Analysis: Schedules of Indian Constitution

Reading time: 8-10 minutes.

A schedule is a part of an act that contains extra information that has not been written in the body of the legislative document. It is an appendix attached to any act, supplementing the legislation with additional information that is not mentioned under the main text of the articles. For Example, article 1 talks about the states and Union territories i.e. the spirit of the law, but the names of states and union territories cannot be mentioned in the article itself so the schedule acts as an instrument to describe that additional information in a separate column. Hence, it becomes easy for the reader to know what the article talks about and the additional information concerning the article.

Objectives and purposes

The objective of the schedule is to make the provisions of the act less complex by separating the legal part from its additional information and hence, also making it concise and easy to comprehend. This separation caused by the schedule also acts beneficially in case of amendments. If there was no such separation, then every time an amendment was to be made in the additional information, an amendment would be required in the article itself which is a difficult procedure.

The schedule is not only used in the Indian Constitution but also under various legislations for different purposes. It is used to lay down the list of states and union territories, a list of different subject matter falling under the responsibility of the state, union, or both. Hence, it can be used for various purposes depending upon the requirements of the legislation. Schedules can also be used when a particular section or an article needs further clarification or additional information relating to the main text of the legislation.

Salient features –

  1. Improves readability – It helps improve the ability of the reader to read and interpret the legislation more effectively. 
  2. Vast nature of information – The information in the schedules can be of technical as well as administrative in nature. The matter contained in schedule should not be legal but rather about the legal principle mentioned under the main text of the act.
  3. Conciseness – Schedule forms a separate part for additional information hence making the main text of the act concise. 
  4. Easily amendable – As information under schedule are of administrative or technical nature or can be of factual dynamic nature such as number of states, number of languages, etc. hence they may require constant changes or amendments which becomes more convenient and less difficult in case of schedules as compared to the main text of the act.
  5. Chronological manner – The schedules should be numbered and arranged chronologically according to the provisions of the act which address them.
  6. Makes additional information as part of the legislation – Schedule puts the additional information mentioned on the same footing as that of the main text. Hence, making additional information as part of the legislation along with the main text.
  7. It can be in any form – The material of schedule can be in any form like list, graph, flowcharts or columns, etc. which enables the material written in the schedule to be communicated most effectively to the reader. Various formatting practices such as lettering and numbering can also be used to convey the information most effectively and easily.  

Critical analysis

Indian Constitution contains 12 schedules.

Schedule 1- list of states and union territories,

Schedule 2- provisions relating to emoluments, allowances, privileges,

Schedule 3- forms of oath,

Schedule 4- number of seats allocated to Rajya Sabha of each state,

Schedule 5, 6- provisions relating to schedule areas and schedule tribes,

Schedule 7- division of powers between union and states,

Schedule 8- list of recognized languages,

Schedule 9- laws included under schedule 9 are to be protected from judicial scrutiny,

Schedule 10- anti-defection laws and,

Schedule 11, 12- and powers, authority and responsibilities of panchayats and municipality

Schedule 7 –

The seventh schedule of the Indian constitution highlights the separation of power of the government by dividing the various subjects into the following three lists – union, state, and concurrent list. The subjects mentioned under the union list are the matters of union government while the subjects under the state list are to be dealt with by the state government. Apart from these two lists, there is a third list which deals with matters that are of common interest to both the state as well as union known as the concurrent list.

The two types of disputes that are to be dealt with under this schedule are-

1. Where the subject matter of dispute falls within either of the two lists i.e. union or state list.

2. Where the subject matter of dispute lies within the concurrent list.

So in the first case, the legislative competence is to be decided based on exclusive jurisdiction imposed by the constitution based on the subject listed under different lists but in the second case, laws made by both the state and union are valid as the subject mentioned under concurrent list falls within the domain of both state and union and anyone of them can make laws concerning it. Therefore, to resolve the dispute for the second situation the test of repugnancy is used.

The test of repugnancy can only be applied in a case where the state legislature has made certain laws on the subject falling within the concurrent list and this law is inconsistent with the laws made by the parliament or any other existing law made by parliament concerning matters listed under concurrent list. Then, in such a case the law made by the state legislature will be declared void and the existing law of parliament would prevail.

However, there is a third situation in which the subject matter is such that it does not fall in either of the lists then in such a case the federation is given the residuary power of legislation under Article 248 of the Indian constitution. Though such power should be exercised with proper care and caution and should not unnecessarily undermine the powers of the state legislature.

