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Seventh Schedule

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 08-Aug-2024

Introduction

  • The Seventh Schedule of the Constitution of India, 1950 (COI) provides for three lists.
  • These lists are
    • Union List (List I)
    • State List (List II)
    • Concurrent List (List III)

Article 246 of COI

  • Article 246 of the COI is found under the heading ‘Distribution of legislative Powers’ in the Constitution.
  • It enunciates the subject matters on which the Legislative Assemblies and the Parliament have power to make laws.
  • Article 246 (1) provides that notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). This would include entries like defence, foreign affairs, railways, banking etc.
  • Article 246 (2) provides that notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
    • The Concurrent list serves as a tool to loosen the excessive rigidity of two-fold distribution.
    • As per the report of the Sarkaria Commission concurrent list subjects are neither exclusively of national concern or of local concern and hence occupy a constitutional grey area.
  • Article 246 (3) provides that subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).
  • Thus, the seventh Schedule provides for three lists that enumerate the subject matters on which the Parliament or the State Legislature has power to make laws.

Lists to Differentiate Legislative Powers

  • There are three Lists which provide for distribution of legislative powers under the seventh Schedule of the COI:
  • Union List (List I):
    • It contains 98 subjects (originally 97) and comprises the subjects which are of national importance and admit of uniform laws for the whole of the country.
    • Only Parliament can legislate with respect to these matters e.g. Defence, Foreign Affairs, Banking, Currency, Union Taxes, etc.
  • State List (List II):
    • It contains 59 subjects (originally 66) and comprises subjects of local or State interest.
    • It lies within the legislative competence of the State Legislatures, viz. Public Order and Police, Health, Agriculture, etc.
  • Concurrent List (List III):
    • It contains 52 subjects (Originally 47) with respect to which; both Union Parliament and the State Legislature have concurrent power of legislation. The Concurrent List (not found in any federal Constitution) was to serve as a device to avoid excessive rigidity to a two-fold distribution.
    • It is a 'twilight zone', as for not so important matters, the States can take initiative, while for the important matters, the Parliament can do so.

Significance of Seventh Schedule

  • Clear Responsibilities: The division of subjects into the state list, central list, and concurrent list makes the constituent units of the federation conscious of their respective roles.
  • Harmony: The clear separation of powers between the center and states in the 7th schedule prevents the union from changing the fundamentals of the constitution, thus, it helps in maintaining peace and harmony between the center and states.
  • Division of Powers: The 7th schedule provides a clear division of powers between the center and states which prevents conflict between center and states.
  • Unity and Integrity of India: After partition, national integration was of utmost importance, and only a strong central government could protect the nation against external threats.
  • Autonomy to States: The devolution of legislative powers to states makes the state independent of a union in their respective sphere.

Evolution of Seventh Schedule

  • The scheme of distribution of legislative powers into three lists was laid down for the first time in Government of India Act, 1935.
  • Post independence, the Constituent Assembly adopted a centralized constitutional structure, not a purely federal one.
  • The Joint Committee Report of 1934 which preceded the enactment of Government of India Act, 1935 gives the rationale behind the distribution of legislative powers:
    • It is an essential feature of Provincial Autonomy and as being itself the means of defining its ambit.
    • This was also aimed at reducing disputes over the scope of the Centre State jurisdiction.

Need to Revisit Seventh Schedule

  • There is a need to revise the Seventh Schedule on the following grounds:
    • The need for governance is not static and is bound to change. A subject that was vital for legislative allocation in 1950 may no longer be relevant in the present.
    • The Chairman of 15th Finance Commission also called for a relook at the 7th Schedule in order to strengthen the fiscal federalism.
    • There have been demands by multiple States over the years, usually calling for greater powers to be vested in them or complete restructuring of Seventh Schedule.
      • The State of West Bengal adopted a memorandum affording greater control over industries to States.
      • The State of Orissa desired more State autonomy and decentralization in the matter of finance.
      • Rajamannar Committee in Tamil Nadu, 1969 and the Anandpur Sahib Resolution in Punjab in 1973 recommended transferring several entries to the State List.

Doctrines Employed in Seventh Schedule by Judiciary

  • Doctrine of Implied Powers:
    • A major reason for acrimony between the Centre and the State in the Seventh Schedule is the shadow of doctrine of implied powers.
    • This doctrine was articulated by Chief Justice Marshall in the US Supreme Court.
    • The lack of well-defined and self-contained categories of competence has led to confusion regarding allocation of legislative responsibility.
  • Doctrine of Pith and Substance:
    • The term pith means ‘true nature’ and Substance means ‘the most important or essential part of something’.
    • In the case of Premchand Jain v. RK Chhabra (1984), the Court held that any enactment which substantially falls within the powers expressly conferred by the Constitution upon the Legislature enacting it, cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature.
    • Most recently this doctrine was invoked in the case of Animal Welfare Association v. Union of India (2023), the Court explaining the doctrine of pith and substance held that “If the pith and substance of the legislation is covered by an entry within the permitted jurisdiction of the Legislature any incidental encroachment in the rival field is to disregarded.”
  • Doctrine of Colourable Legislation:
    • It is based on the maxim that what cannot be done directly can also not be done indirectly.
    • As per this doctrine the Court must not look at the form or the label but must look at the substance of law.
    • Thus, the Court must look at the object as well as the effect of the law.

Conclusion

The Seventh Schedule of the COI provides for the three lists- Union List, State List and Concurrent List. These lists enumerate the subject matters on which the various legislative bodies would have power to make laws.