Austanian Concept of Law and its Comparison with Indian Sovereignty
Austanian Concept of Law and its Comparison with Indian Sovereignty
- Harshima Vijaivergia, UPES Dehradun
The Positivist School (also known as the Analytical or Imperative school of law) aims to create a scientifically valid system of law, by analysing legal concepts and ideas on the basis of empirical or scientific methods. The idea of positivism emphasizes the separation of law and morality. According to the proponents of this school, law is made by man, or legislature is the enacting body. The believers of positivist theory believed that a duly enacted law, until changed, remains law and should be so obeyed.
John Austin’s Theory of Sovereignty :-
John Austin propounded the Analytical School of law and supported the Positivism Theory. Austin defined law as, “Law is a command of the sovereign backed by a sanction.” His notion was that where there is no sovereign, there is no independent political society and vice versa is also applicable. For him, Law, was a set of rules established by men as politically superior, or sovereign, to men as politically subject. The fundamentals of his theory are: Command, Sovereign and Sanction.
1. Command: Commands are the rules or expressions of imposed by a superior authority (by force or compulsion) on the Inferiors. The former is the sovereign which authorize the rules of conduct of the latter, the general public. The commands may be General Command, that is issued for the guidance of a whole community, or Particular command, that is issued for the guidance of a particular community/ individual. Austin emphasises that only General Commands form laws and they must be lawful and continuous.
2. Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A sovereign may be any individual or body of individuals, whom the politically influenced mass of people habitually follow. However, he himself does not obey an individually or body of individuals.
3. Sanction: According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced.” To ensure and administer justice the state, applies physical force as sanction. Therefore, it is the sole crux of Positive Law. It instils fear of punishment in case one disobeys the laws. Sanction is related to duty shaped by the command of a sovereign authority and sanction becomes absolute necessity for enforcement of law.
India’s Theory of Legal Positivism :-
For time immemorial India’s Judiciary system has based its rulings and landmark decisions following the Legal Positivism. The Judges have interpreted the laws and the guidelines have been laid down by the legislatures. Few instances can be observed in the following cases which clearly evidenced the influence of Positivist school of law:
In the landmark judgement of A.K. Gopalan v. State of Madras:-
The petitioner was detained under the Preventive Detention Act. The petitioner challenged the constitutionality of the Preventive Detention Act. His contention was that the act had infringed Article 19 and Article 21 of the Constitution of India. The Petitioner argued that law does not only mean a body of rules ‘lex’ but also ‘jus’ which means fair. Therefore, the law is not only restricted to what has been written by the legislature but it must also encompass justice and fairness. The Supreme Court here, ruled that the Preventive Detention Act is valid even though the law is ‘lex’ and not ‘jus’. Therefore, what the legislature has noted, must be regarded as the law of the land even though it did not necessarily render justice.
R. K. Garg v. Union of India (the Bearer Bond case):
The supreme law-making authority, the legislature passed a law that if black money was invested in certain government bonds within a certain period of time, the government would immunize and exempt questioning the source of the black money for the purpose of channelling the same for productive purposes. The law was challenged because of its arbitrary nature under Article 14 of the Constitution of India and it was deemed that it was encouraging tax-evasion. The court upheld the constitutional validity of the law, and opined that there is an intelligible differentia between those who invest in bonds and those who do not. The Doctrine of Pith and Substance was also applied, while clarifying the actual intent of the legislation behind the ruling.
Jolly George Verghese v. The Bank of Cochin,
A law stating imprisonment of a person who fails to repay a debt was valid by the Apex Court. It is worthy to note that the said validity was against the United Nation Convention. Therefore, the Supreme Court analysed this law drawn by the legislature and gave its verdict.
In the above cases, we can observe how despite the laws not fulfilling the requisites of a fair law, nevertheless gave its decision considering what the law states. The Legal Positivism was incorporated in the decision making and played a substantial role in the previous judgements.
The Distinction between Austin’s Theory and Indian Theory of Sovereignty: An Analysis
1.Apparently, as what can be perceived from Austin’s definition of command, the sovereign authority is the ultimate supreme and he is endowed with absolute power. It implies that this theory is in direct contravention to the Indian Framework which emphasises on the Constitution as the supreme authority. The focal point of the Constitution of India is Democracy and it guarantees rights and flexibility to citizens. John Austin’s theory assert the power to a sovereign figure, whereas India’s Model grants powers and rights to the public, similar to those of the President, Prime Minister or the Chief Justice. The theory also disregards other sources of law like precedents, customs, laws executed as statutory instruments. This phenomenon directly obstructs the jurisprudence of country. The sources of law form basis of many new laws and judgements and are highly regarded in India’s judiciary system.
2.According to the John Austin’s Theory of Sovereignty, the sovereign himself is not held accountable to any other figure but the General public must abide by everything he imposes upon them. As per the theory his powers are indivisible and non-negotiable. The sovereign makes the laws, executes the laws and also administers the law. This blatantly attack the very idea of India’s democracy and federal structure. and but the whole realm has to follow whatever the sovereign dictates which are in stark contrast with the idea of democracy and Indian federalism. Both the public and authorities are held accountable on their part in case of any disobedience. Moreover, the powers are divided between the different levels of government, which enables accountability and efficiency.
3.It can be clearly observed that’s sanction is an evil force, which leads to adverse consequences, it the person fails to adhere to the same. The theory prioritizes oppression of the victims who disobeys the sanction. Hence, the theory comes across as dictatorial force. It allows no room for people to voice their opinions or participate. The participation in and freedom for people to pursue their opinion is very imperative element India’s Democratic structure.
Conclusion :-
Analysing the above points, it can be said that Austin’s Theory is quite incompatible to the Indian Democratic Structure. The theory undermines the needs of India’s legal, political and economic environment, which is essential for maintaining integrity, prosperity and unity. His views can be criticised on the following grounds:
•It presumes habitual obedience i.e.; public will abide by everything they are instructed and will voluntarily obey their sovereign figure, with a constant fear of punishment as evil consequence. They will consequently protest in resistance and cause disturbance in society.
•It also presumes that people are perfectly politically educated.
•It provides on room for existence of sources of law like precedents and are against the very idea of democracy and federal structure.
•The rigidity and short-sightedness, undermine the needs of a dynamic society.
•It grants unrestricted and absolute power to the sovereign figure which ultimately leads to lawlessness, instability and chaos.
•It overlooks the international laws and policies.
REFERENCES :-
1.V D Mahajan, Jurisprudence and Legal Theory (5th edition)
2.A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
3.R.K.Garg v. Union of India, AIR 1976 SC 1559.
4.Jolly George Verghese v. The Bank of Cochin, AIR 1980 SC 470.
5.Pragalbh Bhardwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham IJLLJS < http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-Bentham.pdf > accessed on 21 July 2021.
6.Monika Saraha, Austinian Concept of Sovereignty and its Existence in Indian Political Order’ < http://www.legalservicesindia.com/articles/sover.htm > accessed 20 July 2021.
7.Anubhav Garg, Austin’s sovereignty theory and its relevance in modern Indian political and legal environment (ipleaders) < https://blog.ipleaders.in/austin-sovereignty-theory/ > accessed 20 July 2021.
