De-valorization of Optics - Optimality of Values For Global Peace
The diachronic and synchronic connotations of ‘external’ and ‘internal’ facets of sovereignty apart, the concept of sovereignty shines out as a functional sceptre, in the political domains, symbolizing a value for self-glorification. Etymologically the word Sovereignty stems from Latin word superanns which denotes supreme power.
Various political movements, besides valuable contributions of scholars, thinkers and philosophers of the age, shaped and sculpted the concept of sovereignty into its present-day refined and legitimatized manifestation of political and constitutional nature.
In the year 1555, Peace of Augsburg — a historically recorded political event, introduced in the polity new paradigms of State sovereignty. The said event, resulted in installing an articulated concept of sovereignty holding within its strong functional talons a rule of cui regio eius religio( whose realm, his religion) . This led to what is known as thirty years’ War in parts of Europe.
However, another famous political event, Peace of Westphalia, is historically traced to the eventful year 1648. In the said event the sovereign States cobbled up a mega-solidarity or inter-state alliance political nature. The said movement, Peace of Westphalia was akin to a road-show describable as ‘flags of mighty States’ and the deliberations during the said event kindled valorized version of ‘military strengths’ in the name of sovereignty. As per Westphalia articulation of territorial concept of sovereignty, external sovereignty holder was recognized as the State, as distinguished from the particular ruler. Westphalia movement did not create sovereign States ex nihilo.
Pope Innocent X condemned what he described as the treaty of Peace ( Wesptphalia ) with the following notably strong words ;
“Null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all times.” ( quoted in Maland).
However, the State and the Church remained in perpetual conflict qua the questions of supremacy of power. The political Will, due to resistance by church, could not emerge as a well-directed and forceful tool of socio-political progress. As the facts bear out , a doctrine of ‘Erastianism’, came to be introduced in the political domain. Under the said doctrine of ‘Erastianism’, the control of political authorities, such as. kings and princes over the protestant churches increased multifold.
J N Figgis, a political historian of eminence opines : By the destruction of the independence of Church and its hold on extra territorial public opinion, the last obstacle to unity within the State was removed.
Jean Bodins ( 1530-1596 ) , a French philosopher, formalized and expounded the concept sovereignty to legitimize the powers of king of France against rebellious feudal lords.
F. H. Hinsley aptly says : ” At the time when it had become imperative that conflicts between the rulers and the ruled should be terminated, ( Bodin ) realized — and it was an intellectual feat- that the conflict would be solved only if it was possible both to establish the existence of necessarily unrestricted ruling power and to distinguish this power from absolutism that was free to disregard all laws and regulations. He did this by founding both the legality of this power and the wisdom of observing the limitations which hedged its proper use upon the nature of the body politic as a political society comprising both the ruler and the ruled- and his statement of sovereignty, is first systematic statement in modern European philosophy”.
With the passage of time the independent Sovereign States chose the route of forming intra- State alliances to secure regional peace and to minimize the pyrrhic costs of wars. Thus the European integration began in 1950, when six states formed European coal and steel community through the treaty of Paris. This model was expanded to a general economic zone in the Treaty of Rome in the year 1957. Subsequently European Court of Justice was established besides a European Parliament. The European Alliance further widened its base, as members grew to a large size (27 countries). Thus 1991 Maastricht Treaty was signed to re-configure and establish what came to be recognized as the European Union. The member nations literally submerged in a ’ Supra-national’ Institution conceding the self-scripted and self-adopted limitations and constraints on their rights as Sovereigns. On 01.12.2009 Treaty of Lisbon came in full force, the E.U. was strengthened further.
In a book titled ‘Sovereignty- An inquiry into the Political Good’ Bertrand De acknowledges that Sovereignty is an important political authority, needed to quell disputes external to the State and to quell internal disputes within the State besides carrying the task of mustering cooperation in defense against the outsides
The history of political philosophy witnessed a fundamentally transformational era scripted through idiom of ‘sobering effects’ in the post World war II. This intellectual movement of deliberation on the legitimate contours of sovereignty ipso facto resulted in conceptual circumscription of Sovereignty. The concept of sovereignty came to be re-defined within the overarching ideals of peace through global integration and protection and promotion of human rights. The philosophical perspectives of some eminent thinkers , such as, Machiavelli, Martin Luther king, Bodin and Hobbes added nourishment to the original and valiant concepts of Sovereignty. However, the maverick, expansionist, sword-brandishing political celebration of sovereignty was assailed by political thinkers, Bertrand De Jouvenel and Jacques Maritain.
