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India has submitted the Sarkaria Commission report – giving ideas or guidelines on Centre-State relations – to be studied by the All Party Committee tasked with the duty of formulating proposals to resolve the ethnic conflict.

The Commission was appointed in 1983 under the Chairmanship of Justice R.S. Sarkaria with Shirt B. Sivaraman and Dr. S.R. Sen as its members and was mandated to recommend changes after examining and reviewing the existing arrangements between the Union and States in regard to powers, functions and responsibilities.

Following are some of the Commission’s main recommendations:

Legislative Relations

Residuary powers of legislation in regard to taxation matters should continue to remain exclusively in the competence of Parliament.

Residuary field other than that of taxation should be placed in the Concurrent List.

The enforcement of Union laws particularly those relating to the Concurrent sphere, is secured through the machinery of the States.

To secure uniformity on the basic issues of national policy with respect to the subject of a proposed legislation, consultation may be carried out with State Governments individually and collectively at the forum of the proposed Inter-Governmental Council.

It is not necessary to make the proposed consultation a constitutional obligation. This will make the process needlessly rigid. The advantage of a convention or rule of practice is that it preserves the flexibility of the system and enables it to meet the challenge of an extreme urgency or on unforeseen contingency.

This convention as to consultation with the State Governments, individually, as well as collectively, should be strictly adhered to except in rare and exceptional cases of extreme urgency or emergency.

The best way of working Union-State relations in the sphere of education would be that the norms and standards of performance are determined by the Union and professional bodies.

There is potential for misuse of power by the two levels of government.

There is a case for providing appropriate safeguards against the misuse of this power, in the Commissions of Inquiry Act, itself. Such safeguards can be:

(i) that no Commission of Inquiry against an incumbent or former Minister of a State Government on charges of abuse of power or misconduct shall be appointed by the Union Government unless both Houses of Parliament, by resolution passed by the majority of members present and voting require the Union Government to appoint such a Commission or, the Minister or Ministers concerned request in writing for the appointment of such a Commission.

(ii) No Commission of inquiry shall be appointed to inquire into the conduct of a Minister (incumbent or former) of a State Government with respect to a matter of public importance touching his conduct while in office, unless the proposal is first placed before the Inter-Governmental Council.

Ordinarily, the Union should occupy only that much field of a Concurrent subject on which uniformity of policy and action is essential in the larger interest of the nation, leaving the rest and details for State action within the broad frame-work of the policy laid down in the Union Law. Further, whenever, the Union proposes to undertake legislation with respect to a matter in the Concurrent List, there should be prior consultation not only with the State Governments, individually, but also, collectively, with the Inter-Governmental Council which as we have recommended, should be established.Any law passed by Parliament with respect to a matter in List II should not be of perpetual duration but should remain in force for a specific term, not exceeding three years.

To remedy the unfortunate situation in which the local bodies may find themselves, a comprehensive law or an Act may be passed making liable the properties and administrations of all undertakings like Railways, Posts and Telegraphs, Telephones, etc., of the Union at such fair and reasonable rates as may be notified from time to time by the Union Government after taking into consideration the recommendations of a person, who is or has been a judge of a High Court or a District judge.

Cases may arise, particularly in the modern context where States may feel aggrieved on account of taxes imposed by the Union on the trade or business. The scheme of the Constitution envisages remedial action where one or more State Governments feel aggrieved on account of any action of the Union Government covered by clause (2) of Article 289, adequate consultation should be held with the State Governments or the National Economic and Development Council proposed by us and action taken to accord relief. Before a law is passed by Parliament by virtue of clause (3) of article 286 read with Entries 92A and 92B of List I, the State Governments and the National Economic and Development Council should be consulted and the resume of their comments should be placed before Parliament along with the Bill.

Administrative Relations

Articles 256, 257 and 365 are wholesome provisions, designed to secure coordination between the Union and the States for effective implementation of Union laws and the national policies indicated therein.

