CHAPTER
NO. 03
SOVEREIGNTY
SOVEREIGNTY:
The
term sovereignty is derived from Latin word “Superanus” which means Para &
Supreme. Sovereignty is a juristic concept as use in connection with the state
indicates supreme, final or ultimate power in the internal & external
spire.
MONOPOLY
OF SUPREME FARESIVE POWER:
Sovereignty
is a monopoly Supreme Court power exercised by a state & no individual and
association can sell this monopoly.
SUPREME POWER OF EXPRESSING
BILL:
The state is window to supreme power
through which it express it will in legal terms which are binding on all
individual and association within a frontier of a state, this will may be
located in the hand of one individual group of individual or an assembly.
IMPORTANT DEFINATIONS OF
SOVEREIGNTY:
1)
JAIN
BOLDING says that sovereignty is “the supreme power
over the citizen and subject unrestrained by law”.
2)
BLACKSTONE
says that sovereignty is “the supreme irresistible, absolute & uncontrolled
authority in which the supreme legal power resides”.
3)
HUGO
says that sovereignty is “the supreme political power vested in him whare act
are not subject to any other & whare bill cannot be over hidden”.
4)
W.F
says that sovereignty is “the supreme will of the state”.
5)
In the words of American writer BRUGRESS sovereignty is “original, absolute,
unlimited power over the individual subject and over all association of
subject.
Silent
feature of monistic sovereignty:
a) Absolute
b) Universal
c) Permanent
d) Individual
e) Inalienable
f) Exclusive
·
Absolute:
Sovereignty
is absolute legally it is unlimited and unfitted positive to say that
sovereignty which is unlimited even by constitutional law argued that it is the
government and not the state which is subject to constitutional law. The
sovereignty state can act any time and will to amend the constitution.
·
Universal:
Sovereignty
is universal it means that universally applicable it is all comprehensive and
applicable to all individual and association which are subject a supreme power
of a state it make no exception and grant no exception to anyone.
·
Permanent:
Sovereignty
is also permanent it last as long as the independent state last all the death
of ruler sovereignty is shifted to his successor. If needs mansion here that
the rule exercised sovereignty power on behalf of the state has its agency or
instruments. No sovereignty means no independent state when sovereignty is
ended it means the state itself has come to an end.
·
Individual:
Sovereignty
is also individual. It cannot be divided without being destroyed there is
nothing like a dividend or dynamised or relative sovereignty. Sovereignty is
always full and individual.
·
Exclusive:
The
state alone is an exclusive possession of sovereignty state and sovereignty go
together. The state exclude any outside agency in the exercised of sovereignty
no individual or association within a state or outside can wild and enjoy
sovereignty and being equal to the state.
·
In-alienable:
Sovereignty
is in-alienable it is incapable of being given away by the state. Sovereignty
is never alienated or given away his sovereignty only in the change of
government the instrument of state take place.
1) View of Bentham on sovereignty:
The
legal theory of sovereignty or systematic treatment at the land of
Bentham in
England. Bentham spoke of political society as a group of person of political
society as a group of person habituated to obey a person as on assemblage “of
person of a known as known and certain description in political society there
are just two parties:
1.
One issuing command
2.
The other obeying the command.
·
Law:
Law
are nothing but “the command of supreme governor ate the sovereign” as saying
this Bentham.
·
moral
description on sovereignty:
Bentham
says that the sovereignty is unlimited by law it is subject to moral
restriction Bentham expect this sovereign to pass a necessary legislation to
promote the greatest happiness of the greatest number.
2) View of Austin on
sovereignty:
Sovereignty
in determinant women superior. According to Austin
Sovereignty in
the state is vested in the determinant women superior. Who is legally placed
about all people he says if a determinant women superior not in an habit of
obedience to like superior receive habitual obedience, from the bulk of a given
society, the determinant superior is sovereign in that society and that society
(include the superior) is a society political and independent . The determinant
women superior is a final source of supreme power.
The
statement of Austin can be analyzed as follows:
1.
In a state a majority of citizen
obey habitually of determinant women superior who is to be deemed as one person
as a group of person.
2.
