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Sovereign implies a person with the highest power in a country. Then sovereignty, derived from Latin word, Superanus which means supreme, means independent sovereign power. In a democratic state two elements are sovereign- the national and the state itself. By 20 century the (state) sovereignty was absolute over subject and citizen. But in the 21 st century popular sovereignty is absolute, state’s sovereignty is subordinate whereas onward to 22 nd century individual citizen sovereignty will be absolute. Sovereignty originally, says Bodin, is vested in the people in their collective capacity but it is customary for the people to delegate it to princes or other functionaries of government. It represents the highest and the most potent will that can develop in human society (Bhandari 1978: 242). Hobbes defines the doctrine of sovereignty- “in every independent community governed by law there must be some authority whether residing in one person or several whereby the laws themselves are established and from which they proceed. And this power itself is above the law (Ibid: 243). The modern concept of citizenship is, therefore, the product of a limited government and of a sovereign State. It concerns the rights and privileges of the citizens of a State, as distinct from aliens. The observation of A. C. Kapur can clear out that:

A citizen may be defined as a full member of the State, enjoying, if properly qualified by age, residence, and other lesser requirements, the fullest extent of rights and privileges in that State. These rights and privileges are: the civil and the political rights. As every right has a corresponding obligation, a citizen owes a duty to the State to provide the general well-being of his fellow-citizens. He may even call upon to sacrifice all that he has and all that he can claim to posses, including his life, to maintain the integrity and sovereignty of the State to which he belongs and owes allegiance (1981:181).

The person or persons holding this power are the sovereign, and have supreme power over all persons, corporations and interests in the state. The governance of today’s nation- state regards citizen a sovereign. It means the ultimate decisive power is vested to the sovereign citizen as sovereign. Before the Glorious Revolutions of Britain and of France, the individual was still a subject, a recipient of orders and not a participant in public affairs, i.e. hardly different from slaves.

Talking about the government system, individual sovereignty is limited whereas state’s is absolute. After the vote cast, individual sovereignty is transferred or delegated to his/her representative for the time being (four or five year’s tenure). Then the government represents the transcendent sovereignty from the state and the citizen. So it coerces orders to all individuals in the territory of the state to command and compel obedience. Thus, the ultimate legitimacy power is generated from the collective opinion of the nationals of a sovereign country. The constitution of 1990 had designated Nepali citizen with sovereignty, “… we are convinces that the source of sovereign authority of the independent and sovereign Nepal is inherent in the people…” (LBMB 1997:1). However, the sovereignty of the people was grossly overlooked and even misused by the state holders (the King, the judiciary, the government and the political parties) of the Nepali governance over the last decade. The result was Maoist insurgency. The legacy of such violation is till resemblance time and again in different capacities to the different declarations. To a new declaration, the establishment must be freshly represented by the sovereign citizen or be led to decide by the referendum of the people. It is because the citizens and subjects have unlimited, indivisible and unrestrained power which is beyond the Law and even the state law i.e. constitutions. With this logic this pen driver used to argue that the Nepali citizens were never sovereign under the Constitution of 1990 which had restrained the rights of the citizen (article-116) even to amendment of the constitution. That constitution had restricted to repel four fundamentals. One of them is regarding the constitutional monarchy (see the preamble pp.1 and article-101). Thus, no Nepali citizen was sovereign under the Constitution of the Kingdom of Nepal 1990. Perhaps, ironically, the rulers were sovereign! So they did what they liked. There was hardly a democracy. Every conscious Nepali logically proves and justifies it. One has to think people are the ends and the means of governance. Sovereignty means power to people. It is said in a modern democratic country no citizen is above the constitution which to me is illogical. There is no institution above the sovereignty of people in the popular governing world.

Then what constitution exactly is? It is the supreme state law that binds all citizens of the nation together and treats equally. It is one of the parts of social contract. There are few grievances of Nepali that they are discriminated and overlooked. So they have demand of positive discrimination. To me, reservation is also discrimination but we should not talk much technically.

A Constitution is formulated by the consent of all citizens for their own welfare. It is a means to achieve human (well-being) development. And no constitution is above the general will or sovereignty of the people. If a Constitution is a document of general will of the people then it is a matter to be changed, amended and remolded according to the need, will, time and referendum of the sovereign people. It is for the people, of the people and by the people, not vice-versa (The Kathmandu Post Nov. 12, 2004). Thus, the pen driver is a bit skeptic about the upcoming constitution and governance system (where the people will be sovereign or not) in two fundamental premises i.e. enactment of popular sovereign constitution and popular legitimacy authorized governance mechanism that is authenticated by the popular will.