Nonetheless, a direction under Articles 256 and 257 and the application of the sanction under Article 365 in the event of its non-compliance, is a measure of last resort. Before the issue of directions to a State or application of sanction under Article 365, utmost caution should be exercised and all possibilities explored for settling points of conflict by all other available means.

Federalism is more a functional arrangement for cooperative action, than a static institutional concept. Article 258 provides a tool, by the liberal use of which, cooperative federalism can be substantially realised in the working of the system.

A more extensive and generous use of this tool should be made, than has hitherto been done, for progressive decentralization of powers to the Governments of the States and/or their officers and authorities.

Role of the Governor

The Governor who is appointed, should be an eminent person, outside the State, detached figure not too intimately connected with local politics. It is desirable that a politician at the Union is not appointed as a State Governor.

In choosing a Chief Minister, the Governor should be guided by the following principles:

The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.

If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.

If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

An alliance of parties that was formed prior to the Elections.

The largest single party staking a claim to form the Government with the support of others, including independents.

A post-electoral coalition of parties with all the partners in the coalition joining the government.

A post-electoral alliance of parties with some of the parties in the alliance forming a Government and the remaining parties, including independents supporting the Government from outside.

The Governor while going through the process described above should select a leader who in his (Governor's) judgement is most likely to command a majority in the Assembly.

A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be religiously adhered to with the sanctity of a rule of law.

The Governor cannot dismiss his Council of Ministers so long as they continue to command a majority in the Legislative Assembly. Conversely, he is bound to dismiss them if they lose the majority but do not resign.

When the Legislative Assembly is in session, the question of majority should be tested on the floor of the House.

The Governor may in the exigencies of certain situations, exercise his discretion to summon the Assembly only in order to ensure that the system of responsible Government in the State works in accordance with the norms envisaged in the Constitution.

When the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting, or advises its summoning for a date falling beyond this period, the Governor can summon the Assembly within the period of six months.

After advice is given to dissolve the Assembly by a minority which has lost or is likely to have lost its majority the Governor can dismiss the Council of ministers if they have lost the majority and do not resign, should test the majority of the House or if a no-confidence motion against a ministry is pending and a prorogation is suggested the Governor should advise the Chief Minister to postpone the prorogation and face the motion.

If ultimately a viable ministry fails to emerge, the Governor should first consider dissolving the Assembly and arrange fresh elections.

If a fresh election cannot be held immediately on account of a national calamity or state wide disturbances or it is too early for an election the Governor should recommend Proclamation under President’s rule.

The Governor, while sending ad hoc or fortnightly reports to the President, should normally take his Chief Minister into confidence, unless there are over-riding reasons to the contrary.

Reservation of Bills by Governors for President’s Consideration and Promulgation of Ordinances

Normally in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers.

Article 200 does not invest the Governor, expressly or by necessary implication, with a general discretion in the performance of his functions there under, including Reservation of Bills for the consideration of the President.

However, in rare and exceptional cases, he may act in exercising his discretion, where he is of opinion that the provisions of the Bill are patently un-constitutional, such as where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation, or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.

In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the constitution.

Emergency Provisions

Article 356 should be used very sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a break-down of constitutional machinery in the State.

All attempts should be made to resolve the crisis at the State level before taking recourse to the provisions of Article 356.

The availability and choice of these alternatives will depend on the nature of the constitutional crisis, its causes and exigencies of the situation.

A warning should be issued to the errant State, in specific terms that it is not carrying on the Government of the State in accordance with the constitution.
When an external aggression or internal disturbance paralyses the State Administration creating a situation drifting towards a potential breakdown of the constitutional machinery of the State, all alternative courses available to the Union for discharging its paramount responsibility under Article 355 should be exhausted to contain the situation.

(a) In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such a government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, if there is one, to continue as a caretaker government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of mal-administration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker government should be allowed to function. As a matter of convention, the caretaker government should merely carry on the day-to-day government and desist from taking any major policy decision.