The determinant women superior is
the law maker in the state. Law are his command and without him a state can
have no laws whatever the determinant superior will is law.
3.
The supreme power is vested in a
determinant women superior and sovereignty.
4.
Sovereignty is absolute,
individual and uncertain it lies in the hand of determinant women superior. It
is not vested in the people as the electorate.
5.
The determinant women superior
does not obey the order of anyone because he has no rival of equal status in
the state. The placed above all the people.
6.
Most of the people obey the
sovereign order as a matter of regular habit. The obedience is not casual or
irregular but constant and inperiable and on permanent basis. The sovereign may
not be obey by all but this does not diminish as impose his sovereignty what is
needed is obedience by a bulk as large majority of people.
v Revelation of Austin theory –
We
shall briefly examine the merit and drawback in Austin theory of
Sovereignty:
Merit
–
Austin
theory clearly and logically explains the legal nature of sovereignty it is
lucid and free from ambiguity.
Drawback
–
The
theory suffers from several infirmities and has been criticized on various
grounds by several writers including advocates of democracy. Internationally
the following drawback can be mention:
1.
Not possible to discover
determinant women superior in no state can the determinant women superior as visualized
by Austin can be found sovereignty, cannot be located in one or few who cannot
be discovered Court of law is a modern state look at legislature as a source of
law and not a determinant woman superior as given in the Austin theory. Infect
no court of law today will able to discover such on authority whose command are
law hence Austin theory is untenable.
2.
Sovereign never absolute Sir Henry
and other historical juristic strongly criticize the absolute nature of
sovereignty.
3.
Too legal and abstract fails to
take cognizance to a philosophical aspect of sovereignty the concept of popular
sovereignty say that sovereignty is vested in the people and rule or ultimately
answerable to them.
4.
Importance of custom and tradition
ignore Austin theory make law very simple it is nothing but a sovereign command
this argument of Austin does not hard butter as all laws cannot command of
sovereign Austin commit serious mistake of ignoring the importance of customs
and tradition. Law is derived from various source and some of them are routed
in custom and uses of the people.
5.
Absolute sovereignty is harmful.
6.
Anti-democratic
7.
Concept of law is unreasonable.
SECTION
II
CHAPTER
NO. 05
ORGANISATION
OF GOVERNMENT
GOVERNMENT:
v Unitary Government –
A
unitary government is one in which the highest executive, legislative and
Judiciary
authority is located in the central government at the capital of the state.
This government conducts the administration of whole state with aid of
provisional government which functions under it in a subordinate capacity.
In a unitary system a single
integrity system of government exercises all power and the legal sovereign give
all power into the hand of single central government.
v Relation between the central & provinces
or unit –
The
relation between the central government, the capital and the
Government
in the provinces or unit will show whether the government wields the supreme
power and is competent to order the government in the unit provinces. The form
of government is clearly unitary. In a unitary system provincial government do
not have any independent constitutional status.
v Silent features of the unit form of government
–
1) Supreme single central government –
As
the name itself suggest in a unitary system is one set of government to
which all
authorities are subordinate there is one central government armed with full
authorities all government power are exercised from one central consisting of
one supreme legislature, one supreme executive and one supreme judiciary for
all the territories in the state. The central government does not treat the
provinces as its equal or state any power with them on the contrary it treats
them as its subordinates and issue order to them.
E.g.:- In
countries like India, Britain, Denmark, Holland, Japan, Iran, Afghanistan Etc.
which have unitary form as national government exercised undivided power.
2) Provisional and local bodies under central
control –
In
unitary form of government there may be several provincial and local
Bodies and
corporation, but all of them function in subordinate capacity as a description
of central government.
As
regards the position of central legislation on important point has been
Clearly
filled as that is the central legislation is not superior at constitution, the
central legislation is bound by provisions of constitution thus in this respect
there is a similarity between a unitary state with a written constitution and
federal state.
3) Central creator and unit creature in a
integrity system –
Unlike
a federal system is a unitary system the political division and sub-
Division
is the integral part of government at the centre. There is no constitutional
distribution of powers between the central government on one hand and the
provinces and division on the others.
