The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
162. Extent of executive power of State.—Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Executive Power of State: The executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the concurrent list except as provided in the Constitution itself or in any law passed by the Parliament. Neither of the articles 162 and 73 contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. That does not mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State Executive, as the case may be, can proceed to function in respect of them. The language of article 162 clearly indicates that the powers of the State executive extends to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution.
Where Parliament by law confers upon the Union authorities the duty of executing a law on a subject in the Concurrent List, the executive power of the State, in relation to that subject, shall, to the extent powers are exercisable by the Union authorities, be deemed to be abrogated. Similarly, where the legislative power of the State is subject to the legislative power of the Union, as for example, the power of the State Legislature in Entry 23 of List II is subject to the power of Parliament in Entry 54 in List I, and the Union exercises its power, the legislative power of the State is denuded to that extent and so also the executive power. Any exercise of executive power by the State in such case will be unconstitutional.
The executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field. The University Act merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility.
A decision of a Government in exercise of its executive power is reviewable by the Court under article 226 of the Constitution. But the extent of judicial review is limited to examining whether Government had acted bona fide and on relevant considerations only and the same cannot be examined as if it is an appeal.
Under article 162 read with article 246, the extent of the executive power of the State is defined. The executive power of the State is coextensive with its legislative power. Where an item happens to be in the Concurrent List, the executive power of the State will be subject to the powers conferred on the Union by the Constitution or the laws. Where Parliament by law confers on the Union Government powers of executing a law on a subject in the Concurrent List the executive powers of the State to that extent would stand extinguished.