Carl Schmit, a noted political thinker, highlighting the valiant features of a Sovereign, qua all questions of internal and external sovereignty said : “Sovereign is one who decides the exception”. A recent example of a decision of an exception is : Chinese Army, owing allegiance to the Communist Party of China , in lieu of China as a State, contrary to the global rule and customs of commitment of Army solely to the nation, per se highlights the force of Sovereignty and vindicates the theory of Carl Schmit.
A phrasal template, beautifully employed by William Shakespeare, in his famous play : ” King is dead, long live the king” , believed to have gained popularity as a glowing example of epanalepsis. Robert Cecil, one of the founders of League of Nations concluded his speech at the final session of the League of Nations with the words : “The League is dead. Long live the League”. In Denmark, the prime Minister makes a formal proclamation from the balcony of Christiansborg Palace( the Danish Paliamentary building) when their king dies : Kongen leve, kongen er dad ( Hail the King, the king is dead) These expressions are historically found to be ‘king’s two body’ concept to highlight the immortality of the Auctoritas, the imperishable political authority. Thus sovereignty , as a political authority of the State is hailed even when the physical body of the king mortally collapses. While in Poland there was a practice of interrex (ruler between kings, called Polish primate and not King), in England the political concept that always held the field is that the heir to the throne becomes a new monarch immediately on the predecessor’s death and the usual interregnum preceding his formal coronation does not impact his status or authority( dignitas) .However , in a recent case of Thailand, breaking the tradition, the formal proclamation of the demise of His Majesty King Bhumibol Adulyadej sounded different. In a televised address the Prime Minister of Thailand proclaimed: “His Majesty king Bhumibol Adulyadej , Rama IX , has passed away. Long live His Majesty the new King”. The ‘surviving body’ or ‘eternal body’ symbolizing the political authority of sovereign State has been the political metaphor for ‘eternity of sovereignty’, historically recognized for centuries.
Ernst Kantowicz in his book ‘King’s Two Bodies’ draws an example of two body sacramental concept of Jesus Christ. The Corpus naturale , the consecrated host on the altar and corpus mysticum is the social body of Church with its attendant administrative structure.
Professor Gilchrist opines that the actual source from where the influences on the State laws emanate, is the only indicator of the locus of sovereignty.
Blackstone opines that sovereignty is essentially a power to make laws coupled with sovereign immunity. His thesis on the subject of sovereignty refers to ‘eminent domain’ of the State as well as the constitutionally recognized protections from lawsuits and legal actions in favour of the political embodiments of Sovereignty.
John Austin’s (1790-1859 ) opinion to the effect that sovereignty is vested in a nation’s parliament ran into rough waters in academic domains, when in Marbury v Madison, Supreme Court of US in 1803, finally settled a constitutional proposition that Supreme Court can declare laws passed by Congress as unconstitutional in judicial review.
The contours and limitations of sovereignty after the constitution of multilateral bodies in pursuance to Hague Convention 1859, Hague Convention1907, charter of League of Nations , Kellog Briand Pact of 1928, charter of United Nations world peace gained conceptual priority over and assertion or counter assertion of sovereignty of any individual nation. Thus a political paradigm of pooling of sovereignties diluted the valour and gallantry earlier ingrained in the concept of sovereignty, to preserve and promote the ideal of world peace. The ideas of sovereign States and non-sovereign states , including protectorates, States under suzerainty, protected States got blurred in political glossary in the international relations. A new concept of self governing and non- self- governing States emerged and the non- self- governing States came to be politically recognized as a sacred Trust and the States administering them were put under a trusteeship obligation to develop these States on the path of self-government. Some of these territories were placed under UN Trusteeship Council.
Frontispiece of the magnum opus of Thomas Hobbs titled ‘Leviathan’, pictorially depicts a sovereign holding a sword and a crosier and depicts a large number of persons in the lower part of the graphic. Thus a combination of temporal power and ecclesiastical authority are shown to reside in the sovereign.
