Unvisited Structural Aspect of Indian Constitution: The Twelve Schedules

Introduction:

Certain laws, rules, and regulations govern a community or nation. These laws and regulations must adhere to some fundamental ideas enshrined in a democratic society’s constitution. It establishes guidelines for a country’s governance. However, other than some fundamental rights, which are the heart of citizens’ rights for whom the constitution is in place, nothing is known about its structural component.

The Indian Constitution, which is acclaimed for its historical significance, was drafted after a long and arduous fight. Ergo! The framers of the Constitution did their best to cover every facet of people’s government inside the four walls of the Constitution, doubting democracy’s long-term viability in a country with diverse ethical, cultural, and religious groupings. After a painstaking search for the finest Constitution, our framers produced the world’s longest written constitution, with 448 articles divided into 25 parts, 12 schedules, 5 appendices, plus 98 amendments (out of 120 Constitution Amendment Bills).[1]

This study, thus, by recognizing the importance of the structural understanding of the constitution, aims to delve into the study of the schedules of the Indian Constitution. From gaining a basic understanding of the schedules, the study is carried to analyze some of the controversial and most visited schedules in contemporary time.

Understanding the Schedules

The schedules of the Indian Constitution, or any other legislation, are provided for any supplementary content not included in the main body. It is an appendix that enriches the main text of the articles by providing details that are not mentioned in the main text.[2] For instance, article 1 pertains to states and union territories, but it does not specify the names of each state or union territory. Schedule 1 serves as a tool to describe the supplementary facts in this case. This informs the reader about the article’s spirit as well as detailed info about the content.

India’s 12 Constitutional schedules

The Government of India Act of 1935 sparked the notion of adding Schedules to India’s Constitution. The Government of India Bill was drafted in the United Kingdom which contained 473 sections and 16 schedules.[3] It was then implemented as the Government of India Act of 1935, which had ten schedules and was one of the first to mention schedules.

The Constitution of India, 1950 has a total of twelve schedules, as stated in the head. There were only eight schedules when the Indian Constitution was first written in 1950. Four further schedules were eventually established through the Indian Constitution’s Article 368 amending process. These schedules were studied by M. Laxmikanth[4], as given below:

Schedule 1: List of States and Union Territories

It adds to articles 1 to 4 by listing the names of Indian states and territories, as well as any changes in their borders and the law that goes along with them. Article 370, for example, was recently repealed, and The Jammu and Kashmir Reorganization (Amendment) Bill, 2021, has been presented in the Rajya Sabha to divide J&K into the Union Territory of J&K and the Union Territory of Ladakh.[5] So rather than affecting the strength in the main articles, the specifics will be supplied in Schedule 1. Contents in the schedules are split into two parts, to put it more systematically. The first contains information on Indian states, while the second has information on union territories.

Schedule 2: Relating to emoluments, allowances, privileges

Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186, and 221 of the Indian Constitution are covered by the second schedule. The schedule contains complete facts on the salaries/emoluments, allowances, and special favors accorded to public officials, judges, and India’s comptroller and auditor general.[6]

For example, due to the ongoing surge of Covid-19, the cabinet agreed to a 30% pay decrease for the President, Vice-President, Prime Minister, Governors, and Members of Parliament.[7] Schedule 2 contains the latest information on the subject.

Schedule 3: Forms of oath and affirmation

It is commonly understood that a person allocated or designated to public employment has responsibilities both to the position he or she will hold and to the general public. As a result, he or she must take an oath and affirm that they will carry out their responsibilities with dedication, in the best interests of the people, and to their maximum ability. Articles 75(4), 99, 124(6), 148(2), 164(3), 188, and 219 of the Indian Constitution additionally require specific types of oaths to be sworn before assuming public offices. Schedule 3 contains those oaths and affirmations, as well as their forms.

