The three organs of government, as defined by the doctrine of separation of powers, are:

1. Legislative Branch: This branch of government is responsible for making laws. It includes the elected representatives who form the legislature, such as the parliament or congress. The legislative branch debates and passes laws, reviews and approves budgets, and plays a crucial role in shaping a country’s policies and governance. In many countries, the legislature is bicameral, consisting of two houses, such as a lower house (e.g., the House of Representatives) and an upper house (e.g., the Senate).

2. Executive Branch: The executive branch is responsible for implementing and enforcing laws. It includes the head of state (e.g., a president or monarch) and the head of government (e.g., a prime minister), as well as various government departments, agencies, and civil servants. The executive branch carries out the day-to-day administration of the country, manages foreign affairs, and oversees law enforcement and the military.

3. Judicial Branch: The judicial branch is responsible for interpreting and applying the laws. It includes the court system, which is tasked with resolving disputes, upholding the constitution, and ensuring that the laws are applied fairly and justly. Judges and justices within the judicial branch make legal decisions, hear cases, and provide legal rulings. The independence of the judiciary is essential to ensure the rule of law and protect citizens’ rights.

The separation of powers among these three branches is a foundational principle in many democratic systems of government. It is designed to prevent any one branch from accumulating too much power and to provide a system of checks and balances, where each branch has a role in overseeing and limiting the actions of the others. This system helps ensure that government functions effectively while protecting individual rights and preventing abuses of power.

Definition of Politics:

1. Aristotle: Aristotle, one of the most influential figures in the history of political philosophy, defined politics as the “master science” that deals with the organization and governance of human communities. He famously stated that politics aims at the common good and the well-being of citizens.

2. Thomas Hobbes: In his work “Leviathan,” Hobbes famously described politics as the “war of all against all” in the state of nature. He argued that politics is the means by which individuals come together to establish a social contract, creating a sovereign authority to maintain order and prevent chaos.

3. John Locke: Locke’s political philosophy emphasized the protection of individual rights and liberty. He defined politics as the activity of creating and maintaining a government that secures the natural rights of life, liberty, and property.

4. Karl Marx: Marx viewed politics through the lens of class struggle and economic relations. He defined politics as the “executive committee” of the ruling class, suggesting that political institutions primarily serve the interests of the bourgeoisie or capitalist class.

5. Max Weber: Weber, a sociologist and political theorist, defined politics as the “striving for a share of power or for influence over the distribution of power.” He emphasized the importance of authority, legitimacy, and bureaucracy in political systems.

6. Hannah Arendt: Arendt, a political theorist, characterized politics as the realm of human action and public life. She emphasized the importance of political participation and the public sphere in shaping society.

7. Jean-Jacques Rousseau: Rousseau’s definition of politics centered on the concept of the social contract, where individuals come together to form a political community based on the general will. He argued that politics is the means by which citizens collectively determine their own laws and regulations.

8. John Stuart Mill: Mill’s definition of politics included the idea of representative democracy. He viewed politics as the process by which citizens participate in decision-making through their elected representatives.

Politics is a multifaceted and complex field that encompasses the activities, processes, and principles associated with governance, power, and decision-making within societies. It involves the following key aspects:

1. Governance: Politics is fundamentally concerned with how societies are organized and governed. It includes the establishment and administration of laws, policies, and institutions that regulate the behavior of individuals and groups within a community or nation.

2. Power and Authority: Politics revolves around the distribution and exercise of power and authority. It explores questions of who holds power, how they obtain and maintain it, and how power is used to influence or control others.

3. Decision-Making: Politics involves the process of making collective decisions that impact a society’s direction, policies, and resources. Decision-making can occur through various means, including elections, legislation, and public policy formulation.

4. Conflict and Cooperation: Politics often involves conflicts of interest, competing ideologies, and differing perspectives on how society should be organized. It also includes mechanisms for negotiation, compromise, and cooperation to address these conflicts and achieve common goals.

5. Ideology and Values: Political ideologies and values play a significant role in shaping political beliefs and actions. Different individuals and groups may have varying views on issues such as social justice, economic policy, civil rights, and the role of government.

6. Citizen Participation: Politics encompasses the participation of citizens in the political process, such as voting in elections, engaging in advocacy and activism, and holding government officials accountable for their actions.

7. Institutions and Parties: Political parties, government institutions, and international organizations are essential components of the political landscape. They provide structures through which individuals and groups can express their political preferences and compete for power.

8. Public Policy: Politics is instrumental in the creation and implementation of public policies that address societal challenges and goals. These policies can relate to areas such as healthcare, education, the economy, the environment, and foreign relations.

9. International Relations: Politics extends beyond national borders to encompass international relations and diplomacy. It involves how countries interact, negotiate treaties, resolve conflicts, and collaborate on global issues.

10. Political Theory: Political philosophy and theory contribute to the intellectual foundation of politics. They explore fundamental questions about justice, ethics, and the nature of government.

Politics is a dynamic and evolving field, shaped by historical events, cultural norms, and evolving societal values. It plays a central role in determining the direction and governance of communities and nations, making it a subject of significant interest and study in academia, as well as a fundamental aspect of everyday life for citizens around the world.

In political science and governance, the term “state” typically refers to a defined political and territorial entity with a centralized government that exercises sovereign authority over a specific geographic area and its population. The state is a fundamental concept in the study of politics and international relations and is characterized by several key attributes:

1. Territory: A state has a specific and defined geographic territory with recognized borders. This territory includes land, water, and airspace within its boundaries.

2. Population: A state is comprised of a population of people who reside within its territory. The size and composition of the population can vary widely from one state to another.

3. Sovereignty: Sovereignty is a critical element of the state. It refers to the supreme and independent authority of the state to govern itself without interference from external sources. Sovereignty implies that the state has the power to make and enforce laws, establish institutions, and engage in international relations.

4. Government: The state is characterized by the presence of a government, which is the administrative and decision-making body responsible for running the affairs of the state. The government can take various forms, such as a democracy, monarchy, republic, or dictatorship, depending on the state’s political system.

5. Legal System: States typically have a legal system that defines and enforces laws and regulations within their territory. The legal system ensures order, resolves disputes, and upholds the rule of law.

6. Recognition: The state is often recognized as a legitimate and independent entity by other states in the international community. Recognition is an important aspect of a state’s status in the global arena.

7. International Relations: States engage in diplomacy, international treaties, and foreign affairs with other states. They are considered as actors in the international system and play a role in shaping global politics and cooperation.

8. Monopoly on the Use of Force: The state generally has a monopoly on the legitimate use of force within its territory. This means that it maintains a police force, military, and law enforcement agencies to maintain security and order.

Definition:

1. Thomas Hobbes: In his work “Leviathan,” Hobbes defined the state as a social contract formed by individuals in a state of nature. He described it as an artificial “mortal god” or “Leviathan” created by people to maintain order and prevent the chaos and violence that would prevail in the absence of government.

2. John Locke: Locke viewed the state as a political association formed by individuals who come together to protect their natural rights to life, liberty, and property. He emphasized the limited role of the state in safeguarding these rights and argued that government derives its authority from the consent of the governed.

3. Jean-Jacques Rousseau: Rousseau’s concept of the state is closely tied to the idea of the “general will.” He defined the state as a collective entity representing the common interests of its citizens. In his view, individuals come together in a social contract to create a state that reflects the general will, with the aim of promoting the common good.

4. Karl Marx: Marx had a critical perspective on the state, defining it as the “executive committee of the bourgeoisie.” He saw the state as an instrument of the ruling capitalist class, used to maintain the existing economic and social order. Marx believed that the state would eventually wither away in a classless communist society.

5. Max Weber: Weber defined the state as an institution that holds a monopoly on the legitimate use of physical force within a defined territory. He emphasized the importance of authority and legitimacy in the functioning of the state.

6. Hannah Arendt: Arendt emphasized the public and political nature of the state. She viewed the state as a space where citizens engage in political action and deliberation, exercising their freedom and autonomy in the public realm.

7. Antonio Gramsci: Gramsci, an Italian Marxist, introduced the concept of “hegemony” and argued that the state includes not only formal government institutions but also the ideological and cultural institutions that shape the dominant ideas and values of society.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real ‘meaning of law’ is what the judges decide during the course of giving their judgements in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs. 

Functions of Judiciary and Its Importance: 

1. To Give Justice to the people: 

The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people. 

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens. 

2. Interpretation and Application of Laws: 

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean. 

3. Role in Law-making: 

The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws. 

Moreover, ‘the judgements delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law. 

4. Equity Legislation: 

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation. 

5. Protection of Rights: 

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people. 

6. Guardian of the Constitution: 

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review. 

7. Power to get its Decisions and Judgements enforced: 

The judiciary has the power not only to deliver judgements and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him. 

In case any person is held: 

(i) Guilty of not following any decision of the court, or 

(ii) Of acting against the direction of the court, or 

(iii) Misleading the court, or 

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court. 

8. Special Role in a Federation: 

In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary. 

9. Running of the Judicial Administration: 

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules. 

These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration. 

10. Advisory Functions: 

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance. 

11. To Conduct Judicial Inquiries: 

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems. 

12. Miscellaneous Functions: 

Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like. 

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses. 

Importance of Independent Judiciary: 

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government. 

Garner highlights this view when he observes, “A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable.” 

Judiciary enjoys a big importance in the eyes of the people because it acts as: 

(1) The dispenser of Justice. 

(2) Protector of the rights of the people. 

(3) Guardian protector of the Constitution of the State. 

(4) Arbiter of center-state disputes. 

(5) Safeguard against Legislative and executive excesses. 

(6) Check against arbitrary exercise of powers by the power-holders. 

(7) Guardian of Rule of Law and Justice. 

An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government. 

Independence of Judiciary: An Essential Quality: 

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities. 

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgements without any fear or favour. 

Organisation of Judiciary must be based on the following features: 

(1) Appointment of only highly qualified and experienced judges. 

(2) The Judiciary must have prevented the executive and legislature from committing excesses. 

(3) The ability of the judiciary to maintain and independently run the judicial administration. 

(4) The Judiciary must be made the guardian protector of the Constitution, 

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice. 

(6) The method of appointment of judges must be fair, systematic, effective and transparent. 

(7) Method of removal of judges should be difficult and no single should have the power to remove the judges. 

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits. 

By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured. 

In government, the political philosophy of pluralism anticipates that people with different interests, beliefs, and lifestyles will coexist peacefully and be allowed to participate in the governing process. Pluralists acknowledge that a number of competing interest groups will be allowed to share power. In this sense, pluralism is considered a key element of democracy. Perhaps the most extreme example of pluralism is found in a pure democracy, where each individual is allowed to vote on all laws and even court decisions.  

In 1787, James Madison, known as the Father of the U.S. Constitution, argued for pluralism. Writing in the Federalist Papers No. 10, he addressed fears that factionalism and its inherent political in-fighting would fatally fracture the new American republic. Madison argued that only by allowing many competing factions to participate equally in the government could this dire result be avoided. Though he never used the term, James Madison had essentially defined pluralism. 

The argument for modern political pluralism can be traced to early 20th century England, where progressive political and economic writers objected to what they saw as the growing tendency of individuals to become isolated from each other by the effects of unrestrained capitalism. Citing the social qualities of diverse yet cohesive medieval constructs such as trade guilds, villages, monasteries, and universities, they argued that pluralism, through its economic and administrative decentralization, could overcome the negative aspects of modern industrialized society. 

The chief features or characteristics of sovereignty are- 

Permanence 

As long as the State lasts, it is sovereign. Since the state is permanent and sovereignty is one of its essential elements, sovereignty too is permanent. The death and destruction of the one lead to the death and destruction of the other. Sovereignty does not disappear with the death or deposition of the ruler or the dissolution of the government. In Britain, they say, ‘The king is dead, long live the king.’ It refers to the permanence of sovereignty which belongs to the state of Britain. 

Universality 

Universality indicates the meaning that the sovereignty of the state is all comprehensive and extends to all individuals and associations within the territorial limits of the state. None is exempt from it. No individual or association can have any right against the sovereign because it is the sovereign himself who confers these rights. However, in all civilized states the diplomatic representatives of foreign states enjoy certain immunities, but this concession is only because of international courtesy and is therefore not a case of exception to the universality of the sovereign. The sovereign can at one stroke abrogate these concessions and order the expulsion of a foreign diplomat. 

Inalienability 

The state cannot alienate or give away its sovereignty. As a writer has said ‘Sovereignty can no more be alienated than a tree cannot alienate its right to sprout.’ or a man can transfer his life and personality without destruction. No state can give up its sovereignty and yet remain a state. 
Even if a state cedes a portion of its territory to another, it ceases to be sovereign only in the ceded territory, but retains its sovereignty over the remaining territory. 

Indivisibility 

There can be only one power in the state which can secure obedience from all. The sovereignty of the state is exclusive. There can be only one sovereign in a state. Just as the state is a unity, so is sovereignty a unity. It is indivisible. But the powers relating to the exercise of sovereignty can be divided among different organs of government. Sovereignty itself remains undivided. To divide it is to destroy it. There is no such thing as half a sovereignty. Just as we cannot have half a circle or half a triangle. 
There are some writers who opine that sovereignty does not belong to the state alone and that it is divisible. The pluralists, for instance, hold that the state is no more sovereign than many other associations existing in the state. According to them sovereignty is divided between the state and these associations. It sometimes so happens that the individuals give their first loyalty to their associations and this too in defiance of the wishes of the state. Workers on strike, for example, very often obey the orders of their trade unions even in defiance of the orders of the state. 
Then again in the case of a federal state it is said that sovereignty is divided between the federal government and the governments of the units constituting it. Here two sovereigns seem to make law for the same people on different subjects. As against this view we may say that what is really divided is not sovereignty, but the exercise of sovereign powers. 