4) Supremacy of central legislation –
The
supremacy of central legislation is another important feature of the
Unitary
system all legislative body in a unitary state are subservient to the central
legislation negatively speaking the non-existence of subordinate sovereign
bodies is an important feature of the unitary state. While a unitary state like
England, a country is created by parliament. In a federal state like the U.S.A
the federal unit or state have their own subsidiary sovereign bodies which are
not creature of federal legislation but product of the constitution.
Merit
and defect of unitary system –
The unitary and federal system is
suitable for particular country depend upon his size the genius of people and
other factors.
Merit of
the following is as follows of the unitary system –
A) Good for small state –
The unitary system is particularly good for
the small countries like England, Belgium and Italy.
B) Strength and stability –
The unitary form is highly favorable to the
maintenance of stability, unity and national solidarity in a country.
Government can be very strong and stable.
C) Flexibility –
A unitary
government commands great flexibility the centre can change its policies and
methods to suit the changing time and improve the administrative system its
hand are not tight and it can make the necessary modification and adjustment.
D) Simplicity an uniformity –
The unity system is simple whereas the federal
system is complex it is easier to run a unitary government that a federal one.
An ordinary man find it easy to understand the unitary system. The federal
structure and inter –state relation are difficult for a lay men to understand.
E) Low cost of administration –
The expenses of administration in a unitary
government are decidedly lower than federal government. The frame as to
maintain only one set of government while the later has to maintain too.
Defect
–
·
Central
despotism –
The unitary system may be misuse by their whom
have crazy far power as it provides ample scope for the despotism of central.
·
Tap Heavy
central –
As administration has to be conduct from one
central the central may become tap heavy and this may lead to inefficiency and
fall in administrative standard.
·
Local
initiative discouraged –
The unitary system throws a wet blanket on the
enthusiasm of the people in different area to come forward and associate those
selucs with the work of government.
v In federal
we discuss the two set of government constitutionally coordinate.
v Division
of power between centre and unit according to fairly rigid return constitution.
v A federal
court as a guardian of the constitution.
v Supremacy
of constitution which are rigid.
Definition –
1)
K C Wheare modern
constitution 1958 “in a federal constitution the power of government are
divided between government for whole country in such a way that each government
is legally independent within its own sphere”
2)
J. W.
Garner
in political science and government 1955 “federal government as distinguished
system in which the totality of government power is divided and distribute by
the national constitution as the organic act of parliament creating it between
a central government and court of individual state or other geriatric
sub-division of which the federation is compressed”.
The two
set of government in federation are –
1.
Federal
national or central government to deal with subject of general and national
important.
2.
The
regional government which may be called state (as in U.S.A and India) deal with
subject of regional important.
v The Allocation Power –
The
allocation power of subject is main, by the written constitution considerable
care is taken while dividing a subject between the central and unit, so that a proper
balance in maintain between the jurisdictions of two set of government. The
maximum scope provided to units to function freely and enjoy local autonomy.
The
allocation power may be made in three way –
a)
To
enumerate the subjects to deal with by a central government and units.
b)
To
enumerate only the subject of central and to give the rest to the units (Union
list)
c)
To
enumerate the subject of units and give the rest to the central by general
grant.
Each
federation has its own way of distribution of power according to the historical
condition the need of state and the genius of people.
DISTINGUISH BETWEEN UNITARY
GOVERNMENT AND FEDERAL GOVERNMENT
|
Unitary
Government
|
Federal
Government
|
||
|
1
|
One
integrated set of government this is central government in which power is
concentrated
|
1
|
In
federal two set of government power are divided between two sets the central
and the units by written constitution.
|
|
2
|
Political
division or provinces are integral part of the government.
|
2
|
Units
have complete autonomy regarding the subject under them.
|
|
3
|
Central
government is a creator of political division and provinces are its
subordinate.
|
3
|
Central
government is not the creator of federated unit both the central government
and units own their existence to the written constitution.
|
|
4
|
Central
government can issue order to the provinces and it pleases as they are
subordinated to it can increase or reduce their power and can even abolish
power.
|
4
|
Federal
as central government can deal with a federated units only accordance with
the provision of constitution it cannot order them as it pleases and cannot
reduce their power. Unit have constitutional status which the centre cannot undetermined.
