Article 73

Article 73 of the Constitution of India delineates the scope, extent, and limitations of the executive power of the Union Government, thereby defining its relationship with the legislative powers of Parliament and the States. This article forms a cornerstone of India’s federal framework, ensuring clarity in the distribution of executive authority between the Union and the States while preserving the supremacy of the Constitution.

Constitutional Context and Purpose

India’s Constitution establishes a quasi-federal system with a strong unitary bias. The executive power of the Union, exercised in the name of the President, extends primarily to matters that fall within the legislative competence of Parliament. However, this power is not absolute; it operates within constitutional boundaries and must respect the autonomy of States.
The purpose of Article 73 is to prevent overlap and conflict between the executive actions of the Union and those of the States, ensuring harmonious governance under the distribution of powers enumerated in the Seventh Schedule.

Text and Structure of Article 73

Article 73 reads as follows:

1. Clause (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.”
   Proviso:The proviso limits this power by stating that the Union’s executive authority does not extend, except as expressly provided by the Constitution or by law made by Parliament, to matters in the Concurrent List on which the State Legislature also has the power to legislate.
2. Clause (2):This clause provides for the continuation of pre-Constitutional arrangements, allowing States and their officers to continue exercising executive functions in areas where Parliament possesses legislative power, until Parliament decides otherwise by law.

Together, these clauses establish both the extent and limitation of the Union’s executive power.

Scope of the Executive Power of the Union

Under Article 73(1), the Union’s executive authority covers:

• Subjects in the Union List (List I) of the Seventh Schedule, such as defence, foreign affairs, banking, and communications.
• Matters of national importance where Parliament can legislate for the whole or part of India.
• Treaty and international obligations, enabling the Government of India to act in external affairs, international agreements, and matters affecting foreign relations.

Additionally, the Union’s executive power may extend to Concurrent List (List III) subjects when Parliament legislates on them or where express constitutional provisions confer such authority, as in cases of national emergencies (Articles 352, 356, and 360).

Limitations on the Union’s Executive Power

The proviso to Article 73(1) imposes significant limitations:

• In matters included in the Concurrent List, the Union Government cannot exercise executive authority unless explicitly permitted by the Constitution or by a Parliamentary law.
• The Union cannot encroach upon areas within the exclusive jurisdiction of the States under the State List (List II) unless constitutional provisions justify such intervention, such as under emergency powers or constitutional breakdown in a State (Article 356).

This balance ensures that India’s federal structure remains intact while allowing central coordination in national affairs.

Continuation of State Powers – Clause (2)

Clause (2) safeguards administrative continuity by allowing States and their officers to continue discharging executive duties even in matters falling under Parliament’s legislative competence until the Union legislates otherwise. This provision reflects the transitional and cooperative character of India’s federal system.

Key Judicial Interpretations and Case Law

The judiciary has played a pivotal role in interpreting Article 73 and defining the contours of Union–State executive relations:

• State of West Bengal v. Union of India (1963):The Supreme Court clarified that the Union’s executive power extends to all subjects within its legislative domain but cannot intrude into matters of exclusive State competence without constitutional justification.
• Union of India v. R. C. Cooper (1970):The Court emphasised that executive power must operate within the limits of legislative authority, meaning the executive cannot act independently of parliamentary sanction.
• Keshavananda Bharati v. State of Kerala (1973):This landmark judgment established the basic structure doctrine, confirming that federalism is part of the basic structure of the Constitution and limiting the scope of Union authority in a manner that preserves the autonomy of the States.
• Minerva Mills Ltd. v. Union of India (1980):The Court reaffirmed that the balance of power between the Union and the States is an essential constitutional feature, and any distortion of this equilibrium would violate the basic structure.

These rulings collectively ensure that the Union’s executive power remains constitutionally bounded and does not erode the autonomy of State governments.

Relation with Other Constitutional Provisions

Article 73 operates in close coordination with several other articles that define the Union executive’s structure and powers:

• Article 74: Provides for the Council of Ministers to aid and advise the President in exercising executive functions.
• Article 75: Relates to the appointment, tenure, and responsibility of Ministers.
• Article 256: Obligates States to ensure compliance with laws made by Parliament and permits Union directions to ensure such compliance.
• Article 162: Defines the extent of the executive power of States, complementing Article 73.

Together, Articles 73 and 162 establish a dual polity, where both Union and State executives operate within their respective constitutional boundaries.

Significance of Article 73 in the Federal Framework

Article 73 is central to maintaining India’s federal equilibrium. It provides:

• Clear division of executive responsibility: Ensuring that both Union and State governments function efficiently within their respective jurisdictions.
• Mechanism for national unity: Allowing the Union to assume control in exceptional situations, such as during emergencies, while otherwise respecting State autonomy.
• Cooperative federalism: Encouraging collaboration between the Union and States in implementing concurrent and national policies.

By delineating executive competence, Article 73 upholds the principle of limited government and prevents arbitrary centralisation of power.

Practical Implications

In practice, Article 73 ensures that:

• The Union executive acts only within areas where Parliament can legislate, except during emergencies.
• States retain executive control over most administrative subjects, particularly those listed in the State List.
• The Union can issue directions to States under certain conditions to ensure compliance with central laws and constitutional obligations.
• Treaty-related functions and international obligations fall exclusively within the Union’s domain.

Constitutional Amendments and Evolution

While Article 73 itself has not been significantly amended, its interpretation has evolved through judicial decisions and constitutional practice. The expansion of Union authority during emergencies, the rise of inter-State councils, and the use of centrally sponsored schemes have all contributed to redefining its practical scope within India’s dynamic federal polity.

Conclusion

Article 73 is a foundational provision that defines the extent and limits of the Union executive’s authority within India’s constitutional structure. It ensures a balance between central supremacy and State autonomy, thereby upholding the federal spirit of the Constitution.