Absoluteness 

The sovereignty of the state is absolute and legally unlimited. If any power could limit the sovereign in a state, that power would be sovereign in that state. There can be no state without sovereignty which is absolute, both internally and externally. It is true, there is no legal limit on state sovereignty, but in reality, this sovereignty is subject to certain limitations. It is limited externally by the rights of other states and internally by its own nature and the rights of its citizens. Besides this, divine moral and other laws greatly limit state sovereignty. But against this it can be said that these limitations are self- imposed and can be removed at will by the sovereign. Moreover, these limitations are limitations on the exercise of sovereignty. There can be a limited government but not a limited sovereign state. Since the state exists for the good of the individual and consists of individuals, the exercise of its sovereignty is subject to human nature. Even the most absolute sovereign would not order the people to obey a very unpopular law. The view that the sovereign is absolute does not make the government also absolute. It is quite possible for absolute sovereignty and limited governmental power to go together. 

Legal sovereignty, also known as constitutional sovereignty or formal sovereignty, is a concept in political and legal theory that refers to the supreme and ultimate authority within a state’s legal and constitutional framework. It signifies that the highest source of power and legal authority within a given territory resides in a specific legal document or constitution, which outlines the fundamental laws, principles, and structures of the state. Legal sovereignty is a key element of the broader concept of sovereignty in political science and governance.

Here are some key characteristics and aspects of legal sovereignty:

1. Supreme Legal Authority: Legal sovereignty establishes that the constitution of a state is the highest legal authority within its territory. All other laws, regulations, and government actions must conform to and derive their legitimacy from the constitution.

2. Constitutional Framework: Legal sovereignty is closely tied to a state’s constitution, which serves as the foundational document outlining the organization of government, the distribution of powers, the protection of rights, and the rules governing the state’s political system.

3. Limiting Government: Legal sovereignty often includes mechanisms for limiting the powers of government to prevent abuses and protect individual rights. This may involve the separation of powers, checks and balances, and provisions for judicial review.

4. Amendment Process: In most cases, the constitution itself provides a formal procedure for amending or revising its provisions. This process typically requires broad consensus or approval from designated institutions or, in some cases, through a direct vote by the citizens.

5. Popular Sovereignty: Legal sovereignty can also incorporate the principle of popular sovereignty, which asserts that the ultimate authority rests with the people. In democracies, this means that the constitution is based on the consent of the governed.

6. Supremacy Clause: Some legal systems include a supremacy clause in their constitutions, which explicitly states that the constitution is the supreme law of the land, and all other laws and regulations must conform to it. This clause reinforces the concept of legal sovereignty.

7. Constitutional Courts: Many countries have constitutional courts or judicial bodies responsible for interpreting and upholding the constitution. These courts play a vital role in ensuring legal sovereignty by ensuring that government actions comply with constitutional principles.

Political Science is the academic discipline and field of study that systematically examines and analyzes the theory, practice, and dynamics of politics, government, and political behavior. It encompasses the study of various aspects of political systems, institutions, processes, and behaviors, aiming to understand and explain how political power is acquired, exercised, and distributed within societies and across nations. Political Science involves the exploration of political ideologies, public policy, international relations, political philosophy, and the impact of political decisions on societies and individuals. Its primary objectives include the development of theories, empirical research, and informed analysis to better comprehend and contribute to the improvement of political systems and governance.

Thinkers Say:

1. Harold Lasswell: “Political science is the study of who gets what, when, and how.”

2. David Easton: “Political science is the study of the authoritative allocation of values in society.”

3. Aristotle: “Political science is the master science, the one that tells us how to order our lives and how to live in society.”

4. Max Weber: “Political science is the science that seeks to understand the meaning of social action and thereby give a causal explanation of the way in which the action proceeds and the effects which it produces.”

5. John Rawls: “Political science is the study of justice among other things, and justice is the first virtue of social institutions.”

6. Hannah Arendt: “Political science is the activity of thinking about the highest things, the good and the just.”

The state is a complex political entity with several essential elements that define its existence and functioning. These elements provide the foundational structure for governance and the exercise of sovereign authority within a defined territory. The key elements of the state include:

1. Population:

The state is a human institution. So population is its primary element. There is no hard and fast rule about population. The ancient Greek writers like Plato and Aristotle favoured a small population. According to Plato, an ideal state should have a population of 5040.

Aristotle laid down a general principle that the population of a state should be large enough to make it sufficient and small enough to make good government possible. It must be remembered that both of them were thinking in terms of small city-states.

In modern times, Rousseau, prompted by considerations of direct democracy, fixed the number at 10,000. In modern times states vary greatly from the few thousands of Monaco or of San Marino to the crores of China or of India. The modern tendency is in favour of large states. All that can be said is that a large population is an advantage from the point of view of military defense.

However, a large population can be a liability if the resources of the state are not adequate for its maintenance. One of the main problems faced by developing countries is over-population. Thus there should be a happy balance between the size of the population and material wealth of a state.

2. Territory:

A definite and more or less permanent territory is also regarded as an essential element of the state. In modern times, the citizens are bound together by residence on a common territory. Land, water and air space comprise the territory of a state.

As in population, so in territory, no limit can be laid down. Small states and large ones exist side by side. We have tiny states like San Marino with an area of less than twenty-five square miles. On the other hand, there are giant states like the Russian Republic, China, U. S. A., and Australia with millions of square miles.

According to international law, all states are equal in status and right, no matter how unequal they are in population and area. It is claimed that small states are good for efficient administration and inculcating among the people a sense of unity and love for the state.

However, the truth is that a small state is at a disadvantage in its relations with larger ones. Small states are under the influence of one or the other large and powerful state. It is said in favour of large states that they are strong in defense and because of availability of resources they are economically self-sufficient.

It may be pointed out that the power and security of a state are not determined only by the size of its territory. Some other factors in this regard are geographical location, resources and climate.

3. Government:

A people occupying a definite territory cannot form a state unless they are politically organized i.e., unless they possess a government. Government is the political organization of the state. It is the concrete and visible instrument of state power.

According to Garner, government is the agency through which “common policies are determined and by which common affairs are regulated.” The state wills and acts through the government. Government must be effective; it must possess the capacity to maintain order and enforce obedience. Without a government there would be lawlessness and anarchy and ultimately the state would be dissolved.

Government consists of three organs, namely, legislature, executive and judiciary. The legislature makes laws; the executive enforces laws while the judiciary adjudicates cases or disputes.

There are different kinds of government in different states such as monarchy, democracy and dictatorship. Most of developed states are democracies. Many developing countries including India have democratic governments. Whatever may be the form of government, one thing is clear – there can be no state without government.

4. Sovereignty:

By far the most important characteristic of the state is its sovereignty. It is the characteristic which distinguishes the state from all other associations. It denotes the supreme power or the final authority from which there is no appeal.

Sovereignty has two aspects internal and external. Internally viewed, the state has supreme power over all individuals and associations within its fixed area. It can compel obedience of its people to its laws and commands. Externally viewed, the state is free from control of any foreign state or alien rule. Before independence India was not a state as it was ruled by the British.

Similarly, the Indian federation consists of many constituent units called ‘states’, but they are really not states in the eyes of international law, as they are not sovereign. In the same vein, the United Nations (UN) is not a state as it is not sovereign.

It should be noted, however, that absolute sovereignty is a legal concept. In actual practice no state is able to exercise unlimited power either over individuals and associations within its territorial domain or in its international relations.

A state respects and abides by international laws, treaties and the policies of the international organizations like the UN and its agencies. A number of writers who have attacked the concept of absolute sovereignty on theoretical grounds also hold that it is undesirable. H. J. Laski, for example, regards it as incompatible with the interests of humanity and world peace.

5. International Recognition:

In modern times relations among nations have grown and many international organisations and institutions have come into being. Therefore some scholars have argued that international recognition be an essential element of state. The recognition of the sovereign status of a new state by other states is called international recognition.

According to famous jurist, Oppenheim, “A state is and becomes an international person by recognition only and exclusively. But there is no agreement an how many countries would have to recognise a new state so that the latter gains statehood in the eyes of international law. Recognition has also a political dimension. China was already a full-fledged state for many years before the UN was established in 1945.

China came under communist rule in 1949. Communist China was not recognised by the US for cold war. So communist China, though ruling the mainland China, was not allowed to become the member of the UN due to America’s opposition.

Communist China took its legitimate place in the UN in 1970’s only after the establishment of rapprochement between the US and communist china. It needs to be emphasized that even when communist China was not a member of the UN, it was very much a state.

Absolute sovereignty is not feasible. A state needs to abide by international laws. Otherwise there will be international anarchy causing serious threats to international peace and security. Laski has rightly argued that unlimited sovereignty is a threat to world peace and humanity.

The Social Contract Theory is a prominent and influential concept in political philosophy that seeks to explain the legitimacy and origin of government authority and the rights and duties of individuals within a society. This theory suggests that the formation of a government and the social order arise from a hypothetical or actual agreement, or “social contract,” among individuals. Several key philosophers have contributed to the development of this theory, including Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.

Two Features:

1. Mutual Consent and Agreement: The Social Contract Theory posits that the formation of a legitimate government and political authority is based on the mutual consent and agreement of individuals. According to this theory, people in a state of nature voluntarily come together and agree to establish a government to protect their rights, maintain order, and promote their common interests. This agreement is typically implicit, and it forms the basis for the legitimacy of political authority. In essence, individuals agree to abide by the rules and authority of the government in exchange for the benefits of organized society.

2. Protection of Natural Rights: Another important feature of the Social Contract Theory is its emphasis on the protection of natural rights. Proponents of this theory, such as John Locke and Jean-Jacques Rousseau, argue that individuals possess inherent rights, including life, liberty, and property, in a state of nature. They enter into the social contract to create a government that will safeguard these rights. The primary purpose of the government, as per the social contract, is to protect and uphold these fundamental rights. If a government fails to do so or abuses its authority, individuals may have the right to alter or abolish it, as outlined in the social contract.

These features underscore the foundational principles of consent, mutual agreement, and the protection of individual rights as central to the Social Contract Theory. The theory has had a significant influence on political philosophy and the development of modern democratic systems of governance.

A representative democracy is separated into two parts: Parliamentary democracy and Presidential democracy. A presidential system, also known as a single executive system, is a type of government in which the president leads an executive branch that is separate from the legislative branch, whereas a parliamentary system, also known as parliamentary democracy, is a type of democratic administration in which the executive gains political legitimacy by commanding the support of the legislative, usually a parliament, to whom it is accountable. 

Presidential Form of Government? 

• A presidential system is a form of government in which the President serves as the Chief Executive and is chosen by the people directly. 
• As a result, the executive branch of government is distinct from the legislative branch. 
• It is a type of government in which the three branches (legislature, executive, and judiciary) operate independently and are unable to dismiss or dissolve one another. 
• While the legislative creates the laws, the President is responsible for enforcing them, and the courts are in charge of carrying out judicial tasks. 
• This kind of government is stable. Because the president’s tenure is set and not subject to parliamentary majority support, he does not need to be concerned about losing the government. 

• There is no chance of the government falling suddenly. The president is not under any political pressure to make choices. 
• Because the government’s duration is fixed, political parties do not seek to destabilise it. 

Parliamentary Form of Government 

• A Parliamentary form of democracy is also known as the Cabinet form of government or the ‘Responsible Government’. 
• It is a form of government in which residents elect members to the legislative legislature. 

• This Parliament is in charge of making state-wide decisions and legislation. 
• It is also directly accountable to the general public. 
• The constitution-makers in India chose a parliamentary form of government primarily because the system in England had a large effect on them. 
• Another point the founding fathers realised was that the parliamentary model would only function to accommodate our population’s various and different factions. 
• Due to the lack of a true separation of powers, the legislature cannot always hold the executive accountable. This is especially true if the administration has a large majority in the House of Representatives. 

(Democracy) 

Difference between the Parliamentary and Presidential forms of the Government 

Conclusion 

Every country in the world has its own constitution, which governs how policies are developed, how government organisations and institutions operate, and how decisions are made. The governmental structure of a country differs depending on whether it has a presidential or parliamentary system. Some countries have utilised a mix of these strategies. These systems are distinguished by the separation of powers, accountability, executives, and other criteria. Both of these methods have advantages and disadvantages. A country chooses the system that best meets its requirements. In a diverse country like India, the parliamentary system provides excellent representative governance.

Nature of Politics: Is Political science a Science or Art? 

Whether politics can be considered a science has been a long standing controversy. Aristotle adopted a scientific approach to the study of the discipline. He separated the study of politics form ethics and law, examined and compared constitutions and classified governments into meaningful categories. On the other hand James Bryce, Charles Beard and Harold Laski are of the opinion that politics is not a science. It is said that the nomenclature Political Science owes its origin to William Godwin and Mary Wollstonecraft. Science is systematised body of knowledge about any phenomenon which is governed by its own laws. Science is based on collection of data, generalisations, accuracy and verification or experimentations. Let’s try to test political science on these grounds.

Political Science is not a Science

1) Lacks Precise and Uniform Definitions:

A Science has a set of its own terms and their precise and standard definitions. Political science lacks precise definitions, terminologies and methods. There is no general agreement among political scientist regarding these. Methods and principles of political science are not universally acceptable and applicable. E.g. terms like freedom, democracy, nationalism do not have uniform definitions. They can be and have been defined and interpreted in different ways.

2) Lacks Investigation and generalisations:

Political science also lacks scientific method of investigations, observations and generalisations. It is possible to obtain exact results in science which is not the case with political science. E.g. Democracy is regarded as the best form of government by many but in reality it is not a success in countries where there are ignorant and incompetent masses.

3) Lacks Experimentations:

Another difficulty in political science is that it not possible to have laboratory experiments in political science. Political researcher has to deal with human beings. The habits, sentiments, moods, and temperament of people differ from place to place and from time to time. They cannot be controlled as well under any circumstance. E.g. electoral behavior of voter is determined by various factors such as caste, class, religion etc. No government can claim that its people will react in a particular way to a policy or programme announced.

