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JURISPRUDENCE Law as a command of Sovereign- Indian perspective Researched, Authored and Edited by :- Puja Kumari Roll no- R76021004 SAP ID- 500012378 BBA LLB 4 TH SEMESTER

Research Paper Jurisprudence

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JURISPRUDENCE

Law as a command of Sovereign- Indian perspective

Researched, Authored and Edited by :-Puja KumariRoll no- R76021004SAP ID- 500012378BBA LLB4TH SEMESTER

Submitted to:-Mr. Ashish Verma (Asst. Prof. )University Of Petroleum and Energy Studies

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CONTENTS1. Introduction……………………………………….…………………………………..2. Methodology …………………………………………….…………………………….• Objectives of research• Scope of research• Research technique……………………………………………………………………..3. Chapter 1: Law as a Command of Sovereign-Austin4. Chapter 2: Historical evolution of the Doctrine of Sovereignty5. Chapter 3: Prevalence and existence of Austin’s Sovereignty- Indian Political System6. Chapter 4: Application of Austin’s principle in Indian Judiciary7. Chapter 5: Case laws8. Chapter 6: Critical Analysis9. Chapter 7: Conclusion

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Introduction

The concept of “sovereignty” implies a theory of politics which claims that in every system of government there must be some absolute power of final decision exercised by some person or body recognized both as competent to decide and as able to enforce the decision. This person or body is called the sovereign. The simplest form of the theory is the common assertion that “the state is sovereign,” which is usually a tautology, just as the expression “sovereign state” can be a pleonasm. For the concept of “the state” came into use at about the same time as the concept of sovereignty, and it served the same purpose and had substantially the same meaning. Both concepts provided secular symbols to replace the decayed religious basis for authority.

Austin was an English jurist of the 19th century. He belongs to the classical school of thought. The theory of sovereignty finds perfection in his hands.

He gives it a legal concept. Austin gives the following definition of legal sovereignty in his book "Province of Jurisprudence Determined" published in 1832.

"If a determinate human superior not in the habit of obedience to a like superior receives habitual obedience from the bulk of a given society, that determinate human superior is sovereign in that society, and the society is political and independent.

"Law is the command of a determinate human superior to an inferior, i.e., a command of the sovereignty to the subject. The essence of law is the coercive force of the state."

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Methodology

Objectives of research:

1. to study the Austin’s concept of sovereign.2. to determine existence of Austin’s sovereignty in Indian perspective.

Scope of research:

1. this paper tends to study in detail the application of Austin’s sovereignty2. this paper will analyze the same with reference to

India

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ABBREVIATIONSAIRALL INDIA REPORTEROrsOthers

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Chapter-1Law as a Command of Sovereign-Austin

Austin wrote his theory at the time when England was in need of vast legislative reforms. So his idea was guided by the situation which can be found in his theory. For Austin laws are the command supported by sanction. Law is command given by superior to inferior.

So, Austin’s doctrine of sovereignty emphasis on following points:-The bulk of the given society are in a habit of obedience to determinate superior. This determinate superior is the sovereign in the society, and that society is political and independent. In every political and independent community, some person or body of persons who exercise sovereign power. That such a determinate human superior must not himself obey any other higher authority. His will is supreme over all individuals and associations and he is subject to no control, direct or indirect.That command is the essence of law. Whatever the sovereign command is law, and law prescribes to do certain things and not to do others.

The demand of personal obedience in Austin's theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. Austin came out with the solution of "tacit" command for the problem of continuance of old laws. In fact, Austin's theory of a legal system is at best an explanation of a momentary legal system which contains all laws of a legal system valid at a certain moment. These are usually not laws of the system. It is a sub-class of the system. For every momentary legal system there is a legal system which contains all laws of a legal system. It is logically impossible for a legal system to contain an empty momentary system.

A careful study of Austin's theory of legal sovereignty will bring out the following distinctive features of sovereignty and law as viewed by him:—

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1. Every state must be sovereign and should have a distinct sovereign authority. It may be a person or a body of persons. Legal sovereign must be definite and determinable.

