Sir John Austin says, “law is a command of sovereign backed by sanction.” The sentence states that that law is whatever the political sovereign of a certain state says law is. This law needs to be backed by legitimate sanction, that is punishment or penalty for violation. But who is the sovereign in India?
Whether the Parliament can be said to be Supreme?
Under Articles 245 & 246, the Parliament can enact laws for whole of the territory of India. It can legislate on First List (Union List) and Third List (Concurrent List). However, the Parliament’s law can be challenged before the Supreme Court, and the apex court can declare it unconstitutional.
The question that arises now is, whether the Supreme Court in Supreme?
In the Bank Nationalization Case (R.C. Cooper v. Union of India), the Supreme court declared the nationalization of 14 bank as unconstitutional, violative of Article 14, but the Parliament amended the constitution to override the judgement of Supreme Court.
In Md. Ahmed Khan v. Shah Bano Case, Chandrachud C.J., on behalf of the bench pointed out that a Muslim women are entitled to maintenances under Section 125 of Cr.P.C until she is not remarried. The parliament enacted Protection of Rights of Divorce Act 1986, and the act lay down that the former husband is liable for maintain his wife during Iddat period only.
The 99th Amendment Act which made provision for National Judicial Appointment Commission (NJAC), it was declared as unconstitutional by supreme Court.
The question which arises now is that whether the head of executive “president” is Supreme?
President has no real power, real powers lies in the Council of Minister. He represents nation but does not rule the nation, he is a formal head, he is merely a constitutional head. His position is similar to British crown and not like the president of USA because we have adopted parliamentary form of government and not presidential form of govt like USA.
Some says that the people of India are sovereign, in other word sovereignty resides with the people of India. The opening words of the preamble are “We the People Of India”
It is true that before the elections they can be said to be sovereign or Supremacy but after election it transfers to the legislature or the parliament.
Some argue that the constitution is supreme because it is binding on all the organs of the state.
If we say that the Constitution is supreme, the question which comes is that whether the Constitution take action itself?
Methu J. in Keshavanand Bharti v. State of Kerala pointed out that “it is very difficult to find out the sovereign in the Quasi-Federal Constitution and I will not try to find out.”
Hence this theory does not apply to India as it is very difficult to find out the sovereign. In India Fundamental Rights are available to Indian citizen against the state. India is a welfare state, the state is bound to implement the directive principle of state policies i.e, to care about health, education, etc of the people. India is a democratic country in which ultimate sovereignty resides with the people of India. Thus, Austin views cannot be applied to India.
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