CONSTITUTIONALITY OF ARTICLE 73 OF THE INDIAN CONSTITUTION

Oct. 7, 2020, 1:59 a.m.   suryasikha98  
Pens of Law students    


Profile of the Author: Bhakti Vakil is pursuing B.A. LL.B (Hons.) 5th year from Prestige Institute of Management and Research, Department of Law, Indore. Her areas of interest include constitutional law, civil law, corporate law and intellectual property law.

INTRODUCTION

India, being a federal country, there exist a division of power between the central and state governments, which has its pros, and cons. The executive power of the Union is vested in President[i], pertaining to the Constitution of India. Before exploring the nature and extent, it is important to know what constitutes executive and what exactly the executive powers are. Under Constitution of India, executive is divided into Union Executive enumerated in Part V Article 72 to 78 and State Executive, enumerated in Part VI Article 153 to 167.

The true meaning of the term “executive functions” has not been defined in the Constitution since they are ‘residue of the function’ after legislative and judicial functions have been taken away. In literal sense, it means execution of law; in addition to that it connotes “maintenance of public order, the management of Crown property and nationalized industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance".[ii] The vagueness of the definition creates conundrum about what extent of executive power can be exercised by Union. However, Article 73 act as shell and helps to conceptualize the scope of executive power.

WHAT IS ARTICLE 73?

Article 73 is about Extent of executive power of Union. It states that

“(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.”

The first clause implies that the executive power is competent on matters on which Union legislature has competence.[iii] Sub-clause (b) thereof provides that it extend ‘to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty or agreement’. True, this necessarily depicts that matters on which Parliament has no power to make laws are also matters on which the Union government cannot exercise its executive powers. However, does that mean there must be Parliamentary law before the Union government can exercise its power? No, it is not necessarily true, this is reductio ad absurdum[iv]. Executive can make rules irrespective of the absence of law as held in Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab.[v]

The executive power extends to matters with respect to which Parliament has the power to make laws, does not extend in any state to matters with respect to which the legislature of the State has also the power to make laws. This is about the concurrent list, wherein both state and union has power to make laws but the executive power remains with the State unless the Constitution or any other law expressly provided otherwise.

CONCERNS TO BE ADDRESSED

Referring to sub-clause (b) of Article 73(1), the executive power of Union extends to exercising rights pertaining to any treaty or agreement as it is exercisable by the Government of India. If read with entry 14 of List I of Schedule VII of Constitution of India, treaty-making is an inherent power of Union, since there are no legislative Acts for the same, executive can discharge any policies without legislative sanctions?[vi]

It can be said that Parliament is competent to make law regarding treaty-making but all the powers are exclusively given to the executive, why? By the virtue of Article 73, executive power extends to Union, even in the absence of law that means power to accept or reject treaties or agreement is left with the executive. Clearly, there has not been any law made by Parliament which regulates the manner of ratifying or signing the treaty. Hence, the power to discharge and the manner in which the treaty is adopted is also left with Executive. The Government entering into treaty without consulting to Parliament, doesn’t mean taking advantage of Article 73?

Hence, it is matter of concern as these policies and treaties have such serious repercussion on the lives of the citizens of the country that neither Parliament nor the people of the country were taken into confidence. It is therefore, essential to control the power of Executive in the subject of treaties and agreement.

CONCLUSION

Therefore, Article 73 does give power to the Union but restrict to use it according to their whims and fancies. The prime responsibility of the executive is to implement the law and transmission of policy into law. The executive function includes both determination of the policy as well as carrying it into execution. Hence, it plays an important role as even without legislation, executive need to function though temporarily.

FREQUENTLY ASKED QUESTION (FAQS)

  1. Does Article 73 intrudes with the legislative power of Union and State?

No, Article 73 signifies the extent up to which executive power of the Union can be exercised. It supplements to the legislative power of the union and of the state, as in the absence of any law also it exercises its function. It can issue temporary guidelines, notification or any such notice on such subject matter, which is outside the radar of legislation. Later it can even become law.

  1. Under concurrent List, both Union and State has power to make laws. If Article 245 is read with Article 73, then does the Parliament not discharge its function to executive?