One should be in a position to say as to which and who is the legal sovereign in a particular state. Sovereign may be a king or a dictator or a parliament but it has to be definite and particular.

A state without sovereignty is not a state but a dependency.

2. Sovereign has absolute, unlimited and indivisible authority. Internally, a vast majority of the people obey him and those who do not fall in the line with him are liable to be punished.

Externally, sovereign is supreme as he does not submit to the authority of a like sovereign.

3. Law is the command of the sovereign. Whatever the sovereign says is law. This means that courts recognize and enforce only those laws which are framed by the legal sovereign. There is no limit to law-making authority of the sovereign.

Rights are certain privileges sanctioned by the sovereign but legally, the subjects have no legal right against the sovereign.

4. Essence of law is the coercive power of the sovereign. Every breach of law is followed by punishment.

Austin wrote his theory at the time when England was in need of vast legislative reforms. So his idea was guided by the situation which can be found in his theory.

For Austin laws are the command supported by sanction. Law is command given by superior to inferior.

So, Austin’s doctrine of sovereignty emphasis on following points:

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The bulk of the given society are in a habit of obedience to determinate superior. This determinate superior is the sovereign in the society, and that society is political and independent.

In every political and independent community, some person or body of persons who exercise sovereign power.

That such a determinate human superior must not himself obey any other higher authority. His will is supreme over all individuals and associations and he is subject to no control, direct or indirect.

That command is the essence of law. Whatever the sovereign command is law, and law prescribes to do certain things and not to do others.

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CHAPTER 2Historical evolution of the Doctrine of Sovereignty

The Roman province believed in the dictas in New Testament, which expressed the thought that the supreme power actually has received divine sanction by being permitted to prevail, that it has a rightful claim to obedience. These dicta are an evidence of the sentiments of roman provincial under the earlier empire .The prevalent answer to any question about the source of legal sovereignty and the moral claims of a sovereign to the obedience of its subjects was that god had appointed certain powers to govern the world and to resist would be a sin. It was admitted that there were two sovereigns and each was absolute-The pope in spiritual and the emperor in temporal matters.

However, late around, the sixteenth century various changes took place which shook the existing fabric of thought and belief. These included the crumbling of feudal structure of the society, pope's authority being met with a revolt and half the Europe was taken from his sway, a new sprit of inquiry, skeptical in its tendencies sprang up in Europe( a characteristic of renaissance). Thus the traditional doctrine regarding the basis of authority which had been sufficient for the middle ages had faded, morals began to be separated from theology, people started questioning the basis of a kings' claim to obedience. A new explanation of the nature of political society was now needed and from this time onwards new theories of state power began to appear.

The first theory which exerted wide influence was that of Jean Bodin In his view sovereignty was the highest power in a state which is subject to no laws but is itself the maker and master of them. It may reside in either on person or in a number of persons , but in either case it is above law, incapable of any limitation and having an absolute claim to the obedience of all. He admitted that in some way the sovereign is subject to Law of God and laws of nature , and is therefore he is bound to respect the rights of property and personal freedom.

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Nearly a century later a similar theory was put forward by Thomas Hobbes. He based his sovereignty on a covenant of each member of a community with another member to surrender all their rights and powers into the hands of one person or body who thereby becomes the sovereign. Since the sovereign is not himself a party to the contract it cannot be annulled by those who made it . The authority of the sovereign is therefore permanent and unlimited. Jermy Benthem revived Hobbes theory of absolute sovereign and justified it. Thus we see that much before Austin , there were other great philosophers who had defined sovereignty

