In the study of Political Science the term ‘State’ has been defined by Bluntschli as “the State is the politically organized people of a definite territory”. However, in general, it is wrongly used as synonym for nation, society, government etc. Laski defines the State as “a territorial society divided into governments and subjects, whether individuals or associations of individuals, whose relationships are determined by the exercise of this supreme coercive power.”

An individual can rise to her or his ability only within a State. If there is no organization, no rules, and no authority, than a society cannot be held together. The structure of the state has existed where human beings have lived in an organized society. It is an essential and natural institution and as Aristotle said, “The State comes into existence originating in the bare needs of life and continues its existence for the sake of good life”. The essence of State, in fact, is in its monopoly of coercive power; it has a right to demand obedience from the people. The State is made up of four essential elements.

Also Read: Membership of State Legislature

Population: An element of the State

The State is a human institution because it is the people who form a State. For instance, Antarctica cannot be termed as a State because it is without any human population. However, a nagging question comes to the fore time and again- how much should be the population?

In this context, the ideals of Plato and Aristotle were the Greek City State of Athens and Sparta. Against the fixed number of people, of Plato, in an ideal state at 5040, Arristotle laid down a general principle that the state should neither be large nor small; it should be large enough to be self-sufficing and small enough to be well-governed.

Rausseau had put the number of population in a state at 10,000, but it is quite difficult to fix the size of the people of a state. In modern times the task is near impossible where on the one hand we have countries like India and China have huge population on the other countries like San Marino has a very small population.

It is, therefore, no limit- whether theoretical or practical – can be prescribed on population of a state. However it must be enough to make governing and governed classes, enough to support a political organization. The population, practically speaking, must be in proportion to the available land and resources. Every one must understand the fact that the differences in the size of population, other things remaining the same, does not make any difference in the nature of State.

It is quality of the state that is of utmost importance as a state needs healthy, intelligent and disciplined citizens. They should possess qualities of vitality. The composition of population is very significant as a state with a homogenous people can be governed easily.

Must Read: Population and Economic Growth: A reciprocal Relationship

Territory: An element of the State

There is no State without a fixed territory because it ensures exercise of political authority. For instance, the Jews were living in different countries; but they became State only with the creation of Israel, that had a definite boundary.

The territory may be large or small, but the State has to have a definite land. It may be as small as San Marion that has an area of 62 square kilometers, or it may be as large as India, USA, Russia or China. The size of a state impels the form of a government. For instance, smaller states can have a unitary form of government while large states like India and the USA, the federal system is comparatively suitable.

The quality of land, the inevitable part of a territory, is also very significant for if the land is rich in natural resources and minerals it makes the state economically strong. It must be able to cater enough food for its people. The States of West Asia were, in the beginning, insignificant but after the discovery of oil they acquired prominence.

States with large territory get strategic and military advantage during the time of war. Most of the times the territory of a state is commensurate and compact though there are exceptions also: the two wings of Pakistan were miles apart before the creation of Pakistan; from the main territory of USA miles apart are Hawaii and Alaska.

The territory of a state is composed of land, water and airspace. Over its land, its rivers, mountains and plains is exercised the sovereignty of a state. The sea, up to a particular level from the land border, is also a part of the territory of a State.

Also Read: Administrative Structure under the Mughals

Government

Unless the people are properly organized and accept certain rules of conduct, the purpose living together for them cannot be realized. The government is the agency that is created to enforce rules of conduct and ensure obedience. The Government works as the medium through which common policies are determined, common affairs regulated and common interests promoted. Without a government, the people will lack cohesion and means of collective action. To have a common authority and order is the pre-requisite of human life. The State does not and cannot exist without a government, the form of it hardly matters. The crux of the matter is that the government is a must and, though it may take any form. It may have a monarchy like Bhutan or republic as in India.

Must Read: Good Governance

Sovereignty: An element of the State

Sovereignty is the supreme power by which the State commands and exerts political obedience from its people. A state, to declare itself sovereign, must be internally supreme and free from any external control. India, for instance, before 15 August 1947 had all the other elements of the state but it had not had sovereignty and so it was not a State.

Thus Sovereignty has two aspects: internal and external. The State’s monopoly of authority inside its boundaries is internal sovereignty the authority of which cannot be shared with any other state. The State is independent and its will is unaffected by the will of any other external authority.

Therefore, it can be summed up that the State must have a population, a definite territory, a duly established government and sovereignty. In the absence of any of these elements the State loses its status of a statehood.

Don’t Miss: Facts about PREAMBLE of the Indian Constitution

While making a law, where all the centre can interfere in the state list.  The interference can be of two types :-

Centre directly can legislate in the state list subjects

Directly the Parliament makes a law in the State List.  Parliament is making laws in those items where the power is given to the states.

Article 249

• Rajya Sabha can initiate a bill in the State List.
• Both the Houses Should bass the bill with 2/3rd of the members present and voting supporting it. (Special Majority under Art. 249)
• Such a law can be valid for 1 year at a time. After 1 year, the parliament can again pass it any number of times but for only 1 year at a time
• In National interest

Article 250

• During National Emergency (Art. 352), Union Parliament can legislate in the state list.
• During Emergency, state list behaves like the concurrent list.
• Such a law is valid during the national emergency and another 6 months of the expiry of national emergency.

