Column| Is Austinian Sovereignty At Odds With India’s Cooperative Federalism?

However, Indian federalism diverges from this conventional model by promoting cooperative federalism, advocating collaboration, consultation, and concurrent decision-making among various tiers of government. This collaborative ethos challenges Austin’s hierarchical command structure, replacing it with a more inclusive and participatory approach to governance.

By juxtaposing Indian federalism and Austin’s theory of sovereignty, a fundamental question arises: “How does this hierarchical understanding of authority align with the cooperative federalism practiced in India? Considering that Indian federalism encourages collaboration, consultation, and concurrent decision-making between different levels of government, how might this cooperative ethos challenge the classical command-based theory of sovereignty by Austin?” In this context, the essential shift lies in how we perceive authority within a democratic and federalist framework.

Austin Sovereignty vis-a-vis Indian Federalism

In contemplating the alignment of this cooperative federalism with Austin’s theory of sovereignty, it becomes apparent that the Indian federalist structure questions the classical notion of a singular sovereign authority. The landmark case of I. C. Golaknath & Ors v. State of Punjab & Anrs.; 1967 SCR (2) 762 underpins this perspective, asserting that no authority created under the Constitution is supreme; rather, the Constitution itself holds supremacy, and all authorities function within the framework of the supreme law of the land.

In the modern democratic era and within the federalist structure of India, a reinterpretation of Austin’s theory may be warranted. It can be proposed that law, in this context, is a command of the Constitution, with the Constitution itself being the singular sovereign authority. This approach posits that the law is a directive emanating from the sovereign Constitution, underpinned, and sanctioned by constitutional values and the basic structure of the Constitution.

Indian Constitution: The Supreme Command of Law

In the Indian constitutional framework, the Indian Constitution emerges as the unequivocal ‘Supreme Command of Law,’ fundamentally reshaping traditional conceptions of sovereignty in line with the federalist ethos. The classical understanding, as articulated by John Austin, espouses the sovereign as a singular authority whose commands constitute law. However, within the intricacies of federalism, particularly the Indian variant, this perspective undergoes a profound re-evaluation.

Considering Austin’s fundamental tenet that “Law is a command of the sovereign backed by a sanction,” a nuanced interpretation emerges within the Indian federalist paradigm. Austin envisaged the sovereign as a singular authority, usually the government, whose directives embody the force of law.

However, within the intricate web of federalism, even if a government commands a particular law, that law is subject to the vigilant scrutiny of the Constitution. Notably, it cannot transgress the sacrosanct realms of constitutional values or the foundational structure of the nation. Hence, the command issues forth from the Constitution, rendering it the “sovereign command.” No one can tamper with the constitutional ethos—“the ultimate sanction.”

In this vein, Austin’s theory of sovereignty retains pertinence within federalism, even with the division of power into central and constituent entities. The crux lies in acknowledging that while governmental authorities at different levels possess commands, these commands derive their legitimacy from the overarching authority of the Constitution. It embodies the command, and the constitutional values and basic structure constitute the ultimate sanction, akin to the Austinian notion.

Examining critical milestones in India’s democratic journey, such as the 24^th (1971) and 42^nd (1976) amendments to the constitution, provides illuminating insights. The 24^th Amendment initially sought to bestow unhindered powers upon the government to amend the Constitution without judicial oversight, ostensibly portraying Austin’s concept of supreme authority. However, subsequent judicial scrutiny demonstrated the resilience of the constitutional fabric, underscoring the paramountcy of the Constitution even amidst attempts to dilute its essence. Similarly, the 42^nd Amendment, a product of turbulent times, endeavoured

to centralize power within the government, placing the judiciary under duress. Yet, it encountered robust resistance, reaffirming the constitution’s enduring supremacy, which triumphs over transient governmental prerogatives.

Thus, in the Indian context, sovereignty distinctly finds its abode within the expansive confines of the Constitution. This sacred document meticulously defines the nation’s governance structure, allocates powers, delineates individual rights, and establishes the bedrock for the nation’s functioning. Not merely a legal text, the constitution dictates and harmonizes powers among various entities, promoting a collaborative approach to governance while upholding core principles of legal positivism, particularly obedience to the law.

Federalism— Moving towards Constitutional Sovereignty

In the realms of Indian federalism, the constitution emerges as the bedrock, meticulously outlining the dispersion of powers between the central authority and the states via the Union List, the State List, and the Concurrent List. This delineation of powers manifests a collaborative framework, wherein both central and state governments operate within their designated spheres, upholding the sanctity of the constitutional order.

India’s interpretation of sovereignty has traversed a transformative journey, transcending the conventional concept of an undivided sovereign authority to embrace a shared and decentralized paradigm, with the constitution at its nucleus. This synthesis of classical legal positivism and the federalist ethos distinctive to India harmonizes with the fundamental principle of adherence to law, seamlessly aligning with the consultative and collaborative essence of Indian federalism.

In the crucible of India’s federalism, sovereignty has undergone a metamorphosis, shedding its rigid, centralized demeanour to embrace a shared and decentralized essence firmly anchored in the Indian Constitution. The historical events surrounding pivotal amendments and the tumultuous period of the Emergency serve as poignant reflections of this evolutionary shift. Today, sovereignty finds its sanctum within the constitution, emerging as the paramount authority dictating the contours of the legal landscape and embodying the collective will and enduring values of the nation.

In conclusion, the evolution of sovereignty within the Indian federalist framework, as expounded upon in this discourse, underscores the remarkable adaptability of democratic principles to a diverse and dynamic nation. India’s course from a traditional, Austinian concept of sovereignty to a more collaborative and decentralized model anchored in the Constitution reflects the nation’s commitment to inclusive governance and the rule of law.

As we peer into the future, it becomes apparent that the Indian experiment in federalism and constitutional sovereignty offers valuable lessons for other nations grappling with the complexities of governance in diverse societies. The need for future erudition and exploration lies in continuing to refine and deepen our understanding of this unique Indian model, and in identifying ways to adapt and apply its principles to address the evolving challenges of our interconnected world. This journey towards a more inclusive, participatory, and rights-based approach to sovereignty is a witness to the enduring potency of democratic values and the steadfastness of constitutionalism in guiding the path forward.

The Author is an Advocate at the Supreme Court of India.