Schedule 9 –

According to schedule 9, any act placed under this schedule becomes fully protected from judicial review, even if the act violates the fundamental rights.

The schedule was created to abolish the zamindari system by placing land reforms under this schedule to prevent them from being declared violative of right to property which was earlier a fundamental right.

The scope of this schedule was widened by the court by declaring that it has a retrospective effect. So, if any legislation is declared unconstitutional by the court, it can become valid if it is added under this schedule.

The main objective of this schedule is to protect any provision from violation of fundamental rights. Under this schedule, no limit is defined concerning the power of parliament to include laws in this schedule. Hence arises, an urgent need to make a change under this schedule. Such changes were brought about by a plethora of judgments.

Some of them are –

In the case of Golaknath v. State of Punjab  – it was held that the parliament does not have an unprecedented power to amend the fundamental rights i.e. to take away or abridge the fundamental rights.

However, in consequence of the Golaknath judgment, the parliament enacted a 24th amendment act that restores the amending power of the parliament. Though the constitutional validity of the 24th amendment act was challenged in the case of Kesavananda Bharati v. the State of Kerela, in which it was held that parliament does not have the power to amend the basic structure of the constitution. Hence, if any amendment is made by the parliament to include a law in the 9th schedule then its constitutional validity has to be considered by taking into account the basic structure doctrine.

The ruling of Kesavananda Bharati was further reiterated in the case of Waman Rao v. Union of India.  The ruling of the Waman Rao case was upheld by the latest judgment of I.R. Coelho v. State of Tamil Nadu, which locks the final position on this point that any law which abrogates the fundamental rights or which are inconsistent with the basic structure of the constitution have to undergo the process of judicial review.

Schedule 10

This schedule talks about anti-defection laws in India. The need for such a law was found when politicians started moving from one political party to another by changing its loyalty without any formal resignation for certain benefits such as money, position, etc. These practices kept on increasing because of which the Rajiv Gandhi in 1985 by the 52nd amendment introduced such law in the constitution to protect the basic foundation of a democratic form of government.

This schedule lays down the circumstances under which a member of legislature or parliament can be disqualified because of defection. Following are the two circumstances–

  • If the member voluntarily gives up his seat– this phrase is not synonymous with resignation but it has a wider connotation as it can also mean that even in absence of resignation an inference can be drawn to mean that the member has voluntarily given up his seat.
  • voting/abstention from voting against the party– The members can be disqualified if they don’t vote at all or votes against the will of the party but in certain cases, even the honest opposers and bonafide objectors may also suffer disqualifications so the courts must identify the scope of the disqualification in such cases as per the facts of each case.

However, the schedule also lays down certain exemptions from the disqualifications such as

  • In case of mergers- a member of the house shall not be disqualified where the original party merges with another political party and the members of the original party either joins the new political party or opted to function as separate.
  • In case if at least 1/3rd members of the party decide to leave the original political party which is considered a split cannot be disqualified as it is based on premise that when there is a majority of members defecting a political party then these members cannot be disqualified.

Loopholes under this schedule –

  • Absolute power of speaker – The schedule gives the speaker or the chairman of the house absolute power to decide the cases of disqualifications and even oust the court’s jurisdiction to review the decision given by the speaker. But the power of courts to review the decision cannot be ousted by any amendment made by the parliament as judicial review is held to be the basic feature of the constitution.
  • Clear scope of the phrase “Voluntarily giving up” is not defined under the schedule.
  • In case of mergers, there is an exception in which the members of the original political party cannot be held liable for defection if at least 2/3rd of members agree to merge with another political party. So the exception here is flawed as it is based on the number of members rather than the reason behind defection.

Conclusion

A schedule plays a significant role in legislation by bringing conciseness and clarity to the act and that’s why schedules are being used for various purposes throughout various legislations. The misuse of schedules cannot be overlooked as in the case of schedule 9 of the constitution, it was formed for protecting the land reforms to abolish zamindari system, but later on, the parliamentarians misused their powers and added more than 282 legislations which were not related to land reforms, hence giving blanket protection to every act which they considered necessary as per their will.

However, the apex court was vigilant enough to ensure that the law-making body is not misusing their powers by putting a check on them through its judgment of Kesavananda Bharati. Apart from this, schedule 10 discussed above was also a good law but still needed some changes as it had certain loopholes.

Hence, the article concludes that the duty of the courts and the lawmakers are not only to form schedules but also to review the subject matter of the schedules to ensure that it is a contribution to the system and not a problem creator.

Author: Kumar Writwik from Symbiosis Law School, Pune.

Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.

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