Article 245 empowers the Parliament and Legislature of State to make laws, depending on the geographical aspect. Article 245 does not talk about the subject matter, whereas Article 73 empowers state to make laws with respect to concurrent list, unless expressly provided otherwise by any law.

[i] The Constitution of India, 1949, Art. 53

[ii] Halsbury’s Law of England (3rd edn. 1964) vol. 7, page 192

[iii]‘'Extent of Executive Powers in Indian Constitution' (LawTeacher.net, October 2020) <https://www.lawteacher.net/free-law-essays/constitutional-law/extent-of-executive-powers-in-indian-constitution-constitutional-law-essay.php?vref=1> accessed 3 October 2020

[iv] Reduction to absurdity, means characterizing an opposing argument in such a way that is it seems to be ridiculous or the consequence of the position seem ridiculous

[v] Rai Sahib Ram Jawaya Kapur and Ors. V The State of Punjab (1955) AIR 1955 SC 549

[vi] Ashutosh Pandey, ‘Is executive power coextensive with the legislative power?” – Constitutional Provisions and Judicial Exposition (Lawlex.org, October 2020) <https://lawlex.org/lex-pedia/is-executive-power-coextensive-with-the-legislative-power-constitutional-provisions-and-judicial-expositions/16451#_ftn3> accessed 3 October 2020


Liked the article ?
Share this:

Tags

india ads fairnesscreams tv ads ban proposal anti ageing creams government 2006 micro small review enterprises development act big India Juvenile Justice Women justice Jurisdiction Constitution caa secularism amendment sedition Arbitration consumer complaint filing international laws wildlife protection animal laws USA china women empowerment pornography legal prostitution sex trafficking laws legalising Economy Measures RBI Coronavirus Reserve Bank of India stability coronavirus impact liquidity shantikanta das monetary policy repo rate moratorium disinformation fake news state of frenzy social media anger hate issue EpidemicDiseaseAct uniformcivilcode equality secular illegalimmigrants immigration assisteddying euthanasia police brutality custodial violence police efforts jail separation divorce hindu marriage family laws economic slowdown unemployment percapitaincome inflation GDP growth aggregate demand commercial surrogacy bill armed forces equal rights landmark judgement indian army transgender living conditions third gender Disability rights rape law Criminal law IPC regulatory sandbox IRDA framework IRDA guidelines live environment RBI regulations pollution womeninmates punishment sexualassault wrongfulconvictions IPR EnvironmentLaws JudicialActivism Jurisprudence Internship singleparent adoption niti manthan phase 1 prison reforms Phase 1 Niti manthan e-fradus cyber crimes It Laws Medico legal aid Media technology and democracy legal literacy Body Offences Housing infrastructure Infra accessibility for the persons with disability indian law global laws right to health fundamental right article 21 Indian penal code criminal law crimes against women rapecases IntellectualPropertyRights Trademark NuclearSecurity Cyberlaws judiciary petitions mercy petition review petition curative petition zero draft human rights business United nations ADR Law mediation Alternative dispute resolution mechanism negotiation conciliation Mahatama Gandhi Gandhian Concept of Law economics technology technological unemployment network online consumption production working remotely law of sedition article 19 right to freedom and expression moblynching violence offence animalrights gayparenting pronouns fundamental duties Indian law Constitution of India covid19 criminal justice system constitutional administrative litigation Courts order commission report speedy trial Corrections legal aid legislature Police Successionlaw casestudy SARFAESI e-debate maritalrape 498A IPC Misuse nirbhaya rape case death penalty deterent theory covid-19 force majuere events Force Majeure Clauses coronavirus outbreak doctorine of frustration clauses contract UAPA 2019 Review indigenous people LabourLaws Familylaw dowry death white collar crimes plea bargaining menstruation myths defamation forgery events Results Phase 2 trespass mental health Patent rights crimes lockdown child abuse traditional crime crime rate phishing ransomware cybercrime malware domestic violence doctoring lis pendens applicability conditions insensitive media coverage media Death News channel ayodhya judgement Group Discussion Exceprts naturaljustice legalprincipals Supremecourt crpc Bail Legalethics legal guidelines telemedicine legal issues Laws Section 269 Section 270 cholera privacy concern Divorce Muslim Women retention of property yemen conflict competition law 10 years administrativelaw PiracyLaw juvenile justice EIA Draft 2020 30th June 2020 Environmental Impact Assessment Climate Change Laws Dissent Research Group juvenile crimes Administration environment conservation Sustainable Oceans Énvironment Service laws Compassionate Appointments capital punishment policy legislation webinar scientist climatologist report policy change Indo-China conflict Trade war TPA property patent law section 144 principles of natural justice justice delayed instant justice work from home InformationTechnology persons with disabilities discrimination health girls disease community duties individual contemporary world common interests duality MRTP Act Indian economy competition commission of india Competition Act appraisal singaporean court section 377 Navtej singh judgement IHL war crimes humanitarian law ipc beyond india extra territorial jurisdiction wife maintenance desertion marriage #digital strike #cyber security chinese apps #chinese apps #ad-hoc arbitration #institutional arbitration #environmental law #environment #human rights #strict liability Lok Adalats US-India Abortion laws Live-in-relationships Indian Judiciary Universal Healthcare Rules Based World Order. YL3 victim dying declaration wish last wish truth balanced cooperative bank sarfaesi act Internet Ban Censorship Website Ban #DPSP #state #covid #IP black money racism Skin colour Political system Unrest accountability Jammu and Kashmir Article 370 Abrogation Kidnapping and Abduction Indo-Nepal brutality dk basu guidelines Conflict Changing dynamics democracy prostitution in India extradition laws and treaties Surrogacy laws case study Law and Order society Legal Implications regulatory framework Betting Gambling Seventh Schedule Central Government Betting Laws cyber delinquency Juvenile Justice Act Doctrine Part Performance Section 53-A CERC sustainable development Grid Code electricity laws electricity control Mental HealthCare Act WHO National Trust Act Disaster Mangement Indian legal Framework Female Criminality social structure Corporate Laws Corporate Veil Company Election Laws Electoral Reforms Law Commission of India Article 324 Election Commission contempt of court rule of law supreme court principle of natural justice judges criticism high court Fertility Assisted Reproductive Technology Assisted Reproductive Technology (Regulation) Bill Legal Evolution Literature growth goods and services Predatory Pricing Market legal remedies cryptocurrency virtual currency santhanam committee ethical behavior border LAC Aksai Chin revenge porn FIR SC/ ST Reservation artificialintelligence Privacy privacy specialmarriageact constitutional constitutionality Article 139A Education National Education Policy HRDMinistry feminism Gender Inequality Sex god juristic personality PIL earth nature ecosystem public trust Section 420 ASCI Advertisements Covid-19 Online Dispute Resolution dispute JusticeOnTime Cyber Space election Cloning Senior citizens Human Rights arrest CrPC procedural laws curative legislation Ration card Judicial Review Writ Jurisdiction indian passport foreigners-act extradition law laws in India Inheritance Laws Section 6 Domicile CLAT NLU belgium extradition treaty vicarious liability law of torts common law International Commercial Arbitration Private Defence Legal Right energy consumption national solar mission international law economic sanction tax structure Reforms NDPS Act Section64A genocide research projects internships summer school Virtual Courts Digital India NDHM Press Regulation italian-marines fishermen kerala international waters arbitration womenrights witchhunting janaushadischeme medical national health policy healthcare national digital health mission world health organisation legal jurisprudente draft health data management 2020 concerns drawbacks ministry of health and family affair sting operations media trial press rights right to privacy Twitter Prashant Bhushan period leave probate essentials for will will Technical biometrics Laws for women settlement mandalcommission 30 years gandhi principles Indianlegalsystem CELRA Climate Change Phase 3 sakshiaggarwal communication skills youcanskilldevelopment client counselling soumikghoshal sbi protest farm acts agriculture farmers anti-farmers men Executive power constitutional law Article 73 finance transparency political parties bonds Sexual Harassment Ministry of Human Resource Development Educational Reforms sabarimala case untouchability cruelty misuse by women gender biased 488A ban of apps section 69A tiktok app compensation section 357A state s right to disconnect employees' rights constitution of india bankruptcy Insolvency_law_committee insolvency_bankruptcy_act insolvency nclt students accessibility retributive theory right to life marine life MPA wildlife protection act aquatic animals regulation gender equality constitution internet identity theft fraud #Live-in Relationship #Live-in Relationship morality, unmarried couples. #society #socialchange