Report on Supreme Court cases on Article 73(1)(b) of the Constitution of India 1949

Premise: Supreme Court judgments relating to applicability of proviso to Article 73(1) of the
Constitution of India 1949
Article 73 of the Constitution of India 1949
Central Government Act
Article 73 in The Constitution Of India 1949
73. Extent of executive power of the Union
(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 on 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 in 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 Council of Ministers.
Interpretation:
The Constitution distributes the executive powers exercisable with respect to the territory of a
State between the Union and the State. Article 72 provides that the President shall have
power to grant remissions of punishment or sentence among others, in all cases where the
punishment or sentence is for an offence against any law relating to a matter to which the
executive power of the Union extends. Article 161, provides that the Governor of a State
shall have power inter alia, to grant remissions of punishment or sentence of any person
convicted for an offence against any law relating to a matter to which the executive power of
the State extends. Article 73 broadly stated, provides that the executive power of the Union
shall extend to the matters with respect to which Parliament has 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 power to make laws.
Judgements:
1. In Re: The Berubari Union vs Unknown
AIR 1960 SC 845
Facts:
In the present case, Bengal and Punjab had to be partitioned. For the purpose of portioning
Bengal, a boundary commission was appointed with Sir Cyril Redcliffe as its chairman. He
fixed the boundary of India and Pakistan known as Redcliffe line. However, dispute arose
between the two governments by reason of different interpretations put by them in the award.
Dispute arose in respect of the exact location of the said boundary.  Berubari Union no. 12
has an area of 8.75 sq. miles. Radcliffe had divided the district of Jalpaigudi between India
and Pakistan by awarding some thanas to one country and others to the other country. The
boundary line was determined on the basis of the boundaries of the thanas. In describing this
boundary, Radcliffe omitted to mention one Thana. Berubari Union No. 12 lies within
Jalpaigudi thana and it was awarded to India. The commission presented the award on
12th August, 1947. However, the omission of the Thana Boda and the erroneous depiction on
the map enabled Pakistan to claim that a part of Berubari belonged to it.
Meanwhile, on 26th January, 1950 the constitution of India came into force. Article 1 of the
Constitution provides that India, that is Bharat, shall be a Union of States and that the States
and the territories thereof shall be the States and their territories specified in Parts A, B and C
of the First Schedule. West Bengal was shown as one of the States in Part A. In the light of
the award Berubari Union No. 12 was treated as a part of the Province of West Bengal.
The question of Berubari union was raised by Pakistan government for the first time in 1952.
Till this period, it continued to be a possession of Indian Union and a part of West Bengal.
The dispute was brought to an end by the agreement in the year 1958 according to which half
of the Berubari Union was awarded to Pakistan and half of it adjacent to India was retained
by India. Four cooch behar enclave contiguous of this part was also awarded to Pakistan.
The President referred to the Supreme Court that whether Parliament possesses the power to
transfer the territory to Pakistan or not.
Held: The Supreme Court held that the legislative action is necessary for implementation of
agreement relating to Berubari union. (a) A law of Parliament relatable to Art. 3 of the
Constitution would be incompetent; (b) A law of Parliament relatable to Art. 368 of the
Constitution is competent and necessary; (c) A law of Parliament relatable to both Art.
368 and Art. 3 would be necessary only if Parliament chooses first to pass a law
amending Art. 3 as indicated above; in that case parliament may have to pass a law on those
lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to
implement the agreement. Same procedure would be followed for implementation of
agreement relating to exchange of enclaves.
Article 73 on which strong reliance is placed prescribes the extent of the executive power of
the Union. 
Article 73(1) says "that 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 the power to make laws"

