RESPONSE PAPER TO CHAPTER 8- THE CONSTITUTION OF THE STATE

INTRODUCTION

It is an implied notion of law for many jurists and political thinkers that the state's authority is
paramount and absolute. Martin Loughlin's theory of constitution of a state is based on the
simple notion that the state is absolute and none of the laws or concepts can bind a state. The
state has to surpass every higher law as it is bound by a scheme of intelligibility. This paper shall
be a response to such ground rule definition of a state and will examine the practicality of the
same in the eyes of law and society.

The first question that arises on my mind while writing this response is that how can any
individual define state? The answer to the same is written by Laughlin in chapter 8 where he
concedes to Stein by stating that the nature of a state is defined by the medium called law.
Moreover, a state is an organism and law is its element, and law takes shape by a state's form. A
law gains quality when it is in consonance with the state in its fundamentals and manifestations
specifically.1

I personally am in favour of Laughlin's description as I firmly believe that the purpose of any law
is to cater to the needs of the state which for convenience can be understood as a nation. As per
my opinion, a law and a state are co-dependent elements and both need to be in consonance in
order to strive towards holistic harmony.

Now a question that has to be answered is that what denotes a constitution? Loughlin discusses
Schmittian school of thought where he completely disregards the precise meaning of a
constitution as an essence of something. Schmitt bifurcates the normative and existential school
of thoughts in regards to constitution. This paper is also an attempt at understanding as to what
does constitution denote for Loughlin and what is the practicality of the same and up to what
extent.

Now having discussed the previous sub-topics I shall be adverting to the concept of constituent
power. In simple terms it could be defined as, in the realm of Constitutional law, the power to

1
Ernst-Wolgang Bockenforde, State, Society and Liberty: Studies in Political Theory and Constitutional Law (New
York: Berg, 1991), 5 (n 14).
amend the Constitution. Even in the Indian context the term constituent power was in vogue in
the 60s and 70s which then was put to bed by Fundamental Right Case2.

However Loughlin in his book seeks to do a jurisprudential analysis of the concept of constituent
power. In this part of the chapter he traces the genesis of constituent power. For the
aforementioned purpose he even analyses the various forms of government. I shall be dealing
with all those examples in detail.

Having discussed in depth the concept of Constituent Power, Loughlin adverts to the topic of
Public Sphere. He defines public sphere as the autonomy of the modern political world. It is an
idea which is synonymous to the idea of sovereignty and simultaneously it refers to the
autonomy of the political sphere. This paper is an attempt at analyzing all such concepts as
explained by Loughlin.

ANAYSIS OF THE CONCEPT OF THE CONSTITUTION, CONSTITUENT POWER

AND NORMATIVE POWER OF THE FACTUAL

Schmitt states that constitution has become more relative because of the simple fact that there
exists a tendency of considering constitution as a formal document. Modern development led to
codification or writing of a formal document and the same resulted in relativization. This means
that individual constitutional law has reduced the essence of constitution. Schmitt argues that
many provisions do not remain in consonance with the constitution of the state. According to
him, the formal or relativistic approach has reduced the constitution to a set of written laws.

Schmitt distinguishes between existential and ideal concepts of the constitution. While the
existential meaning denotes that constitution means political unity of people, ideal sense is that it
is a closed body of norms. Since his ideas distinguish between facts and norms, it signifies that
normativist constitutional approach must be disregarded.

Schmitt gives an argument that the ideal sense of a constitution is driven by political unity and is
completely different from constitutional law. Political unity may be different from the

2
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr, (1973) 4 SCC 225.
particulates of institutional form of government, and the same may be called constitution of the
office of the government.3

The distinction drawn by Schmitt has several implications when he bifurcated between material
constitution and formal constitution while former being political unity, and the latter being an
institutional frame. Firstly, one cannot say that the formal one is self authorising as the same is
validated by existing political will. Secondly, normative or conceptual unity is not a matter of
fact for constitutional law as it is presupposed by material or codified constitution. Moreover, the
constitution can only be united by political unity and the peculiar form of the same is determined
through the constitution making act.4 Moreover, the implication is legitimacy of provision that
lead to authorisation of suspending the constitutional laws in exceptional circumstances. Lastly,
there are several limits on formal powers of amendment conferred by the constitutions.

