The expression “law and order” is ubiquitous and the terms “law” and “order” have been coupled for centuries. Everyone understands “law”. What is “order”? Howsoever the word is defined, typically as the opposite of disorder in society, “order” has a connotation of enforcement of law. “Order” requires efficient functioning of courts and police. Economists have a technical definition of “public good”. Ignoring that narrow and technical definition, loosely, we understand “public good” as something that must be delivered by the government. It cannot, or should not, be delivered by the private sector. Notwithstanding the use of private security guards, most people will agree “law and order” is a public good. If not delivered efficiently by the government, the private sector may step in to fill the breach, with undesirable consequences. The expression “government” should not be used in the singular, since there are layers in our 3-tiered structure of governance. Article 246 of the Constitution mentions three lists in the Seventh Schedule, Union, State and Concurrent.
Union List makes no mention of “order”. It only mentions, “Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.” The State List mentions “public order” and “police (including railway and village police)”. “Notwithstanding anything in the two next succeeding subsections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act.” Other than those steeped in Constitutional history, not too many will recognise this quote. It comes from Government of India Act, 1935 and is not a quote from the present Constitution. The present Seventh Schedule and Union (at that time Federal) List, State (at that time Provincial) List and Concurrent Lists are inherited from that 1935 piece of legislation. Every public good is optimally delivered at a certain level of government. Delivery becomes sub-optimal both above that level and below that level. Most public goods people will think of are efficiently delivered at the local government level, not the Union or State level. There is a Seventh Schedule issue that is thus linked to insertion of a local body list. Countervailing pressure by citizens demands efficient delivery of such public goods; but, without delegation of funds, functions and functionaries—presently left to the whims of States—the local government is unable to respond.
In hindsight, it is a bit surprising that Constituent Assembly debates (in 1949) on Article 246 (at that time Article 217 in the Draft) were so perfunctory. B Das (former Odisha CM) did raise the issue. “There are, Sir, 91 items in List I alone. There are of course some honourable members who have given notice of amendments in regard to particular items. But if there is a general discussion concerning the principles involved in the Union, concurrent and state lists, it will considerably clarify the position and will help us to understand the lists much better.” Dr Rajendra Prasad, chairing the debate, didn’t agree and debate was limited to language and discussion on items included. That point was raised again in 1971 by the Rajamannar Committee set up by Tamil Nadu, formally known as Centre-State Relations Inquiry Committee. “The Committee is of the opinion that it is desirable to constitute a High Power Commission, consisting of eminent lawyers and jurists and elderly statesmen with administrative experience to examine the entries of Lists I and III in the Seventh Schedule to the Constitution and suggest redistribution of the entries.” Why should one take the Seventh Schedule as given, simply because the Government of India Act of 1935 gave us those principles? One shouldn’t convey the impression that today’s Seventh Schedule is identical to the one in 1950. Items have moved from State List to Concurrent List and from Concurrent List to Union List. Hitherto, such limited movements have reflected greater centralisation, such as in 1976. But a scrutiny on the basis of first principles need not always lead to greater centralisation. The Rajamannar Committee was set up by a State government.
Take the police, squarely in the State List. We know that the States have been lackadaisical in implementing the 2006 Supreme Court ruling in Prakash Singh. In the quote from the Union List, there is a reference to “Central Armed Police Forces” and there are seven of these. That perfunctory implementation may be the reason why the States frequently ask for central police forces to enforce law and order. This is similar to State Highways being converted to National Highways, so that they are taken care of better. A couple of years ago, on the basis of first principles, Vidhi did a report on how the Seventh Schedule might be cleaned up. NK Singh, chairman of 15th Finance Commission, has also often made this point, in addition to scrutiny of Article 282. The 1983 Sarkaria Commission and the 2002 National Commission to Review the Working of the Constitution ducked the issue. For the sake of better governance, it is not an issue that should be ducked and the basic structure doctrine doesn’t stand in the way.
The author is Chairman
EAC to the PM
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