(b) If the important ingredients described above are absent, it would not be proper for the Governor to dissolve the Assembly and install a caretaker government. The Governor should recommend proclamation of President's rule without dissolving the Assembly.

Deployment of Union Armed Forces in a State for Public Order Duties

The existing relationship between the Union armed forces and the State civil authorities and the manner of their functioning as prescribed in the relevant Union laws and procedures do not need any change.

However, before the Union Government deploys its armed and other forces in a State in aid of the civil power otherwise than on a request from the State Government or declares an area within a State as "disturbed", it is desirable that the State Government should be consulted, wherever feasible, and its cooperation sought, even though prior consultation with the State Government is not obligatory.

Each State Government may work out, in consultation with the Union Government, short-term and long-term arrangements for strengthening its Armed Police. The objective will be to become largely self-reliant in the matter of Armed Police so that the assistance of the Union armed forces will be necessary only in cases of very severe disturbances.

While advising and, if necessary, assisting a State Government in strengthening its Armed Police force, the Union Government may take into account the following factors:

The degree of confidence that the people of the State (particularly those living in disorder-prone areas) have in the State Police, armed and unarmed; if large-scale public disorders are frequent, the causes therefore, and the steps which the State Government should take on the social, economic and other fronts to prevent disorder. (Mere strengthening of Armed Police may not achieve the objective; the inadvisability of a State (particularly if it is a small State) expanding its Armed Police, if it cannot be fully utilized throughout the year; and a group of neighbouring States may, by consensus, have a standing arrangement for the use of the armed police of one another in case of need. The Union Government may devise by consensus the regional groupings, keeping in view contiguity and logistics and encourage States to participate fully.

The Zonal Council would be the best forum for achieving consensus of the States within a zone for devising such an arrangement.

There should be a system of interchange of the officers of the State Armed Police Forces with those of the Central Reserve Police Force, the Border Security Force and the Union armed forces.

They should also have common regional training centres, so as to facilitate better exchange of techniques and information and a more integrated system of operations when the Union armed forces are deployed in aid of the civil power in a State.

Inter-State River Water Disputes

Once an application under the Inter-State River Water Disputes Act is received from a State, it should be mandatory on the Union Government to constitute a Tribunal within a period not exceeding one year from the date of receipt of the application of any disputant State. The Inter-State River Water Disputes Act may be suitably amended for this purpose.

The Inter-State Water Disputes Act should be amended to empower the Union Government to appoint a Tribunal, suo-moto, if necessary, when it is satisfied that such a dispute exists in fact.

There should be a Data Bank and information system at the national level and adequate machinery should be set up for this purpose at the earliest. There should also be a provision in the Inter-State Water Disputes Act that States shall be required to give necessary data for which purpose the Tribunal may be vested with powers of a Court.

The Inter-State Water Disputes Act should be amended to ensure that the award of a Tribunal becomes effective within five years from the date of constitution of a Tribunal. If, however, for some reasons, a Tribunal feels that the five-year period has to be extended, the Union Government may on a reference made by the Tribunal extend its term.

The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal’s award really binding.

Miscellaneous matters – Language

The growth of the official language can best be fostered by following the command of Article 351 both in letter and in spirit.

The work of the Government, both Union and States, which involves or affects the local people must be carried on in the local language. This is even more important in a Welfare State. It is necessary that all forms, applications, letters, bills, notices, etc. are available in the local language as well as the official language. This is of equal relevance to State Governments which have sizeable linguistic minorities concentrated in certain areas.

Effective steps should be taken to implement the three language formula in its true spirit uniformly in all states in the interests of unity and integrity of the country.

Politicization of language has often tended to threaten the unity and integrity of the country. There is need for creating appropriate forums at various levels not only to defuse any potentially explosive situation but also for evolving a positive approach. The Inter-Governmental Council and the Zonal Councils can play a very useful role in this connection.