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Cleaning Constitutional Cobwebs Reforming the Seventh Schedule

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Cleaning Constitutional Cobwebs Reforming the Seventh Schedule Cleaning Constitutional Cobwebs Reforming the Seventh Schedule Sohini Chatterjee Akshat Agarwal Kevin James Arghya Sengupta About the Authors Sohini Chatterjee, Akshat Agarwal and Kevin James are Research Fellows at the Vidhi Centre for Legal Policy. Dr. Arghya Sengupta is Research Director at the Vidhi Centre for Legal Policy. Acknowledgments The authors would like to thank Lalit Panda, Research Fellow, Vidhi Centre for Legal Policy for his inputs. We would also like to thank Abhijeet Singh Rawaley, Pranay Modi and Shubham Dutt for research assistance. Errors, if any, in the report are the authors’ alone. The Vidhi Centre for Legal Policy is an independent think-tank doing legal research to make better laws and improve governance for the public good. For more information, see www.vidhilegalpolicy.in Contents Chapter 1: Introduction .............................................................................................................................................................................. 7 A. Background to Indian Federalism ................................................................................................................................................. 7 B. Federal Scheme of the Indian Constitution ............................................................................................................................... 7 C. Cleaning Constitutional Cobwebs ................................................................................................................................................ 8 D. Chapters of the Report ..................................................................................................................................................................... 8 Part I ................................................................................................................................................................................................................ 10 Chapter 2: Tracing the Past – Pre-Independence History and Underlying Principles ...................................................... 10 A. Introduction: Analysing Constitutional Antecedents ......................................................................................................... 10 B. Decentralisation as a Principle of State Formation in pre-colonial India ..................................................................... 10 C. Colonial Rule and the Deepening Experience of power-sharing ..................................................................................... 11 D. Partition and the move towards a strong Centre ................................................................................................................. 12 1. Predominant Considerations in the Constituent Assembly ......................................................................................... 13 2. The nature of federalism adopted in the Indian Constitution ..................................................................................... 14 3. Rationale behind the list system contained in the Seventh Schedule....................................................................... 14 4. Some dissenting voices in the Constituent Assembly .................................................................................................... 15 E. Conclusion: A break in the historical narrative ...................................................................................................................... 16 Chapter 3: Developments Since Independence and Making a Case for Cleaning Constitutional Cobwebs ............ 17 A. Introduction: Reforming the Seventh Schedule .................................................................................................................... 17 B. Robustness of Enumeration in Federal Constitutions ........................................................................................................ 17 C. Constitutional Intent: Exhaustiveness as a Fundamental aspect of the Seventh Schedule .................................. 18 1. Historical Circumstances .......................................................................................................................................................... 18 2. Analysis of residuary powers ................................................................................................................................................... 19 D. Continuing Exhaustiveness: The Need for Periodic Review and Cleaning Constitutional Cobwebs ............... 20 E. Post-independence Developments as Justifying Reform .................................................................................................. 21 1. State demands for greater autonomy................................................................................................................................... 22 2. Recommendations of Commissions appointed by the Central Government ........................................................ 22 F. Conclusion: Tying the Strands ...................................................................................................................................................... 24 Part II ............................................................................................................................................................................................................... 25 Chapter 4: An Analytical model to assess the Seventh Schedule .............................................................................................. 25 A. Introduction ........................................................................................................................................................................................ 25 B. Old Principles ..................................................................................................................................................................................... 25 1. Ensuring the unity and integrity of India ............................................................................................................................. 25 2. Achieving balanced economic development ...................................................................................................................... 26 C. New Principles ................................................................................................................................................................................... 27 3. Promoting Cultural Autonomy and Diversity ................................................................................................................... 27 4. Enabling Responsive Governance ......................................................................................................................................... 29 D. Conclusion: Four Pillars of the Principle-based Approach ................................................................................................ 31 Chapter 5: Analytical model for Appropriate Placement of Entries ........................................................................................ 32 A. Introduction: Laying down the Analytical model .................................................................................................................. 32 B. Analytical model Explained ........................................................................................................................................................... 32 C. Analytical model Applied ............................................................................................................................................................... 35 D. Conclusion: Learnings from applying the Analytical model .............................................................................................. 48 Chapter 6: Rationalising the Seventh Schedule - Addition and Removal ............................................................................... 50 A. Introduction: Scope of the exercise ........................................................................................................................................... 50 B. Addition of Entries ............................................................................................................................................................................ 50 1. Disaster Management ................................................................................................................................................................ 50 2. Consumer Protection ................................................................................................................................................................. 51 3. Emerging Technologies .............................................................................................................................................................. 51 4. Environmental Protection ........................................................................................................................................................ 53 5. Terrorism ........................................................................................................................................................................................ 54 C. Removal of entries ............................................................................................................................................................................ 55 1. Entry 27,
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