Features of Sarkaria

Commission Report on
union and state relations
Introduction
There were persistent tensions between the centre and the states. In
response to that, the Ministry of Home Affairs of India on 9th June 1983
established a Commission to investigate and give recommendations on the
relationship between the centre and the states. The commission consisted of
Shri B. Sivaraman and Dr. S.R. Sen as members. The Commission was given
the name “Sarkaria Commission” because it was chaired by Justice Ranjit
Singh Sarkaria, a retired judge of the Supreme Court of India. It was formed
to review the working of the existing arrangements between the Union and
the States in the changed socio-economic scenario.

In all domains, the Commission studied and analyzed the functioning of the
current arrangements between the two in terms of powers, functions, and
duties, and provided the recommendations. Though the proposals were not
mandatory, the government did implement some of them, and many at times
the significance of these recommendations have been highlighted by the
supreme court such as the formation of an inter-state council, the
appointment of a governor, and article 356, etc.

Discussion
In October 1987, the Commission submitted its report to the Prime Minister of
that time, Rajiv Gandhi. The report included 247 specific recommendations
that were divided into 19 chapters. Despite the length of its reports, the
Commission advised that the status quo in the Centre-State relationship be
maintained. The recommendations made by the Sarkaria Commission were
not obligatory to follow but the court many times relied on these
recommendations. The commission gives recommendations particularly in
the areas of legislative concerns, roles of the Governor, and the application of
article 356 of the Indian constitution. Now let us discuss the
recommendations one by one.

Article 356 of the constitution

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Article 356 of the constitution provides for a president’s rule in the state. This
provision has been a source of dispute and discussion since its establishment
as the President’s rule has the potential to jeopardize the federal framework
of the nation. Because of the ambiguous and subjective nature of the word
‘otherwise,’ various members of the Constitutional assembly rejected this
provision of imposing President control in a state, claiming that Article 356
may result in union dominance over the state. B.R. Ambedkar said during the
constitutional debate that “I hope the President, who is endowed with these
powers, will take proper precautions before actually suspending the
administration of the provinces”. (See here)

According to the Sarkaria Commission, article 356 has been employed over
100 times since its independence. State administrations that were quite
legitimate have been fired in the past to either force them to fall in line or to
offer the party of Union government an opportunity to gain power in the
state. The most venomous usage of Article 356 will be recalled from the
1970s and 1980s. It was used 59 times between 1971 and 1984, with the
greatest number of occasions occurring during the Morarji Desai
government’s term in 1977-79. According to the Commission, this item has
been utilized for political reasons in 90% of the cases. As a result, it was
advised that the President’s rule specify the reasons why the state cannot be
managed according to the customary provisions of the Constitution. Before
resorting to Article 356 as a last resort, the federal government should give a
warning to the state administration as well as it should not be exploited for
political gain. The commission also suggested that article 356 should be
changed so that the President can only dissolve the State Legislature with
Parliamentary permission. Following the recommendations of the Sarkaria
Commission, the Supreme Court stated that the breakdown of constitutional
machinery meant that carrying out administration in a state was a genuine
impossibility, not a simple hardship. (See here)

Article 258 in Legislative Matters

Most states were dissatisfied with the way the Union used its legislative
powers to the detriment of states. The dispersion of powers was less
problematic, but the practice of such distributed powers was more
problematic. Furthermore, the residual authority of the union had been the
source of numerous issues.

After considering all the issues the commission suggested that the President
should delegate some executive functions of the Union in concurrence not
only with the states but districts also. This will aid in the promotion of
“cooperative federalism.”

It’s worth noting that the Sarkaria Commission believes the Zonal Councils
have failed to achieve their goals and complaints. The commission proposed
that these Councils be appointed under Art. 263 so that they can serve as
independent constitutional bodies, however, this suggestion has yet to be
adopted.

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Administrative Arrangements
The Sarkaria Commission observed that “Federalism is more of a functional
arrangement for cooperative activity than a static institutional concept” in
administrative matters.

Concurrent List
It was suggested that the central government should loosen its jurisdiction
over items on the concurrent list and consult with state governments before
implementing legislation on them. Considering the necessity for states to
mobilize more resources, taxation power, which was previously on the union
list, should be moved to the concurrent list. This surcharge must only be in
place for a short time.

Article 252
If parliament passes legislation under Article 252 (with mutual consent of two
or more nations), the commission recommended that it should only be in
effect for three years and not more than that. Although the States have given
Parliament the right to legislate, such laws can currently only be repealed by
Parliament at any time. The commission firmly denied the demand to limit
the power of the centre, stating that a strong centre is necessary to maintain
national unity and integrity. Over-centralization, on the other hand, was
identified as a preventable problem.

Judiciary
High Court judges should not be transferred without their will.

Inter-State River Water Tribunals

The award of the Inter-State River Water Tribunals should be made
immediately binding three months after the award is made, rather than after
the centre notifies the states.

