According to Austin sovereignty is distinguished by two characteristics, the one positive and the other negative. To satisfy the positive test the bulk of a given society must tender habitual obedience to a common superior.
It is not necessary that all the members of the society need not render obedience; nor it is necessary that the bulk of them need render obedience all the time; but there must be habitual obedience by the majority.
Austin only says that the members of the society rendering obedience must not be too small. The superior must be human being and the same may be a person or a body of persons. The negative mark is that the common superior must not be in the habit of rendering obedience to another determinate human superior.
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ADVERTISEMENTS:
According to Austin “If a determinate human superior not in the habit of obedience to like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society, politically independent.
Furthermore every positive law, or every law simply and strictly so-called, is set directly or circuitously, by a sovereign person or body to a member or members of the independent political society wherein that person or body sovereign or supreme.”
It will appear from the above that, according to Austin’s conception of sovereignty, the sovereign must not only be obeyed by the individual but is in fact obeyed by the bulk of the members of a given community. He must then be not in the habit of obedience to another political superior. These are the internal and external aspects of sovereignty.
ADVERTISEMENTS:
Austin’s view on sovereignty has been assailed on several grounds. In the first place, it has been said that the state is useful instrument for promoting social good, and as such its laws are obeyed when they are designated to promote that end.
Austin’s conception of sovereignty, therefore, ignores the realistic theory of the state. In the second place, the power of the sovereign is not absolute.
It is governed by principles expressly adopted or tacitly accepted in the form of conventions, and these principles as a rule are observed by the sovereign. In the third place, as Dicey observes, in a democratic state the legal sovereign should bow to the political sovereign. The legal sovereign is that person or body of persons who have the power to make the law.
The political sovereign is that body of persons in the state, viz., the electorate, whose will ultimately prevails, and the legal sovereign is bound to respect and act according to their will. The sovereignty of the state resides in the people thereof.
ADVERTISEMENTS:
Although Parliament is the legal sovereign, it is the electorate-the political sovereign-which can in the long run impose its will on Parliament. In the fourth place, Sir Henry Maine urges that Austin’s conception of sovereignty is inapplicable to undeveloped communities where custom and religious opinion are powerful forces.
Lastly, according to pluralists like Laski and Coke, the suite is an association among several associations and as such it cannot be invested with the unique sovereign power of the community the various other associations, like the Church, the Employer’s Association, the Trade Unions, etc., which have their own sphere of activity with which the state has no business to interfere.
The profounder of the monistic theory of sovereignty rightly point out in answer to this criticism of the pluralists that such non-political associations are only the creation of the Slate, exist on its good will and exercise only such powers which have been delegated to them by the state.
Constitution of England:
Austin’s conception of sovereignty may appear to be applicable to the constitution of England where the British Parliament is the sole sovereign authority of making and unmaking every law or changing the form of government or the succession to the Crown and even interfering with the courts of the country.
Salmond, however, observes that under the English Constitution the legislative sovereignty resides in the Crown and the two Houses of Parliament, but the executive sovereignty resides in the Crown by itself, the Houses of Parliament having no share in it.
In law, therefore, the executive power of the Crown is sovereign, being absolute and uncontrolled within its own sphere. The English Constitution, therefore, recognises a sovereign executive not less than a sovereign legislature; and the two authority’s are supreme in their own spheres. There is thus unlimited sovereign in one person as advocated by Austin.
Constitution of U.S.A:
As regards the United Suites of America neither Congress nor any State legislature possesses unrestricted powers. They are incapable of altering the constitutions which have established them. The constitution can be amended only when a majority of three-fourths of the state legislatures ratify the amendment, after the same has been proposed by a, two-thirds majority of the Congress.
The sovereignty as such does not vest in Congress; it is the composite body mentioned above which has absolute power to alter the constitution and possesses unlimited legislative power.
But there are limitations placed upon the power of the constitution-amending body itself; and accordingly an attempt to locate such a sovereign in the constitution of the United Suites of America is ‘an impossible adventure’.
Indian Constitution:
The Indian Constitution is federal in character where the supreme government is divided by the Constitution in definite shares between the central or common government and the several constituent slates. The authority exercised by the constituent states is not a subordinate and delegated authority obtained from the central government but is conferred by the Constitution on the constituent Slates.
The Indian Constitution, however, provides that in emergencies the Union Parliament can even legislate upon subjects falling in the legislative field of the Stales.
In India even in normal times the courts of justice have the power to declare whether a certain action falls within the scope of the State authority according to its constitution or not.
It is recognised on all hands that an enactment, whether provincial or central, cannot, subject to limitations and amendments of the constitution on the subject, transgress the fundamental rights guaranteed by the Constitution of India.