Nature, Scope, and Extent of Executive Power of the Union and States Under the Constitution
Article 73 and Article 162 of the Constitution of India provide for the territorial extent of the powers of the executive in India. The scheme of the Constitution divides the Executive in the Union and State executive dividing accordingly the operability of the power vested in them thereof. Article 73 is the provision empowering the Union executive whereas, Article 162 is for the State executive.
Article 73 is read as, "(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—
to the matters with respect to which Parliament has power to make laws; and
to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State[* * *] to matters with respect to which the Legislature of the State has power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution."
Article 73 provides for the exclusive executive power upon the Union of India with respect to the administration of laws made by Parliament under its exclusive powers; (b) the implementation of treaties and agreements binding on the Government of India, whether entered into before or after the commencement of the Constitution. (Article 253). The Provision of the Article provides that Union executive have jurisdiction to create all the laws except that which is reserved to me within the power of the State executive.
Article 162 states that "Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."
Under this provision of the Constitution, the executive power of the State outstretch to the matters upon which the State Legislature has the power to make laws as provided under the Constitution. Such empowerment comes with the limitations which are set by the State Legislature itself. Firstly, the head of the executive in the State i.e., the Governor cannot exercise the power of making an order with respect to a matter which has been decided by the legislature to be conferred on some other functionary of the state. Secondly, the Governor has no say in the legislature’s decision of conferring functions by an enactment on the authority subordinate to the Governor. P.H. Paul Manoj Pandian v P. Veldurai
A Cumulative Reading of Both the Provisions
Neither Article 73 nor Article 162 provide for the definition of “executive function”. What could be understood from the conventions and practices is that the executive function generally includes the carrying of the general administration of the country and state respectively. It is the legislature that generally determines the jurisdiction of the executive in India. Pursuant to Schedule VII of the Constitution of India, the fields so enumerated in the three Lists encompasses such an extent. However, it does not mean that it is only when the Parliament or State Legislature has legislated upon the items in the lists that the executive would function.
If there is no enactment covering a particular aspect, the Government can carry on the administration by issuing administrative directions or instructions, until the Legislature makes a law in that behalf. T. Muralidhar Rao v State of Andhra Pradesh.
By virtue of Article 73 clause (1)(a), the executive power of Union is co-extensive with the legislative power of the Parliament. Satya Narain Shukla v UOI. It submits that the power extends to the whole of the territory of India, upon the matters enumerated in Lists I and III of Schedule VII. Clauses (2) & (3) of the Article provides for the exception taking us to the effects of both the Articles 73 and 162.
(1) The executive authority of a State shall be exclusive in respect of the subjects enumerated in List II of Schedule VII.
(2) The executive authority of the State will also extend to matters included in List III, except as otherwise provided in the Constitution or in any law made by Parliament (Article 73(1) Proviso, Article 162, Proviso).
(3) The State Executive shall have no authority over the subjects enumerated in List I (subject to Article 73(2)).