The claim of Schmitt in regards to a material constitution being primary is of significant

importance. The analysis that has been given by him is suggestive of the fact that coherent
formal constitution comes from unqualified constitutional provisions that are ex-facie and
interpreted in a general manner. He suggests that formal analysis of constitutional provisions is
of critical importance. The illustration given by him is that of Weimar Constitution where it is
written that German people have given this constitution to themselves and the authority of the
state is given from people. Schmitt argues that such aspects cannot be ignored and have to be
noted duly even though they do not form the constitutional provisions.5

As per my opinion, understand that Laughlin has tried to project through chapter 8 is that the
Schmittian school of thought, though affirms the primacy of material constitution, it is not
absolutely in favour of a written constitution. A possible reason for the same could be that he
thought that the state is always supreme and every other aspect is beneath the state. He does not
give a conclusive stand in favour of either a formal constitution or a material one. However he
highlights the advantages and shortcomings of both. Personally I feel that, a state can always be
considered a supreme authority but the presence of a written or codified constitution is always
necessary. The instruments of a state i.e the government shall work in consonance with the
3
Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673] Michael Silverthorne (trans)
James Tully (ed) (Cambridge: Cambridge University Press, 1991).
4
Id.
5
Jacobsohn, An Unconstitutional Constitution? A Comparative Perspective, 4 INTERNATIONAL
JOURNAL OF CONSTITUTIONAL LAW 460–487 (2006).
codified constitution and the same shall always be considered as the paramount document. Any
act of the government done capriciously where it goes ultra vires to what it had to do or an action
or omission that is done in a excessive manner is considered arbitrary and the same is in
violation of the basic facets of the constitution.6 Therefore, a written constitution is necessary in
order to keep checks and balances over the state and its subjects as well as instruments.

A valuable question before us after noting what constitution means is that how a state that is a
sovereign entity can, be subject to law? Loughlin by explaining the views of Jellinek states that
the state is an ultimate authority of power as well as it has a normative or legal side to it. This
means that both the faces of a state occur simultaneously. This denotes that a state may have the
power to govern as well as the same power can be limited by a constitution or law of the state.

The state according to him has a notion of power and the same gets transformed or takes the
shape of a law as it assume the normative character and the same is suggestive of a sequence. A
juristic approach is required in regards to the same. He links human conduct with normative
force and has invoked the phenomenon of normative power of the factual.7

Jellinek recognises that there is a double life for law in regards to existence and validity i.e being
a force of the society and forming a set of norms. He substantiates up on social interactions and
highlights the way of humans in ordinary life. He tries to suggest that it norms take the shape of
ordinary human interactions.8

Schmitt and Jellinek both fail when they maintain that the power has been a phenomenon of
empirical aspects. An approach that is practice oriented will help in overcoming several
limitations that have been posed by the theories of both Schmitt and Jellinek where they
attempted to accommodate both the dimensions i.e normative and factual in account of
constitution of state. Jellinek had rightly put forth that state can only be understood if one
understands both, it's juristic and sociological sides and Schmitt had rightly put forth that
constitution of a state has an existential reality apart from objective system of norms. In order to
overcome a divide that is created by the juristic sense in terms of it being absolute and empirical
sense in terms of it being limited, we need to consider both the aspects as dimensions of a social

6
E.P. Royappa v. State of Tamil Nadu, A.I.R. 1974 S.C. 555.
7
GEORG JELLINEK, ALLGEMEINE STAATSLEHRE (Berlin: Springer, 3rd edn, 1922), 386–387.
8
Id.
practice. Once the constitution has been brought into practice, dialectical explanation of the work
is allowed. The potential power is actual in nature as power is a concept that needs
institutionalization. For better understanding, we must dwell into the further chapters and analyse
the practicality of the same in actual scenarios.

