Sovereignty: meaning, dimensions and theories

Detail

1. Meaning of sovereignty

• Sovereignty is a state's supreme, final and independent authority over its territory and people. No outside power controls it.
• The word: it comes from the Latin superanus, meaning "supreme".
• In simple words (NCERT Class 7): the state has full control over its own matters. It can make and carry out laws for its own needs, and no outside body can interfere.
• Why it matters: sovereignty is an essential element of a state. The four elements are population, territory, government and sovereignty. Without sovereignty, a territory with a government is not a state. An example is a colony.

2. Two dimensions

Dimension	Meaning	Example / anchor
Internal sovereignty	The state is supreme over every person and every group inside it, including companies, religious bodies and associations	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]

• Sovereign equality in practice: in the UN General Assembly, every member state has one vote, whether it is large or small [6].
• Linked duties in Art. 2: members must carry out their Charter duties "in good faith" (Art. 2(2)). They must settle disputes by peaceful means (Art. 2(3)) [6].

3. Origins: from Westphalia to Hobbes

• 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.
• Jean Bodin (Six Books of the Commonwealth, 1576): Bodin wrote in 16th-century France. He used the idea of sovereignty to raise the king's power above the feudal lords, which helped the move from feudalism to the nation-state. He is widely credited with bringing the concept into legal and political thought [7].
• 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".

4. Monistic theory of sovereignty (John Austin)

• Monistic theory of sovereignty: the view that sovereignty is single, absolute and indivisible, and that it lies in one clear body within the state.
• John Austin, The Province of Jurisprudence Determined (1832). His main points:
• Every state has a determinate sovereign, meaning a clearly identifiable person or body.
• Most people habitually obey this sovereign.
• The sovereign itself obeys no one.
• Its power is absolute and indivisible. It cannot be shared or limited.

• Law is the command of the sovereign.

• Where Austin placed it: in the British case, he concluded that sovereignty lies in the nation's Parliament [7].

• Critique:
• Federal states like India and the USA split power between the Union and the states. No single body holds all of it.
• In constitutional states, a written Constitution limits every organ, and courts can strike down laws.
• Custom and public opinion also limit rulers. Austin's "command" model ignores them.
• So Austin's theory cannot locate a single sovereign in India or the USA.

5. Legal vs political sovereignty (A.V. Dicey)

• Legal sovereignty: the supreme power to make and enforce law. It sits in whatever body the legal system recognises as the final law-maker. Courts recognise only this sovereign.
• Political sovereignty: the power behind the legal sovereign. Usually this is the voters (electorate), whose will the legal sovereign must in the end follow.

	UK (Dicey's model)	India
Legal sovereign	Parliament, which can make or unmake any law. No court can set aside an Act.	The Constitution, not Parliament alone. Laws must obey it.
Political sovereign	The electorate	The people: "We, the People of India" (Preamble)

• Popular sovereignty: the idea that final authority belongs to the people. It comes from Rousseau's "general will" (The Social Contract, 1762), the shared will of all citizens aimed at the common good. The Preamble expresses it when it says the people "give to ourselves this Constitution". (It is covered fully under forms of democracy.)

6. Pluralist theory of sovereignty

• Pluralist theory of sovereignty: the view that sovereignty is neither absolute nor held by the state alone. Many groups share it, so it is divisible.
• Thinkers:
• Harold Laski, Studies in the Problem of Sovereignty (1917) and A Grammar of Politics (1925). Laski attacked the idea of an all-powerful sovereign state [7].
• F.W. Maitland and J.N. Figgis.
• G.D.H. Cole and Léon Duguit.

• Hugo Krabbe is also named among the pluralists [7].

• Core argument:

• Churches, trade unions, guilds, families and professional bodies also win people's loyalty.
• The state is only one association among many. It coordinates them but does not swallow them.

• So sovereignty does not sit in one place. It moves among different political, economic, social and religious groups [8].

• Relevance today:

• Federalism: power is split between the Union and the states (Seventh Schedule).
• Local self-government: the 73rd and 74th Amendments (1992) gave power to panchayats and municipalities.

• Civil society: NGOs, unions and religious bodies shape policy.

• Critique: if every group is sovereign, there is no final umpire when groups clash. In the end the state must settle the dispute.

7. Sovereignty in present-day India

a) Where sovereignty lies

• "Sovereign" is the first word describing India in the Preamble. India is free from any external control.
• Sovereignty rests with the people (political sovereignty) and the Constitution (legal sovereignty). It does not rest with 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).
• Fundamental Rights (Part III).

b) Sovereignty and international ties

• Commonwealth membership (London Declaration, April 1949):
• India became a republic but stayed in the Commonwealth.
• India 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 has no binding power. It does not reduce India's sovereignty.