2. Govt. Of Nct Of Delhi vs Union Of India

CIVIL APPEAL NO. 2357 OF 2017
Facts of the case:
The appellant has argued that though Article 73 of the Constitution lays down the principle
that there may exist under the Constitution concurrent legislative powers between the
Parliament and the State Legislative Assemblies, yet there can never be concurrent  executive
powers between the Central and the State Governments as such a situation would result
in chaos in the absence of any responsibility/accountability for   executive   actions. This  
principle, as   per   the   appellant,
must apply equally in relation to matters contained in List IIand List III of the Seventh Sched
ule and the effect of Article239AA(3) is that all matters on which the Delhi Legislative
Assembly has power to legislate are effectively equivalent to matters of the Concurrent List.
 Held: The   Centre's executive power  stems from   Article  73 and   would   normally   be  
coextensive   with   the   Parliament's legislative   powers,   but   this   is   explicitly   subject  
to   other.

3. Jayantilal Amrit Lal Shodhan vs F.N. Rana And Others 

1964 AIR 648
Facts of the case: The validity of a notification issued by the President under Article 258(1)
of the Constitution relating to the delegation of Union functions to the State was discussed.
The Court held that Article 258 enables the President to do by notification what the
Legislature could do by legislation, namely, to entrust functions relating to matters to which
executive power of the Union extends to officers named in the notification. The notification
issued by the President was held to have the force of law.

Held :

That Article. 258(1) empowers the President to entrust to the State the functions which are
vested in the Union; and which are exercisable by the President on behalf of the Union and
further went on to say that Article 258 does not authorise the President to entrust such power
as are expressly vested in the President by the Constitution and do not fall within the ambit of
Article 258(1).

Thus, a distinction was made by the Court between the executive functions of the Union and
the executive functions of the President and held that the notification was issued by an
executive authority and thus, had the force of law.  If the order is purely administrative, or is
not issued in exercise of any statutory authority it may not have the force of law. But where a
general order is issued even by an executive authority which confers power exercisable under
a statute, and which thereby in substance modifies or adds to the statute, such conferment of
powers must be regarded as having the force of law.

4. Union Of India vs V. Sriharan Murugan & Ors

WRIT PETITION (CRL.) NO. 48 OF 2014

Facts of the case:

 The Supreme Court referred the questions raised in this case to a larger bench of 5 judges to
determine various questions which have been raised through this petition.
The questions before the Bench which is headed by the Chief Justice of India are questions of
constitutional importance which deal with the issue of the powers of the
President and Governor to grant mercy as well as the determination as to who is
the appropriate government to commute the sentences under the CrPC. 
The Petitioner has challenged the letter dated 19.02.2014 issued by the Chief Secretary,
Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil
Nadu proposed to remit the sentence of life imprisonment and to release the respondent Nos.
1 to 7 in the Writ Petition who were convicted in the Rajiv Gandhi assassination case. As far
as respondent Nos. 1 to 3 are concerned, originally they were imposed with the sentence of
death.
Held:
The executive power of the Union extends to all matters in respect of which Parliament has
power to make law and in respect of matters to which the power of Parliament extends. The
expression "save as expressly provided in the Constitution" in the proviso to Art. 73(1) is
not susceptible of a limited interpretation. Constitutional provision authorising the Union to
exercise its power over matters in respect of which the State Legislature has also power to
make law, has operation not withstanding the limitation enacted in the proviso. It is well
settled that functions which do not fall strictly within the field legislative or judicial, must
fall in the residuary class executive and be regarded as such.
(ii)The Indian Constitution does not make a rigid division of functions and although it is
possible to characterise with precision that an agency of the State is executive, legislative
or judicial, it cannot be said that a particular function exercised by any individual agency
necessarily bears the character of the agency exercising the functions.