Loughlin tries to define constituent power. He expatiates that a Constitution is always preceded
by an entity, through which the masses have gained political independence and unity and which
expresses people’s will in the form of government. To run the daily affairs of the nation and the
state, people come into a Constitutional contract by which they form what we know as the
Constitution. He explicates that firstly there is a political pact signed by the masses and that
political power subsequently authorises a body or group of person to form a constitution. In the
Constitutional contract the constituent power is arrogated to a body. This is even the case with
India. We first attained Independence through our freedom struggle which resulted in the passage
of Independence of India Act, 1947 and then subsequently we formed our own constituent
assembly to form Constitution for ourselves. We developed consciousness of oneness and then
we gained independence.

Now herein Loughlin accepts the fact that constituent power usually vests in the people of a
country but at the same time concedes that in the case of monarchical form of government or
Constitutional monarchy the constituent power vests in the Monarch. He further argues that the
legal sovereignty may in appropriate cases may vest in the Crown and all the organ of the
government will trace and owe their origin to such Monarch and their existence depends on the
sweet will of the Monarch. This is like an unitary form of government, where the plenitude of
power is concentrated in one place. He further argues that even if in such case there is a written
constitution it is just a bequest of the Crown. To buttress his stand he refers to the Meiji
Constitution of 1889 which declares that the Emperor is the head of the empire and in him the
sovereignty vests and he exercises his power according to the constitution 9. One fine read of the
Constitution may reveal that the Monarch exercises its power with the consent of the Imperial
Diet, the legislative organ of Japan. However this must not be confused as a limitation on the
authority of the King. It subsequently declared that it is the Monarch who gives sanction to the
laws. Loughlin further explains the nature of the Meiji Constitution and refers to some extracts
9
Genocities, Constitution of the Empire of Japan 1889, Art 4, GENOCITIES (Dec 11, 2020 10:05 AM),
http://www.geocities.com/Tokyo/ Temple/3953/conmeiji.html.
of a book10 that- “the State is inherited by the Emperor from His Ancestor, and by Him
bequeathed to His posterity. All legislative as well as executive powers of State, by means of
which He reigns over the country and governs the people, are united in this Most Exalted
Personage . . . His Imperial Majesty has Himself determined a Constitution, and has made it a
fundamental law to be observed both by the Sovereign and by the people”.

Hence it is abundantly clear that it is the Emperor from whom the Constitution traces its origin
and thus the amending power vests in the Emperor. Furthermore he analyses the case of the
German Empire. He explicates that the Kaiser is the divine ruler and has the right to rule.
However he argues that the state is a distinct entity from the monarch in case of Germany. State
derives its legitimacy and power from the people. It is further argued that institution of monarchy
is pre-supposed by the existence of state. The monarch derives his power from the state. The
monarchy is there to further the ends of state. Loughlin further questions that in all the forms of
modern day government (he considers U.K for this purpose) the Monarch is the head of the state,
all the actions are taken in the name of Monarch, all the ministers are appointed by the Monarch,
Parliament is prorogued and dissolved by the Monarch, even the justice is said to emanate from
the Monarch are these not examples of the fact that constituent power vests in the Monarch?

He then answers that Britain is a sui generis one. He argues that even if the Monarch enjoys
such prerogative and privileges it is only because the U.K Parliament let it do so. In so far the
appointments and decisions are concerned it is always taken at the aid and the advice of the
Council of Ministers. Thus he concludes that the constituent power vest with the people of U.K.
It is clear that Parliament is sovereign in U.K. It has untrammelled power and therefore a famous
or infamous quote is attached to the limits power of Parliament is “Parliament can turn a male
into female and a female into male”. It derives its power from the masses.

