Sovereignty

Also called: Sovereign · Topic: State, Government and Governance: Organs, Levels and the Citizen · NCERT: Class 7, Ch 9 "From the Rulers to the Ruled: Types of Governments"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 7, Ch 6 "The State, the Government, and You"; Class 9, Ch 6 "Democracy"

Meaning

Sovereignty is a state's supreme, final and independent authority over its territory and people. No outside power controls it. The word comes from the Latin superanus, meaning "supreme".

It matters because sovereignty is an essential element of a state. The four elements are population, territory, government and sovereignty. A colony has land and a government, but it lacks sovereignty, so it is not a state. In the Preamble, "Sovereign" is the first word used to describe India. It means India alone decides its internal and external affairs.

Explanation

Two dimensions of sovereignty

• Internal sovereignty: the state is supreme over every person and group inside it, including companies, religious bodies and associations.

• Example: Parliament's laws bind all citizens and organisations in India.

• External sovereignty: the state is free from control by other states and stands equal with them.

• UN Charter Art. 2(1): the UN "is based on the principle of the sovereign equality of all its Members" [6].
• In the UN General Assembly, every member state has one vote, whether it is large or small [6].
• Linked duties: members must carry out their Charter duties "in good faith" (Art. 2(2)) and settle disputes by peaceful means (Art. 2(3)) [6].

Origins of the idea

• Jean Bodin (Six Books of the Commonwealth, 1576):
• He used sovereignty to raise the French king's power above the feudal lords.
• This helped Europe move from feudalism to the nation-state.

• He is widely credited with bringing the concept into legal and political thought [7].

• Peace of Westphalia (1648):

• These treaties ended the Thirty Years' War in Europe.

• The modern system of sovereign states dates from them. Each state rules its own territory, and other states do not interfere in its internal affairs.

• Thomas Hobbes (Leviathan, 1651):

• People give up their natural freedom to one all-powerful sovereign in return for peace and safety.
• Without such a sovereign, life would be "nasty, brutish and short".

Theories: who holds sovereignty?

• Monistic theory (John Austin, The Province of Jurisprudence Determined, 1832): sovereignty is single, absolute and indivisible.
• Every state has a determinate sovereign, meaning a clearly identifiable person or body.
• Most people habitually obey it, and it obeys no one.
• Law is the command of the sovereign.

• For Britain, Austin placed sovereignty in Parliament [7].

• Critique of Austin:

• Federal states like India and the USA split power between the Union and the states, so no single body holds all of it.
• In a constitutional state, a written Constitution limits every organ, and courts can strike down laws.
• Custom and public opinion also limit rulers.

• So Austin's theory cannot find a single sovereign in India or the USA.

• Legal vs political sovereignty (A.V. Dicey):

• Legal sovereignty is the supreme power to make and enforce law. Courts recognise only this sovereign.

• Political sovereignty is the power behind the legal sovereign, usually the voters (electorate). In the end, the legal sovereign must follow their will.

• Popular sovereignty: final authority belongs to the people.

• It comes from Rousseau's "general will" (The Social Contract, 1762), which means the shared will of all citizens aimed at the common good.

• The Preamble expresses it when the people "give to ourselves this Constitution".

• Pluralist theory: sovereignty is neither absolute nor held by the state alone. Many groups share it, so it is divisible.

• Harold Laski (Studies in the Problem of Sovereignty, 1917; A Grammar of Politics, 1925) attacked the idea of an all-powerful state [7].
• Other pluralists: F.W. Maitland, J.N. Figgis, G.D.H. Cole, Léon Duguit. Hugo Krabbe is also named among them [7].
• Their argument: churches, trade unions, guilds, families and professional bodies also win people's loyalty. The state is only one association among many.
• So sovereignty moves among different political, economic, social and religious groups [8].
• Critique: if every group is sovereign, nobody has the final word when groups clash. In the end the state must settle the dispute.

Limits and the "shrinking sovereignty" debate

• Constrained sovereignty: global rules limit what a state can freely do.
• WTO rules on subsidies and patents bind domestic policy.
• Climate treaties (UNFCCC, Paris Agreement 2015) ask countries to report their emission targets.

• Global capital markets and credit ratings shape budgets.

• Pooled sovereignty: states take some decisions together in common bodies. The European Union is the classic case.

• Counter-view: states choose to join these bodies and can leave them. Signing a treaty is itself an act of sovereignty.

In the Constitution and practice

• Where sovereignty lies in India:
• Political sovereignty belongs to the people: "We, the People of India" (Preamble).

• Legal sovereignty belongs to the Constitution, not to Parliament alone.

• Limits on Parliament (unlike UK parliamentary sovereignty):

• Judicial review is the power of courts to strike down laws that break the Constitution (Arts. 13, 32, 226).
• Basic structure (Kesavananda Bharati, 1973): Parliament can amend any part of the Constitution, but it cannot destroy its core features, such as democracy, federalism, secularism or judicial review.

• Federal division of powers (Seventh Schedule) and Fundamental Rights (Part III).

• International ties:

• Commonwealth (London Declaration, April 1949): India became a republic but stayed in the Commonwealth. It accepted the British monarch only as a symbol of free association and "Head of the Commonwealth", not as India's head of state. Membership is voluntary and does not reduce India's sovereignty.
• Art. 51(c) (a Directive Principle): the state shall try to foster respect for international law and treaty obligations.

• Art. 253: Parliament can make laws for the whole or any part of India to carry out a treaty or international decision, even on State List subjects.

