According to Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign to whom the legal sovereign must bow.” This is called the political sovereign, and, according to Professor Gilchrist, the political sovereign is the sum total of the influences in a State which lie behind the law.
As the political sovereign is not known to law, it is unorganised, indeterminate, and not even precise. In modern representative democracies the political sovereign is very often identified with either the whole mass of the people, or with the electorate or with public opinion. But the political sovereign is neither the electorate nor is it identical with the whole mass of the people, nor can it be identified with the public opinion.
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Taking first the electorate, no one can doubt its political power in a representative system of government. The legislature dare not disregard the will of the electorate. It may even command the legislature to do its bidding. If it does not, the members of the legislature may be punished at the next election for failure to obey the will of the electorate.
Every few years, the electorate creates a new representative chamber, and in doing so it largely determines the nature of parliamentary commands. But on closer examination, it will be found that the electors have no independent opinion of their own.
They are influenced by party politics and while casting their votes, they vote for the party rather than for the candidates. The decision of the electorate is also influenced by religious and caste considerations, particularly in India, and the role of press, publicity and propaganda in a democratic State is significant.
Thus, so many influences, visible and hidden, affect the decisions of the electorate that it becomes difficult to say where sovereignty precisely lies.
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In certain States and at certain times, the electoral sovereign may not exist. It does not exist in a monarchy when the king succeeds to the throne by hereditary right and exercises absolute power.
It did not exist in Mussolini’s Italy and Hitler’s Germany. It did not also exist in the erstwhile Soviet Russia and other communist countries. In Italy and Germany the de facto Sovereign controlled both the legal Sovereign and the electoral Sovereign.
In the former Soviet Russia and other communist countries it was the communist party of that country and its politburo. The electoral Sovereign did not exist in Pakistan during the regimes of its chief Martial Law Administrators, General Ayub Khan, Yahya Khan and Zia-ul-Huq.
Nor can we take political sovereignty synonymous with the mass of the people. Quite a sizable number of the people are usually apathetic about politics. They do not want to govern themselves and would not know how to do so even if they wanted to. Then, all the people do not enjoy the right to vote.
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Those who do not enjoy this right can neither participate in the election of their representatives nor have they any constitutional means at their disposal to effectively influence the decisions of the legal sovereign. It is also possible that the masses may be under the influence of either the priestly class or landed aristocracy, or the militarists.
Even if it is not, in the best of democracies, where the people believe that they govern themselves, it can still be suggested that real power gravitates (or ascends) to a small elite. It is, therefore, not the mass of the people which constitute the political sovereign. It really rests in that class of people under whose influence they actually are.
Similarly, political sovereignty cannot be equated to public opinion. Public opinion is of a highly fluctuating nature and it is susceptible to varied influences. Then, public opinion must have two characteristics.
It should be, in the first place, an opinion of a public nature, and secondly, it should be as widely held by the public as possible. But one cannot always be sure that the Opinion actually held is of a public nature. Perhaps the demagogue might have made the decision for them, or the religious or caste appeal had influenced it.
Finally, in a representative government, legislature is said to be the barometer of public opinion. Here public opinion is identified with the political sovereign and it may coincide with the legal sovereign, as the British Parliament is.
Political sovereignty, thus, proves to be vague and indeterminate. At many stages it becomes confusing and “the more one searches for this final authority the more it seems to elude one’s grasp.” Yet, we cannot ignore its existence.
Even Dicey, the nineteenth century constitutional lawyer, could not ignore it. He made the distinction between legal and political sovereignty. In Britain, he said, while Parliament was, from a legal point of view, the sovereign legislative power in the State, it was, from a political point of view, subject to two practical limitations.
It could not enforce its will if the governed refused to obey and, since it was itself made up of individuals whose outlook was formed by the same social climate as that of their constituents, there were things that it would not, in practice, dream of trying to do, and howsoever extensive its legal competence might be.
“If a legislature decided that all blue-eyed babies should be murdered,” said Leslie Stephen, “the preservation of blue-eyed babies would be illegal, but legislators must go mad before they could pass such a law and subjects are idiotic before they could submit to it.”
Political sovereignty may, then, mean the electoral plus all other vehicles and influences that mould and shape public opinion.
Garner gives it a much wider scope when he says, “In a narrow sense the electorate constitutes the political sovereign, yet in a wide sense it may be said to be the whole mass of the population, including every person who contributes to the moulding of public opinion whether he is a voter or not.” But this definition robs political sovereignty of its connotation as it is widely understood.