Now he goes on to highlight some of the chief facets of constituent power. The Constitution is a
product of the deliberation of a body which is conscious of its political existence and with the
potential of taking actions. Loughlin proceeds to refer to Seiyes who explains that a Constitution
gives a general outline as to the formation of various organs of government and it gives power to
various organs. He further states that the Constitution must be formed with in-built protections
so that the power delegated to the various organs must not be used to injure the nation. Seiyes
10
Westel W Willoughby, The Fundamental Concepts of Public Law (New York: Macmillan, 1924), 103–104 (n 1).
explains that it is first the nation which comes into existence and he defines constitutional law as
the law which emanates from the will of the people. Even this is true with the cases of U.S.A and
India, wherein it is “We” the people who have bestowed the Constitution to ourselves.
Constitution law are called the fundamental law, according to Seiyes, not because they can
remain independent of national will it is because the people who act through it cannot touch it.
Thus according to Seiyes, a Constitution is unalterable by the people who occupy the position in
the three organs. So the question which lingers is that how the constitution can be amended?
Seiyes answers it by saying that the limitations and legal formalities are placed by the
Constitution, only on the organs of government, the nation is free to decide for itself, and he
opines- “While governmental power is legitimate only in so far as it is constitutional, the
national will, on the other hand, simply needs the reality of its existence to be legal. It is the
origin of all legality”

This argument finds resonance with the idea of Hidyatullah J. from the case of I.C Golaknath v.
State of Punjab11. In his separate concurring opinion he opined that all the fundamental rights are
unalterable and if the fundamental rights are to amended a constituent assembly has to be formed
which will express the will of the people. In sum Seiyes ideates that there cannot be any positive
law which can bind a nation and he says further that a government is a result of the positive law
and the nations owes its existence to natural law.

Loughlin continues his sojourn and express that Schmitt was further inspired by the thinking of
Seiyes. Schmitt propounds his understanding on the similar line of thinking as Seiyes. He opines
that a constitutional contract by the people is preceded by a political pact. The people according
to him remain the origin of all political actions and source of all the power. In sum he argues that
from the people the Constitution flows and they can change it as and when they want. It is
abundantly clear that the vesting of constituent power in the king is inspired by the idea of divine
right of kingship. However this is not so clear in case of vesting power in constituent power in
the people. Rousseau raises a pertinent point that how it is possible for such a multitude of
strangers of to meet and deliberate and agree to a common framework for governance? The main
tendentious issue underlying this matter is the problem of nature of collective identity. One
school of thought answers this question by predicating its belief on the fact that the nature of

11
1967 SCR (2) 762.
people’s identity is immaterial as they will generally elect their representative, who will then
form the constitution. Schmits idea is based on the presumption that there is a political equality
among the masses.

This problem was tried to be solved by the words of Lindahl, he used the term of self-
constitution which speaks to the idea of reflexive identity. Self constitution is to be understood as
a collective selfhood in contradistinction to identity as sameness. This in turn means that people
have come together keeping in mind the common interest they have. This is the only way in
which people with diverse backgrounds and material differences can come together. It is
submitted that constituent power is not only exercised by the people but the people are the
essence of constituent power. It is further submitted that constituent power is always and since
time immemorial vested in the people. It is the constituted power which is known as the
government. The constituent power is further exercised by the constituent assembly to weave a
constitution. Thus Loughlin concludes it by observing that- “Constituent power expresses the
fact that unity is created from disunity, inclusion from exclusion, reminding us that
constitutional ordering is an ambiguous and provisional achievement. Constitutional ordering is
dynamic, never static.