Dr Krasner delineates the concept by referring to four following types of sovereignty;
(i) Domestic Sovereignty : within the State
(ii) Interdependence Sovereignty: Borders are assumed to exist across the States and actual movements across border roads are exposed to foreign monitoring/interference. This recognizes the erosion of sovereignty due to globalization.
(iii) International Legal Sovereignty : Formal recognition by other States.
(iv) Westphalian Sovereignty : Only domestic authority to the exclusion of all other authorities
As per an eminent jurist D.D. Basu, Sovereignty means the independent authority of a State. It has two aspects external and internal:
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The external sovereignty of India means that it is not subject to the control of any other State or external power; and secondly, that it can acquire foreign territory and also cede any part of the Indian territory, subject to limitations (if any) imposed by the Constitution . (Maganbhai v UOI (1970) 3 SCC 400)
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From the internal standpoint it means that it has the power to legislate on any subject, to promote the health, morals, education and good order of the people, subject only to the federal divison of legislative powers and other limitations imposed by the Constitution, e.g. The Fundamental Right (synthetics and chemicals Ltd. v. State of U.P. (1990) 1 SCC 109)
It is a well-known jurisprudential principle that sovereignty includes all questions relating to territorial integrity of the sovereign State. Such being the factual and constitutional concept of sovereignty, power of Parliament to cede any part of the territorial rights in favour of an alien State is deemed to be unconstitutional. A question relating to what was politically alleged as ceding of Indian territory in favour of Bangladesh came up for judicial adjudication in the famous Berubari Case (AIR 1960 SC 845).
A brief conspectus of facts relating to the question of territorial integrity and competence of Parliament to cede a part of the territory in favour of a foreign State (Pakistan in the present case) , reads as under:
” In accordance with the directives issued by the Prima Ministers of India and Pakistan, on September 10, 1958, the Commonwealth Secretary, Ministry of External Affairs, Government of India and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth, Government of Pakistan, discussed 10 items of dispute between the two countries and signed a joint note recording their agreement in respect of the said disputes and submitted it to their respective Prima Ministers; and with a view to removing causes of tension and resolving border disputes and problems relating to Indo-Pakistan Border Areas and establishing peaceful conditions along those areas, the Prima Ministers, acting on behalf of their respective Governments, entered into an agreement settling some of the said disputes and problems in the manner set out in the said joint note. This agreement has been called the Indo-Pakistan Agreement and will be referred to hereafter as the Agreement”.
In the said Reference Court was concerned with two items of the Agreement; item 3 in paragraph 2 of the Agreement reads as follows :-
“(3) Berubari Union No. 12.
This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be horizontal, starting from the north-east corner of Debiganj Thana. The division should be made in such a manner that the Cooch-Behar Enclaves between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal will remain connected as at present with Indian territory and will remain with India. The Cooch-Behar Enclaves lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.”
3. Similarly item 10 of the Agreement is as follows :-
“(10) Exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, is agreed to.”
As stated above, President of India made a reference to the Hon’ble Supreme Court, for an opinion qua the following questions framed for the judicial clarification:
(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union ?
(2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative ?
(3) Is a law of Parliament relatable to article 3 of the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative ?
The Hon’ble Supreme Court examined various provisions of law and the following dicta in the said judgment clarifies the judicial view on the powers of Parliament with regard to ceding the territory, through a bipartite settlement described as exchange of territories between India and Pakistan:
“46. Article 3(c) deals with the problem of the diminution of the area of any State. Such diminution may occur where the part of the area of a State is taken out and added to another State, and in that sense Arts. 3(b) and 3(c) may in some cases be said to be co-related; but does Art. 3(c) refer to a case where a part of the area of a State is taken out of that State and is not added to any other State but is handed over to a foreign State ? The learned Attorney-General contends that the words used in Art. 3(c) are wide enough to include the case of the cession of national territory in favour of a foreign country which causes the diminution of the area of the State in question. We are not impressed by this argument. Prima facie it appears unreasonable to suggest that the makers of the Constitution wanted to provide for the cession of national territory under Art. 3(c). If the power to acquire foreign territory which is an essential attribute of sovereignty is not expressly conferred by the Constitution there is no reason why the power to cede a part of the national territory which is also an essential attribute of sovereignty should have been provided for by the Constitution. Both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sovereign State. Therefore, even if Art. 3(c) receives the widest interpretation it would be difficult to accept the argument that it covers a case of cession of a part of national territory in favour of a foreign State. The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India; it may increase the area of any other State or may be dealt with in any other manner authorised either by Art. 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India. It would be unduly straining the language of Art. 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, we feel no hesitation in holding that the power to cede national territory cannot be read in Art. 3(c) by implication.”
