The concept of political sovereignty has been put forward by the English constitutionalist, A. V. Dicey in his Law of the Constitution. He says that, ‘the body is politically sovereign, the will of which is ultimately obeyed by the citizens of the State.’34 Though the legal sovereign is the supreme law-making and law-enforcing body, behind this legal sovereign is another power legally unknown, unorganized and incapable of expressing the will of the State in the form of legal commands. For Dicey, in England, this sovereign is the electorate, which in the long run can always enforce their will. The electorate is the political sovereign to whom the legal sovereign in practice will bow and whose will must prevail in the state. Gilchrist has tried to define political sovereignty as ‘the sum total of the influences in a State which lie behind the law.’ Thus, political sovereignty may be identified with the electorate or the public opinion including those who are not electorates.
In a direct or pure democracy like a few cantons of Switzerland, political sovereignty may find fullest expression. In such a situation, even the two—legal and political sovereignty—may coincide. However, in an indirect democracy, legislative supremacy is reflected in the functions of the legislative body, Parliament, Congress or Senate. In this situation, legal and political sovereignty lie separately. Now to say that the political sovereign can enforce their will and the legal sovereign will bow to them is to say that either the legal sovereign is the true representative of the will of the electorate and always reflects the will of the political sovereign or that the legal sovereign will always bow to the political sovereign because of the fear of revolt by the latter. The experience of some of the largest democracies like USA, Great Britain, India, etc. suggest that the political sovereign has always been humbled and been afflicted with the phenomenon of what psephologists describe as ‘political apathy’. Political apathy describes the position and attitude of the electorate whereby they feel that their vote might not have any impact on the governmental process, including the legislative one. On the other hand, though we have seen how the electorates of England, Denmark and France have voted against joining EU by their governments (in various referundums). Thus, we can say that in situations of direct democracy or referendum, political sovereignty prevails but in an indirect democracy it may not prevail clearly
Dicey held that ‘behind the sovereign which the lawyers recognize there is another sovereign to whom the legal sovereign must bow’, thereby suggesting a distinction between the political and legal sovereign. In the legal sense, sovereignty is the supreme lawmaking power able to express the highest commands of the State. This legal sovereign has to be identified as a determinate authority. On the other hand, the political sovereign is the force behind the legal sovereign and is characterized by indeterminate, numerous individuals or the electorate. According to James Bryce, an American constitutional expert, the distinction between legal and political sovereignty largely results due to juristic and popular conceptions of sovereignty. To jurists, a sovereign is a person or body to whose directions the law attributes legal force and in whom resides as a right the ultimate power of laying down general rules. While in a popular or layman’s view, a sovereign is that person or body of person which can make his or their will prevail in the State. Sidgwick rejects the distinction between legal and political sovereignty on the ground that it seems to recognize dual sovereignty within the state.
We can say that the legal sovereign and the political sovereign may harmonize provided the expressed will of the legal sovereign becomes that which the political sovereign commands. That is, the law ought to conform to public opinion when properly expressed and the legislature ought to obey the mandate of the electorate. When the contrary happens, the two are not in harmony. D. G. Ritchie holds that the problem of good governance is largely the problem of the proper relation between legal and political sovereigns.
However, while discussing the doctrine of political sovereignty, we should not forget that it assumes the political unity of the electorate which it considers capable of presenting their demands and opinion in an aggregate manner. However, in practice, this underlying assumption may not hold good, given the multi-partisan or even bipartisan behaviour of the electorate. If political sovereignty lies in those who elected the representatives then what happens to those whose choices could not translate into selection of representatives? Does this necessarily lead us to consider that political sovereignty is nothing but the opinion of the political majority in a democracy? If this is so, then we have a fragmented political sovereignty, as this political majority is not permanent in democracy.
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