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CHAPTER 3Prevalence and existence of Austin’s Sovereignty- Indian Political System1. Austin's theory tells that all laws come from the sovereign may be true

theoretically, and laws in our country (i.e. statue made laws at least) are a result of the act of the politically superior that is the legislators but the same is not true practically as they are not a reflection of the will of the superior in the real sense. Though many laws come directly from the parliament, but they merely reflect the desire of these politicians to maintain support of the major organized groups in the country and to meet their interests satisfactorily. Under the conditions of the day the huge combination of labour capital , capital , with their expert lobby sit and wealthy treasuries any group is able to compel recognition and secure desired legislation. Only the fact that these groups are competing amongst themselves prevents the government from becoming helpless tools in their hands. Even then the grinding impact of competing pressures upon the government requires political astuteness of a high order to keep them satisfied and prevent the withdrawal of support in the next elections. Thus we can say that Austin’s emphasis that sovereign is the main stream of law is not just.. Law emanating only from the sovereign may be fit for a totalitarian regime (which is soon becoming a rare phenomenon in present world order) where the government can use its monopoly of law making and executive powers for the re shaping of laws in disregard of the democratic processes, but in a democratic country like India the same is not possible. The interplay between the public opinion and state action has become very complex these days whether we are concerned with the abolition of dowry, the creation of legal remedies against administrative action or the introduction of a new ground of divorce there is always some interrelation between the state machinery that produces these changes and social opinion of the community in which they are intended to operate. Public opinion on vital issue is expressed through the elected representatives in the house, and also through public discussion in press, radio, public lectures .it can thus be concluded that legislative practices in our country provide for opportunities to the public to participate in the legislative activities of those to whom these powers are delegated.

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2. Austin postulates a political superior in a political society who is habitually

obeyed by the majority of the population. This means that sovereign is the highest

authority, the strongest authority in a political system. According to Austin

sovereign is the person who has the last word in a particular connection. But the

issue is that how can one determine the 'highest authority' in a democratic country

like India , to identify the strongest power would involve an investigation of a lot of

legal as well as well extra-legal forces which determine how a state shall operate.

 Who is the highest authority, is it the masses who chose the government, is the

legislators who finally make laws, is it the judiciary that has the power to strike

down laws made by the parliament, is it the executive as laws that are enforced are

selected by administrators today, what they consider worthy of implementing is duly

enforced other laws are followed more in breach than in obedience. is it the

constitution according to which all others are expected to act or is it again the masse

by whom the constitution has been formed ? Who do we call supreme. Besides these

forces there are other socio - economic forces that have the power to exert a lot of

pressure to finally determine what laws are formulated and most often have the

final say.

3. Austin’s theory that law emanate only from the sovereign authority in India as much as it would fail in other common law countries. There are various other very important sources of law which cannot be ignored at all. His theory would fit only one portion of law that is the law made by the legislative body. But the word law is of wilder amplitude and includes not only laws but bye-laws, notifications, customs which are not made by the state. Another important category that Austin does not include in his definition of law is Judge made laws , in this era of judicial activism where judiciary does not only interpret law but also makes law this category cannot be ignored.

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Principles of justice, equity, good conscience are important principles that are

always kept in mind while implementing any law none of them.

4. Similarly Austin's concept of unlimited and indivisible sovereignty is quite

inappropriate in the Indian set up or any democracy. The sovereign does not have

the power to command anything that it desires. It is as much bound by rules and

regulation embodied in the constitution and other laws as any common man.

Legislature is bound by the constitution and in almost all cases court has the power

to decide whether an act done by the government is constitutable and hence valid

otherwise it can be struck down.

Thus we can say that the notion of sovereignty in India at present certainly not what

Austin would define as sovereignty, the concept of sovereignty is under restraint

which is very justified as the concept of an unlimited illimitable and indivisible

sovereignty is a superfluity that debases the very cannon of Indian Jurisprudence.

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CHAPTER 4Application of Austin’s principle in Indian Judiciary

John Austin gave theory of sovereignty which consist too much emphasis over command.

In our Indian judicial system we can trace that criminal law and traffic law contains

command. These are the list of laws which are based in Austin’s theory are as follows:-

         Indian Penal Code ( Act. No. 45 of year 1860)

         Code of Criminal Procedure Amendment Bill 2008

         Unlawful Activities (prevention) Amendment Bill 2008

         Motor Vehicle Act- 1988

All these laws are like the command given by the sovereign which is backed by punishment.

