Schedules and review of the working of the Constitution

1. The twelve Schedules

The Constitution began with eight Schedules. The Ninth was added by the First Amendment (1951), the Tenth by the Fifty-second (1985), and the Eleventh and Twelfth by the Seventy-third and Seventy-fourth (1992). (An earlier Tenth Schedule, on the association of Sikkim, was added in 1974 and removed in 1975 when Sikkim became a State.)

• First — the States and Union territories and their territories (Articles 1 and 4).
• Second — emoluments, allowances and privileges of the President, the Governors, the presiding officers of Parliament and State legislatures, judges of the Supreme Court and High Courts, and the Comptroller and Auditor-General.
• Third — forms of oaths and affirmations for Ministers, candidates and members of legislatures, judges and the CAG.
• Fourth — allocation of seats in the Rajya Sabha to the States and Union territories.
• Fifth — administration and control of Scheduled Areas and Scheduled Tribes, with Tribes Advisory Councils (Article 244(1)).
• Sixth — administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram through autonomous district councils (Article 244(2)).
• Seventh — the Union, State and Concurrent Lists (Article 246), originally of 97, 66 and 47 entries. The Forty-second Amendment moved education, forests and some other subjects from the State to the Concurrent List.
• Eighth — the languages of India, now twenty-two after the Ninety-second Amendment (2003) added Bodo, Dogri, Maithili and Santhali.
• Ninth — Acts and regulations protected by Article 31B, mostly land reform laws, now more than 280 entries.
• Tenth — disqualification on the ground of defection (Articles 102(2) and 191(2)).
• Eleventh — twenty-nine matters that may be devolved on Panchayats (Article 243G).
• Twelfth — eighteen matters that may be devolved on Municipalities (Article 243W).

2. The Ninth Schedule

Article 31B, inserted with the Ninth Schedule by the First Amendment, provides that no Act placed in the Schedule shall be deemed void on the ground that it is inconsistent with any fundamental right, notwithstanding any judgment to the contrary. It was designed to save zamindari abolition from challenges under Articles 14, 19 and 31. Over time it was used for laws having little to do with land reform, including the Tamil Nadu reservation law of 1994 providing 69 per cent reservation.

The limit came in two steps. Waman Rao v. Union of India, 1980 INSC 216, (1981) 2 SCC 362, held that additions after 24 April 1973 are open to basic structure review. In I.R. Coelho (dead) by LRs v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1, a nine-judge Bench held that such laws can be tested on whether they damage the basic structure, including the essence of the rights in Articles 14, 19 and 21, and that a law once struck down cannot be saved simply by placing it in the Schedule. Article 31B is not a device to put a law beyond the Constitution.

3. The Tenth Schedule

The anti-defection law disqualifies a member who voluntarily gives up membership of his party or votes against its whip without permission, with an exception for a merger supported by two-thirds of the legislature party. The “split” exception of one-third was deleted by the Ninety-first Amendment (2003). In Kihoto Hollohan v. Zachillhu, 1991 INSC 287, 1992 Supp (2) SCC 651, the Schedule was upheld, but paragraph 7, which barred the courts, was struck down: the Speaker deciding a disqualification acts as a tribunal and is subject to judicial review.

4. Review of the working: the National Commission (NCRWC)

The National Commission to Review the Working of the Constitution was set up by the Government of India in February 2000, chaired by Justice M.N. Venkatachaliah, a former Chief Justice of India. Its terms of reference confined it to changes within the framework of parliamentary democracy and without disturbing the basic structure. It reported in March 2002 with about 250 recommendations. The ones to remember:

• Fundamental rights. A right to education for children up to fourteen, adopted as Article 21A by the Eighty-sixth Amendment (2002); and further rights such as a right to a clean environment, safe drinking water and legal aid.
• Defection. A defector should be barred from ministerial or other paid political office until re-elected. The Ninety-first Amendment (2003) adopted this in part and also capped the Council of Ministers at fifteen per cent of the strength of the Lok Sabha or Assembly.
• Article 356. To be used only as a last resort; the Governor's report should be a speaking document; the majority should be tested on the floor; and the Assembly should not be dissolved before Parliament approves the proclamation — much of which S.R. Bommai had already laid down.
• Judicial appointments. A National Judicial Commission with judicial members in the majority. A different body, the NJAC, was later created by the Ninety-ninth Amendment and struck down in 2015.
• Electoral reform. Disqualification of candidates charged with serious offences, disclosure of assets and criminal antecedents, and steps towards State funding of elections.

The Commission was criticised at its birth by some political parties as a backdoor attempt to rewrite the Constitution; its terms of reference, limited to working within the basic structure, were the answer.

5. Sarkaria and Punchhi, briefly

• Sarkaria Commission (set up 1983, reported 1988), on Centre–State relations: Article 356 only as a last resort, Governors to be eminent persons from outside the State and not active politicians, and a permanent Inter-State Council under Article 263, which was set up in 1990.
• Punchhi Commission (set up 2007, reported 2010): a fixed tenure for Governors with removal only through a defined procedure, and the idea of a “localised emergency” confined to a district or part of a State as an alternative to dismissing a whole State government.

6. How has the Constitution worked? An assessment

On the credit side: the Constitution has lasted more than seventy-five years in a country of great diversity, while many constitutions adopted around the same time collapsed. Power has changed hands peacefully through elections at every level. The federal structure absorbed the linguistic reorganisation of States, and the Seventy-third and Seventy-fourth Amendments gave constitutional status to local government. Judicial review, the basic structure doctrine and the expansion of Article 21 have given citizens real remedies. The amendment process has been flexible enough for more than a hundred amendments, among them the Hundred-and-sixth (2023), which reserves one-third of seats in the Lok Sabha and State Assemblies for women, while the core has held.

On the debit side: the Emergency of 1975–77 showed how the text could be used to suspend democracy, and only later amendments closed the gaps. Article 356 was misused for decades. Defections, the conduct of Governors and delays in deciding disqualification petitions remain live problems. Pendency in the courts weakens the rights the Constitution promises, and the gap between Directive Principles and social reality is large.

The fair conclusion is that the failures have mostly been failures of those working the Constitution rather than of the document, which echoes Dr. Ambedkar's warning in the Constituent Assembly that however good a Constitution may be, it will turn out bad if those called to work it are a bad lot. Where the text did fail, as in 1975, it was repaired by the ordinary process of amendment and judicial interpretation, which is itself the best evidence that it works.

How this is examined

A short note on the Schedules, or on the Ninth or Tenth Schedule alone, is common; the Ninth must end with Coelho and the Tenth with Kihoto Hollohan. The essay asks for a critical review of the working of the Constitution, or for the recommendations of the NCRWC. Give the Commission's origin and limits, five recommendations with what became of them, a line each on Sarkaria and Punchhi, and close with the balanced assessment in section 6.