The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next article in the series on constitutional provisions in order to aid our readers in understanding them.
73. “Extent of executive power of the Union.— (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) 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 also 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.”
This Article specifically deals with the extent and operation of executive power of Union of India to the matters of law making power of Parliament and to any matter or issues where the Central Government exercises its power by virtue of any International Treaty or Agreement. But such executive power cannot extend to States in respect of their respective law making power.
In the conjoint reading of such provision it is inferred that though this Article is clear in the matter of executive power of Union of India and States but a clue is raised about the supremacy of power of Parliament over States. Hence in the eye of total constitutionalism there is some lacuna in the clarity of provisions in such Article. That is the reason the first case came before the Supreme Court just after five years of commencement of the Constitution in the matter of Rai Sahib Ram Jawaya Kapur v. The State of Punjab, AIR 1955 SC 549 before the then Chief Justice of India Justice B.K. Mukherjee, Justice Vivian Bose, Justice B. Jagannadhadas, Justice T.L. Venkatarama Ayyar and Justice S.J. Imam where all these judges concurrently held that executive power under Article 73 was not combined only to carrying out of laws and also held that Article 73 did not contain any definition as to what executive function is and what activities would legitimately come within its scope. These judicial pronouncements confirm that the Constitution makers had not properly codified the provisions of this Article. This Article is concerned primarily with the distribution of the executive power between Union of India on one hand and the executive power of the States on the other. But it does not mean that it is only when the Parliament of India or the State Legislatures have to legislate certain items pertaining to their respective Lists viz. State List, Central List and concurrent List in the 7th Schedule of the Constitution, that the Union of India or the State Executive, as the case may be, can proceed to function in respect to them.
The second case came before The Supreme Court in the year 2007— Indian Airlines Officers’ Association v. Indian Airlines Ltd., AIR 2007 SC 2747 where the issue was about the policy decision in merger of Vayudoot Pvt. Ltd. with Indian Airlines. Another case was Kendriya Vidyalaya Sangatham v. Dharmendra Sharma, AIR 2007 SC 3210 wherein the issue was writ jurisdiction of court regarding direction to act against policy decision.
The third case on this Article was Delhi Development Authority, New Delhi v. Joint Action Committee etc., AIR 2008 SC 1343 wherein the issue was controversial policy decision of the Government.
The fourth case came before the Supreme Court in 2009 viz. Jammu Rural Bank v. Mohd. Din, AIR 2009 SC 51 regarding matter of policy decision under Article 73 in respect of Jammu and Kashmir military services.
The latest case before the Supreme Court was Syed Ashwaq Ahmed v. Jt. Secretary and Chief Passport Officer, AIR 2010 SC 3310 where the issue was about the new policy formulated by the Government under Article 73.
Besides these issues, the most interesting case came before Delhi High Court regarding the power of the President of India to consult the Supreme Court. The main issue was in respect of Article 123 of the Agreement between India and United States of America on Nuclear Co-operation Treaty.The High Court of Delhi, within the frame work of Article 73, held that the Court could not assume power and jurisdiction to itself of issuing mandamus to Union of India to make reference to the President of India to exercise power vested under Constitution of India in totality.
To conclude, from the positional status of Article 73 it may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the Executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Constitution of India has not indeed recognized the Doctrine of Separation of Powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another