PRACTICALITY OF THE PUBLIC SPHERE AND DROIT POLITIQUE

Louglin continues to discuss the constitutive element of Public Sphere. According to him the
most acceptable constituent is the belief that the power ultimately rests with the people and it is
the people who express there will through a Constitutional contract authorising the
establishment of various organs of the government. I am of the humble opinion this is the case
with India and other colonies of Britain. As I have mentioned before that it was only after the
gaining the independence we gathered together and bestowed our constituent assembly with the
honourable duty to draft our Constitution. Loughlin explicates that the ultimate authority vests
with the people and even I am of the same view. If we read the preamble of our Constitution, it
starts with We the people of India, which insinuates that the people are the essence of this
Constitution and it is from them the organs of the government derive their legitimacy. Political
scientists define India and U.S.A as countries having popular sovereignty. All the decisions and
actions are taken in the name of the people and with a view to further their interest. Loughlin
further dubs the government as an office of trust. It is a truism in a modern democracy where
people elect their representative on the basis of the promises they make to their electorates.
Consequently if they fail to deliver on those promises, they can be voted out. He even talks about
placing certain limits on the authority of the organs of the government. One of the ways he
stipulates is by the way of election. Other is by the means of other institutions. Now for this
purpose I will refer to some of the key provisions of Constitution of India. In the Constitution of
India, Art. 13 mandates that the Parliament must not make any law which is in derogation with
the Fundamental Rights mentioned in part III. If it does so, the law could, by the means of Writs
(Art. 32), be declared null and void by the Supreme Court of India. This one of the ways in
which one institution keeps the other institution within their bounds. This continuous process of
checks and balances is visible from the scheme of the Constitution of India.

I strongly feel that a Constitution has basically two functions. First it is to provide powers to the
organs of the government and second it is to circumscribe and limit their power. In sum Public
sphere is described by three terms representative, responsibility and accountable government.
Another idea propounded by Loughlin is that the public sphere runs on the presumption that all
human beings, irrespective of their talents, strength, race, sex are equal. It ensures them the
political equality for which they have entered in the constitutional contract. Individuals are
bestowed with rights and duties and their rights can only be limited by the authority of law. This
is done to give the citizenry political and legal equality. To elucidate I must again refer to some
of the most important provision of the Constitution of India. Art. 14 provide all the people,
whether they are citizen or not, right to equality before law. Art. 15 seeks to prevent and
proscribe discrimination on the basis of caste, creed, sex etc, It at the same time allows all people
to enter all the public places such as shops, public restaurant, wells, bathing ghats etc. Art. 15
should always be read with Art.17 which abolishes untouchability. It is a truism that in India that
untouchabilty was practiced day in and day out. Hence these articles are placed to give political
equality to all the people who were deprived from their basic amenities.

Now from the above-mentioned principle it could be deduced that the idea of spheres of both
absolute and conditioned power. Absolute power in the sense that the authority of the people to
change and condition the political world is unfettered. It is not limited by the claims of history,
customs and religious beliefs. The only limitation which is placed both at the doorstep of the
representative and the people is that whatever decision they take it must be in public interest.
Even the power of the people and their representative is conditioned by the terms of the
constitutional agreement and the most important term of the agreement or the establishment is
the recognition of the principles of equality and liberty. Representative cannot exercise their
power in derogation of these sacrosanct principles.

For this purpose I must highlight the opinion of Justice Khanna in the infamous case of ADM
Jabalpur v. Shivkant Shukla12, where in Mrs. Gandhi imposed emergency and most of the
detractors were detained. They filed habeus corpus petition before the High Courts and the
matter reached the Supreme Court. The question before the Honourable Court was that can a
detinue seek the remedy of writ of habeus corpus when Fundamental rights are suspended by the
presidential proclamation? In other words are there any fundamental rights outside the four
corners of the Constitution. Speaking for the majority Ray C.J opined that-“Any pre constitution
rights, which are now included in Article 21, do not remain in existence and cannot be enforced
if Article 21 is suspended.”

The majority judgment was a death knell to the idea of equality and liberty. However the
minority judgment was flicker of hope which was rendered by H.R Khanna J, disagreeing with
the majority judgment he opined that-“without such sanctity of life and liberty, the distinction
between a lawless society and one governed by laws would cease to have any meaning. The right
to not be deprived of one’s life or liberty, without the authority of law, was not the creation of
the Constitution”.