Read Also: Legislative Relation Between Centre and State in India

Article 251

• During State Emergency (Art. 356), the state legislature is suspended of dissolved. Now the union parliament can make law in the state list on behalf of the state.

Article 252

• If two or more states request the parliament, to make a common law in the state list for them only.
• But if the state wants to withdraw from common law, parliament’s permission is required.

Article 253

For implementing an international agreement or a treaty, if an amendment is required in the state list, the centre can do so.

These are the five areas where centre can legislate in state list.

States can legislate but President’s assent is required

Article 31A

• The State can enact a law for taking over private property.
• Art 300 A says States can take over private property only by passing a law.
• But it has to be asserted by President of India.

Article 31B

• Land reforms can be placed in 9th Schedule.
• 9th Schedule – there is no judicial review for any law put in this schedule.
• Land reform is a very controversial issue and to avoid unnecessary litigation it was kept in 9th Schedule.
• SC reserves the right to look into items put inside the 9th schedule – 2009.
• But such law can be put in the 9th Schedule only after the approval of the Parliament.
• Parliament will pass it with the simple majority and President of India will give his/her assent only for that state and only for that law.

Article 200

• The Governor can reserve any bill passed by the legislature of state for Presidential assent.

Must Read: Schedules in Constitution of India

Tax related

• The state legislature can impose taxes on water, electricity stored, generated or sold by an authority established by the parliament.
• But Such a bill requires the assent of the president.
• For example, NHPC/NTPC may be storing , generating, electricity in a particular state. The state can impose the tax but this bill requires President’s assent.

Inter-state trade

• The states can impose restrictions on the freedom of inter-state trade, but again, such a bill will come into force only with the assent of the President.

Assent of President means union cabinet will be deciding and finally president signs. It does not require approval of the Parliament.

Also, Read:

Governor Generals and Viceroys of India

SC Questions Centre on Human Rights Violation

Rights Issue

Overruling its previous two decisions, the Supreme Court of India declared Right to Privacy as a fundamental right protected under Article 21 of the Indian Constitution. The landmark verdict was passed unanimously by a nine-judge constitutional Bench headed by Chief Justice of India J.S. Khehar.

The apex court twice in the past has ruled against right to privacy being a fundamental right. The two cases are as follows:

• M P Sharma & Others vs Satish Chandra & Others on March 15, 1954.
• Kharak Singh vs The State of U.P. & Others on December 18, 1962.

Article 21 – NO PERSON SHALL BE DEPRIVED OF HIS LIFE OF PERSONAL LIBERTY EXCEPT ACCORDING TO PROCEDURE ESTABLISHED BY LAW.

It must be noted here that Right to Privacy is not absolute. Reasonable restrictions can be put on it, according to the need.

About Right to Privacy:

Privacy is a human right to be enjoyed by every human being by virtue of his or her dignified human existence. It needs not to be supported by any instrument or charter. Privacy includes in its core bodily integrity, personal autonomy, right to self-determination, protection from state surveillance, dignity, confidentiality and freedom to dissent or move or think.

International backup:

• Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation.
• Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home and communications. It also mandates protection of personal data and its collection for a specified legitimate purpose.

Itinerary of the case:

• It all started in 2009 when the UPA government launched its ambitious project under Aadhaar scheme. As a part of the scheme, they started collecting personal details and biometrics of the citizens.
• They even tried to make Aadhaar mandatory for the distribution of the benefits under welfare schemes.
• But it raised concern among the people and they started questioning the move. They termed it as a breach of their privacy and a bunch of petitions were filed against it in the Supreme Court.
• The centre countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. They claimed Aadhaar to be a panacea for corruption in public distribution, money-laundering and terror funding.
• Despite Centre’s vigorous plea the apex court made Aadhaar voluntary and removed the mandate to provide an Aadhaar card for availing benefits.
• The government then argued that right to privacy was not explicitly stated in the Constitution as a fundamental right and suggested the court that this matter be heard by a nine-judge bench. They relied on previous judgments, which cited that right to privacy was not a fundamental right and informed the court that no other judgment had overruled the same.
• Hence the Supreme Court constituted a nine-judge constitutional Bench to decide whether Right is Privacy is Fundamental Right or not.

Pros of the judgment:

• It will prove to be another major milestone in aligning our laws with the international ones.
• It will restrict the free hand which state was enjoying till now and hence remove some of the unnecessary inferences by the state. (Ex: Phone tapping to gain political mileage.)
• It will open up the door for some more important discussions and arguments. (Ex: LGBT case, camera surveillance in private space etc.)

Cons of the Judgment:

• It is a jolt in the state’s move in dealing with the leakages in public distribution.
• These type of judgment will fuel more demands thus increasing the number of petitions and burdening the already overburdened court.
• Almost all developed countries in the world keep a track of their citizens by collecting their personal data. It helps keep a check on criminal activities and reduces the number of illegal migration. Such judicial over activism will create more rifts between the judiciary and the executives.

