The use of the expression âlaw and orderâ is very common and the terms âlawâ and âorderâ have been coupled for centuries. Everyone understands âlawâ. What is âorderâ? In whichever way the word is defined, typically as the opposite of disorder in society, âorderâ has a connotation of enforcement of the law. In other words, âorderâ requires the efficient functioning of the courts and police. Economists have a technical definition of âpublic goodâ. Ignoring that narrow and technical definition of public good, loosely, we understand âpublic goodâ 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 âlaw and orderâ is a public good. If not delivered efficiently by the government, in the real â or reel â world, the private sector may step in to fill the breach, with undesirable consequences. The expression âgovernmentâ should not be used in the singular, since there are layers in our three-tiered structure of governance. Article 246 of the Constitution mentions three lists in the Seventh Schedule â union, state and concurrent lists.
The union list makes no mention of âorderâ. It only mentions: âDeployment 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.â The state list mentions âpublic orderâ and âpolice (including railway and village police)â.
âNotwithstanding 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.â Other than those steeped in constitutional history, I donât think too many people 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 Union or state level. There is a Seventh Schedule issue that is thus linked to the insertion of a local body list. Countervailing pressure by citizens increasingly demands efficient delivery of such public goods. But without delegation of funds, functions and functionaries, presently left to the whims of state governments, local governments are unable to respond.
The point was raised again in 1971 by the Rajamannar Committee â formally known as Centre-State Relations Inquiry Committee â set up by Tamil Nadu. âThe 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,â it noted. Why should one take the Seventh Schedule as given, simply because the Government of India Act of 1935 gave us those principles? One shouldnât convey the impression that todayâs Seventh Schedule is identical to the one in 1950. Items have moved from the state list to the concurrent list and from the concurrent list to the union list. Hitherto, such limited movements have reflected greater centralisation, such as in 1976. But 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 police, which is squarely in the state list. We know that the states have been lackadaisical in implementing the 2006 Supreme Court ruling in the Prakash Singh case. In the quote from the union list, there is a reference to âCentral Armed Police Forcesâ and there are seven of these. That perfunctory implementation may be the reason why 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, the Vidhi Centre for Legal Policy brought out a report on how the Seventh Schedule might be cleaned up. N K 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, itâs not an issue that should be ducked and the basic structure doctrine doesnât stand in the way.
This column first appeared in the print edition on January 13, 2022 under the title âFor order to prevailâ. The writer is chairman, Economic Advisory Council to the PM. Views are personal