4) Lacks Objectivity:

While there is objectivity in the study of physical sciences, it is lacking in studying problems related to state and government. A completely impartial, indifferent, unbiased attitude may not be possible to analyse political problems and questions. A political scientist has to deal with human beings in relation to sate, society and government and in such relations the element of subjectivity is most conspicuous. Views of political thinkers are bound to be prejudiced or coloured on account of racial, religious, linguistic or nationalistic factors.

5) Lacks Predictability:

Is is nearly impossible for a political thinker to predict the future course of events. In fact events take course quite contrary to the expectations of the observer. This happens because politics studies human behaviour and social constructs which are vulnerable to change. Constantly changing socio-economic and political situations restrict a political observer form making predictions. Thus it was rightly observed by Burke that there is no science of politics any more than there is science of aesthetics- for the line of politics are not the lines of mathematics. They are matter incapable of exact definitions.

Political Science is a Science 

1) If by the term science we mean a systematised body of knowledge political science can certainly be called as a science. Dr. Finer rightly says that, we can be prophets of probable if not seers of certain political science has been able develop a systematised body of knowledge on broad terms like state, government etc. after due observation, comparison and some sort of experimentation.

2) It is possible to conduct some experiments through which political scientist can benefit. It is well known that Aristotle based his Politics on his study of the working of 158 constitutions. Likewise, Lord Bryce compared the working of democracy in various countries and then came to conclusions with regard to relative merits and demerits of democracy. B N Rau constitutional advisor to the government of India also made a comparative study of various constitutions and presented a report to the constituent assembly.

3) It is true that there is no consensus among experts regarding the method, principles and conclusions of political science. But political science is a dynamic study of living subjectmatter. It deals with man and his institutions. As man is dynamic, the same is true of the institutions created by him. The nature of man changes with the changing conditions. The view of Lord Bryce is that political science is a science, although it is undeveloped and incomplete. Prof. R N Gilchrist believes that general laws can be deduced from given material and those are useful in the actual problems of the government.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real ‘meaning of law’ is what the judges decide during the course of giving their judgements in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs. 

Functions of Judiciary and Its Importance: 

1. To Give Justice to the people: 

The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people. 

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens. 

2. Interpretation and Application of Laws: 

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean. 

3. Role in Law-making: 

The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws. 

Moreover, ‘the judgements delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law. 

4. Equity Legislation: 

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation. 

5. Protection of Rights: 

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people. 

6. Guardian of the Constitution: 

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review. 

7. Power to get its Decisions and Judgements enforced: 

The judiciary has the power not only to deliver judgements and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him. 

In case any person is held: 

(i) Guilty of not following any decision of the court, or 

(ii) Of acting against the direction of the court, or 

(iii) Misleading the court, or 

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court. 

8. Special Role in a Federation: 

In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary. 

9. Running of the Judicial Administration: 

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules. 

These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration. 

10. Advisory Functions: 

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance. 

11. To Conduct Judicial Inquiries: 

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems. 

12. Miscellaneous Functions: 

Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like. 

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses. 

Importance of Independent Judiciary: 

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government. 

Garner highlights this view when he observes, “A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable.” 

Judiciary enjoys a big importance in the eyes of the people because it acts as: 

(1) The dispenser of Justice. 

(2) Protector of the rights of the people. 

(3) Guardian protector of the Constitution of the State. 

(4) Arbiter of center-state disputes. 

(5) Safeguard against Legislative and executive excesses. 

(6) Check against arbitrary exercise of powers by the power-holders. 

(7) Guardian of Rule of Law and Justice. 

An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government. 

Independence of Judiciary: An Essential Quality: 

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities. 

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgements without any fear or favour. 

Organisation of Judiciary must be based on the following features: 

(1) Appointment of only highly qualified and experienced judges. 

(2) The Judiciary must have prevented the executive and legislature from committing excesses. 

(3) The ability of the judiciary to maintain and independently run the judicial administration. 

(4) The Judiciary must be made the guardian protector of the Constitution, 

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice. 

(6) The method of appointment of judges must be fair, systematic, effective and transparent. 

(7) Method of removal of judges should be difficult and no single should have the power to remove the judges. 

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits. 

By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured. 

Social contract theory is very important in context of origin of state. According to this theory, state is not any divine institution. State is also not a result of long evolution process. State is the natural outcome of people’s political awareness. Thus, it is a man – made institution. It is the result of contract done by men among themselves. 

According to this theory, man used to live without the institution of state during ancient times. That time can be referred as chaotic or natural state. Scholars differ on the issue of condition of men during those times. Some scholars call it an ideal state. Some think that human life was not safe during that time. Later on, men felt the need for the state. Thus, they all made a mutual contract and the state was originated. 

Explanation of Social Contract Theory:  

Contract in Ancient India:  

Proofs of this theory are found in ancient Indian literature. It is mentioned in ‘Shantiparva’ of ‘Mahabharata’ that there was no state earlier, rather there was chaos. Irritated from such situation, men made a mutual contract and made ‘Manu’ their ruler. Acharya Chanakya also accepted the social contract theory.  

Chanakya had given the name of‘chaos’ to the situation prior to the state. He did not consider state as a divine organization rather he considered that state was created by human efforts and was a result of the agreement by the people and accepted by Manu (king). This theory was also mentioned in Jain and Buddhist literature. 

Contract theory in Western Countries:  

This theory was first propounded in western countries by Greek sophist scholars. According to them, state was originated by contract among men. Plato and Aristotle considered state not to be an artificial, but a natural organization. According to them, man is naturally a social animal and public welfare is possible only through the organization of society. 

Contract Theory in Modern Times:  

Many scholars in Europe from 16th to 18th century, propounded this theory in detail. Thomas Hobbes, Locke and Rousseau are the main among them. 

According to Thomas Hobbes:  

There was state of nature before the origin of the state. Man was selfish and quarrelsome. He indulged in conflicts with others for his benefits and selfishness. Thus, the fear of insecurity of life and untimely death motivated man to end this natural and chaotic situation and established an organized political society. According to John Locke : Man used to live peacefully in the natural state. 

He was completely free. All the people followed natural laws and laws of morality, but this state of nature could not last long as man had many discomforts, like what is right or wrong? What are the laws of nature? Finding it impossible to follow the natural laws in the absence of a mediator and decision – maker, men entered into a social contract and created the institution of state. 

According to Rousseau:  

Man used to live in simplicity and freedom before the origin of the state. He had no knowledge of right-wrong, just – unjust or religious – irreligious. But gradually, with the increase in population, jealousy and mutual conflicts emerged, and all the peace and comfort came to an end. Result of that situation was that men felt the need of organising themselves into a state and entered into a contract. A general will was created by this contract and the state was originated. 

Decline off Contract Theory:  

Decline of social contract theory started in 18th centary. Many scholars at that time raised their voice against this theory. David Hume was famous among these. In 19th century, Luthiway, Benthem, Henriman, Bluntschlli and Pollack etc. scholars criticized this theory on many grounds. 

Parliamentary government is a Democratic government in which the political party with the most seats in the legislature or Parliament during the federal election becomes the government. India has a parliamentary form of government similar to that of the United Kingdom. A parliamentary system of government is one in which the administration and legislature are practically closed to each other and their powers are split. As a result, the Parliament is a superior concept.

Parliamentary Form of Government – Concept

• A parliamentary system, often known as parliamentary democracy, is a form of democratic administration in which the executive gains political legitimacy by commanding the support (“confidence”) of the legislative, usually a parliament, to whom it is accountable.
• The head of state in a parliamentary system is generally separate from the head of government.
• It is in contrast to a presidential system, in which the head of state is frequently also the head of government and, more significantly, the executive does not get democratic legitimacy from the legislative.
• Parliamentary government, also known as a cabinet government, responsible government, or the Westminster model of government, is popular in the United Kingdom, Japan, Canada, and India.

Parliamentary Form of Government- Historical Background

• There have been councils or a headman whose judgments were appraised by village elders since ancient times when civilizations were tribal. These councils eventually transformed into the contemporary parliamentary system.
• The first parliaments were established in Europe during the Middle Ages, with Alfonso IX, King of Leon (Spain), convening the three states in the Cortes of León in 1188.
• During the Dutch rebellion (1581), when the States-General of the Netherlands took over the sovereign, legislative, and executive powers from the king, King Philip II of Spain, an early form of parliamentary governance arose in today’s Netherlands and Belgium.
• Between 1707 and 1800, the modern notion of parliamentary governance originated in the United Kingdom, and between 1721 and 1772, the Parliamentary System in Sweden.
• In the years following World War I, democracy and parliamentarism were increasingly popular in Europe.

Parliamentary Form of Government- Characteristics

• A parliamentary system can be bicameral (meaning there are two chambers of parliament) or unicameral (meaning there is just one chamber of parliament).
• A bicameral parliament generally consists of a lower house that is directly elected and has the authority to choose the executive administration, as well as an upper chamber that is appointed or elected through a different procedure than the lower house.

Arend Lijphart, a democracy scholar, distinguishes between two forms of parliamentary democracies: Westminster and Consensus.

Westminster System

• The Westminster system is most commonly seen in Commonwealth countries and countries inspired by British political traditions.
• These parliaments feature a more combative discussion style, with the plenary session of parliament taking precedence over committees.
• Some parliaments under this paradigm, such as the United Kingdom, Canada, and Malaysia, are elected using a plurality voting system (first past the post), while others, like Ireland and New Zealand, utilize some kind of proportional representation.

Consensus system

• The Western European parliamentary style (for example, Spain and Germany) features a more consensus debate procedure with semi-circular debating chambers.
• Consensus systems are more likely than Westminster Model legislatures to adopt proportional representation with open party lists.

Significance of Parliamentary Form of Government

• Coordination between the legislature and the executive: The most significant feature of the parliamentary system is that it ensures a cordial connection and collaboration between the legislative and executive parts of government.
• Responsible Government: By its very nature, the parliamentary system produces accountable government. All actions of omission and conduct by ministers must be reported to Parliament. Question hour, debates, adjournment motions, no-confidence motions, and other methods are used by Parliament to exercise control over ministers.
• Prevents Despotism: Under this system, executive power is assigned to a group of persons (council of ministers) rather than a single person. The executive’s totalitarian tendencies are curtailed by this decentralization of power. Furthermore, the executive is responsible to Parliament and can be dismissed by a vote of no confidence.
• Wide Representation: In a parliamentary system, the executive is made up of a group of persons (i.e., ministers who are representatives of the people). As a consequence, all groups and areas of the country can be represented in the government. When choosing ministers, the prime minister can take this into account.

Criticism

• Members of parliament will become overly powerful, arrogant, and more prone to misuse of power: While the parliamentary system appears to always support good governance, it will also cause members of parliament to become overly powerful, arrogant, and more likely to abuse political power.
• In other words, in a parliamentary form of governance, members of parliament are supreme and untouchable.
• The Prime Minister is loyal to his party: In a parliamentary form of government, the prime minister is typically devoted to his party rather than the public since he is directly chosen as party leader and therefore becomes Prime Minister. As a result, he will be more devoted to his party than to his people.
• Government uncertainty and instability: There is no question that with a parliamentary form of government, the prime minister’s term is always uncertain since the parliament may fire him at any time with a “vote of no confidence”.
• This might result in a crisis, segregation, or governance instability.
• Overburdening cabinet members with double functions: The integration of legislative and executive powers in cabinet members may overload cabinet members with double functions, and certain ministers may struggle to comply.
• It may also result in government inefficiency, as the convergence of powers and responsibilities of the legislative and executive branches of government will be too much for the cabinet to handle.
• Finally, while it is true that the parliamentary system requires fewer people to manage both legislative and executive tasks, it is crucial to remember that a minister may lack specialty in the art of governing in one arm of government, resulting in inefficiency in that area.

Why did India Adopt a Parliamentary form of Government?

• Because we were familiar with its operation during British colonial rule, India adopted the Parliamentary system of governance.
• The form of government that existed in India before independence was remarkably similar to that of the United Kingdom.
• The British System had a strong effect on the authors of the Indian Constitution. As a result, the members of the Constituent Assembly chose this style of administration for India’s independence.

Difference between the Parliamentary and Presidential forms of the Government

Conclusion

India also adopted the Parliamentary form of Government because the constitution-makers of India were heavily influenced by the English system, thus they adopted a parliamentary form of governance. Another thing the founding fathers realized was that the parliamentary model would only work to accommodate the diverse and disparate communities that make up our country. Thus, now India is the largest democracy in the world with a Parliamentary form of Government.

These are: (1) population, (2) territory, (3) government, (4) sovereignty (or independence). The first two elements constitute the physical or material basis of the state while the last two form its political and spiritual basis. 

1. Population: 

The state is a human institution. So population is its primary element. There is no hard and fast rule about population. The ancient Greek writers like Plato and Aristotle favoured a small population. According to Plato, an ideal state should have a population of 5040. 

Aristotle laid down a general principle that the population of a state should be large enough to make it sufficient and small enough to make good government possible. It must be remembered that both of them were thinking in terms of small city-states. 

In modern times, Rousseau, prompted by considerations of direct democracy, fixed the number at 10,000. In modern times states vary greatly from the few thousands of Monaco or of San Marino to the crores of China or of India. The modern tendency is in favour of large states. All that can be said is that a large population is an advantage from the point of view of military defense. 

However, a large population can be a liability if the resources of the state are not adequate for its maintenance. One of the main problems faced by developing countries is over-population. Thus there should be a happy balance between the size of the population and material wealth of a state. 

2. Territory: 

A definite and more or less permanent territory is also regarded as an essential element of the state. In modern times, the citizens are bound together by residence on a common territory. Land, water and air space comprise the territory of a state. 

As in population, so in territory, no limit can be laid down. Small states and large ones exist side by side. We have tiny states like San Marino with an area of less than twenty-five square miles. On the other hand, there are giant states like the Russian Republic, China, U. S. A., and Australia with millions of square miles. 

According to international law, all states are equal in status and right, no matter how unequal they are in population and area. It is claimed that small states are good for efficient administration and inculcating among the people a sense of unity and love for the state. 

