The Constitution distributes the executive powers exercisable with respect to the territory of a State between the Union and the State.
Article 73 of the Constitution of India, Extent of the executive power of the Union, states that, “ (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 the 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 also the 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 the 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 162 of the Constitution states the extent of executive powers of the State and it extends to all matters in which State legislature can make laws. However, it can not encroach upon matters in the Union list or any other matters entrusted with the Union by way of Central Law. The State executive can thus, not encroach upon matters legislated by the Union but even this does not imply that there is a rigid division between the three agencies of the State as is the case with the Union executive.since there are times when even the executive is entrusted with legislative or judicial functions.
Article 73 broadly stated, provides that the executive power of the Union shall extend to the matters with respect to which Parliament has the power to make laws. Article 162 similarly provides that the executive power of a State shall extend to the matters with respect to which the Legislature of a State has the power to make laws.
Who is the ‘Executive’? - In constitutional democracies, executive authority is generally limited in three ways: by separation of powers, among the national government’s executive, legislative, and judicial branches, with the legislature and judiciary able to check the power of the executive branch; by the constitutional guarantees of fundamental rights, and by periodic elections.[ii] In modern democracies, the executive authority is commonly structured in one of the two ways, either parliamentary or a presidential system.
It has been stated in Article 53 (1) of the Constitution that “the executive power of the Union shall be vested in the President and shall be exercised by him directly or through officers subordinate to him in accordance with the Constitution.”
Article 74 (1) which states that “there shall be a council of ministers with the Prime Minister at the head to aid an advice the President in the exercise of his functions.”
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