I am of the humble view that, In sum Khanna J. was of the opinion that principles such as rule of
law, equality and liberty exists even outside the ken of the Constitution of India. Constitution
merely recognizes those rights. Recently in 2017 in K.S Puttaswamy v. U.O.I13, a 9-judge bench
of the Supreme Court expressly overruled the ADM Jabalpur judgment and Justice D.Y
Chandrachud opined that-““No civilized state can contemplate an encroachment upon life and
personal liberty without the authority of law. Neither life nor liberty are bounties conferred by
the state nor does the Constitution create these rights. The right to life has existed even before
the advent of the Constitution. In recognising the right, the Constitution does not become the
sole repository of the right.”

12
1976 SCR 172.
13
(2017) 10 SCC 1.
Loughlin emphasised that the concept of liberty and equality must be understood in the context
of private autonomy. He emphasises on the fact that public sphere cannot be understood without
acknowledging the nature and the traits of the political power generated by it. He explains that
real political power is not vested in the established organs or the institution of the government.
They are mere potestas or delegates. Such power is generated by the people coming together,
shedding their differences and material contradictions away, with a common link and allegiance
to the constitution of the state.

Loughlin now refers to Bodin and he tries to define the limits of public sphere. Bodin explains
that Sovereignty is a matter co-extensive to public sphere but there are certain sectors of human
existence such as freedom of religion, freedom of conscience, pursuit of religious truth which are
irrelevant to public sphere. One of the chief reasons why such things are kept out of the limits of
public sphere is that it cannot be controlled or commanded like conduct. Another reason cited by
Bodin was that interference and regulation in such matter would tantamount to violation of
personal liberty and equality. A modern constitutional belief ideates that state should keep itself
away from the region of personal belief and convictions. A modern state should only concern
itself with the conduct of the individual and the welfare of the public. State should not interfere
in the disputes regarding the ultimate truth. Recently Supreme Court in Abhiram Singh v. C.D.
Commachen14, made some observation relevant for our purpose. Justice Lokur referred to
Badshah v. Urmila15 wherein it was held that-“The law regulates relationships between people.
It prescribes patterns of behaviour. Justice Lokur further opined that-“Religion can have no
place in such activities for religion is a matter personal to the individual with which neither the
State nor any other individual has anything to do. The relationship between man and God and
the means which humans adopt to connect with the almighty are matters of individual
preferences and choices. The State is under an obligation to allow complete freedom for
practicing, professing and propagating religious faith to which a citizen belongs in terms
of Article 25 of the Constitution of India but the freedom so guaranteed has nothing to do with
secular activities which the State undertakes”

From this foundational argument it can be deduced that freedom of speech and expression,
freedom of association can be held to be the constituents of public sphere. In sum it could be said
14
2017 SCC OnLine SC 9.
15
2014 1 SCC 188.
that such rights underscores the principle of liberty equality of persons that is correlative to the
principle of private autonomy on which public sphere founded.

Loughlin by droit politique tries to strike an intrinsic relation between the legal and the political.
While the political does not have limitations or boundaries, it needs to operate in accordance
with certain fundamentals and the same need not be overlooked by modern public law and that is
the reason why a balance between the legal and political needs to be struck (droit politique).
Other reason why Loughlin wants the same is that politics and law are considered as different
aspects of thought and action in the modern world. While politics is concerned with several
human interest struggles, law is mostly concerned with norms.

In my opinion, law is always a result of political churning. The notions of politics, defections and
instability led to the introduction of anti defection law in the constitution of India which was
brought in order to tackle the menace of defections. Politics is the struggle for power and law can
always be an instrument which is used for social control. The constitution of India itself is a
political document which bestows upon an individual, a set of important political rights as an
answer to inequalities, as defined by Granville Austin. but it is necessary that legal aspects do not
interfere in the political realm and vice versa. Though law is not supposed to interfere and
maintain an intrinsic relation instead, judicial intervention in the political realm is always
tendentious as the same always replete with uncertainties of all sorts. Earlier the SC also
refrained from interference as in State of Rajasthan v. UOI16 Supreme Court held that order
passed under Art. 356 imposing emergency in a state cannot be held to be justiciable as it
involves political question. However now the scenario and attitude of the Supreme Court has
changed, as they have held in S.R Bommai v.U.O.I17, that presidential order under Art.356 can be
challenged in the Constitutional Court and if any government is illegally dismissed, then it can
be restored by the Supreme Court. It can be concluded that interference or contradiction between
law and politics is a matter of interpretation and imperative upon courts. However, the intrinsic
relation between law and politics needs to be struck and the same shall bring a holistic harmony
as propounded by Loughlin.