|
|
5
|
At
the centre there are supreme executive, legislative and judiciary.
|
5
|
All
power is not vested in the central but according to provision of the written
constitution in which each unit in the federation has its own executive,
legislative and Judiciary.
|
|
6
|
Government
is highly centralized as all decision are taken by the central.
|
6
|
The
central has its own central part. There is much decentralization and the unit
enjoy much autonomy within the constitutional framework decision regarding a
subject of national importance are taken by the federal government.
|
|
7
|
Cost
of administration is not so high as in the federation as there is only one
set of government.
|
7
|
Cost
of running government is relatively high as there are two set of government.
|
|
8
|
Government
machinery is simple and flexible.
|
8
|
Government
machinery is complex and rigid.
|
|
9
|
There
can be no dispute between the central and provinces, its subordinate and the
formal is superior to the later
|
9
|
Dispute
between central & units and between two or more units are settled by
supreme as federal government which is indispensable.
|
|
10
|
Good
for maintaining stability and national solidarity.
|
10
|
Stability
and National solidarity are comparatively difficult to be achieved.
|
|
11
|
Centre
may become top heavy and various reasons may be neglected.
|
11
|
The
question of top heavy at the central does not rise as there is good deal of
decentralization.
|
|
12
|
There
is possibility of despotism at the central and power crazy leaders may misuse
the unitary government to increase their own power. E.g. – Britain Italy,
China and France.
|
12
|
At
the central and unit are bound the link mark out by the constitution and
similarly the unit cannot over each themselves and encroach on the field of
the centre. E.g. – USA, Australia, Switzerland and India.
|
|
13
|
There
is unity.
|
13
|
There
is union.
|
|
14
|
Generally
suitable for small countries like Britain, France, Balgium.
|
14
|
Generally,
suitable for big countries like USA, France, Russia and India.
|
v Formation of federation and its essential
requisites –
Two way of forming federation –
A federation may be formed in a
two way –
1) By Integration, By Centribital force –
A
member of state at first separate and sovereignty may come together
And form a
federation by accepting a common sovereignty. The federation of the USA,
Switzerland and Australia were formed in this manner.
2) By disintegration and by central fugal force –
A
state which was formally unit may be transfer into the federation as a
Result of
centrifugal force – Canada which was originally unitary was converted into
federation. Similarly India unitary state under British rule was broken up and
recognized in autonomous units to form a union of state. A federal structure
with a strong centre. The federal constitution of India was drafted by
constitutional assembly (1946 – 1949)
v India –
India is a unique example for
federation –
Combination of unitary and federal
features –
India
is a example of state which combine feature of unitary state with those of
federal state. The union (central government in India is stronger than the any
other federation). In the constitution itself there is a provision convert the
federal state into unitary state in the time of emergency.
K.C.
Wheare say that the constitution of India itself “A system of government which
is most causey federal almost revolutionary in character. A unitary state with subsidiary
federal feature rather than a federal state with unitary features”
According
to the constitution of India which came into force on January 26 1950, India is
union state. The word federation has not been used in the constitution of
India. As a federation cannot be put in the category of USA and Switzerland.
v Strong Unitary Bias –
The following features of a Indian
constitution show it string unitary bias –
1)
Three
list with residuary power with the centre-
There
are three lists with the subject –
a) Union list
b) State list
c) And the unlike, the USA residuary power with
the centre.
The
distribution of subject in the three lists is in favor of the union government.
97 subjects are in the union list, while only 66 subjects are in the state
list. In the concrete list there are 47 subjects on which both the union and
the state legislation can pass law. The most important subject with wider power
has been given to the centre and relatively unimportance once has been given to
the state.
State has to obey the direction given by
the union government.
2) White power president –
The
president of India enjoy the following power –
1)
He
appoints the governor of the state.
2)
When
president declares an emergency in a state owing to the breakdown of its
constitution machinery the governor become the agent of the centre.
3)
A
bill by the state legislature may be reserved by the state governor for the
consideration of president.
4)
In
time of national emergency the president can assume extra-ordinary power of
parliament can make law even on a subject which is in the state list.
All
this power of president makes centre very strong.
