Extent of executive power of the Union

Article 60, Draft Constitution of India 1948

(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) of this clause 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 contained 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.

Article 73, Constitution of India 1950

(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 specified in Part A or Part B of the First Schedule 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.

Draft Article 60 was discussed on 29 and 30 December 1948. This article laid down the scope of the executive power of the Union.

A member moved an amendment to delete proviso to clause 1. Further, he sought to amend clause 1 to give the Union executive power on only matters relating to the Union List. He argued that this Article impaired the federal structure by centralising the power with the Parliament. Through his amendments, provincial autonomy would be protected and the central government would not be given prominence in matters relating to the Concurrent list. In support, another member noted that while the Parliament has legislative power on matters relating to the Concurrent List, this must not translate into the Union Government having executive power on these matters. Instead, in the interest of efficient and good governance, the State government must be entrusted with this power. Another member came down heavily on this article. He said: “this clause as it stands is sure to convert the Federation into an entirely unitary form of Government”. He highlighted that ‘provincial autonomy’ was in practice even during colonial rule and departure from this principle would result in ‘totalitarianism’.

A member of the Drafting Committee opposed these amendments. He suggested that the nature of federalism in India would take shape with time and the Assembly should refrain from adopting a theoretical approach to it. Moreover, the proviso to clause 1 would ensure clear and precise allocation of executive responsibility. Further, the Chairman of the Drafting Committee clarified the general principles of the proviso. First, the power to execute laws made by the Parliament on matters relating to Concurrent List ordinarily rested with the states. Second, only in exceptional circumstances, the Parliament could take on executive authority in these matters. In defence of the proviso, he invoked references to the Australian federal framework. He also noted that this proviso would enable the Central Government to put laws relating to social issues in action. This would ensure implementation of social laws in cases where states were not keen.

The amendments did not come through. The Assembly adopted the Draft Article on 30th December 1948.