However, the truth is that a small state is at a disadvantage in its relations with larger ones. Small states are under the influence of one or the other large and powerful state. It is said in favour of large states that they are strong in defense and because of availability of resources they are economically self-sufficient. 

It may be pointed out that the power and security of a state are not determined only by the size of its territory. Some other factors in this regard are geographical location, resources and climate. 

3. Government: 

A people occupying a definite territory cannot form a state unless they are politically organized i.e., unless they possess a government. Government is the political organization of the state. It is the concrete and visible instrument of state power. 

According to Garner, government is the agency through which “common policies are determined and by which common affairs are regulated.” The state wills and acts through the government. Government must be effective; it must possess the capacity to maintain order and enforce obedience. Without a government there would be lawlessness and anarchy and ultimately the state would be dissolved. 

Government consists of three organs, namely, legislature, executive and judiciary. The legislature makes laws; the executive enforces laws while the judiciary adjudicates cases or disputes. 

There are different kinds of government in different states such as monarchy, democracy and dictatorship. Most of developed states are democracies. Many developing countries including India have democratic governments. Whatever may be the form of government, one thing is clear – there can be no state without government. 

4. Sovereignty: 

By far the most important characteristic of the state is its sovereignty. It is the characteristic which distinguishes the state from all other associations. It denotes the supreme power or the final authority from which there is no appeal. 

Sovereignty has two aspects internal and external. Internally viewed, the state has supreme power over all individuals and associations within its fixed area. It can compel obedience of its people to its laws and commands. Externally viewed, the state is free from control of any foreign state or alien rule. Before independence India was not a state as it was ruled by the British. 

Similarly, the Indian federation consists of many constituent units called ‘states’, but they are really not states in the eyes of international law, as they are not sovereign. In the same vein, the United Nations (UN) is not a state as it is not sovereign. 

It should be noted, however, that absolute sovereignty is a legal concept. In actual practice no state is able to exercise unlimited power either over individuals and associations within its territorial domain or in its international relations. 

A state respects and abides by international laws, treaties and the policies of the international organizations like the UN and its agencies. A number of writers who have attacked the concept of absolute sovereignty on theoretical grounds also hold that it is undesirable. H. J. Laski, for example, regards it as incompatible with the interests of humanity and world peace. 

5. International Recognition: 

In modern times relations among nations have grown and many international organisations and institutions have come into being. Therefore, some scholars have argued that international recognition be an essential element of state. The recognition of the sovereign status of a new state by other states is called international recognition. 

According to famous jurist, Oppenheim, “A state is and becomes an international person by recognition only and exclusively. But there is no agreement on how many countries would have to recognise a new state so that the latter gains statehood in the eyes of international law. Recognition has also a political dimension. China was already a full-fledged state for many years before the UN was established in 1945. 

China came under communist rule in 1949. Communist China was not recognised by the US for cold war. So communist China, though ruling the mainland China, was not allowed to become the member of the UN due to America’s opposition. 

Communist China took its legitimate place in the UN in 1970’s only after the establishment of rapprochement between the US and communist china. It needs to be emphasized that even when communist China was not a member of the UN, it was very much a state. 

Absolute sovereignty is not feasible. A state needs to abide by international laws. Otherwise, there will be international anarchy causing serious threats to international peace and security. Laski has rightly argued that unlimited sovereignty is a threat to world peace and humanity. 

This theory is based on psychological, historical and sociological evidences. According to it, the state is neither an artificial institution, nor of a divine origin. This is a combined form of many factors, such as blood relation, religion, power, political awareness, economic activities, social life etc. 

In this way, the state is developed for the sake of interests of all. According to this theory, the development process of the state has been going on since primitive period. Because of this continuous development, the state has acquired a form of nation state. 

According to the, political thinker, Burgess, “A state is a continuous development of human society, beginning of which was in an incomplete and distorted form.” According to Leacock, “The origin of the state has been on the basis of continuous development of the state, wherein there are natural social nature, political awareness, blood relation religion, power and economical necessities, etc”. 

1. Natural Social Nature: 

The state is the result of basic natural social nature of a human being. Aristotle regards a person as social in natural form, and he says that a person can live outside the society if he is either God or an animal. The state came into existence for security of human life and it is meant for good life. 

By this, it is clear that the state is a natural institution and it is the result of social nature of an individual. In general, a human being cannot live without state and society. With the development of civilization, social spirit got consolidated and its caused the development of social awareness. Simultaneously, there followed the development of political institutions and the state. 

2. Blood Relation: 

In primitive time, blood relation triggered the emotions of unity and organization. According to Henriman, ‘The modern research of the ancient history of the society indicates that the initial element to bind the people in a thread of unity was blood relation”. Maclver writes that “Blood relation gives birth to the society, and then the society gives birth to the state.” 

3. Religion: 

Like blood relation, religion has also played an important role in the development of the state. Blood relation and the state are two side of the same coin. According to Wilson, “In early society, religion and blood relation were the expression of unity”. According to Gettel, “Blood relation and religion are two sides of the same coin.” In the primitive time, religion infused the spirit of respect, obedience and morality in place of savage instinct in the people. In primitive period, another form of religion was the worship of deity. 

The people started worshipping the things, which were beyond their understanding and this resulted in a source to bind the people in unity. The relation between the state and the religion existed since primitive time. Even today, we witness a deep relation between religion and politics in many countries such as Pakistan, Bangladesh, India, Saudi Arabia, Afghanistan, etc. 

4. Force (Power):  

In the evolution of state, the contribution of force has been enormous. War was the means to give practical form to power. The war gave birth to the king. It is a basic human tendency that he wants to rule over others. In the course of the develcj. mmi of the state, agriculture, property and wealth also progressed and this lead to war for their safety. The people started to accept powerful person as their leader. Because of power, there emerged a sense of obeisance and devotion towards the rvi:r. The people’s support made the king stronger, and thus, state was developed. 

5. Economic Necessities: 

In the origin and the development of the state, there was as important role of people’s necessities. “Property grew by economic activities, by which people gained basic amenities such as food, house, etc. and afterwards, the origin of the state became indispensable for the security of property. “Only the state can manage the economic system of the society, and as such, people’s requirements are fulfilled”. 

6. Political Awareness:  

Besides religion, blood, relation and social awareness, the role of political awareness is the most important in the development of the state. By political awareness, certain definite political goals have been gained. On account of population increase, and for safety to the people and their property, there was felt a necessity to form a political organization and set of rules and laws by which entire system could be governed properly. Though in the beginning, the form of political organizations and laws was not clear and mature, yet it played a decisive role in the development of the state. 

Human knowledge is basically divided into two extensive categories. One is Natural Science and the other one is Social Science. 

Natural science deals with the physical world such as land, weather, water, forests, etc, whereas social science deals with the human being, their collective social life, and activities. 

Humans have a multidimensional social life such as economic, political, historical, sociological, etc. 

What is Political Science? 

Political science is a part of the social science which deals with the political problems of human beings and the subject matter of political science are political institutions (State, Government, Judiciary, Parliament, Pressure groups, Political Party, etc.), Political behavior, and activities of human, etc. It is also related to other social science subjects like history, sociology, philosophy, economics, etc.  

Meaning and Definition of Political Science 

Political science is the combination of two words one is Political and another one is science. 

Political refers to power and authority. That is, everything related to power and authority is political. For example, all institutions (State, Government, Judiciary, Parliament, Pressure groups, Political Party, etc) and actions of humans related to power are subject to politics. 

The English word ‘Science’ comes from the Latin word ‘Scientia’, which means knowledge which is acquired by systematic study. 

So, It means a systematic study of political institutions, the political behavior of human beings, political systems, international relations, and all the issues related to power and authority. 

The famous Greek philosopher Aristotle said that “Man is by nature a political animal…he who is unable to live in a society or who has no need because he is sufficient for himself, must be either a beast or God”. 

He is considered as the father of political science because he is the first person who has defined politics using scientific methods. 

The definition of political science is determined by the scope of its field of discussion. The scope of political science has been discussed in the last part of the writing. 

The problems of people’s political life are increasing. As time has passed, people’s political thinking has developed more and more. 

As a result, the number and variety of definitions of political science are increasing exponentially. There is no universal definition in any social science subject. Since it as a part of social science is also a dynamic science, so its definition is also dynamic. 

There are two views to define political science. One is Traditional View and the other one is the Modern view. 

Traditional Definition of Political Science 

All the concepts of political science before the nineteenth century belong to the traditional view. And the entire political scientists at that time is called as traditional political scientists. 

According to traditional political scientists, it deals with the state, Government, and other political institutions. 

An American Professor Garner once said that ‘political science begins and ends with the state’.  In his view, political science is the social science that determines some formula about the origin and form of the state, the shape, nature, and history of political institutions, and political progress and development. 

So, in traditional view it discusses the origin, nature, ideals, and goals, of the state. 

Here are some definitions by different authors of the traditional view 

Political science is a historical investigation of what the state has been, an analytical study of what the state is, and a politico-ethical discussion of what the state should be. 

R.G Gettel, 

Political Science investigates the phenomena of the government as political economy deals with wealth, biology with life, algebra with numbers, and geometry with space and magnitude 

John Robert Seeley 

Political Science is that part of the social science which treats of the foundations of the state and principles of the government 

Paul Janet 

Political science deals with the origin, development, purpose, and all political problems of the states. 

Garies 

Political science is concerned with the state and with conditions essential for its development. 

Lord Acton 

If you read the above definitions of traditional political scientists carefully then you have noticed that every definition of political science is concentrated with state and government. 

So, it is clear that in the traditional view, the field of discussion of political science was confined to the state and the government. 

Modern Definition of Political Science 

The flow of international events now has a profound effect on individual and national life. For this reason, state activity cannot be neutral to the flow of international events and international customs. 

The social and political relations of the socialized people, the relations of the state with the individual under the state, the relations of the social institution with the individual, and the interrelationships between different states, etc. are included in the modern view of political science. 

The modern view of political science refers to the view of political scientists who emerges at the beginning of the twentieth century. 

According to the modern political scientists like George Catlin, Charles Marriam, Almond, Powell, David Easton, political science not only deals with state and government. 

It has a broader area which also deals with individual’s political behavior, Political Power, Society, Political Culture, Political Socialization, International Laws, and International Relations, Political systems, Political Process, and other political groups. 

Here are some definitions by different authors of the modern view 

Politics is the study of Influence and the influential 

Lasswell 

Political Science concern itself with the life of men in relation to organized state 

Laski 

David Easton defines political science as an Authoritative allocation of values. He has not seen it as a discussion of state institutions but presents this as a discussion of political system or process. 

Politics is the struggle for power or the influencing of those power. 

Max Weber 

Acceptable Definition of Political science 

As I said, there is no universal definition of it. But from the discussion of the traditional and modern view of political science, it could have an acceptable definition. 

Political science is a part of social science in which the philosophical, organizational, administrative context of the state and politics, the context of national and international, legal and organizational relations, and the comparative context of multiple political systems are scientifically discussed and reviewed. 

After completion Meaning and definition of our topic “meaning nature and scope of political science “, now its time for Nature of Political Science. 

Nature of Political Science:

When you study political science, you see politics and political science are used interchangeably. Some political scientists use political theory and political philosophy and political science in the same way. 

Again, many are reluctant to call it a science. In order to overcome such confusion, the nature of political science must be studied in a good way. So let’s start. 

Political Theory, Political Philosophy, Politics, or Political Science? 

The origin of the concept of the state is the need for human interaction. Political Theory includes various views and interpretations about the origin and development of the state, its nature, and functions, organizations, and subsidiaries. 

Some basic questions about the nature and purpose of the state take place in the discussion of Political Philosophy. 

Although the name of politics is used more for the sake of popularity, political scientists are willing to use the name of political science. 

Many people want to use the name political science in order to ensure that the discussion of politics does not become a futile policy, but prevails in practical politics. 

Political science, like science, has the potential for observation, experience, analysis, and classification. It teaches us how it is possible to analyze political and humanitarian issues in the light of empirical and observational methods. 

Presidential form of government is a system in which the president heads an executive branch that is independent of the legislative branch. It is also known as a single executive system. In a presidential system, the head of government is directly or indirectly chosen by a group of voters and is not accountable to the legislature, except in exceptional circumstances. A presidential system differs from a parliamentary system in which the head of government is elected by an elected legislature. Ex: the United States and Costa Rica.

What Is The Presidential Form Of Government?

• A presidential system is one in which the head of state is also the head of government, and the executive branch is independent of the legislative branch.
• The United States, for example, is governed by a presidential system.
• In presidential nations, the president is elected and is not accountable to the legislature, which cannot oust the president under normal circumstances. However, in rare situations, such dismissal is feasible, usually by impeachment.
• A presidential system differs from a parliamentary system, in which the leader of the government is elected by an elected legislature.
• Hybrid systems, such as the semi-presidential system utilized in the former Weimar Republic, France, and Poland, are also available.

Presidential Form Of Government- A Brief History

• The Presidential system of government may be traced back to medieval England, France, and Scotland, where the Monarch or Crown (King/Queen) and not the realm’s estates had administrative authority (Parliament).
• This had an impact on the United States of America’s constitutional writers, who created the post of President, for which direct elections were to be held.
• The word ‘president’ is derived from the Latin ‘praesidens’ meaning ‘governor’.

Presidential Form Of Government- Characteristics

• Real head of the state: In this system the head of the state is the real executive head.
• Power separation: The presidential system of government is built on the notion of power separation among the government’s three departments. The executive branch is not accountable to the legislative. The legislature cannot be dissolved by the executive. The judiciary is also separate from the executive and legislative branches.
• Checks and balances principle: The government’s three organs are separated from one another, yet they all check and restrict each other from abusing their authority and functions.
• President’s superior position: The president has a superior position since all of the government’s authority is concentrated in his hands.
• Political homogeneity is not required: All members of the cabinet do not have to be from the same political party.
• Transparency: The balance of power in a presidential system tends to be more transparent because it aims to define the limits between the Executive and Legislative branches, despite the fact that there are many collaboration alliances between them and that members of one are not members of the other at the same time, though exceptions exist.
• Non-Responsibility to the Legislature: In a presidential government, the President and his secretaries are not accountable to the legislature. A vote of no confidence in the legislature cannot be used to remove them. They are also not susceptible to an adjournment or censure motion. The President and his secretaries are not members of the legislature and so do not attend its sessions. As a result, they cannot be questioned further.