3) One citizenship –
Unlike in the USA and Switzerland in India
there is only one citizenship.
4) One judiciary system –
In India there is only one unified judiciary
system but in USA federal government cannot interfere in an affair state
government and federal government and state government work in parallel line.
In India the Supreme Court (which the federal government) and High Court
belongs to same integrated judicial system.
CHAPTER
NO. 06
JUDICIARY
v Meaning of judiciary –
Judiciary
is a branch of government interpreting law settling dispute & view justice.
In federal state it acts as a guarding of the constitution and state dispute
between federal government and units.
v Protection to all and equality before law –
In highly
advance modern state the individual is issued protection of law. Justice is not
given arbitrarily but according to well establish principle let down by the law
and custom. The law is passed by the legislation not by the single individual
and it is interpreted and applies to particular case by way of independent and
impartial judges.
There is
equality before law and no one whether high or low can escape punishment when
the violation of law is deducted and prove.
v Efficiency and independent of judiciary –
a) Creation of favorable condition –
A good
state create condition favorable for the smooth and effective functioning of
judiciary judge should be able to do their jobs fearlessly impartially without
having any need to favor a particular individual or partly appearing before
them as having the remotest fear of any individual or group either in executive
or in the legislation.
v Factors favorable to the efficiency and the
independent of judiciary are follow –
a) Proper method of appointing of judges –
The state
should have healthy and clear cut rule regarding the
Organization
of judiciary. In several state the constitution itself make provision for the
selection of thee higher judiciary. The independent of judges depend much on a
way in which they are appointed.
Judges may be elected by the people
or by the legislation or may be appointed by the executive. Appointment of
judges through election was first begun in France, such system is found in a
few state in the USA and in some Swiss countries.
In Britain and India judges are
appointed by the executive according to certain rule which minimize the evils
in the judiciary organization.
b) By providing for security of tenure –
Another
way of upholding the way of independent of judiciary is to provide
for
absolute security of tenure of judges during good behavior judges should not be
entertain any suspicion all anxiety about the security of tenure and there
should be no reason for them to favor with any authority.
v Dismissal –
The
dismissal of judges should not be easy through provision has to be
Made for
the dismissal of grossly and incompetent and corrupt judges. Removing of bad
judges is an essential and providing security to upright features and
independent judges.
In India the president appoint the
judges of Supreme Court and of the High Court but the president cannot
arbitrarily remove a judge when he knows that he has given unfavorable verdict
in a case against the executive. The president of India can remove judges of
Supreme Court or High Court only after parliament take the initiative for his
dismissal. Each house of parliament must present and address for the dismissal
of judges this must be support by a majority of the total membership of that
house and by the majority not less then 2/3rd of the member of house
present and voting, it is not easy to secure such majority and the removal of
judges is extremely difficult, thought not possible. In USA judge of Supreme
Court can be dismiss by impeachment. In Britain removal of judges is possible
only when two chamber of parliament present a join address to king.
v Attractive salary and service condition –
Will
also be highly favorable for the maintenance of the independence of
Judiciary.
Judges should be paid and handsomely and kept above want and temptation,
niggardly payment will not unable a judge to maintain standard exception of him
and circumstances will force him sooner or later to except gift and prize.
The
power to increase and reduce the salary of judges must be in hand of
Executive
in India. Salary of judges cannot be reduce after their appointment and only
during the time of financial emergency the president may retraige the salary of
judges of Supreme Court and High Court.
v High qualification –
Judges should be highly
qualified and experienced in the field of law and the state should frame rules
to secure the service of the best man, judges should be conversant with the
constitution and the law and have the ability to interpretate law and if
necessary fill lacunae in law. When situation demands generally every state
prescribes a certain minimum academic qualification and experience.
v
Separation
of power –
Separation from executive the
judiciary should not be under the control of
Other
organs of the government and the principle of separation of power should be
follow the judiciary from the executive should be followed strictly in all
state.
British India violates the principle
of separation of power at district level the collector. Magistrate or the duty
commissioner wide executive and judicial power.
v
M.C
Chagla former chief justice of the Bombay High Court became a minister in a
central cabinet and this individual adverse criticism from various ways several
other examples also can be given.
to be continued..........
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