Const Law Ii.docx

TOPIC: EXTENT OF EXECUTIVE POWER AND STATES

LECTURE-1* (7/1/19)

THE STRUCTURE 

The executive power of the union is not limited exclusively in respect of the matters on which parliament can make laws.



The executive power of the union is co-extensive with the legislative power of the union (parliament).



Article 73 (1) (b) is an exception to article 73(1) (a).



Article 73 (2) is an exception to article 73 (1) (a).

[ baggie’s commentary: article 246 lays down the respective lists which are to be handled by the state and the center respectively, i.e.: List 1 (union list): parliament List 2 (state list): state List 3 (concurrent list): state as well as the parliament]

UNDERSTANDING The executive power of the union is not limited exclusively in respect of the matters on which parliament can make laws.

The executive power of the union in article 73 is not exhaustive in nature, it only lays down what the general rule is i.e. normally when it comes to the 3rd list, it is the state executive which executes upon the matters, but to this general rule there are two exceptions: 

If the provisions under the constitution provide otherwise i.e. it directs the central executive rather than the state executive to execute.



Parliament makes a law which specifically says (express or implied) that it is the central executive which must execute on a certain matter.

There are other provisions in the constitution, statuettes, lists which exclusively or specifically confer the executive power on the union, they are as follows:. 

Entry 54 of list 1 read with entry 23 of list 2.



Article 353 (a).

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Article 356 (1) (a).

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Article 256, 257 & 258.

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Indian council medical act, section 3 & 4.

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Essential commodities act, 1955, section 3 & 5.

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Special marriage act, 1954, section 3, 10 & 50.

The executive power of the union is co-extensive with the legislative power of the union (parliament). It can be explained by the following: 

Article 73 (1) (b): confers power upon the centre executive to execute any treaty or any agreement irrespective of the fact that the subject matter of such treaty or agreement falls under any of the lists (list 1,2 and 3).



Article 253: empowers the legislature to make laws upon the subject matter of any treaty or any agreement, irrespective of the fact that the subject matter falls under list 1, 2 and 3.

Article 73 (1) (b) is an exception to article 73(1) (a). Article 73 (1) (a) provides for the general rule i.e. normally it is the state executive which executes upon the matters in list 3 whereas article 73 (1) (b) confers power upon the union executive to execute upon matters in list 1, list 2(which is a matter of state executive) and list 3.

Article 73 (2) is an exception to article 73 (1) (a). Article 73 (2) empowers the state executive to execute upon such subject matters immediately before the commencement of the constitution, irrespective of the fact that after the commencement of the constitution, the parliament has the current power to execute upon such subject matter. The object of article 73 (2) is to avoid the automatic lapse of the executive authority of the state and to maintain the ‘status quo’ until parliament decides to takeover executive power in relation to such matters.

Q- Till what time does the state executive has the power? Answer- until otherwise provided by the parliament or the parliament comes up with law transferring the same.

Example- under the government of India act, subject matter like the agriculture was in the provincial list but after the independence agriculture got transferred to the central list or the union list.