You may also like to read: Fundamental Rights

Codification of Parliamentary Privileges had come into the limelight once again by the recent case of the Karnataka assembly Speaker ordered the imprisonment of two journalists viz. Ravi Belagere of the tabloid Hi Bangalore and Anil Raj of Yelahanka Voice, for a year based on recommendations of its privilege committees. Earlier in 2003, the Tamil Nadu assembly speaker directed the arrest of five journalists for publishing articles that were critical of the AIADMK government.This had led to a widespread criticism as an effort to throttle the media.

Similar kind of punishment for breach of privilege has been a regular affair in India which had drawn the matter to the forefront whether the codification of parliamentary privilege is required or not.

What constitutes Parliamentary privileges

Parliamentary privileges are special rights, immunities etc enjoyed by the member of Parliament and the state legislature, their committees and their individual member.

They are of two kinds viz Collective Privilege enjoyed by house and committee as a whole and Individual Privilege enjoyed by an individual member of parliament and the state legislature.

Source of  Privileges

The Constitution recognises the privileges of Parliament and state legislatures under Articles 105(dealing with privileges of parliament) and 194(dealing with privileges of the state legislature), respectively. These sections protect the freedom of speech of parliamentarians and legislators, insulate them against litigation over matters that occur in these houses, and give powers to define the powers, privileges and immunities of a house, its members and committees Certain privileges, like the freedom of speech within the legislature, are codified under these provisions. On the others, the Constitution says that legislatures enjoy the same privileges as those of the House of Commons until the privileges are “so defined” by the legislatures.

Breach Of Privileges

There is no clearly laid out rules about what constitutes a breach of privileges and what is the corpus of punishment for that.In other words, parliamentary privileges are not codified. In Karnataka, privileges panels often refer to ‘Practice and Procedure of Parliament’ by M N Kaul to define breach of privilege.It means that parliamentarians are the judges in their own cause where chances of the conflict of interest and violation of a fair trial  are clearly sighted.

Judicial Interpretation of Parliamentray Privileges

In ‘Searchlight’ case (I) (M.S.M. Sharma vs. S.K. Sinha, AIR 1959 S.C. 395), Supreme Court held that the power of judicial review, applicable to ordinary law, could not be invoked to challenge an order made under Article 194, a Constitutional provision.

In Keshav Singh’s case, the Supreme Court clarified that Article 21 (Right to Life and Personal Liberty) would be applicable even when Legislatures exercised their powers in respect of their privilege. However, the position regarding Freedom of Speech being subservient to legislative privilege was confirmed.

In Raja Ram Pal v Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184, The Supreme  Court held that Fundamental Rights under Articles 20 and 21 could prevail over privileges under Articles 105 and 194. However, no mention was made of rights under Article 19 (1) (a) relating to Freedom of Speech.

In Algaapuram R Mohanraj v Tamil Nadu Legislative Assembly, WP (C) 455 of 2015 examined the issue  The Supreme Court rejected the violations of the Right to Speech, Right to Expression, Right to Life in the case of breach of privileges, it upheld contention regarding violation of the Right to Equality was upheld.

Thus the judiciary had been frequently sucked in the case of parliament’s unbridled power in case of breach of privileges when it comes in conflict with Fundamental Rights.However, without codification, Searchlight Judgement is still applicable which tilts it in favour of Parliament.

Arguments against Codification of Parliamentary Privileges

1.It would challenge the Sovereignty of Indian Parliament.

2.It would lead to judicial scrutiny of privileges especially when it comes in conflict with fundamental rights.

3.It would make the evolution of new privileges very difficult.

4. The members should have the freedom to discharge their functions, including the right to speak and vote within Parliament, without the fear and favour which requires these parliamentary privileges.

Argument in favour of Codification of Parliamentary Privileges

1.  The Constitution implicitly provided for a law to codify privileges and adopted the practice in the House of Commons as a temporary measure. The Constitution says that “In the absence of any law, such privileges would be the same as those enjoyed by the House of Commons at the commencement of the Constitution”.However, this provision was amended in 1978 to state that the privileges would be the same as enjoyed by the Houses of Indian Parliament as on the date of effect of that amendment.

2.Codification would fix the exact limit of the breach of privileges after which no punishment can be inflicted.

3.It would define precisely what constitutes and amounts to a breach of privileges.

4.Relief from the court can be easily available if privileges are codified.

Analysis

In a vibrant democracy Like India where the constitution and not Parliament is sovereign, its high time that parliamentary privileges should be codified for its clear interpretation.In fact, many countries have codified it like Australia.However seeing its misuse in few cases and its clash with fundamental rights especially right to free speech and right to life. There is a need for a law codifying the legislative privileges, define the limits of penal action for breach of privilege and procedures to be followed. The Legislature must use the power to punish for contempt or breach of privilege sparingly, invoking it mainly to protect the independence of the House and not to take away the liberty of critics.

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