In the context of Preamble of the Indian Constitution, India being constituted into a “sovereign” nation implies that it has ceased to be a dependency of the British regime and it is, now, externally free and internally supreme. Put in another manner, the term sovereignty is a synonym for Independence. The Constituent Assembly debates testimonise this as the founding fathers had then made the decision to substitute the term ‘Independent’ for ‘Democratic’ while drafting the preamble. Objective resolution, that formed the basis for the preamble, declared India to be a Sovereign Independent Republic. Dr. Ambedkar opined, however, that ‘Independent’ was already implied within the expression ‘Sovereign’ and henceforth, including the said term in the preamble wouldn’t serve any purpose.
Though in the context of preamble it simply implies independence and supremacy, the said term has a very open ended description since various intellectuals have offered different spectrums and dimensions of it over the course of time. Consider the jurisprudential angle of it offered by Austin, according to whom: If a determinate human superior, not in the habit of obedience to a like superior, receives from the bulk of a given society- political and independent- habitual obedience, then that human superior shall be described as ‘Sovereign‘. And the command of that sovereign is Law, causing an impairment to which would result into sanctions being imposed by the sovereign upon the wrongdoer. He added to the concept of sovereignty, the attributes of ‘Illimitability’ and ‘Indivisibility’, which would mean that a sovereign is supreme having undivided and unlimited power. However, it would be futile to locate the aforesaid attributes in the modern polities and their supremes, as most of the polities have eroded them with a view to have a responsible and accountable government. For instance- India has a dual polity, where the power of governance has been divided, vertically, at two levels: Centre and States. The powers and functions at both these levels have been further separated, horizontally, across three branches: Legislative, Executive and Judiciary. Legislative enacts the law, Executive implements the law and Judiciary interpretes the law and adjudicates upon the disputes. Though the Indian Constitution defines the power of these three branches and governments at both the levels, it has subjected them to numerous limitations. This manifests as to how ‘Divisibility’ and ‘Limitations’ are hallmarks of the Indian polity. Indeed, most of the modern polities around the world follow a similar scenario. Thus, in modern context the attributes of Indivisibilty and Illimitability have been eroded to hypotheses merely, with no practical existence.
Locating the attribute of supremacy, however, in the modern polities may not be futile. Indeed there has been a long standing debate, amongst the legal scholars, around the question as to who truly is supreme in India? This author has made an attempt to clarify his stance in the aforesaid debate.
Who is Supreme in India?
The first contender that emerges in this regards is the Constitution– the supreme law of the land. Several scholars contend that the Constitution is supreme in our country since it defines and limits the power and function of the authorities- be it Legislative, Executive or Judiciary. However, the Constitution itself is not untouchable in its entirety- saving the basic structure of the Constitution. The Constitution may be altered in both formal and non-formal ways. Formal ways include the changes to the Constitution made by the Parliament and non-formal amendments include changes to the Constitution brought about by creative judicial decisions and conventions. Despite of the fact that parliament is bequethed with the power to amend and alter the constitution, it would be inappropriate to label it supreme due to certain reasons:
• Firstly– absence of a common procedure of amendment of the Constitution, and,
• Secondly– the power of amendment is not absolute,
There are three different ways for amendment and alteration of the Constitution by parliament, enunciated by the Constitution itself. Further, this power is not absolute and subject to the basic structure doctrine i.e. no constitutional amendment shall violate the doctrine of basic structure otherwise it shall be struck down or rendered void. In words of Nani Palkhivala, the Parliament is only a creature of the Constitution and it is by no means appropriate to label it supreme. Similarly, the Judiciary at the apex cannot be labeled supreme either as the judges of Supreme court may be removed from their office by the parliament on the grounds of proved misbehavior or incapacity through a rigorous impeachment process under Article 126(4) of the Constitution. Moreover, the non-formal alterations brought about in the Constitution by the judicial interpretation are meant to alter its legal meaning only. They do not possess the power to bring about verbal changes in the Constitution.
Thus, in light of the aforesaid criticisms, a host of scholars contend that the people are the supreme power in our country, which seems lot more convincing than the aforesaid contentions, afterall they are the source of authority of the Constitution. It is counter-argued, however, by some that the people had surrendered their sovereignty to the Constitution, the day it was enacted. In this regards, Dicey‘s description of a political and legal sovereign is also submitted. According to him, the legal sovereign is one who issues command i.e. enact laws and the electorate or the people are the political sovereign. The legal sovereign has to bow down to the political sovereign and is answerable to it for the exercise of its power. However, the people do not possess the legal powers as they neither enact ordinary or constitutional legislations nor are they consulted in the law making process. Certain scholars put forward the idea of a coup and that how people have the power to re-adopt a new constitution. It is submitted that a coup and re-adoption of a new constitution by the people would still be political acts and not legal acts. It has to be noted, though, that the legal sovereign ultimately bows down to the political sovereign i.e. the people. Nani Palkhivala’s submission in the Kesavananda Bharti case further strengthens this point where he continously referred to the people as “Ultimate legal sovereign”. It is submitted that the aforesaid counter-argument against description of the people as sovereign is rather uncharitable.
Thus, locating the supreme power within the country, in traditional sense, would indeed be very debatable. Though this debate gravitates largely towards the People being the supreme. One may also contend that the Constitution is sovereign and legitimately defend it. Even so the Constitution may not be supreme in its entirety- since it is subject to amendments and alteration- the basic structure of the Constitution remains untouchable. This author opines that doctrinaire approach suggests it is the Constitution which is the supreme power. However, if the scholars approach this debate pragmatically, then it can be concluded the people are supreme power in truest sense within the nation. They are the ultimate legal sovereign. The reason being that the State is a servant and representative of the people in a democracy and not the master as opposed to the societal structure in feudal era. As per the preamble, moreover, the term sovereign has to be construed with the term republic that in traditional sense means a system of government wherein the people hold the sovereign power- which is exercised through their elected representatives.
Reference: Uday Raj Rai, Constitutional Law-I