Significance Of Presidential Form Of Government

• Stable Government: The president is chosen for a fixed term that ensures the administration’s stability and effectiveness.
• Separation of Powers: This prevents any branch of the government from becoming despotic and preserves citizens’ rights and liberties.
• Appropriate in an emergency: As the head of state and government, the president can make vital decisions quickly and efficiently.
• Appointment of capable men: the president normally appoints professionals to lead portfolios without regard for political affiliation.

Presidential Form Of Government- Drawbacks

• The executive branch of government has the potential to become despotic: The president has enormous authority and his term is set in stone. As a result, there’s a chance he’ll act like a dictator.
• Inter-organ deadlocks: A deadlock between the executive and legislature is a distinct possibility.
• Economic planning is incompatible with checks and balances.
• Constitutional rigidity is challenged as well because flexibility is essential to deal with changing conditions.
• There is a lower likelihood of effective legislation being enacted since the executive and legislative branches are not in sync.

Conclusion

Thus, we have examined the presidential form of government in this article. There are several kinds of governance in the globe, such as parliamentary, presidential, and monarchial systems. The presidential system is one in which there are tight checks and balances, all departments of government act independently of one another, and the executive branch is not expected to be accountable to the legislative.

Austin was the most important contributor to legal theory or Monistic theory of Sovereignty. 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 one 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. 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. 

Austin’s legal view of sovereignty carries with it a certain scientific precision and finality which is highly impressive. His analytical view of sovereignty and law has some implications: 

1.   As Laski says, the state for Austin is a legal order in which there is a determinate authority acting as the ultimate source of’ power. Hence, neither the people, which is indeterminate, nor the general will (Rousseau’s conception), which is impersonal and abstract, can be designated as sovereign. 

Its authority is absolute and incapable of limitation. The sovereign receives habitual obedience from the people but not in the habit of obedience to a like superior. 

 
2.   Whatever the sovereign commands is law, and without him there can be no law. Law is a command of the state obliging the subject to do, or to refrain from doing, certain acts, failure to obey being visited by punishment. 

3.   Sovereignty is indivisible. To divide sovereignty between two or more persons or bodies of persons is to limit it, while sovereign power s by definition incapable of limitation. 

Monistic Theory of Sovereignty: A Critique: 

1. The authority of the sovereign is absolute and unlimited has been contested on several grounds. It conflicts with the basic ideas of democracy, Austin talks in terms of a hierarchical order characterized by superior-subordinate relationship while democracy is a society of equals. Austin’s idea is inconsistent with a democratic polity based on popular sovereignty. 

2. The Pluralists argue that the state is but one association among several and, therefore, it cannot be invested with the unique sovereign power of the community. They urge that associations grow naturally, that they have a will of their own and that the life lived in the group is an important part in the life of the individual. They contend that the voluntary associations should not be dictated to by the state. 

3. Austin’s third proposition is that the, sovereign in the sense of a “determinate human superior” is the supreme law-maker. Whatever he commands is law. This view has been criticised by the historical jurists on the ground that it ignores the great body of customary law which has grown up through usage and interpretation and which never had its source in the will of a determinate superior. 

4. The last proposition of Austin is that sovereignty is indivisible. From one point of view, as Lord Points out, this is an untenable proposition. In every state there is a division of function though not of will and without such- division no government can be run effectively. It is argued that sovereignty is shared between the legislative, executive and judicial branches and between the national and state governments in a federation. The distinction between legal and political sovereignty also has at times been interpreted as the divisibility of sovereignty. 

Value of Monistic Sovereignty: – 

Austin’s Legal theory of sovereignty is to be found in his well knows lectures on The Province of Jurisprudence Defined. It carries with it “a certain scientific precision and finality which is highly impressive”. Its peculiar features can be summed up as follows:- 

1.  As legal notions, it proclaimed the monopoly of the state Public policy and declaring the law that binds all the citizens’ unequivocal terms. 

2. The logic of the legal character of sovereignty postulates that it has to be absolute, permanent, universal, and inalienable. 

3. It is definitely organized, precise and recognized as the source of law. It represents the will of the state and its commands are legally binding. Its disobedience is visited by penalties. 

4. The organs of state which exercise supreme power law making, law enforcement and adjudication, draw their legitimacy from the general will of the people. 

5. It regards people themselves, in their corporate capacity, as the embodiment of reason, the best judges of right and wrong, and hence the real source of supreme authority. 

The state has been envisaged from various points of views. Every theorist conceives and defines the state in terms of his own discipline. Each has given his own theory regarding the origin, nature, sphere, function and ends of the state. These theories often differ from one another in form and substance. In this unit, we shall make an attempt to deal with the various theories regarding the nature of state.

The Liberal Theory

Before looking into the liberal theory of the origin and nature of the state, it will be proper to have some understanding of liberalism itself. With the emergence of the new bourgeois class (middle class) in the 16th and the 17th centuries, the philosophy of liberalism came into being as a progressive revolt against the reactionary forces represented by feudalism, the church, and the monarchy. It was a voice for the recognition of the consent of the individuals based on individual’s rights and liberty. Its concept of the individual was that of the ‘possessive individual’ and it was a political movement for the establishment of a democratic government.

This theory is based on the liberal notion of man, which gives due importance to man as a free agent in this world, having a free will of his own. So as regards the origin of the state, it assigns due role to individuals, their natures, activities, interests, and objectives. The state is seen as a necessity, an institution – evil or otherwise – which may establish law and order, peace and justice in society. The state is there to serve the general interest of society as a whole. It is regarded as an agency of human welfare, which will secure life and property of man. It is regarded as a contributor to the moral and social development of man. Liberalism distinguishes between state and society and maintains that state is for society and not otherwise.

Liberal views on the functions of state have been changing from time to time. During the 17th century, the requirements of the capitalist class – which supported liberalism – were quite different, and during the 18th, 19th, and the 20th centuries, the requirements of this class changed, thereby necessitating a different role of the state in society. Classical liberalism of the 18th and the early 19th century, which supported the negative state with minimal functions, changed to modern liberalism in the later half of the 19th and the early 20th century that supported the positive state with welfare functions.

Classical liberalism is also known as the theory of ‘laissez-faire’ or the police state, or the theory of individualism that regards the state as a necessary evil. Necessary, because of the selfish nature of man and an evil because it is an enemy of individual liberty. The state and individual freedom are seen as each other’s opposite, and classical liberalism wants to give more freedom to the individual by increasing the sphere of his activities and decreasing the sphere of the state. The function of the state is to provide physical security to the individual so that he can develop his personality without state interference. In brief, it means minimal state function and maximum individual liberty. Adam Smith supported this on an economic basis, and Bentham on a moral and political basis.

Later liberalism or modern liberalism is also called the ‘theory of the welfare state’, ‘revisionist’ or ‘reformist liberalism’. Here, the state is not regarded merely as a necessary evil, but it is assumed that the state can perform various functions of social welfare, can bring equilibrium, and can satisfy socio-economic demands of the masses. Various thinkers – Mill, Freeman, Hobhouse, Lindsay, Keynes, Tawney, Cole, Barker, Laski, and MacIver – gave the philosophy of the positive functions of the state.

Thus, the increasing democratization of the liberal state through the extension of franchise to all adults compelled the state to initiate policies of significant intervention in the economy. It also meant transferring resources from the wealthier to the less wealthy through taxation and state subsidy. Unlike the minimal state, which was the original form of the liberal sate, the welfare state was called upon to make public welfare one of its principal concerns. The welfare state was not simply a response to electoral pressure, but also a response to the increasing awareness among common people of their power, expressed through associations like the trade unions and public opinion. But the welfare state should not be seen as a radical shift from the classical minimal state. Rather, we should consider it as an attempt to give maximum concessions to the people consistent with the needs of a liberal, capitalist market economy.

Liberalism, in the late 20th century, has taken a new turn in the form of neo-liberalism. It may be regarded as going back to the ideas of classical political economy. The neoliberal goal is to ‘roll back the frontiers of the state’, in the belief that unregulated market capitalism will deliver efficiency, growth, and widespread prosperity. The neoliberal view of the state is found in the writings of economists like Friedrich Hayek and Milton Friedman, and philosophers like Robert Nozick.

The Marxist Theory

The Marxist theory of state emerged as a criticism of, and as an alternative to the liberal theory of state. If liberalism was a socio-economic and political philosophy of the working class, Marxism was a product of the capitalist economic system itself.

According to the liberal view, state is the product of social contract, consent, and consensus, and is there to serve the general interest of the whole community by maintaining law and order, and providing justice and welfare services. While according to the Marxist theory, the state is a product of class division and class struggle and serves only the interest of one particular class, because all the classes cannot have a single interest/common interests. It rejects the state, associates its presence with the presence of classes, and suggests that by a revolution and the establishment of a classless society, the institution of the state would be done away with. You should know that in social sciences, the debate with regard to “consensus model” and “conflict model” remained hot for a long time. The consensus model on which liberalism is based, maintains that the basis of society and social institutions, including the state is shared values, norms, beliefs, interests, ideas, and institutions. The conflict theory gives importance to conflict and struggle and draws the conclusion that the state and many other institutions are the product of conflict.

Let us analyze carefully the Marxist assumptions about the nature, function, and legitimacy of the state, which Karl Marx built through his various writings including ‘Das Kapital’ and ‘The Critique of the Gotha Programme.’ Though Marx himself never formulated a theory of state separately, discussion of the state is scattered in almost all the writings of Marx. Marx was busy with the historical analysis of the capitalist mode of production, so he could not concentrate on specific issues like the state. But Engels and other Marxist scholars and revolutionaries have written on this aspect.

The main points of the Marxian theory of state deserve the attention of students of political science. Marx made it clear in his early writings that the state is an organized power of one class oppressing the other i.e. the economically dominant minority class through dominant political dominance rules over the majority working class. Marx regarded the state as an alienated and parasitical social force and rejected Hegel’s idea of the state as ‘a march of god on earth’. He never regarded the state as a higher morality ending conflicts in society and bringing unity and harmony. The state to him was neither equal to society nor above it, but was merely its product at a certain stage of historical development. Thus, Marx believes in a general theoretical framework known as ‘Dialectical Materialism’ and in the materialistic interpretation of history. Dialectical Materialism is a more general philosophical system from which is derived the more specific theory of historical development, which is termed ‘Historical Materialism’ or the materialistic interpretation of history.

Marxists hold that all phenomena that we experience are material, concrete, and objective, outside our mind and consciousness. Also, all the phenomena are characterized by internal contradictions, leading to conflicts and then, eventually rising to a higher level of development. This whole process is termed by Marx as dialectical materialism. Therefore, to understand any phenomenon, one must grasp the way it changes.

A capitalist society is one that is based on the capitalist mode of production, where the capitalists (a minority class) own the means of production and the motive of production is profit and the workers (a majority class) sell their labor power to the capitalists for wages. In such a society politics, culture, morality, and social norms are determined by the capitalist mode of production and the society is sharply divided into capitalists and workers. As the interests of these two classes are opposed to each other, class struggle between them is fundamental. The western liberal democracies, the USA, England, France, West Germany, Italy, etc – are examples of such societies. For the abolition of classes, Marx gives the theory of revolution, which is the most important aspect of the Marxian theory of state. The task of Marxian philosophy is two-fold: to understand the world and to change it. Marxism does not suggest reforms of the exploitative capitalist system, but suggests that it should be overthrown by a violent revolution and a socialist state and economy established. This socialist state will be a temporary phenomenon; it will abolish private property and classes; and thereafter, it will wither away.

Thus, the Marxian theory of state does not glorify the state; rather it is a theory of its overthrow, its withering away, in a classless society. According to the theory, politics and state are parts of the superstructure which is based on the economic system or the mode of production of a given society. Marxian theory of the origin of state is also based on this general view of state and politics.

A state originated with the division of society into classes and with the beginning of the struggle between classes. The historical analysis of the origin of state is that the state is by no means a power forced on society; rather, it is a product of society at a certain stage of development that is entangled in contradictions with it. The state has, thus, originated with the birth of classes and class struggle in society and is merely an instrument of exploitation in the hands of a dominant class. With the help of the state, ruling classes maintain their power over economically poor classes.

The Gandhian Theory

Let us now try to see how Gandhi conceptualized the nature of state. Before briefly examining it, we should note that it shows similarities and differences with the concept of state found in Liberal and Marxist perspectives. We may also note that though it is derived from the Indian tradition of thinking on state, it also shows some influence of western thinking on the subject.

First of all, Gandhi accepts the need of the state; though as an advocate of nonviolence, he does see that the state implies the use of violence or coercion. This is because Gandhi accepts the idea that man is by nature non-violent and that this applies to man in the ideal sense. Taking a realistic view, he agrees that there is some need of the state since in practice, men may not possess the ideal qualities of nonviolence and sociability. But having said this, Gandhi also holds that state as an institution of violence must be limited. In other words, Gandhi accepts the minimal state.

Secondly, Gandhi suggests that the state should be limited on the basis of certain considerations. On the one hand, the authority of the state should be reduced by a system based on decentralization of power, in which communities below the level of state should have greater autonomy and independence from the central state. The unit of such autonomy should be the village community. That community itself through a process of consensus should decide all decisions affecting the rural community. The Gandhian position is that insofar as the crucial local community decisions are taken at that level, the central state would be minimal, presumably concerned with the defence of the overall territory under its jurisdiction, foreign relations and any other problems affecting the territory as a whole. The power of the state is also minimized in the Gandhian perspective by the ethical norms embedded in the society as a whole through customs and traditions.

