STATE AND SOVEREIGNITY-JRURISPRUDENCE

STATE AND SOVEREIGNITY

Many definitions of state have been given by various writers. ,g enerally occupying a certain territory amongst Holland: “ The numerous assemblage of human beings ,generally whom the will of the majority or of an ascertainable class of persons ,is by the strength of such a majority or  class ,made to prevail against any of their number who oppose it.” Willoughby : “ Where there there can be discovered in any community of persons a supreme authority ecercising control over the social actions of individuals an d groups of individuals and itself subject to no such regulations .” Sidgwick  :  : “!olitical society or community , i.e. , a body of human h uman beings deriving its corporate unity from the fact that its members ac"nowledge permanent obedience to the same government gov ernment which represents the society in any transactions that it may carry on as a body with other p olitical bodies .” Philio!" : “#people permanently occupying a fied territory ,bound together by common laws,habit and customs into one body politic ecercising through the medium of an organi$ed government independent sovereignty and control over all persons or things within its boundary ,capable of ma"ing war and peace and of entering into intenational relations with the communities of the globe.” #lun$%chli : “The state is a combination or association of persons in the form of government and governed on a definite territory , united together into a moral organi$ation ,masculine personality or more shortly ,the state is the politically organi$ed national person of a definte country.” Ga!n"! : “The state is a community of persons more or less numerous ,permanently occupying a definite  portion of territory, territory, independently or nearly so of eternal control and possessing organi$ed government to which the great body of inhabitants render habitual obedience.” G"$$"ll: “%tate is a community of persons permanently occu pying a definite territory ,legally independent of  eternal control and possessing organi$ed government which creates and administers law over all persons and groups within its jurisdiction.#bstractly considered , the state is juridical entity or person & concretely considered , it is the community , the territory which it occupies and the governmental gov ernmental organi$ation through which i$ will% and ac$%&' #"n$ha :” When a number of persons are supposed to be in the habit of paying obedience to a person or an assemblage of persons ,of "nown and certain description ,such persons altogether are said to be in a state of political society .” Wood!ow Wood!ow Wil%on : “ # state is a people organi$ed for law within a definite territory .” (acI)"!  : “The state is an association which acting through law as promulgated by a government ,endowed to this end with coercive power ,maintains within a community territorially demarcated the universal eternal conditions of social order.” #!i"!ly  : “The state is an institution , that is to say , it is a system of relations which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on.” Salond : With ref to its essential function :”#society of men established for the maintainence of order and  justice within determined terrirtory terrirtory , by way of force. “

El""n$% O* Th" S$a$"

'( Po+ula$ion :There can be no state W)* people .The population of a state may be large or small. +( T" Wandering people cant constitute a state .-t is only when they settle down on some T"!!i$o!y !!i$o!y : “ Wandering definite territory that they constitute a state and the si$e is not material .-t may may be large or small %almonddoes not regard this as an essential element.#cc to him “ The territory of a state is that portion of the earths surface which is in its eculsive possession possession and control .-t is that region throughout which it permanently ecludes an alien interference.The e clusive possession of a defined territory is a characteristic feature of all civili$ed and normal states .-t is found to b e a necessary condition of the efficient eercise of governmental functions.” # state W)* fied territory /a nomadic tribe for eample is perfectly possible .#nonterritorial .#n onterritorial society may be organi$ed for the fulfillment of the essential functions of the government and if so ,it will be a true state .%uch state of affairs is so rare that it is permissible to disregard it as abnormal .-t is with the territorial state that we are concerned . 0(Go)"!n"n$  :-t is an organ of the community .-t is the outward manifestation of a state .-t is the machinery through which administration of a country is carried on .# temporary and casual union of individual doesnt constitute constitute a state and therefore there is no state state without a permanent and definite definite organi$ation. %almond : “ !olitical or civil power is the power vested in any person or body of persons of ecersing any function of the state by his or their decision to st in motion the forces of the the state for a parcular  purpose .# ll ll the persons with such power considered together constitute the government of that state and are the persons through whom the state as a whole acts.” 1overnment divded into 0 dept2legislature , the eecutive ,the judiciary. 3(. So)"!"ign$y  /This distinguishes state from from government .-t is supreme both eternally and internally 4no power above it . %almond : “%overeignty *5 %upreme power is that which is absolute and uncontrolled within its own sphere ,unc$ion% O* Th" S$a$" : Salond -./P!ia!y ,unc$ion% 0 H"l+ indi)idual% ain$ain !igh$% in $h" %oci"$y& '.Wa! !urpose of which is defence '.Adini%$!a$ion O* 1u%$ic" 2  !urpose of against the eternal enemy which is the maintainence of law and order +.%tate acts etrajudicially without within the country . awaiting any judicial decision %tate may +.This re8uires the interposition interposition of judicial judicial wage war against its own subject or against decision ..  pirates or other persons who does not 0.Machinery of justice is usually employed constitute a political society.-t is the will of against internal . those who eercise it .Martial law is merely 3. judicial force is usually regulated by law the will of the commanding officer  and eercised commonly against a private 0.6orce is used against eternal enemies.  persons completely in the power of the .3.7tra judicial force re8uires no law and state and its force is usually latent. is eercised against against states.and is not armed with overwhelming force.

