This article is written by Mehak and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

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

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.

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 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 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.

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.

References

• Art. 263 of The Constitution of Indian.
• Co-Operative Federalism in India: An Analysis in Light of Recent Trends, 8 RMLNLUJ (2016) 112.
• Constituent Assembly Debates, 04 August 1949 Part I, available at: Constituent Assembly Debates On 4 August, 1949 Part I (indiankanoon.org).
• Inter-State Council, available at: (interstatecouncil.nic.in) (Last visited on Nov 19^th 2021).
• Rakesh Bhatnagar, “Sarkaria commission’s guidelines come into focus” DNA India, Nov 19, 2013.
• Rameshwar Prasad v. Union of India, (2005) 7 SCC 625.
• S.R. Bommai v. Union of India, (1994) 3 SCC 1.

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