From different points of view, the concept of sovereignty gets caught into confusion. To my knowledge, sovereignty must be understood from two points of view viz., state sovereignty and people sovereignty. If both are independent, supreme and recognized as ultimate decision holder among others- members of the state community, then they are regarded as sovereign entities. But the individual sovereignty ceases when the state exercises its obligations. Moreover, popular sovereignty can be subjugated to the wish or existence of the state (in the time of state emergency). The extreme example of absolute sovereignty was represented by Germany since the traditional policy of Russia and the gospel of Hegel. The result of it was echoed in the totalitarianism of the Nazism and the Fascism. Actually sovereignty is vested in definite person or body of persons. The authority of the sovereign is supreme and it possesses the power to enforce obedience to its will (Kapur 1981:148). It is derived from the popular vote of the sovereign citizen. Most parliaments possess it as delegated or contracted it out by the popular representatives. However, in the reign of Loktantra, popular sovereignty superseded over all authority of the state. One has to bow down before it. That is, the power of the people is absolute in a sovereign state. In another sense, all authority comes from the people and people actually govern themselves. In fact, one of the most effective means of getting to know the character of any system of government is to find out where sovereignty can actually be located and how it is really exercised. From this point of view, sovereignty can be interpreted as follows:

Titular sovereignty: After the emergence (in 17 th century) of nation-states, they were headed by absolute monarchies and the kings personified the sovereignty of the state. Such type of sovereignty lasted in Nepal till 1990 (up to Panchayat era). The conflict between the kings and their people changed the absolute authority of the kings which now is transferred (vested) to the people. The popular upsurge of April 2006 in Nepal as that of 1990s is the latest event to this regard. The concept of ceremonial King, nominal head of the state or the status of Japanese, Thai, British, Danish and Combodian monarchy can be regarded as titular sovereign (by the title only) ruler. All the authority and power is vested to the head of the government and on the recommendation of the cabinet or parliament, such titular head exercises the power. However, the status of King Gyanendra post April 24,2006 cannot be granted as sovereign head of the state rather than a ’null head of the state.’

Legal sovereignty: It is the conception of sovereignty in terms of law and it refers to the person or body of persons who, by law, have the power to issue final commands. The authority of legal sovereign is supreme and final over individuals and associations. None has the legal right to act contrary to the decisions of the sovereign power. Even the court cannot challenge it. The authority of the legal sovereign is absolute and its will is unlimited, indivisible and inalienable (Kapur 1981:150). In Britain, King-in-parliament is the legal sovereign. This concept, legal sovereign, is vague because of the point, to whom the legal sovereign ultimately bows. It is institutional base. So perhaps, the political sovereign, power of the people, challenges it.

Political sovereignty: Over the recent years, no other sovereign exists anymore before the political sovereignty. As contractualist, J. J. Rousseau, used to talk the mystic element of General Will which can be justified as omni-competent and omni-potent. No political leader, system, government and even the state law (constitution) stands against the will of the people. So this author used to claim that there was no democracy in Nepal and no single Nepali was sovereign under this Constitution 1990 (see The Kathmandu Post 12 No. 2004). The article 116 had constrained the rights of the people or barred the people to amend the present constitution by any means (even a referendum). Now the power (will) of the people (April Movement 2006) has done (torn it out) it. As A.C. Kapur points out ‘as the political sovereign is not known to law, it is unorganized, 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 (1981:152). In most totalitarian and communist states political sovereign is vested to its (ruler’s) political party or politburo. So it is temporary, a matter of shift.

Popular sovereignty: This doctrine is the product of 16 th and 17 th centuries emerged as an expression of resentment of the people against the despotic authority of the kings and their reliance on the theory of Divine Right. Popular sovereignty attributes ultimate sovereignty to the people. The state and the community are the creations of people to fulfill their interests and will. The doctrine of popular sovereignty was propounded by Jefferson in American Declaration of Independence while charting out the preamble of the American constitution by asserting that the government derives its authority from the consent of the governed. The legitimate authority is deputed by people or obtained through the ballets, the opinion and choice of the people. If the people can delegate political power they can also take it back at any time (Bhandari 1978:224). A constitutional and legal process is applied to form the popular sovereignty. Thus, the popular mandate controls and rationalizes the ruling mechanism of the state.

De jure and de facto sovereignty: It is no more than a way of reinterpretation of the above mentioned types of sovereignty who deserves the legal power and who exercises it is the distinction between them. De-jure is the legal sovereignty; its foundation is law. Its attribute is the right to govern and command obedience. However, the exercise of such governance and command is performed by someone else, whose identity may or may not be recognized by law, is actually obeyed. The person or body of persons who actually exercises power and is able to enforce obedience is called de facto sovereignty.

Sovereignty is absolute i.e. it cannot suffer any legal authority over itself. It can suffer no limitation in time, in function, or in law, for sovereignty belongs rather to the state itself than to the actual sovereign. It may be conferred by the voluntary act (in the periodic election) of the people but this conferment cannot be conditional (Bhandari 1978: 243). Now the Nepali people are sovereign and are in position to withdraw the sovereign authority sometime back given to the Shaha dynasty (monarchy) and bargaining to do their best to check and balance the absolute authority exercised by the governments of different political parties over the last decade. The making of the constitution by the election of constituent assembly is the first step towards it. The power of the people had been manifested (21 April to 24 April 2006) after the call of King Gyanendra to recommend the candidate of the prime minister. And it will go ahead in days to come too. So it is imperative not to overlook the popular sovereignty.