaging in any activities to understand the disturbing forces in India or activities that sabotage the integrity or sovereignty of India.

Undoubtedly, the action of the petitioners in achieving for a political asylum can also additionally bring about terrible exposure for a country however that does not suggest that same is prejudicial to the sovereignty and integrity of India. The approximate judgement on the behaviour of the petitioners as citizens of this country ought now no longer cloud the guideline of law. The expression “Sovereignty and Integrity of India” cannot be examined to be as fragile in order to be biased through any terrible publicity. However depreciable the action of petitioners in applying for political asylum might also additionally be, the same does not fall in the scope of “activities prejudicial to sovereignty and integrity of India”. The said action can’t be taken into consideration as a ground for denying passports to the petitioners.

CONCLUSION

Traditionally sovereignty is visible as the independence and an ideal authority of the state. Although sovereignty is, therefore, frequently conceived as absolute, it is clear that the state sovereignty is in the method of evolving from an absolute idea of limitless freedom and independence to a relative idea in which the freedom and independence of states are constrained each by the freedom of different states and by the international law. Because it is progressively acknowledged that there are positive communal interests that cannot be addressed independently, a developing trend of co-operation and interdependence are developing amongst the states.

In India, the constitution is the ideal law , offering constitutionalism , constitutional governance and also units out norms, morality and value, fixed in the articles of the constitution, and also is possible implied from the constitution. This activity characteristic makes it natural and , therefore, the idea of the ‘constitutional sovereignty’ is revered. Constitutional Sovereignty is stated to be the Constitution supremacy. Constitutional supremacy makes sure that the each entity of the governance is subject to the concepts embodied within the constitutional text. The Indian Constitution does now no longer permit absolute sovereignty in a specific entity which it creates. Judicial review, like in the Constitution of United States of America, is part of the fundamental characteristic of the Indian Constitution. Thus it is clear that India does now no longer possess the concept of absolute sovereignty and ultimate power. In India, Federal structure , Constitutional Principles is ideal which delegates the executive sovereignty in the President and legislative sovereignty upon the parliament and state legislature. Judiciary is a guardian of the Constitution , however there may be not anything like judicial sovereignty in India.

Sovereignty is primarily based totally on jurisdiction in a population and territory. Due to the increase in the  population, the significance of sovereignty has expanded and it is justified due to it values and importance for maintaining division in population. Change in social and economic circumstance has modified the meaning of sovereignty. Therefore, it has to evolve to the existing need for administration of power in a state. The generation of unique sovereignty concept is over among the population.

[1] WESTPHALIAN SOVEREIGNTY, WESTPHALIAN STATE SYSTEM, (11,06,2020,10:16 AM) https://www.oxfordreference.com/view/10.1093/oi/authority.20110803121924198

[2] Marbury v. Madison, 5 U.S. 137 (1803) 

[3] BHUPINDER SINGH NAJJAR V. UNION OF INDIA (W.P. (C), 4574/2014), 17TH DECEMBER, 2014.

Author: Manasa Reddy from ICFAI University.

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