Sovereignty has different connotations in political theory, law and philosophy. Even within these fields, there is no definitive meaning about its content. European philosophers, from Hobbes to Locke to Rousseau deliberated upon sovereignty, and its meaning has evolved over centuries. While it was initially considered as residing within a person (generally, the monarch), it is now thought to rest within a body or group.
Despite the absence of agreement on its precise content, there is broad agreement that legal sovereignty exists when a body has unlimited or unrestricted legislative power or authority and when none other is superior to it. This indicates that a sovereign authority has the supreme power to make laws and is not subordinate to another entity. In Law of the Constitution, Dicey stated:
“It should, however, be carefully noted that the term ‘sovereignty,’ as long as it is accurately employed in the sense in which Austin sometimes uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit”[1]
The emphasis on the unlimited nature of the power available to a body has diminished with the development of international law and other modern limits on the exercise of power.[2] While the expression ‘sovereignty’ was previously understood to mean that the sovereign could enact any type or form of law in exercise of sovereign power, modern legal systems limit the nature of the laws that can be enacted by constitutional or other interdicts.
Hence, the aspect of sovereignty which requires no subordination to another body is of greater significance as compared to the traditional aspect that requires power to be unlimited.
The meaning of sovereignty elucidated in the preceding paragraph is descriptive not of external sovereignty but internal sovereignty. The former is commonly understand to mean the independence of a nation in relation to other nations whereas the latter is the relationship of the “sovereign within the state to the individuals and associations within the state.”[3]
External and internal sovereignty
External and internal sovereignty are not entirely distinct concepts but are different facets. They have gradually come to be regarded as two sides of the same coin.[4] Dicey’s comment (extracted above) is evidently with reference to internal sovereignty because the unrestricted power to make laws concerns individuals and associations within a state, as opposed to the relationship between two nations.
Characteristics of internal sovereignty
Orfield undertook a study of the literature on the subject of sovereignty. The study listed five leading characteristics of internal sovereignty:
a. It exists as a matter of fact or as a matter of fact and law. Though the law of a state need not necessarily recognize, it may recognize the sovereign;
b. Sovereign power is absolute in that a law may be passed on any subject;
c. It is indivisible;
d. The law passed by the sovereign need not be enforced in particular cases; and
e. The legal sovereign is determinate. It may be a single person or a group of persons.
Sovereignty in India
In India, sovereignty vests in the people of India.[5] The Preamble to the Constitution of India states that “We, the people … hereby adopt, enact and give to ourselves this Constitution.” The Constitution was not adopted by an external authority such as a colonial power or its monarch. The Constitution does not owe its existence to an internal authority such as the rulers of the Princely States.
The voice of the people echoed in the Constituent Assembly though it was not formed by an election based on adult suffrage. On 16 May 1946, the Cabinet Mission Plan stated that though the “most satisfactory method” of constituting the Constituent Assembly would be through adult suffrage, it would lead to a “wholly unacceptable delay”. Thus, the Plan stipulated that the most “practicable course” is to “utilize the recently elected Provincial Legislative Assemblies as the electing bodies.”
The Cabinet Mission proposed the following plan for the constitution of the Assembly:
a. To allot to each Province a total number of seats proportional to its population, roughly in the ratio of one to a million, as the nearest substitute for representation by adult suffrage;
b. To divide its provincial allocation of seats between the main communities in each Province in proportion to their population; and
c. To provide that the representatives allotted to each community in a Province shall be elected by the members of that community in its Legislative Assembly.
Muslims, Sikhs, and ‘General’ (all persons who were not Muslims or Sikhs) were recognised as the three main communities. However, since the interests of smaller minorities would not be adequately represented through this method, it was proposed that the Advisory Committee on the rights of citizens, minorities, and tribal and excluded groups should “contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group or Union Constitution.”
Even after the Constituent Assembly was elected, the general public were engaged in the process of the drafting of the Constitution. In February 1948, the Draft Constitution of India 1948 prepared by the Drafting Committee was published and widely disseminated. Copies of the Draft Constitution were sold for one rupee, inviting comments from a wide range of civic bodies including the public.[6]
Thus, the people of India – as a whole – exercised their sovereign political power to adopt, enact, and give to themselves the Constitution through the Constituent Assembly. Consequent on the adoption of the Constitution, the people exercise the power of sovereignty through their elected representatives.[7]
[1] Dicey, Law of the Constitution (8th ed. 1915) at 70
[2] Union of India v. Sukumar Sengupta, 1990 Supp SCC 545
[3] Lester B Orfield, The Amending of the Federal Constitution (2012)
[4] Max Planck Encyclopedia of Public International Law, ‘Sovereignty’ Oxford Public International Law
<https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1472>
[5] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501
[6] Shiva Rao, The Framing of India’s Constitution, IV, pp. 3-4
[7] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501