• In re Berubari Union (1960):

• Under the Nehru–Noon Agreement (1958), half of Berubari Union No. 12 was to go to Pakistan (now Bangladesh) [5].
• The President asked the Supreme Court for its advisory opinion under Art. 143(1) (Special Reference No. 1 of 1959) [5].
• The Court said the executive cannot give away Indian territory by agreement alone. Parliament cannot do it by an ordinary law under Art. 3 either, because Art. 3 only changes state areas within India.
• Ceding (giving away) territory needs a constitutional amendment under Art. 368.

• Result: the Constitution (Ninth Amendment) Act, 1960 amended the First Schedule to transfer the areas [5].

• Maganbhai Ishwarbhai Patel v. Union of India (1969):

• The case came from the Rann of Kutch award, given by an international tribunal in 1968.

• The Court held that settling or marking out a disputed boundary is not ceding territory, so the executive can carry it out without an amendment.

• India–Bangladesh Land Boundary Agreement and the 100th Amendment:

• 1974: India and Bangladesh signed the Land Boundary Agreement (LBA) [3].
• 6 September 2011: a Protocol settled the unmarked boundary, land in adverse possession (land held by the other side) and the exchange of enclaves (pockets of one country's land fully surrounded by the other country) [3].
• 2013: it was introduced as the Constitution (One Hundred and Nineteenth Amendment) Bill, 2013 [9].
• 28 May 2015: it was enacted as the Constitution (One Hundredth Amendment) Act, 2015, which gives effect to India acquiring some territories and transferring others to Bangladesh [2].
• 111 Indian enclaves in Bangladesh were exchanged for 51 Bangladeshi enclaves in India. No compensation was paid for the extra area that went to Bangladesh [3]. All of Bangladesh's enclaves in India lay in Cooch Behar district, West Bengal [3].

• The exchange took place at the midnight of 31 July 2015 [4].

• Steps under Art. 368 to cede territory: 1. The bill is introduced in either House. A private member can also introduce it, and no prior permission from the President is needed. 2. Each House passes it separately by a special majority: a majority of its total membership and two-thirds of the members present and voting. 3. There is no joint sitting if the two Houses disagree. 4. Ratification by half the state legislatures is not needed, because the First Schedule is not in the Art. 368(2) proviso. 5. The President must give assent (24th Amendment, 1971).

Action	Legal route	Majority needed	Case / example
Change state boundaries within India	Art. 3 ordinary law	Simple majority; President's recommendation; state's views sought (not binding)	Reorganisation of states
Cede territory to another country	Art. 368 amendment of the First Schedule	Special majority in each House	Berubari (1960); 9th (1960) and 100th (2015) Amendments
Settle a disputed boundary	Executive action	None	Maganbhai (1969), Kutch award

Don't confuse with

• Parliamentary sovereignty (UK): Dicey's UK Parliament can make or unmake any law, and no court can set aside its Acts. In India, the Constitution is supreme, and judicial review and the basic structure limit Parliament.
• Popular sovereignty: this says who holds final authority (the people, through Rousseau's general will). Sovereignty in general is the supreme authority of the state, which faces inward and outward.
• Art. 3 changes vs cession: Art. 3 changes state boundaries inside India by ordinary law. Giving territory to another country needs an Art. 368 amendment (Berubari, 1960).
• Pooled or constrained sovereignty vs loss of sovereignty: in WTO or climate treaties, a state chooses to share or limit some decisions and can leave. A colony has no sovereignty at all.

Prelims Hooks

• UN Charter Art. 2(1): "sovereign equality of all its Members". Art. 2(3) requires peaceful settlement of disputes [6].
• Austin (1832) gave the monistic theory: a determinate, absolute and indivisible sovereign whose command is law. Laski (1917, 1925) led the pluralist theory, with Maitland, Figgis, Cole and Duguit.
• In re Berubari Union (1960) was an Art. 143 advisory opinion. Ceding territory needs an Art. 368 amendment, not an Art. 3 law. It led to the 9th Amendment (1960) [5].
• Maganbhai Ishwarbhai Patel (1969): settling a boundary (the Kutch award) is not cession, so no amendment is needed.
• 100th Amendment Act, 2015 (28 May 2015): India–Bangladesh LBA (1974) and the 2011 Protocol. 111 Indian enclaves were exchanged for 51 Bangladeshi enclaves, effective at the midnight of 31 July 2015 [2][3][4].
• Trap: the 100th Amendment amended the First Schedule, not the Seventh. It was introduced as the 119th Amendment Bill, 2013 [9]. State ratification was not needed.

Mains Points

• Austin vs the Indian Constitution:
• In India, legal sovereignty is spread across a written Constitution, federal units and judicial review, and the basic structure doctrine protects it.
• So Austin's single, unlimited sovereign does not fit India. India follows constitutional sovereignty, not UK-style parliamentary sovereignty.

• Pluralism also explains Indian governance through the Seventh Schedule, the 73rd and 74th Amendments (1992) and civil society. The state still remains the final umpire, which is the pluralist theory's main weakness.

• Territory under democratic control:

• Berubari (1960) makes the executive go through a special-majority amendment before ceding any land.
• Maganbhai (1969) still leaves room for practical boundary settlement.

• The 100th Amendment (2015) ended a dispute that had lasted since 1974, and it went through Parliament [2][3].

• Globalisation and sovereignty:

• WTO dispute rulings and climate commitments narrow India's policy choices.
• But India joins these treaties by choice and carries them out through Parliament under Art. 253, guided by Art. 51(c).
• So India uses its sovereignty to pool some decisions on terms it accepts. It does not lose sovereignty.

Related concepts

• Monistic theory of sovereignty
• Legal sovereignty
• Political sovereignty
• Pluralist theory of sovereignty

Read more

• Sovereignty: meaning, dimensions and theories