Thirdly, and only non-violently, the state is also limited by moral challenges arising from the individual “conscience” or the “inner voice”. In his great classic work, Hind Swaraj, he held this kind of polity in which political powers are dispersed over a large number of self-governing village communities, to be a Swaraj Polity. Gandhi claimed that this was a genuinely Indian political system evolved over centuries in India. However, the Gandhian state cannot be separated from its economic and social systems. Therefore, the concept of Swaraj or self-government extends to economic and social arrangements. Within the rural community itself, Gandhi emphasizes the significance of groups over individuals.

Thus, it would be wrong to call Gandhi an anarchist, if by that is meant a thinker who denies the need of the state. Certainly, he limits the state, but this does not mean that he dispenses with it. The case of the minimal state is that it involves minimal violence, and it also means the acceptance of the Gandhian political principle of Swaraj. While Gandhi’s emphasis on individual conscience has a parallel with the liberal emphasis on individual rights, it should be differentiated from the notion of individual right. Gandhian rights are not given to the individual on liberal grounds of individualism, but on moral grounds; that is, the claim that one has a duty to act morally. The Gandhian notion of Satyagraha or the political action of protest or resistance to untruth is a moral right and duty, and the Gandhian state is also subject to this type of action.

Gandhi’s conception of the state resembles the Marxist state in the sense that both regard the state as a system of violence. Gandhi also lays emphasis on duties rather than on rights, given his moral perspective. Further, the Gandhian state rests more on a moral, communitarian consensus than on any notion of a collectivity of individual wills. In many ways, the Gandhian state is a distinctively Indian form of state. Today, Gandhian elements are reflected in the notion of the Panchayat Raj or the ideals of democratic decentralization. In fact, one of the crucial issues in Indian politics has been whether and to what extent the Gandhian form of state can be introduced in India.

Summarizing the three perspectives of the state, we may say that the Liberal state is based on individual rights; that according to the Marxists, the state is based on class dominance and class exploitation, and the Gandhian state is based on a moral and communitarian consensus.

Constitutions are classified as rigid and flexible. The nature of the amendment determines whether a constitution is rigid or flexible. It is a rigid constitution if the constitutional laws and ordinary laws are amended separately. On the contrary, in a flexible constitution, both constitutional and ordinary laws can be amended in a similar manner. The Indian Constitution is neither rigid nor flexible, but rather a mix of the two. 

What is Rigidity and Flexibility of the Constitution 

• A rigid Constitution, such as the American Constitution, requires a special procedure for amendment. 
• A flexible constitution, on the other hand, is one that, like the British Constitution, can be amended in the same way that ordinary laws are made. 

Why Indian Constitution is Called as Blend of Rigidity and Flexibility 

• The Indian Constitution is a balancing act between rigidity and flexibility. 
• Some provisions can be amended by a special majority of the Parliament, which is defined as a two-thirds majority of the members of each House present and voting, as well as a majority (more than 50%) of the total membership of each House. 
• Other provisions may be amended with a special majority of the Parliament and ratification by half of the total number of states. 
• Simultaneously, certain provisions of the Constitution can be amended by a simple majority of Parliament in the manner of the ordinary legislative process. 
• The provisions in the constitution that allow the parliament to supplement the provisions of the constitution with legislation add to the constitution’s flexibility. 

Significance 

• The Basic Structure doctrine advanced in the Kesavananda Bharati case has undoubtedly increased the constitution’s rigidity. 
• In fact, whenever the issue of Basic Structure arises, the Indian Constitution, as added bySupreme Court, is “absolutely rigid”. 
• It makes it clear that Parliament cannot use its power to amend the Constitution to alter, distort, or harm the basic characteristics and principles of the Constitution in any way. 

Criticism/Challenges 

• However, given the ease with which more than 100 amendments have been passed in the last 60 years of the Constitution’s operation, some critics have described the amendment procedure as being overly flexible. 
• As a result, the amendment procedure should only be used as a last resort. 
• Furthermore, while passing the amendment, Parliament must maintain and preserve the Constitution’s basic structure. 

Conclusion 

• The Indian Constitution is a one-of-a-kind agreement of both the theory of fundamental law of the US constitution and the theory of Parliamentary sovereignty of the UK’s unwritten constitution. 
• In other words, the Constitution is not so rigid that it cannot be amended by Parliament, the supreme law-making body. 
• In order to allow the new nation to grow smoothly, India chose a middle path between the rigidity of the US Constitution and the flexibility of the unwritten conventions of the UK. 

This is the oldest theory regarding the origin of the state. It is Pore familiarly known as the theory of Divine Right of Kings. According to this theory, the state did not come into existence as a result of human. 

It is divine creation. God founded the stale. The ruler of state is the deputy of God or his vice-regent or viceroy on earth. He derives his Authority from Him and is responsible for his actions to Him alone.Obedience to the dictates and orders of the king is an unpardonable sin. 

The theme of the theory is that a king is above law. He is not subject to the authority of any person or persons other than God. 

History: 

The Divine Origin or theocratic conception is as old as the state itself. It was universally popular among the early people. The earliest rulers combined in them both the political and religious power and they were known as priest kings. 

The idea of Divine Origin of the stat is practically found in every religion. In some religions, it is explicit and in others it is implicit. 

The chief exponents of this theory were the Jews. In the Old Testament, there are repeated references to the conception that God selects, appoints, dismisses and even slays rulers. The king is treated as owing responsibility to God alone for his acts. 

The following statement of St. Paul is a clear indication of the Christian belief in Divine Origin of State: “Let every soul be subject unto the higher powers; for there is no power but of God; the powers that be, arc ordained by God. Whosoever resistant the power, resistant the ordinance of God and they that resist shall receive to themselves damnation.” 

Filmer in his book Patriarcha (1680) argues that Adam was the first king and present kings are His heirs. In ancient Hindu mythology, similar views regarding the origin of state are found scattered here and there Reference to this theory is found in Mahabharata in the following words: “When the world was in the state of anarchy, the people approached God and requested him to provide a remedy. 

“Without a chief’ they said, “0 Lord! we are perishing. Give us a chief, O Lord! whom we shall worship in concert and who will protect us. God, thus appointed Manu to rule over them”. The theory as such held sway in primitive age. Obedience to the state and kings was both a religious and civil duty and disobedience was sacrilege. Religion and politics then were inseparable. 

As a rule the religious head was the political head as well. The Pope of Rome till the early Middle ages, combined in him both spiritual and political authority. He was the emperor of the Christian world. 

So was the case with the Caliph of Islam who was considered to be not only the religious head of the Islamic world but also their emperor. The kings in ancient India ruled over the people according to laws of ‘Dharma’ which implied both religion and politics. 

True justice was administered according to what Shastras would say. Priest used to be the Judge and administrator. Religious places were the seats of authority, centers of learning, so on and so forth. Thus religion was the chief medium through which people were ruled over. 

The theory was exploited by the rival parties during middle ages in the controversy between the church and the state. Some used the Divine Origin Theory to establish the supremacy of the church over the state, whereas others used it to prove the supremacy of the state over the church. The theory was made use of by James in his struggle with Parliament In his book entitled. 

“The Law of Free Monarchies” James I claimed that the king had derived his authority directly from God. He assumed that kings were wise and good, but the subjects were weak and ignorant. A king, he declared, was a great school master for the whole land. 

Even if the king was wicked, the subjects had no right to rebel against.him. A wicked king was to be regarded as a plague for people’s sins sent by God. Even as late as 1815, the king of Prussia, Austria and Russia, when forming the Holy Alliance declared that they were appointed by God to rule their subjects. 

It is, however, interesting to note that according to ancient Hindu mythology the Divine Right theory was not stretched to include the view that the bad as well as the good ruler was the representative of God and ns such entitled to unconditional obedience. 

The ancient Hindus believed that since kingship has divine origin, the king must have a virtuous life and must exhibit godly qualities. If a king were to be bad and vicious, he Should be done away with. The two great Epics of Hindus, namely Ramayana and Mahabharata lend support to the view. 

The victory of Rama over Ravana was the victory of good over evil. The battle of Mahabharata was fought for protection of dharma and uphold of righteous­ness. The theory of Divine Right of kings in ancient India was different from what it was understood to be in rest of the world. The theory was exploited in Europe by the kings to defend their dictatorial powers. 

The theory was equally supported by the ancient Greek and Roman philosophers. In the words of Plutarch “the city might more easily be tended without territory than a state without belief in God”. Even the Realist philosophers of 18th Century used the theory of Divine Origin of cate to justify the importance of the State. In the words of Hegel, “the is the march of God on earth”. 

Bluntschli said that “the state was the ‘mediate work of God, the direct revelation upon earth of the divine power”. In his opinion God manifested himself on earth in the form and shape of State. 

Although the Idealist philosophers used this theory for the glorification of the state, yet in practical sense since state is represented by the Government or a King, it inevitably lends divine authority kings. 

We may conclude with the remarks of Gettle that “during a of human history the state was viewed as direct divine creation theocratic in nature”. The theory remained popular as long as religion was considered to be the chief motivating force of human activity. 

It is only in the recent past that theory has been challenged to be as an incorrect explanation regarding the origin of state. With development of scientific outlook and consequent decline of religious influence, the theory is being relegated into oblivion. 

Today the Divine Origin Theory has support among political thinkers. To refute it in great details is to flog a dead horse. There is now unanimity of opinion that the state is an historical growth. It came into existence to meet various needs kind. The causes of the decline of the theory may be discussed as 

Causes of decline: 

1. The first great setback to the them given by the theory of social contract which proved that the state was a, human creation, a hand work of man and not a divine creation. 

The of social contract was the first materialistic approach as opposed religious approach to explain the origin of state. 

The voice of people became the voice of God. Democracy glorifies the individual as opposed to authority. The belief that man is the I of his own destiny got strengthened. 

Individual growth and happiness according to Democratic ideology is the end and the state is considered just to be a means to that end. Since the theory of Divine Original defended absolute authority, the democrats all the world over attacked from right and left. 

2. The growth of democratic ideas further gave a shock to the which defended in its ultimate sense the absolute powers of the king Democracy glorifies the individual. 

3. The separation of the church and the state also led to the decline of the theory. In the modern period sphere of religion has been from the sphere of the state. 

Times are gone by when all politics was religious politics. Now religion is considered to be merely an individual conscience and state and politics arc matters which touch or and all. 

4. Growth of scientific knowledge and purely materialistic approach further given a rude shock to the theory of Divine Origin of State. 

Blind faith and unfounded superstitions have no appeal to a modern mind. Reason and logic have taken the place of faith. 

Criticism against theories regarding the Divine Origin of State 

Gilchrist has criticized the theory on the following grounds: 

1 State a Human Institution: 

The modern political scientist regards the state as essentially a human institution, organized in its government through human agency. No one now accepts the originative power of God as a criterion of the tightness or wrongness of any given form of government. To say that God selects this or that man as ruler is contrary to experience and common sense. 

2. Dangerous consequences: 

The theory is dangerous. In a theocratic state the ruler is responsible only to God. Irresponsibility to human opinion might be a grave danger in the hands of an unscrupulous man. It would lead to tyranny. 

3. Unrealistic theory: 

The early Church fathers held that a bad ruler is given by God to men as a punishment for their sins. It is difficult to accept this view point as realistic. 

4. New Testament disregards the theory: 

The theory is not supported by New Testament. Christ’s statement, “Render unto Caesar the things that are Caesar’s and unto God the things that are God’s”, is evidence of the human character of the state from the very fountain head. 

5. It is unscientific: 

Latest researches in the field of anthropology and sociology prove that the theory of Divine Origin of state has no meaning at all. “The state came into existence” as Aristotle put it “out of bare needs of man and continues for the good of man”. Man is a social and political animal and it was by nature and necessity that state came into existence. The theory is thus unscientific. 

6. State is the result of a process of evolution: 

All the political thinkers are unanimous in the view that the state came into existence as a result of evolutionary process. Various factors including religion, family force and political consciousness played their part in the process evolution of State. It is definitely not the creation of God as such. 

7. It is undemocratic: 

The theory inevitably leads to the establishment of absolute authority which is opposed to the spirit of democracy idolizes and glorifies the individual. 

A written constitution is normally supposed to mean a document or a collection of documents in which the basic rules regarding the main organs and institutions of government are clearly laid down.
 
A written constitution is a deliberate creation. It is a consciously planned system. It may be created by a constituent assembly or a convention. The constitution of India was formulated and adopted by the constituent assembly.
 
The preamble of India constitution begins with the words, ‘We the peoples of India having solemnly resolved to constitute India into a sovereign democratic Republic-and ends with the words, ‘in our constituent assembly this twenty-sixty day of November 1949, do hereby adopt, enact and give to ourselves this constitution.’
 
The constitution of USA was drafted by a special convention of delegates, presides over by George Washington. This constitutions emerged out of the Philadelphia convention on September 17,1787, and was referred to the States for their ratification.
 
A written constitution may be single document having one date. Such is the case of India, Myanmar and United states. It may be in a series of documents bearing different dates. This is the case with France, Australia etc.
 
The French constitution under the Third Republic was fragmentary and did not consist of one single document. It was composed of three constitutional laws passed on February 24, February 26 and July 26, 1874.
 
Whenever there is a written constitution in a country, a distinction is made between constitutional law and ordinary laws. The constitutional law is supposed to be the will of the sovereign and it should not be altered by the ordinary legislative process.
 
The statutory law has to limits itself within the framework of constitutional law. If they conflict with constitutional law they are termed as ultra vires.

Merits of a Written Constitutions:

Demerits of a written constitution:

Austin’s Theory of Sovereignty.  Theory:  If a determinate human superior not in the habit of like superior obedience but receives habitual obedience from the bulk of given society, then that society is political and independent, and that sovereign is the determinate human superior.

Definition of Law and Sovereignty:-

A conception of sovereignty, which has been the subject of wide discussion and has exerted an important influence upon the legal thought of the last half-century, is enunciated by the analytical school of jurists of which John Austin was the most conspicuous representative.