Schedule 4: Seat allocation to the upper house of the bicameral parliament

It is an addendum to the Indian Constitution’s articles 4(1) and 80(2). This schedule specifies the number of seats given to each state or union territory in the upper house, the Rajya Sabha, of the parliament.[8] It is worth remembering that the total number of seats in the Rajya Sabha is 245 (which can be at most 250 ), of which 233 (limit 238 seats) are divided among the states and union territories, and the remaining 12 seats are nominated by the president among people possessing special knowledge in areas such as literary works, scientific research, art, and social issues.[9]

Schedule 5: Provision relating to a scheduled area

Unique requirements for the administration of Scheduled and Tribal Areas are set out in Article 244 of the Indian Constitution. Article 244(1) specifies that the administration and control of tribal lands in any state, excluding Assam, Meghalaya, Tripura, and Mizoram, is provided for in the 5th schedule.[10]

This schedule necessitates extensive research for full comprehension, and while much has been written on the subject[11], the current article focuses solely on its structural understanding. In terms of structure, this schedule is made up of seven paragraphs.

Para 1, interprets the expression “State” for the purpose of this schedule. Reading para 2, it is held by the court that ‘administration and control’ power referred to in this clause is capacious enough to circumscribe legislative, executive, and judicial descriptions of the governmental power.[12]

Para 3, extends the executive power of the Central government to direct State government in governance of scheduled areas, deviating from the powers enshrined in the 7^th schedule as mentioned in article 73(1)(a) of the Indian Constitution.

Para 4, deals with the constitution of Tribes Advisory Council in each State having Scheduled Areas. Para 5, empowers the governor to decide and notify if any specific Act of Parliament or the State Legislature shall not apply to the Scheduled Area of that state, or shall apply only after modifications or with a specific exception. Para 6, contains Scheduled Areas declared by the President. Para 7, talks about the amendment of the 5^th schedule that it will be not considered as a Constitutional Amendment under Article 368.

Schedule 6: Administration of Tribal area of Assam, Meghalaya, Tripura, and Mizoram

The standing of these tribal territories is equivalent to the American Indians known as Red Indians, according to Dr. Ambedkar, the author of the Indian Constitution. It has to do with Articles 244(2) and 275. (1) of the Indian Constitution. This schedule, within the idea and line of schedule 5, has unique provisions only for the scheduled areas in the states of Assam, Meghalaya, Tripura, and Mizoram.

There can be situations where the provision of this schedule is not implemented. The court in the case D. Uphing Maslai v. State of Assam[13] restrained the Governor from exercising the judicial power of District Council via para 16(2). Further, the schedule can be read in the case of Dr. Jayantha Rongpi v. State of Assam[14].

Schedule 7: Powers’ division among Union (Centre) and States

The federal structure was created in our Constitution after a long debate about the strength of multicultural India’s unity and state autonomy. There was a need for a balance between the two, namely, a strong Center for unity and consolidation while maintaining the State’s sovereignty. Thus, the framers of our constitution established article 246[15], which talks about three lists: Union, Concurrent, and State, which fully articulate that the Centre can exercise the power to make laws pertaining to the matters in Union List (currently with 100 entries, originally 97), State on the entries contained in State List (currently with 61 entries, initially 61), while both can make laws regarding the entries in the Concurrent List (Currently with 52 entries, initially they were 47).

The seventh schedule of the Indian Constitution contains these lists and their entries. There is no legal dispute between the Union and the states when it comes to the entry of Union and State lists. Assume that both the Union and the State pass legislation on the same Concurrent List entry; in this scenario, both are empowered to do so. But what if the legislation is contradictory in one or more aspects? In this scenario, the well-developed test of repugnancy[16] applies, which states that if a state’s law is irreconcilable with the law of the Union, the law of the Union (parliament) will take precedence over the state’s law, rendering the state’s law void.