-3/&S"conda!y ,unc$ion% 0  9ecessary for the welfare of the citi$en.%econdary functions have increased state activity. .&4"gi%laion .&Ta5a$ion

H"!b"!$ S+"nc"!  : “The primary functions of the state or tht agency in which the powers of the state are centrali$ed is the function of directing the combined actions of the incorporated individuals in war .The first duty of the rulling agency is national defence .What we may consider as measures to maintain intertribal justice are more imperative and come earlier than measures to maintain justice among individuals.*nce established the secondary functions of thestate goes on developing and becomes a function net in importance to the function of protecting against eternal enemies.With the progress of civili$ation the administration of justice continues to etend and becomes more efficient .etween these essential functions and all other functions ,there is a division which ,though it cannot in all cases be drawn with precision ,is yet broadly mar"ed.” 6ni$a!y and 7o+o%i$" S$a$"% & 6ni$a!y S$a$"%  : ;nitary state is one which is not made up of territorial divisions which are states themselves.The central government is all powerful. 7o+o%i$" S$a$"%  .-t is one which itself an aggregate or group of constituent states . Salond cla%%i*i"% co+o%i$" %$a$"  as :imperial ,federal or confederate . ,"d"!al %$a$" : Na$han : “#n aggregate of small states which ,while each retaining its separate identity ,are united together for defined common purposes in aunion which ,theorically atleast is indissoluble .” !rof.e has the absolute power of law ma"ing although the law of nature ma"es him respect proprietary rights and "eep faith with another ruler “ Hobb"% : “ The sovereign is absolute and not bound by anything .-ts power etends over all matters within the state ,including religion .” Au%$in :Theory of sovereignty  clear 4elaborate : “ The sovereign is not in the habit of obedience to any political superior and he commands habitual obedience from the bul" of his subjects.sovereignty is indivisible ,unlimited and illimitable .”  Salond ;  Biew  Biew / every political society involves the presence of sovereign authority .-t is not necessary that sovereignty in all cases be found in its entirely within the confines of the state itself and may, wholly or partly , be eternal to the state . owever a sovereign thus trammeled would be more or less a contradiction in terms.Moreover the constitution amending body comes into operation only on very eceptional occasions.4o!d #!yc" : -s there not something unreal and artificial in ascribing sovereignty to a body which is almost always in abeyanceG” I7ven if it is assumed that the constitution amending bo dy is the sovereign the 8uestion arises whether its power are legally unlimited. P!o* &Sidgwick  :  : “-t has legal limitsof great importance because it can operate only when the legal rules determining its structure structure and procedure are satisfied satisfied .” Moreover no state can be deprived of its e8ual voting suffrage in the senate W)* its consent The result is that even the constitution amending body has legal limitations upon its power. Au%$in=% $h"o!y o* indi)i%ibl" So)"!"ign$y b!"ak% down in $h" ca%" o* ,"d"!al %$a$"%  .%overeignty is divided into legislative , eecutive and judicial sovereignty .These three are independent of each other in federal states . 4o!d #!yc"  view Au%$in=%  Au%$in=% $h"o!y o* So)"!"ign$y no$ a++licabl" $o ,"d"!al con%$i$u$ion%& -n ;.% the congress can legislate on 6ederal matters only .The residuary legislative power is with the state legislatures. legislatures. “7ach legislature , therefore has only a part of the sum total of supreme legislative legislative  power .The sovereignty of each of these authorities will be then be to the lawyers mind mind , a partial sovereignty .ut it will nonetheless be a true sovereignty sufficient for the purpose of the lawyer.” lawyer.” There fore “?egislative sovereignty is divisible , that is different branches of it may be co ncurrently vested in different persons , coordinate altogether , or coordinate partially only , though acting in different spheres .” 6nd"! Indian 7on%$i$u$ion A!$icl" F9  The eecutive power of the -ndian -ndian ;nion is vested in the !resident of -ndia The ?egislative power resides in !arliament which comprises of the president , the council of states and the >ouse of the !eople. =onstitution amendment / amending bill after being d uly passed as re8uired by a!$icl" 9B, 4has received the assent of the president . -n the eecutive sphere the president is supreme and may be regarded as the eecutive sovereign . The powers of the president cannot be impaired without his consent .#s The powers of the supreme court cannot be impaired without its consent .,there is no judicial sovereign in Indian 7on%$i$u$ion . Au%$in T!i"d $o loca$" %o)"!"ign$y in 6&S by lik"2So)"!"ign$y ay b" loca$"d in $h" con%$i$u$ion a"nding body &