Austin’s views were based largely on the teachings of Hobbes and Bentham and were first made public in his “Lectures on Jurisprudence,” published in 1832. His theory was conditioned mainly upon his view of the nature of law, which he defined in a general way as a command given by a superior to an inferior.

If a determinate human superior, he declared,

not in a habit of obedience to a like superior receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that Society, and the society (including the superior) is a social political and independent.

Furthermore, every positive law, or every law simple and strictly so-called, is set, directly or circuitously, by a sovereign person or body to a member or members of the independent political society wherein that person or body is sovereign or supreme.

The test of sovereignty, then, according to Austin, is habitual obedience to a superior Who owes no obedience to a like superior, not obedience by all the inhabitants, but by the bulk of the members of the community. This superior cannot be a general will, as Rousseau taught, nor the people in the mass, nor the electorate, nor some abstraction like public opinion, moral sentiment, the common reason, the will of God, and the like, but it must be some determinate person or authority Which is itself subject to no legal restraints.

Criticism of the Austinian Theory:-

Austin’s theory that sovereignty must reside in a determinate body has found many critics among histOrical jurists Marine, Clark, Sidgwick, and others. In the first place, the theory is criticized on the ground that it is inconsistent with the present-day idea of popular sovereignty is, in fact, that complete antithesis of Rousseau’s doctrine that sovereignty is a general will, a doctrine which lies at the basis of the modern democratic state.

Again, it ignores the power of public opinion and takes no account of what we have described as political sovereignty. Thus, says Sir Henry Maine, it is a historical fact that sovereignty has repeatedly been for a time in the hands, of several persons not determinate, and, he adds, it is asserted by some writers that this is true, of the abiding place of sovereignty in the republic of the United States.

Furthermore, Austin’s notion of law as a command emanating from a determinate superior-a conception which lies at the basis of his theory of sovereignty-has been criticized by the historical jurists on the ground that it ignores the great body of customary law which has grown in through Usage and interpretation, and which never had its source in the will of a determinate superior that it errs in treating all law as being mere command and that it exaggerates the single element of force to the neglect of obvious historical facts with which Austin could not have Dbeen unacquainted.

Another objection sometimes urged against the Austinian theory is absolutism, which it attributes to sovereignty. Like Hobbes, Austin held that any higher law could not limit the fountain and source of law, and hence sovereignty involved legal despotism. There cannot, he said, be a hierarchy of supremacies nor coordination of creators nor a series of sovereigns ascending to infinity.

He frankly admitted that there is no escape from the conclusion that sovereignty is legally unrestrained. Hence, the sovereign is, legally speaking, a despot, however benevolent he may be, in fact. But he pointed out, what is obviously true, that it does not follow that because the sovereign is unlimited in its Powers, the government through which it expresses itself is necessarily subject to no restriction.

Austin’s chief error consisted of unduly emphasizing the Purely legal aspects of sovereignty and ignoring the forces arid influences that lie back of the formal law, a very natural mistake for a lawyer to make. It may also be said that his theory is probably inapplicable to all states of society, such, for example, like those which Main described in his work on the Early History of Institutions. But as a conception of the strict legal nature of sovereignty, Aqstins theory is, on the whole, clear and logical, and much of the criticism directed against it has been founded on misapprehension and misconception.

OR

About John Austin (in brief)

John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.

Austin’s Theory of Sovereignty Explained

The definition of law according to Austin was, “Law is a command of the sovereign backed by a sanction.” Breaking this definition into its fundamentals: –

1. Command, of
2. Sovereign, which if not followed attracts
3. Sanction.

Now in order to fully understand Austin’s theory of Legal positivism, let us explain these elements in a concise and comprehensive manner.

Command: Commands are expressions of desire given by superiors (sovereign) to inferiors (general public). There are commands which are laws and which are not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.

Observation: From the above definition we can conclude that Austin’s definition of commands gives the sovereign authority status of ultimate supreme, and imply that the authority of the sovereign is absolute which is the opposite of the constitutional framework which prevails in India, and for that matter in any peaceful democracy. This definition expresses that the sovereign, that is, the person/people in power is politically superior, but in democratic countries, it is not true. Every citizen has the same right same that of a President/Prime Minister/Chief Justice.

It also disregards other sources of law, like laws made by judges (considered as mere delegates) in form of precedents, laws made by the executive as statutory instruments, etc which hinders the growth of not only the jurisprudence of the country but also of the society, government and private institutions and economy.

Sovereign: A sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys, some other persons or persons. 

Observation: From the above definition of the sovereign, we can conclude that according to John Austin, the sovereign is not accountable to anyone but the whole realm has to follow whatever the sovereign dictates which are in stark contrast with the idea of democracy and Indian federalism. Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make laws, the sovereign will execute the laws and the sovereign only will administer the law. This philosophy is also in contravention with the idea of democracy and the Indian federal structure. 

Sanction: This term is derived from Roman Law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice.

Observation: From the above definition of Austin, we can conclude that sanction is the force/evil which follows to if the individual if he/she fails to obey the command of the sovereign. His theories have put sanctions as more of a physical force state uses to suppress the non-abiders, which is very autocratic and narcist per say. This definition does not give room to people participation in government and we can say that having a difference of opinion (which is very crucial for the development of any country socially, politically and economically one can be subject to the sanction too.

In a modern democracy, people don’t abide by laws merely out of the fear of sanctions, but they do so voluntary as well out of morality and responsibility. This leads to the cooperation between the state and the subjects and this cooperation and understanding between the people and the state helps in the effective execution of the law and smooth introduction of social change. Also, we should not ignore the fact that in the modern era, even the sovereign can’t implement everything on brute strength or influence, especially in a country like India which is so diverse in its every facet.

Even Austin has himself admitted in his book, Province of Jurisprudence, that his philosophies are very objective and separates the law from morality, ethics, values or any other social norm and see the law as it is and not as it ought to be. The same can be observed in his definition of law, where he has outrightly ignored the subjective but very important elements of the law (like voluntary obedience of law, mutual understanding between state and subjects, beliefs and disbelief of people regarding law and its implementation) which applies on the humans who are themselves subjective beings. 

Though Austin’s work has received criticism from other schools of law as well but the simplicity of Austin’s work has continued to attract adherents. What is unique about Austin’s work is it separates law form justice, morality, ethics, values or any other kind of social norms. The same is the reason for the simplicity and spontaneity of his work. Also, we have to be cognizant of the fact that Austin has formulated these theories when England was going under great legislative reforms.

Relevance in modern Indian politics & legal society|Criticism

From the critical analysis of Austin’s theory of sovereignty and legal positivism, the author has made the following inferences and has tried to establish the relevance of the same to the modern Indian political and legal society.

1.   Presumption about the subjects

Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will command which is not true in the present scenario in India politics. His theories put the habitual obedience by subject on the bottom line of the philosophy. Those who deem the sovereign as the fit will obey voluntarily. Those who think sovereign as faulty will obey in the fear that the evil of their resistance will surpass the evil of obedience. And those who are not certain about will obey sovereign out of custom. Also, Austin’s theory presumes that people are perfectly educated politically.

But that is not true in the modern scenario. The people who deem the government as unfit criticize, protest and resist the government and its policies. Which sometimes causes even the total failure of constitutional machinery like one observed in 1975 when Indira Gandhi (then PM) imposed emergency. There are many other examples in India only where we have seen people like Anna Hazare, Ramdev and Kejriwal protesting and organizing marches against the government and demanding changes in its structure or introduction of new laws or amendment of existing. Also, in a country like India, where one-third of the country (35million people approx) can’t read and write and where people can kill each other because of fake news and propaganda, it would be lethal and unfair to presume that most population is politically educated.

Thus, we can say that the presumption of habitual obedience, which is at the very basis of Austin’s sovereign theory can’t prevail in the present Indian political and legal society.

2.   Doesn’t give room to common law other law-making bodies

According to Austin, only those commands that are given by a political superior i.e. sovereign are laws the real sense. He has tried to define the law from the sources of its origin than its functions. Though, there is a subtle acceptance of law made by judges (precedents) unless except it goes against the laws made by the sovereign but it is not appropriate in any sense. 

In India, the Supreme Court is the keeper of the constitution and it has the power to declare any legislation as void if it contravenes any of the provisions of the constitution and thus protects the fundamental rights of the people of the country. But according to Austin, courts/judges are the mere the subordinate sources of law and they have to function within the parameters set by the sovereign. Also, executive bodies like CBI, police, MCDs which are directly in touch with the public and understand their needs better, can’t make laws for the public’s benefit because statutory instruments are the recognized source of law. If all this is applied in the modern scenario it can lead to serious chaos and disrupt the country.

 Also, according to Austin’s definitions, customs are also not a source of law and thus not applicable. Law of the church, the law of the merchants, and many other personal and customary laws like Hindu Law, Muslim law, etc which are in existence much before this theory, though not been acknowledged but governing the day to day behaviour of the bulk of the population and is enforced by the state, none of these would be law according to Austin’s definition. Thus, Austin was also not cognizant of the common law which is the foundation of many countries’ governmental setup.

Thus, we can infer that Austin’s theory is incompatible with modern political and social scenario of India as it doesn’t give room to the very basic ideas of democracy, constitutionalism and de-centralization and separation of power.

3.   Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human elements like mutual understanding and cooperation between the state and the subjects and on the other hand, we can see that he has made vague presumptions about the subjects like habitual obedience, which is an extremely rare phenomenon in the modern world. He hasn’t established the right balance between the role of the state and citizens and their relationship with each other.

Also, Austin’s theory has totally ignored the values and ethics like Liberty of thoughts and beliefs, Equality of status, etc which are enshrined in the preamble and are the fundamentals of the Indian constitution. Also, India because of its religious and cultural diversity, has not been considered as a federal state where all the power is with sovereign by the constitution-makers. It has been beautifully made as a “Union of states” as mentioned in U/A 1 of the constitution. This is to keep all the states integrated in India but at the same time preserve their individual autonomy and give them a sense of freedom both of which are in favor of the nation. But Austin’s theory is never short-sighted in this context and there is no such arrangement in his theory.

Thus, we can infer from the above information that Austin’s theory can’t be applied in the modern political and legal Indian society because of being very rigid and short-sighted approach towards running the state and ignorance of the core values of democracy. 

4.   Absolute, unrestricted and indivisible powers to sovereign

Austin has postulated that the sovereign is free from all restraints of any kind of law and that no sanctions of any nature can be imposed on him. The command of sovereignty is superior to overall individuals and associations. The zero accountability of the sovereign in Austin’s theory brings the whole country and its people at the mercy of a single person who can decide someone’s life and death according to his mood and personal whims. Also, because there is only one body as sovereign, it is more prone to attacks and outside pressure from foreign leading to political instability.

Austin seems to inject an anarchical element into the world order and was probably giving an excuse for the worst excesses of 19th-century sovereigns like Nazi Germany, slaughtering of Jewish people, world war, etc by imparting sovereign absolute power. Sovereign is not bound to obey anyone’s order. There is no question of right or wrong, just or unjust, all his commands are to be obeyed. Again, the epitome of absolute power can corrupt absolutely. In modern times, if such things into existence into any country, it will become much more vulnerable to rebels, riots or even full-fledged war.

Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make laws, the sovereign will execute the laws and the sovereign only will administer the law. This philosophy is also in contravention with the idea of democracy and the Indian federal structure. 

In Golak Nath v. State of Punjab, it was clearly laid down that separation of power is uncompromisable provision of the constitution by C.J. Subba Rao in the following words: –

“The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.”

Thus, we can infer from the above facts that all Austin’s theory is not suitable for the modern Indian political and legal scenario because it leads to political instability, anarchy, and social chaos.

5.   Not cognizant of international law

In the modern era, there are multiple international laws every country has to follow. The importance of international laws can be understood from the fact that nowadays procedures exist to make the state liable for injuries caused to foreigners in their land.

Various other principles of international law seem to have cored the concept of sovereignty. A sovereign doesn’t have the power to perpetuate inhumane action against his citizens as the same shall come into great criticism from the world order and it shall soon have to face the consequences of surviving in a hostile world atmosphere if it continues to do so.[9] Also, violation of International laws is also not good for a nation’s socio-economic well-being leading to serious crises and various other restrictions in terms of imports/exports. Especially, in case of a country like India which is trying to boost its economy and GDP by means of foreign investment and exports in recent times under the campaign like Make in India.  But Austin’s theory doesn’t give any room to international laws/relations and makes sovereign the supreme and all-pervasive authority of the land who is not answerable to any.

Thus, from the above facts, we can say that Austin’s theory is a bit impractical to apply in the modern era of globalization and the influence of international organizations like United Nation Security Council (UNSC), International Monetary Fund (IMF), United Nation Human Rights Commission (UNHRC).

Conclusion

In the light of the above discussion, we can say that Austin’s theory is not quite relevant to India in modern times as it does not take into consideration multiple things like international law, separation of power, democratic form of government, etc which have let India maintain its integrity, unity & prosperity and flourish over the course of time from the colonial British rule to the biggest democracy of the world. Also, because of India’s vast cultural, religious heritage and having the most youth in the world, not everything can be done in accordance with the almost 150 years old theory formed under extreme legislative conditions.

But it can’t be denied that Austin’s work has made a very significant contribution in the evolution of law and Jurisprudence as a subject. Austin was the one of the jurists who were able to articulate law with such simplicity and clarity which has opened up the way for other jurists to evolve that work in modern day legal system.

Meaning:

The term “Sovereignty” has been derived from the Latin word “Superanus” which means supreme or paramount. Although the term “Sovereignty” is modern yet the idea of “Sovereignty” goes back to Aristotle who spoke of the “supreme power of the state”. Throughout the middle Ages the Roman jurists and the civilians kept this idea in their mind and frequently employed the terms “Summa” potestas and “Plenitudo potestatis” to designate the supreme power of the state.

The terms “Sovereign” and “Sovereignty” were first used by the French jurists in the fifteenth century and later they found their way into English, Italian and German political literature. The use of the term “Sovereignty” in Political Science dates back to the publication of Bodin’s “The Republic” in 1576.