Reading Article72(1)(b) in isolation, it prescribes the power of the President for the grant of
pardon, reprieve, remission, commutation etc. in all cases where the punishment or sentence
is for an offence against any law relating to a matter to which the Executive Power of the
Union extends. In this context when we refer to sub-Article (1) (a) of Article 73 which has set
out the extent of Executive Power of the Union, it discloses that the said power is controlled
only by the proviso contained therein. Therefore, reading Article 72(1)(b) along with Article
73(1)(a) in respect of a matter in which the absolute power of the President for grant of
pardon etc. will remain in the event of express provisions in the Constitution or in any law
made by the Parliament specifying the Executive Power of the Centre so prescribed. When
we refer to Article 72(1)(c) the power of the President extends to all cases where the sentence
is a sentence of death. When we examine the above all pervasive power vested with the
President, as mall area is carved out under Article 72(3), wherein, in respect of cases where
the sentence is a sentence of death, it is provided that irrespective of such enormous power
vested with the President relating to cases where sentence of death is the punishment, the
power to suspend, remit or commute a sentence of death by the Governor would still be
available under any law for the time being in force which fall within the Executive Power
exercisable by the Governor of the State. Article 72(1)(c) read along with Article 72(3) is also
referable to the proviso to Article 73(1) as well as Articles 161 and 162.When we read the
proviso, while making reference to the availability of the Executive Power of the Union
under Article 73(1)(a), we find a restriction imposed in the exercise of such power in any
State with reference to a matter with respect to which the Legislature of the State has also
power to make laws, save as expressly provided in the Constitution or any law made by the
Parliament conferment of Executive Power with the Centre. Therefore ,the exercise of the
Executive Power of the union under Article 73(1)(a)would be subject to the provisions of the
said saving clause vis-a-vis any State. Therefore, reading Article 72(1)(a) and (3) along with
the proviso to Article 73(1)(a) it emerges that wherever the Constitution expressly provides
as such or a law is made by the Parliament that empowers all pervasive Executive Power of
the Union as provided under Article 73(1)(a),the same could be extended in any State even if
the dual power to make laws are available to the States as well. When we come to Article 161
which empowers the Governor to grant pardon etc. which is more or less identical to the
power vested with the President Article 72, though not to the full extent, the said Article
empowers the Governor of a State to grant pardon, respite, reprieve or remission or to
suspend, remit or commute the sentence of any person convicted of any offence against any
law relating to a matter to which the Executive Power of the State extends. It will be
necessary to keep in mind while reading Article 161, the nature and the extent to which the
extended Executive Power of the Union is available under Article 73(1)(a), as controlled
under the proviso to the said Article.
5. Mohan Kumar Singhania And Ors. ... vs Union Of India And Ors
 1992 AIR, 1 1991 SCR Supl. (1) 46
Facts: The Central executive authority has not either expressly or impliedly changed the
policy of the Government by exercising unreasonable and arbitrary discretion and the
present Rule 4 with its newly added second proviso does not repeal the essential features of
the pre-existing Rule 4 but only limits the ambit of the operation of the price 4 under a given
situation. Hence, there is no substance in the contention that the second proviso is bad and
that the central executive authority has transgressed the constitutional limits.
Held:
The Supreme Court has ruled that each of the various civil services, namely,
I.A.S.,I.F.S.,I.P.S., Group A Services and Group B Services, is a separate and determinate
service forming a distinct cadre and that each of the Services is founded on intelligible
differentia which on rational grounds distinguishes persons grouped together from those left
out and that the differences are “real and substantial” having a “rational and reasonable
nexus” to the “objects sought to be achieved”.
The proviso has been introduced by the Central Executive Authority under the powers
flowing from Article 73(1) (a) of the Constitution, according to which the executive power
of the Union subject to the provisions of the Constitution shall extend to the matters with
respect to which Parliament has power to make laws, but of course subject to the proviso
made thereunder. Needless to point out that whilst by virtue of clause 1 (a) of Article 73, the
executive power of the Union which is co-extensive with the legislative power of Parliament
can makelaws on matters enumerated in List I (Union List) and List II (Concurrent list) to
the Seventh Schedule of the Constitution, under Article 162 of the Constitution, the
executive power of the State Executive which is coextensive with that of the State legislature
can make laws in respect of matters enumerated in List III ( State List) and also in respect of
matters enumerated in List II (Concurrent List), subject to the provisions of the Constitution.