Schedule 8: The recognized languages

The topic of what should be the national language of free India sparked a heated debate among the writers of our Constitution. For a country like India, where a large variety of languages were and are spoken, this was not an easy question to answer. Ergo! India designated Hindi in the Devanagari script as its official language and designated English as an Associate official language under Article 343(1). Besides this eighth schedule contains a list of recognized/scheduled languages with corresponding States having their recognition. Initially, there were only 14 scheduled languages i.e., Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Mathili (Maithili), Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali, Tamil, Telugu, and Urdu, where now they are 22 with the addition of Sindhi[17], Konkani, Manipuri, and Nepali[18], and Dongri, Maithili and Santhali[19].

Schedule 9: Validation of acts and regulation

The ninth schedule was not there in the Constitution initially but was inserted by the very First Amendment[20] to the constitution, corresponding to Article 31B. In the initial years, courts were more tilted towards protecting property rights, so this schedule was introduced to protect land reforms from the scrutiny of the courts. This on the face of it gives unfettered powers to the legislature to enact a law and put it into the ninth schedule to escape judicial review.

The Supreme Court in I.R. Coelho v. State of T.N.[21] given green light to the schedule subject to judicial review only on the ground of abrogation of the Basic Structure. This position was further clarified in the subsequent case of Glanrock Estate (P) Ltd. v. State of T.N.[22]

Coelho is a very significant judgment in understanding the judicial review, especially when legislation enacted a clear-cut escape from judicial scrutiny. It needs to be understood that it was added in the 1950s to curb social and economic inequalities, but now is a devastating tool in the hands of legislation to fulfill its whims and fancies, and this is clear from the shielded 284 laws which are currently placed in the ninth schedule.[23]

Schedule 10: Anti-defection provisions

Articles 102(2) and 191(2) of the Indian Constitution correspond to Schedule 10. The Anti-Defection Law was introduced as part of the 52nd Amendment. The regulation was primarily intended to prevent “the evil of political defections.” There have been indeed many difficulties that were and need to be addressed. Courts in various judgments decided the scope and limits of this schedule[24] and many recommendations and suggestions are also provided for this schedule by many committees and reports[25].

This schedule deals with the disqualification of MPs and MLAs for their defection from the party they belong to. It can be by voluntarily giving up membership, abstaining from voting, and violating any direction or whip issued by the political party.

The tenth schedule contains 7 paragraphs/rules, where Rule 1 provides for the interpretation of certain terms for purpose of this schedule. Rule 2 lays forth the criteria for a member of the House being disqualified for being a member of the House, subject to Rule 4 (that there will be no disqualification where the original party is merged with other party and as a result that member is now part of that merged party) and Rule 5 (provides for exemption from disqualification). Rule 6 provides for the deciding authority in case of question regarding the incurrence of disqualification in the hands of Chairman or Speaker of the. This power in the hands of the Speaker is made absolute in the sense that Rule 7 to the Schedule excludes any jurisdiction of the courts in respect of any matter connected with disqualification of members of a House. But Rule 7, except other Rules of the Schedule, was held as unconstitutional in the case of Kihoto Hollohon v. Zachilhu and Others[26], as the judicial review was held to be in the basic structure of the constitution[27].

Governments in Karnataka and Madhya Pradesh were toppled this way, and those people became ministers in the new administration for six months until elections were held on those seats. It is past time for Parliament to act, as overthrowing governments in this manner is a defection of the democratic mandate.

Schedule 11: Powers, authority, and responsibilities of Panchayats

The schedule denotes the Panchayats’ powers, authority, and responsibility at the national, state, and local levels, as outlined in Article 243, as well as the Gandhian idea of village panchayats, as outlined in Article 40.

Land reforms, agriculture, soil conservation, animal husbandry, fisheries, and other topics are among those addressed by the program. The eleventh schedule was added by the Amendment Act of 1992[28], covering 29 matters.