After considering the Constitutional Scheme, the afore-said questions were answered by Hon’ble Supreme Court as under:
Q. 1. Yes.
Q. 2. (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent;
(b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary;
(c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the agreement.
Q. 3. Same as answers (a), (b) and (c) to Question 2.
This judgment led to Eighteenth Constitutional Amendment Act, 1966, whereby, with effect from 27.08.1966, Explanation II was added to Article 3.
As regards internal sovereignty In India, Supreme Court in GVK Industries Ltd. v ITO , (2011) 4 SCC 36 held as under;
” India’s emergence as a free nation, through a non violent struggle, presaged emergence of a moral voice; that while we claim our right to self determination, we claim it as a matter of our national genius, our status as human beings in the wider swath of humanity, with rights that are ascribable to us on account of our human dignity. Such a morality arguably does not brook the claims of absolute sovereignty to act in any manner or form, on the international stage or within the country. To make laws “for another territory” is to denigrate the principle of self-determination with respect to those people, and a denigration of the dignity of all human beings, including our own.”
K M Munshi an erudite scholar and eminent member of the Constituent Assembly writes in his book Pilgrimage To Freedom , about the concept and practice of sovereignty in Indian Constitution as under :
” The Union Government is not Sovereign, because it drives its power only from the constitution. Parliament and State legislatures are not sovereign; Legislation can be struck down by the Supreme court. The supreme Court is not sovereign, though it can declare the Acts of parliament and State legislatures as unconstitutional , for it also derives its power from the constitution. The States of India are not sovereign; the residuary powers are with the Union, as also the express power of altering their boundaries. Parliament has also the power of superseding the legislature and government of a State in an emergency.
The constitution is, therefore, Sovereign, but only in a juristic sense. Its sovereignty, however, could only be maintained if it were treated as sacrosanct. Then only the people will get acclimatized to carry on their political, social, and economic activities within its framework.
In India, unfortunately the constitution has been amended with such facile ease to suit the current policies of the ruling party that the sanctity of the Constitution has been undermined.
Sovereignty in a democratic country like India theoretically vests in the people; in fact , however, it is exercised by a dominant group of leading politicians, who can successfully exploit the collective forces operating in the central and State legislatures which have power to amend the Constitution.”
Having at the hindsight the concept of Sovereignty , it can justifiably be concluded that Sovereignty in the present day political realities is, in fact, human-centric idealism and not a State-centric optics of military power. Thus sovereignty, in the international domain, is neither a symbolism of valour, nor a paragon of gallant posturing, nor an inter-State contest of swordsmanship, nor a critical display of ‘military strength’ but a ‘Global Flag’ of peaceful coexistence upholding the sacrosanct values and ideals of cooperative globalization in the ever-expanding arenas of geo-political realities. Identically, within the folds and layers of the domestic political domains, ‘sovereignty’ not only negates the ‘Police State’ political culture , but affirmatively stands for a political culture where ideals of freedom and egalitarianism are nurtured and valued with benign State interventions respecting the privacy and dignity of the individuals.
Beyond the exalted heights ever embellished by the universally cherished ideals of humanism, any discourse on sovereignty is argumentum ad hominem.
Hillaire Belloc in his Verses (1910) , aptly spells the theme of Quiet Homes. Let us read ‘Quiet Homes’ as ‘Sovereign States’ and while reading his verse, salute the celebrated Flag Of Global Peace ;
” From quiet homes and First beginning,
Out to the undiscovered ends,
There’s nothing worth the wear of winning
But the laughter and love of friends”.