“The word sovereign”, says J.S. Roucek and others, “entered the vocabulary of political theory from the feudal order, wherein it designated a relationship between persons. The term sovereign had been applicable to any feudal overlord with authority over subjects in his own dominions”.

Two Aspects of Sovereignty:

There are two aspects of sovereignty: internal sovereignty and external sovereignty. Internal Sovereignty means some persons, assembly of group of persons in every independent state have the final legal authority to command and enforce obedience.

This sovereignty exercises its absolute authority over all individuals or associations of the individuals within the state. Professor Harold Laski has very aptly remarked in this connection: “It issues orders to all men and all associations within that area; it receives orders from none of them. It will is subject to no legal limitation of any kind. What it proposes is right by mere announcement of intention”.

We mean, by External Sovereignty, that the State is subject to no other authority and is independent of any compulsion on the part of other States. Every independent state reserves the authority to renounce trade treaties and to enter into military agreements. Each estate is independent of other states.

Every independent State is at liberty to determine its foreign policy and to join any bloc of power it likes. Any other state does not reserve any right to interfere with the external matter of an independent state. Thus, by external sovereignty we mean that every state is independent of other states.

In other words, External Sovereignty means national freedom. Professor Laski has very correctly observed in this regard, “The modern state is a sovereign state. It is, therefore, independent in the face of other communities.

It may infuse its will towards them with a substance which need not be affected by the will of any external power”. This statement of Professor Laski makes it very clear that the State possesses both external and internal sovereignty.

Definitions of Sovereignty:

(1) “That characteristic of the state by virtue of which it cannot be legally bound except by its own or limited by any power other than itself. –Jellineck

(2) “Sovereignty is the sovereign political power vested in him whose acts are not subject to any other and whose will cannot be over-ridden”. –Grotius

(3) “Sovereignty is the supreme power of the State over citizens and subjects unrestrained by law”. –Bodin

(4) Sovereignty is “the common power of the state, it is the will of the nation organised in the state, it is right to give unconditional orders to all individuals in the territory of state”. –Duguit (Droit Constitutional Vol. 1, page 113)

(5) Burgess characterised sovereign is the “Original, absolute, unlimited power over the individual subjects and over all associations of subjects”.

(6) “Sovereignty is that power which is neither temporary nor delegated, nor subject to particular rules which it cannot alter, not answerable to any other power over earth”. –Pollock

(7) “Sovereignty is the supreme will of the state”. –Willoughby

(8) “Sovereignty is the daily operative power of framing and giving efficacy to the laws”. –Woodrow Wilson

(9) Sovereignty is “the supreme, irresistible, absolute, uncontrolled authority in which the ‘jurist summi imperi’ reside”. –Blackstone

(10) The sovereignty is “legally supreme over an individual or group, says Laski, he possesses “supreme coercive power”.

After closely studying and carefully examining the definitions of sovereignty, given above, we arrive at the conclusion that sovereignty is the supreme political power of the state. It has two aspects: internal and external. Sovereignty is an unlimited power and it is not subject to any other authority.

Characteristics or Attributes of Sovereignty:

According to Dr. Garner, following are the characteristics or attributes of Sovereignty:

(1) Permanence.

(2) Exclusiveness.

(3) All-Comprehensiveness.

(4) Inalienability.

(5) Unity.

(6) Imprescriptibility.

(7) Indivisibility.

(8) Absoluteness or illimitability.

(9) Originality.

(1) Permanence:

Permanence is the chief characteristics of sovereignty. Sovereignty lasts as long as an independent state lasts. The death of the king, the overthrow of the government and the addiction of power does not lead to the destruction of sovereignty.

We should keep in mind the basic fact that the king or the ruler exercises sovereign power on behalf of the state and, therefore, sovereignty lasts as long as the state lasts. The death of the king or the overthrow of the government does not affect sovereignty. This is the reason why people in England used to say “The King is dead, long live the King”.

Dr. Garner has beautifully summed up this idea in the following manner:

“Sovereignty does not cease with the death or temporary dispossession of a particular bearer or the re-organisation of the state but shifts immediately to a new bearer, as the centre of gravity shifts from one part of physical body to another when it undergoes external change”.

(2) Exclusiveness:

By exclusiveness we mean that there can be two sovereigns, in one independent state and if the two sovereigns exist in a state, the unity of that state will be destroyed. There cannot exist another sovereign slate within the existing sovereign state.

(3) All Comprehensiveness:

The State is all comprehensive and the sovereign power is universally applicable. Every individual and every association of individual is subject to the sovereignty of the state. No association or group of individuals, however, rich or powerful it may be, can resist or disobey the sovereign authority.

Sovereignty makes no exception and grants no exemption to anyone. It grants exemptions only in the case of foreign embassies and diplomatic representatives of foreign countries on the reciprocal basis. This does not in any way restrict the sovereignty of the state in the legal sense. The state can abolish and withdraw the diplomatic privileges granted to foreigners.

(4) Inalienability:

Inalienability is another characteristic of sovereignty. Sovereignty is inalienable. By inalienability we mean that the State cannot part with its sovereignty. In other words, we can say that the sovereign does not remain the sovereign or the sovereign state, if he or the state transfers his or its sovereignty to any other person or any other state.

Sovereignty is the life and soul of the state and it cannot be alienated without destroying the state itself. Lieber has very aptly remarked in this connection: “Sovereignty can no more be alienated than a tree can alienate its right to sprout or a man can transfer his life or personality to another without self-destruction”.

(5) Unity:

Unity is the very spirit of Sovereignty. The sovereign state is united just as we are united.

(6) Imperscriptibility:

By imprescriptibility, we mean that if the sovereign does not exercise his sovereignty for a certain period of time, it does not lead to the destruction of sovereignty. It lasts as long as the state lasts.

(7) Indivisibility:

Indivisibility is the life-blood of sovereignty. Sovereignty cannot be divided state, American statesman Calhoun has declared, “Sovereignty is an entire thing; to divide it is to destroy it. It is the supreme power in a state and we might just well divide it is to destroy it.

It is the supreme power in a state and we might just well speak of half square or half a triangle as half a sovereignty”. Gettell, has also very aptly remarked in this regard, “If sovereignty is not absolute, no state exists. If sovereignty is divided, more than one state exists”.

(8) Absoluteness:

Sovereignty is absolute and unlimited. The sovereign is entitled to do whatsoever he likes. Sovereignty is subject to none.

(9) Originality:

By originality we mean that the sovereign wields power by virtue of his own right and not by virtue of anybody’s mercy.

Kinds of Sovereignty

(1) Nominal arid Real Sovereignty:

In ancient times many states had monarchies and their rulers were monarchs. They wielded absolute power and their senates and parliaments were quite powerless. At that time they exercised real sovereignty. Therefore, they are regarded as real sovereigns. For example, Kings were sovereigns and hence they were all powerful in England before fifteenth century, in U.S.S.R. before eighteenth and nineteenth centuries and in France before 1789. The state of affairs changed in England after the Glorious Revolution in 1688.

Now the King is like a rubber- stamp. The British king has a right to encourage, warn and advise his Ministers or seek any information about the administration. Except these ordinary powers, all other powers of the British king are wielded by his Ministers.

Lowell has summed up the position of the British Sovereign in these words: “According to the early history of the constitution, the ministers were the counsellors of the king. It was for them to advise and for him to decide. Now the parts are almost reversed. The king is consulted but the ministers decide”.

(2) Legal Sovereignty:

Legal sovereignty is that authority of the state which has the legal power to issue final commands. It is the authority of the state to whose directions the law of the State attributes final legal force. In every independent and ordered state there are some laws which must be obeyed by the people and there must be a power to issue and enforce these laws. The power which has the legal authority to issue and enforce these laws’ is legal sovereignty.

In England, the King-in-Parliament is sovereign. According to Dicey, “The British Parliament is so omnipotent legally speaking…. that it can adjudge an infant of full age, it may attain a man of treason after death; it may legitimize an illegitimate child or if it sees fit, make a man a judge in his own case”.

The authority of the legal sovereign is absolute and law is simply the will of the sovereign. Since the authority of the sovereign is unrestrained, reserves the legal right to do whatever he desires. It is the legal sovereign who grants and enforces all the rights enjoyed by the citizens and, therefore, there cannot be any right against him. The legal sovereign is, thus, always definite and determinate.

Only the legal sovereign has the power to declare in legal terms the will of the stale. The authority of the sovereign is absolute and supreme. This authority may reside either in the monarch or in an absolute monarchy or it may reside in the body of persons.

(3) Political Sovereignty:

Dicey believes that “behind the sovereign which the lawyer recognises, there is another sovereign to whom the legal sovereign must bow. Such sovereign to whom the legal sovereign must bow is called political sovereign. In every Ordered state the legal sovereign has to pay due attention to the political sovereign.

According to Professor Gilchrist, “The political sovereign means the sum-total of influences in a State which lie behind the law. In modern representative government we might define it roughly as the power of the people”. In other words by political sovereign in the representative democracies, we mean the whole mass of the people or the electorate or the public opinion. But at the same time, it cannot be emphatically asserted that political sovereignty can definitely be identified with the whole mass of the people, the electorate or the public opinion. Political sovereignty is a vague and indeterminate term.

Political sovereignty rests in that class of people under whose influence the mass of the people is or the people are. Political sovereignty rests in the electorate, in the public opinion and in all other influences in the state which mould and shape the public opinion.

In the words of Professor R.N. Gilchrist, “Political sovereign manifests itself by voting, by the press, by speeches, and in many other ways not easy to describe or define. It is, however, not organised and it can becom6 effective only when organised. But the organisations of political sovereignty lead to legal sovereignty. The two are aspects of the one sovereignty of the state”. As a matter of fact, legal and political sovereignty are the two aspects of the one sovereignty of the state. But at the same time both the aspects stands poles apart.

Legal sovereign is a law-making authority in legal terms, whereas political sovereignty is behind the legal sovereign. The legal sovereign can express his will in legal terms. But the political sovereign cannot do so. Legal sovereign is determinate, definite and visible whereas political sovereign is not determinate and clear.

It is recognised. Legal sovereignty is vested in the electorate, public opinion and other influences of the state which mould or shape the public opinion. Legal sovereign is recognised by lawyers while political sovereign is not.

Legal sovereign cannot go against the will of the political sovereign whereas political sovereign, though not legally powerful, controls over the legal sovereign. The concept of legal sovereign is clear whereas the concept of political sovereign is vague. Legal sovereign is elected by the political sovereign whereas political sovereign is the electorate or the people. These are the points of difference between the legal sovereign and the political sovereign.

(4) Popular Sovereignty:

Popular sovereignty roughly means the power of the masses as contrasted with the Power of the individual ruler of the class. It implies manhood, suffrage, with each individual having only one vote and the control of the legislature by the representatives of the people. In popular sovereignty public is regarded as supreme. In the ancient times many writers on Political Science used popular sovereignty as a weapon to refute absolutism of the monarchs.

According to Dr. Garner, “Sovereignty of the people, therefore, can mean nothing more than the power of the majority of the electorate, in a country where a system of approximate universal suffrage prevails, acting through legally established channels to express their will and make it prevail”.

(5) Deo Facto and De Jure Sovereignty:

Sometimes a distinction is made between the De Facto (actual) sovereignty and De Jure (legal) sovereignty. A de jure sovereign is the legal sovereign whereas a de factor sovereign is a sovereign which is actually obeyed.

In the words of Lord Bryce, de facto sovereign “is the person or a body of persons who can make his or their will prevail whether with the law or against the law; he or they, is the de facto ruler, the person to whom obedience is actually paid”. Thus, it is quite clear, that de jure is the legal sovereignty founded on law whereas dc facto is the actual sovereignty.

The person or the body of persons who actually exercise power is called the de facto sovereign. The de facto sovereign may not be a legal sovereign or he may be a usurping king, a dictator, a priest or a prophet, in either case sovereignty rests upon physical power or spiritual influence rather than legal right.

History abounds in examples of de facto sovereignties. For example, Oliver Cromwell became de facto sovereign after he had dismissed the Long Parliament. Napoleon became the de facto sovereign after he had overthrown the Directory. Likewise, Franco became the de facto sovereign after he had dislodged the legal sovereign in Spain. On October 28, 1922 Mussolini’s Black Shirts marched on Rome. At that time, Parliament was the legal sovereign. Mussolini became the Prime Minister in the legal manner. He ruled parliament and ruled the country through parliament.

Parliament remained the legal sovereign but he was the actual or de facto sovereign. Hitler also did the same in Germany. He too became the de factor sovereign. He controlled the legal sovereign and became the de facto sovereign. Similarly, Stalin remained the actual sovereign in U.S.S.R. for about three decades.

After the Second World War and before the Egyptian Revolution King Farouk was the legal sovereign. General Naguib’s ‘coup de’etat’ in Egypt and the abdication of King Farouk is another example of de facto sovereignty. Nazib was expelled and Nasser succeeded him in de facto sovereign.

After the death of Nasser, Mr. Sadat succeeded him. After the assassination, Hosni Mubarak became the President of Egypt. Similarly, Ayub became the de facto sovereign after he had staged the military coup in Pakistan. When Ayub was overthrown Yahya Khan Rose to power with the help of the army and became the fe facto sovereign.

After his defeat in 1971 at the hands of Indian army he handed power to Bhutto, who was thrown in July, 1977 by Zia-ul-Haq, who first of all became de facto and later on de jure sovereign. Thus, it is quite clear that the actual or de facto sovereign is the strongest active force in the State and it is capable of making his will prevail. But sometimes, it happens that de facto and de jure sovereignty ultimately coincide.

In this connection, Dr. Garner has very aptly remarked, “The sovereign who succeeds in maintaining his power usually becomes in the course of time the legal sovereign, through the acquiescence of the people or the reorganisation of the State, somewhat as actual possession in private law ripens into legal ownership through prescription”.

China and Pakistan are the glaring examples. In Soviet Union, the Communist Government became the de facto government of the successful Bolshevik Revolution of 1917. But in course of time, it became the de jure government also.