In India con%$i$u$ion do"% no$ +!"%c!ib" only on" +!oc"du!" *o! a"nding $h" con%$i$u$ion Isome made by parliament itself W)* concurrence of the states . Isome re8uires in addition ratification by the legislatures of one half of the states as mentioned in  proviso to #rticle #rticle 0JK of -ndian =onstitution 6or all purposes there is not one constitution amending body , .Therefore its is not repository of sovereign  power .Moreover constitution amending body functions rarely and it is artificial artificial to ascribe sovereignty to it . V&S&S!ini)a%a Endow"n$ 4"c$u!"% 2.CFF2&(&(un%hi : “What are the implications of the sovereignty with which our republic is vested G%overegnty has two aspects : one eternal , that is, in relation to other states enjoying sovereign powers , and other internal , that is , in relation to its own citi$ens.The idea that sovereignty is unlimited or to use the word of >obbes , indivisible indivisible , unlimited and illimitable is as untrue in theory as in practice .The idea was borrowed by nation states from the $h" %o)"!"ign +o%%"%% unlii$"d +ow"!% > bu$ "5+"!i"nc" %how% $ha$ $h"!" i% no +ow"! on "a!$h which can wi"ld unlii$"d +ow"!%& The reason is that the state or the sovereign acts through law which can regulate their internal actions .Ci.e can not control morality , beliefs , religion or public opinion.( Therefore sovereignty does not possess unlimited powers.

#lun$%cli : A The state as a whole is not almighty , for it is limited eternally by the rights of other states and internally by its own nature and by b y the rights of individual members.” 4"%li" S$"+h"n : %overeignty is limited both from within and without : “from within because the legislature is the product of certain social condition and an d determined by whatever determines society and from without  because the power of imposing law is dependent upon the instinct of subordination which is itself limited limited .-f  a legislatures decided that all blueeyed babies should be murdered , the preservation of blueeyed babies would be illegal but legislatures must go mad b efore they could submit to it .” #gain “ as there is in nature na ture no such thing as a perfect p erfect circle or acompletely rigid body , or a mechanical system in which there is no friction or a state of society in which men act simply with a view to gain , so there is in nature no such thing as an absolute sovereign.” P!o*& 4a%ki2c!i$ic%2$h"o!y o* %o)"!"ign$y “no sovereign has anywhere possessed unlimited un limited power and the attempt to eert it has a lways resulted in the establishment of safeguards.” 7ven the british parliament does not enjoy absolute powers in actual  practice .The @ing in!arliament may outrage public opinion , but practically it can do so only on the implied conditions that it ceases , as a conse8uence to be @ing in!arliament.. The other association within the state are no les sovereign than the state itself .The interest of human demand limited sovereignty. “7ternally surely , the concept of absolute and independent sovereign state which demands and un8ualified allegiance to government from its its members and enforces that alliegiance by the power at its its command , is incompatible with the interests of humanity .our problem is not to reconcile the interest of the humanity with the interests of 7ngland & our problem is to act that the policy of 7ngland naturally implies the well  being of humanity.” humanity.” 7!i$ic%  /“ ?egally , an autocratic Tsar Tsar may shoot down his subjects before the Winter Winter palace at !etrograd ,  but morally it is condemnation that we utter .There is , therefore , a vast difference difference between what