• Treaty obligations:

• Art. 51(c) is 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 subjects in the State List.
• A sovereign state chooses to accept treaty duties, so signing a treaty is itself an act of sovereignty.

c) Giving away territory needs a constitutional amendment

• Background, Berubari Union No. 12:
• Under the Nehru–Noon Agreement (1958), half of Berubari Union No. 12 was to go to Pakistan (now Bangladesh). The other half, next to India, would stay with India [5].

• The President sought the Supreme Court's advisory opinion under Art. 143(1). This was Special Reference No. 1 of 1959 [5].

• In re Berubari Union (1960):

• The executive cannot give away Indian territory by agreement alone.
• Parliament cannot do it by an ordinary law under Art. 3. Art. 3 only lets Parliament change the area of states within India.

• Ceding (giving away) territory needs a constitutional amendment under Art. 368.

• Result: Parliament passed the Constitution (Ninth Amendment) Act, 1960. It amended the First Schedule, which lists the states and their territories, to transfer the areas to Pakistan [5].

d) India–Bangladesh Land Boundary Agreement and the 100th Amendment

• Timeline:
• 1974: India and Bangladesh signed a Land Boundary Agreement (LBA) soon after Bangladesh became independent [3].
• 6 September 2011: a Protocol settled the remaining issues: the unmarked boundary, land in adverse possession (held by the other side) and the exchange of enclaves [3].
• 2013: the measure 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. It gives effect to India's acquiring of some territories and its transfer of others to Bangladesh [2].

• Midnight of 31 July 2015: the enclaves were exchanged [4].

• Enclaves are pockets of one country's land fully surrounded by the other country.

• 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].

• The Indian enclaves lay in four Bangladeshi districts: Panchagarh, Lalmonirhat, Kurigram and Nilphamari. All of Bangladesh's enclaves in India lay in Cooch Behar district, West Bengal [3].

• Why an amendment was needed: India was ceding territory, so the Berubari rule applied.

e) Settling a boundary is different from ceding territory

• Maganbhai Ishwarbhai Patel v. Union of India (1969):
• The case arose from the Rann of Kutch award, given by an international tribunal in 1968 on the India–Pakistan dispute.
• The Court held that marking out or settling a disputed boundary is not ceding Indian territory.
• So the executive can carry it out without an amendment.

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

• Steps under Art. 368 to cede territory: 1. The bill is introduced in either House. A private member can also introduce it. It needs no prior permission from the President. 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).

8. Debate: is sovereignty shrinking?

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

• Global capital markets and credit ratings shape budgets.

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

• Counter-view:
• States choose to join these bodies and can leave them.
• In India, treaties work through Parliament (Art. 253), so the legal sovereign stays in control.

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 commands are law. Laski (1917, 1925) led the pluralist theory, with Maitland, Figgis, Cole and Duguit.
• Dicey: legal sovereign in the UK is Parliament, political sovereign is the electorate. In India, legal sovereignty lies with the Constitution and political sovereignty with "We, the People".
• 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 (dated 28 May 2015): India–Bangladesh LBA of 1974 and its 2011 Protocol. 111 Indian enclaves were exchanged for 51 Bangladeshi enclaves. The exchange took effect 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].
• Art. 253: Parliament can make laws to implement treaties even on State List subjects. Art. 51(c): foster respect for international law (a Directive Principle).
• London Declaration (1949): a republican India stays in the Commonwealth. This does not reduce its sovereignty.
• Peace of Westphalia (1648) marks the start of the modern sovereign-state system. Bodin (1576) brought the concept into political thought [7].

Mains Points

• Austin vs India's Constitution: India's legal sovereignty is spread across a written Constitution, federal units and judicial review, guarded by the basic structure doctrine. So Austin's single, unlimited sovereign does not fit India. India's model is constitutional sovereignty, unlike UK parliamentary sovereignty.
• Pluralism and Indian governance: the Seventh Schedule, panchayats and municipalities (73rd and 74th Amendments, 1992), and a strong civil society show that authority is shared. The state still remains the final umpire, which is the main weakness of the pluralist theory.
• Territory and democratic control:
• Berubari (1960) requires the special-majority process in Parliament before any territory is ceded, so the executive cannot act alone.
• Maganbhai (1969) leaves room for practical boundary settlement.

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

• Globalisation and sovereignty:

• WTO dispute rulings and climate commitments limit policy choices.
• Treaties are voluntary and implemented through Parliament under Art. 253.
• India therefore uses its sovereignty to pool some decisions on terms it accepts. It does not lose sovereignty.