16
1977 AIR 1361, 1978 SCR (1) 1.
17
1994 AIR 1918, 1994 SCC (3) 1.
 CONCLUSION

It is concluded that, Loughlin has given a holistic approach while trying to define the constitution
through the ideas of Schmitt but has not been able to favour one of the two alternatives of a
constitution i.e a normative one and an existential one. However he seems to oppose a codified
constitution because of the limitations that it may lay down. However, I am of the opinion that
codified constitution is necessary as a grundnorm in order to lay down rules and regulations for
the state and its instruments. Moreover she tries to enlighten the idea of political unity through
constitution of a state, however the same is not possible in a country like India without adequate
intervention and judicial scrutiny.

Martin Laughlin seeks to do a jurisprudential analysis of the concept of Constituent Power.

Constituent Power can be defined as the power to amend the Constitution. He accedes that
Constituent power can exist in both the Monarch and the People. He refers to a few examples
and discuses them at greater length. In case of Japan, their Constitution makes a specific
stipulation that the Emperor is the fountainhead of the law. So he has the power to change the
law.

However I am of the humble opinion that in the contemporary scenario we don’t find such
organisational setup where the constituent power vests in the Monarch. I even cited the case of
U.K where Queen Elizabeth II is just a titular head, notwithstanding the fact that all the decision
and actions are taken in her name. Parliament is sovereign there. Laughlin explicates that the
people of a nation come together to form a political pact which expresses the will of the masses.
This political pact happens only after the masses have gained political consciousness and unity.
To buttress this I have cited the example of India. Idea of Loughlin is in sync with the case of
India. We gained independence after an indefatigable struggle which aroused the political
consciousness of the masses and bound all the fellow human beings together in one unit.

After the Political pact there is a constitutional contract in which people come together and
weave their own constitution. While Louglin discusses the constituent power in case of
democracies, he refers to Sieyes, who opines that a nation is not bound by any positive law and it
can if it wants efface the constitution. I have some doubts regarding this argument. First of all
both Sieyes and Loughlin have failed to define what a nation is? And how it is to be ascertained?
Can it be said that in democracies whether the Parliament/Legislature is the reflection of the
nation? Can we fathom a setup with no limitations in the contemporary times? If that is the case
chances are there that there can be a day on which a transient majority, efface the constitution
and transmute a democratic system into a totalitarian one. At the same time Loughlin fails to give
any institutional checks and balances.

However one of the merits of the Loughlin’s theory is that it recognises the importance of
equality and liberty and at the same time it highlights the hazard that one might face if it is
disregarded. Laughlin continues with the idea of Public sphere. I have no disagreement with his
ideas with respect to public sphere. He beautifully describes the difference between private and
public sphere. Public sphere could be defined as a place where the state is sovereign and where it
can regulate the conduct of the people. It was rightly observed by Sikri J. in the case of Badshah
v. Urmila (Supra), that the job of the state is to supervise conduct of the individuals. It is the
duty of the state that to ensure that human behaviour must be controlled so as to render the
existence of the people peaceful. The distinctive feature of Laughline’s treatise is that it pithily
carves out the distinction between private and public sphere. He deems and deems correct that
private sphere cannot be regulated. This is a wonderful proposition that is well suited to the
current time. He expresses that questions involving belief and worship must not be interfered by
the states as they cannot regulate it. As rightly held by the Supreme Court in Abhiram’s
case(Supra) that the relationship between a human and a god is privy to a human and state is no
one to interfere in it. Martin Laughlin’s treatise is well suited and is relevant to the current times
and gives us multiple platitudes to govern ourselves.