Schedule 12: Powers, authority, and responsibilities of the Municipality

This schedule is related to article 243-W and covers the description of the powers, authority, and responsibilities of the urban local governments, i.e., municipalities. It deals with 18 matters relating to urban planning including town planning, planning for economic and social development, and construction of buildings, water supply, public health, etc. This schedule is also a later addition to the Indian Constitution.[29]

Conclusion

To recapitulate and conclude, the Indian constitution’s Schedules are built from the articles of the constitution. Parts are prescriptive, while schedules are descriptive. The Indian Constitution is one of the world’s most comprehensive and detailed written constitutions, and as a result, it covers a wide range of organs, institutions, and bodies that are essential for the governance of an ideal state. However, there are still some areas and issues that require discussion but are not critical enough in nature to be included among the Constitution’s main Articles.

The schedules play a vital role in legislation by providing precision and coherency, which is why schedules are used in a range of laws for several purposes. They are significant because they avoid overfitting, provide a great deal of information, are succinct, are easily adaptable, and are organized chronologically.

The article concludes that the job of the courts and politicians is not only to construct schedules but also to assess the subject matter of the schedules to ensure that it is a contribution to the system rather than a problem creator, as evidenced by the example of the ninth schedule.

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References:

[1] Dr. Abhijit Sahoo & Dr. Tusarkanta Pattanaik, Making of the Constitution of India: A Critical Analysis, 1 Odisha Review 7, 8 (2005).

[2] Lexlife India, https://lexlife.in/2020/05/11/analysis-schedules-of-indian-constitution/ (last visited Aug. 17, 2021).

[3] Rab Butler, The Art of the Possible (1^st ed. 1971).

[4] M. Laxmikanth, Indian Polity (5ht ed. 2017).

[5] Jammu and Kashmir Reorganization (Amendment) Bill, 2021

[6] INDIA CONST.  Schedule II.

[7] Business insider, https://www.businessinsider.in/politics/india/news/salary-of-prime-minister-president-and-mp-in-india-before-and-after-paycut/articleshow/75044715.cms (last visited Aug. 18, 2021).

[8] INDIA CONST.  Schedule IV.

[9] Know India, https://knowindia.gov.in/profile/the-union/legislature.php (last visited Aug. 18, 2021).

[10] INDIA CONST. art. 244, cl. 1.

[11] Land and Governance Under the Fifth Schedule: An Overview of Law, Ministry of tribal affairs, Government of India https://tribal.nic.in/downloads/FRA/5.%20Land%20and%20Governance%20under%20Fifth%20Schedule.pdf

[12] Amarendra Nath Dutta vs. State of Bihar, AIR 1983 Patna 151.

[13] D. Uphing Maslai v. State of Assam, AIR 2002 Gau 64.

[14] Dr. Jayantha Rongpi v. State of Assam, 1994 (1) GLJ 229.

[15] INDIA CONST. art. 246.

[16] M. Karunanidhi vs Union of India, 1979 AIR 898.

[17] The Constitution (Twenty-first Amendment) Act, 1967.

[18] The Constitution (Seventy-first Amendment) Act, 1992.

[19] The Constitution (Ninety-second Amendment) Act, 2003.

[20] The Constitution (First Amendment) Act, 1951

[21] I.R. Coelho v. State of T.N., (2007) 2 SCC 1.

[22] Glanrock Estate (P) Ltd. v. State of T.N., Writ Petition (C) No. 408 of 2003 and Civil Appeal Nos. 1344-1345 of 1976.

[23] INDIA CONST.  Schedule IX.

[24] Kihoto Hollohon v. Zachilhu, AIR 1993 SC 412; Ravi S Naik v. Union of India, AIR 1994 SC 1558; Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly (1993) 2 SCC 703; Rajendra Singh Rana vs. Swami Prasad Maurya, (2007) 4 SCC 270.

[25] Dinesh Goswami Committee on electoral reforms (1990); Halim Committee on anti-defection law (1998); Law Commission (170th Report, 1999); Constitution Review Commission (2002).

[26] Kihoto Hollohon v. Zachilhu, AIR 1993 SC 412.

[27] Keshvananda Bharati v. State of Kerala, AIR (1973) 4 SCC 225.

[28] The Constitution (Seventy-third Amendment) Act, 1992.

[29] The Constitution (Seventy-fourth Amendment) Act, 1992.