Inter-State Council
The most important suggestion given by the Sarkaria Commission was the
establishment of a permanent Inter-state council under article 263 of the
constitution known as the “Intergovernmental Council.” As per article 263 of
the constitution “if it appears to the President at any time that the public
interest would be served by the formation of an Inter-State Council charged
with investigating and advising on inter-state disputes, as well as

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investigating and discussing subjects in which some or all of the States, or
the Union and one or more of the States, have a common interest.” (See
here) article 263 gives power to the President to define the nature of the
duties to be performed by such council as well as its organization and
procedure, to make recommendations on any such subject, including, in
particular, recommendations for better coordination of policy and action
concerning that subject. The commission suggested that the center should
designate an “Inter-State Council,” as per article 263 of the constitution, and
provided that such council should be renamed as “Intergovernmental
Council” to keep the political matters out.

By the presidential order a non-permanent constitutional body namely,

“Inter-state council” was established on May 28th, 1990, on the
recommendation of the commission. (See here)

The appointment of a Governor

The Sarkaria Commission has proposed various additional criteria for
appointing someone to the Governorship. They added that a politician from
the federal government’s dominant party should not be appointed Governor
of a state ruled by another party or a coalition of parties, and after consulting
the Chief Minister of the State in question, the governor must be nominated.
The commission also provided that the person so nominated should be a well-
known figure in some field and should come from outside the country and be
a distant figure who is not too involved in the local politics of the country.
Additionally, that person should not be involved in politics in the past,
especially in the recent past. The commission also took the minority group
into the consideration and suggested that the people who are members of
minority groups should be given an opportunity.

After the appointment, the term in the office of the governor must be
assured, as they should not be removed from the office unless there are
exceptionally compelling grounds or if disciplinary action is being taken
against the governor. They must be given a reasonable opportunity to
demonstrate their case against the grounds for their removal. If the Governor
is terminated or resigns, the Government should present a statement to both
Houses of Parliament detailing the reasons that led to the removal or
resignation.

In case the governor leaves the office, they should be barred from holding
any other constitutional position, for example, Governor, Vice-President, or
President, etc.

The commission added that the governor is not an agent of the Centre just
because they prepare a report according to Article 356. They do so because
they swear allegiance to the Constitution, the law, and the people of the
state. The governor must be satisfied that there is a genuine breakdown of

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constitutional machinery, which he must report in the public interest.
Additionally, at the end of their service, the governor should be provided with
reasonable post-retirement benefits.

Many of the suggestions made by the Sarkaria Commission, such as having

the governor come from outside the state, have been implemented. The
significance of putting the recommendation of the Sarkaria Commission on
governor selection and appointment into implementation has been
repeatedly emphasized by the Supreme Court. (See here)

Chief Minister chosen by the Governor

The commission recommended that the Governor should be guided by some
considerations while selecting a Chief Minister that is the party or
combination of parties with the most votes in the Legislative Assembly should
be asked to form the government. If a single party has an absolute majority
in the legislature, the leader of that party shall be invited to become the
Chief Minister automatically. If no such party exists, the Governor should
choose a Chief Minister from the following party or group of parties by
sounding them in the following order of preference:

 Before the elections, a coalition of parties was formed.

 With the assistance of others, including “independence,” the largest
single party is claiming to form the government.
 A post-election alliance of parties in which all coalition partners join
governments.
 A post-election alliance of parties that includes some members of a
government and others, including “independents,” who support the
government from the outside.
 During the above-described process, the Governor should choose a
leader who, according to the governor, is most likely to command a
majority in the Assembly.
 A Chief Minister should seek a vote of confidence in the Assembly
within 30 days after taking office unless that person is the leader of a
party with an absolute majority in the Assembly. With the sanctity of a
Rule of Law, this practice should be followed faithfully.
 Outside of the Assembly, the Governor should not take the risk of
deciding the question of majority support on their own. It would be
prudent for the governor to put the competing assertions to the test on
the House floor.
The job of the Governor is to make sure that a government is established,
and not to strive to form a government that will follow policies that they
approve of.

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The recommendation on the constitutional norm of inviting the single largest
party in the case of a divided mandate is also supported by a Constitution
Bench of the Supreme Court in Bihar assembly dissolution case. (See here)

As previously stated, the recommendations provided by the commission were

not obligatory to follow. As a result, just 180 out of 247 of the
recommendations of the Sarkaria Commission have been adopted by the
central government. The government has agreed to a couple of the
recommendations made by the Sarkaria Commission on Articles 356 and
legislative matters

Conclusion
As disintegrative forces are operating in the country, the Commission did not
recommend any structural changes and instead decided to maintain the
current setup. The Commission, on the other hand, stated that the provisions
of the Centre-State relations should be streamlined. Though the commission
was of the view that the power of the union government should not be limited
as a strong centre is necessary for maintaining national unity and integrity,
On the other hand, over-centralization was noted as a preventable issue. It
recommended that the Centre first loosen its grip on the states and grant
them more autonomy. The regional powers would be held more accountable
because of this. It is commonly acknowledged that the recommendations
made by the Commission, to whatever extent they were made, were not
followed by the administration.