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CHAPTER 5Critical Analysis

So here are the different criticism of austin’s theory.According to Austin only those

commands that are given by a political superior i.e. sovereign are laws strictly so called

that is law in the real sense, this would mean that the existence of a state or sovereign is a

pre condition for laws to be formed & obeyed This definition of law cannot stand the

scrutiny of history. Historically law is older than any form of government or state.

  Austin doesn’t explain the succession of sovereign and continuity of law. This criticism was

done by H.L.A. Hart.

  Austin gave too much emphasis on command. But this command is absent in constitution

law and in other law except criminal and traffic law.

  Sir Henery Maine criticise Austin’s by saying that sovereign does not reside in a determinate

superior. “He emphasises on the vast mass of influences”. He cited the example maharaja

Ranjit Singh ruler of Punjab by saying that he was the determinate superior and sovereign

according to the Austin’s criteria. Yet Ranjit Singh never “once in all his life” issued

command which Austin could call a law.

  Austin theory was further criticised on the ground that it invests the sovereign with absolute

and illimitable powers.

  Hart criticises Austin's definition of law as a command of the sovereign backed by sanctions.

He contends that a legal system does not resemble a gunman situation writ large.

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CHAPTER 6Case laws

Bhanwarlal and Othersv  

Rajasthan State Road Transport Corporation and Others1984 RAJASTHAN HIGH COURT

In this case Austin’s principle was used to decide the reservation policy which the plaintiff was holding from medieval kingship period for getting job in state transport authority. This idea was used- “John Austin defined law as a command of a definite political superior enforced by a sanction which obliges intelligent human beings to acts or forbearance of a class. No command, as visualised in this definition, is carried by standing orders. There is no sanction behind them in as much as they cannot be enforced in a Court of law. They are merely rules regulating the relations between an employer and his employees”

In another case again Austin principle of sovereignty was used.

Sardar Govindrao and Othersv

State of Madhya Pradesh and Others

1982   SC 239 [SUPREME COURT OF INDIA]

This case the legal aspect of sovereignty is best examined by a statement of the form given to it by John Austin. In every legal analysis of the State, he argued, it is first of all necessary to discover in the given society that definite superior to which habitual obedience is rendered by the mass of men. That superior must not itself obey any higher authority. When we discover the authority which gives commands habitually obeyed, it not receiving them, we have the sovereign power in the State. In an independent political community that sovereign is determinate and absolute. It wills is illimitable because, if it could not be constrained to act, it would cease to be supreme, since it would then be subject to the constraining power. It will is indivisible because, if power over certain functions or persons is absolutely and irrevocably entrusted to a given body, the sovereign then ceases to enjoy universal supremacy

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CHAPTER 7Conclusion

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From this project the researcher come to conclude that Austin’s analysis of sovereignty embraces the existence the supreme power which is determinate, absolute, illimitable, all comprehensive and permanent. Researcher also made an attempt to analyze Austin's notion of sovereignty and his proposed theories. His theory of sovereignty did not seem to be applicable in modern day democracies. But that in no way undermines the importance of his excellent work. Austin’s concepts about various legal concepts might not seem true in modern times but we should not forget that Austin is regarded as one of the noted jurist of all times as much for his work and theory of law as for the methodology employed to arrive at his theory. In his case both the ends arrived at as well as the means used to arrive at them provided a great stimulus to the study of both 'law' as well as 'jurisprudence.' Austin made numerous efforts to establish law and jurisprudence as discipline .He succeed in his attempts in the year 1839 when the first batch of law graduates passed out from the university. Austin propagated and established that law can be studied in a scientific manner, in his times science had a very progressive and promising scope therefore the only way law could be established, as a discipline was to link it with the scientific methodology. Austin postulated a general theory of law and studied law with the help of verifiable facts.

Thus we can conclude that with change in times, Austin's views might not appear very true for the current political and legal order of the world but his greatest contribution of establishing law as a discipline that can be studies in a scientific manner secure an esteemed position for him in the canals of jurisprudence.