 Shall I introduce myself or you will introduce, okay. Good evening everyone. On behalf of Beyond Law CLC and Vikram and associates, we welcome you all those who are watching us live on the YouTube and Facebook, coupled with those who have joined us. The legal journey started off during the covert times, but because of the immense support which we have received. This journey is continuing and the patrons like Mr. Jay Kumar is part of the today's resource person is also the motivating factor for us to continue with this journey. It was I remember during the Diwali when. Trivikram had connected with me and said that why don't we start sharing knowledge from the resource person we have got very good speaker. And I feel that that couldn't be the better way to start off the Diwali that day. And that journey of cracking knowledge is continuing. I will ask to share the topic of today. And then we will ask Mr. Jay Kumar is part of a senior advocate from the home. We have done a previous webinar on the election law under the cooperative law. What do you think. Thank you, Vikas Chitrat sir. And once again, welcome senior advocate Jay Kumar is part of the answer. It's been a honor to have you on this board today. Last time it was a very informative topic that we had for discussion was pertaining to cooperative society elections. And today yet another very important topic for especially the practitioners in constitutional quotes. Nevertheless, it is also important for others as a matter of gender knowledge that is pertaining to executive power under articles 73 and 162 of Constitution of India. And we have a resource person who has has a great scholar as scholarship scholars who is highly talented and who has a great deal of scholarship in this. Therefore, once again, on behalf of John Law CLC and my personal behalf, I extend a very warm welcome to you sir. And we also have other participants from various districts of this country length and breadth of this country. So I welcome all the participants who are live for watching this live and also who are who have joined us on the zoom portal. And we also have few special guest Mr. Shreeta Prabhu is with us. Sir, very warm welcome to you also sir, and over to you. Jay Kumar as part of this. Thank you. Thank you. Thank you very much. The subject that we have chosen today, the executive power of the Union and the state under article 73 and 162 respectively is somewhat a sort of by name it may not immediately invoke some response or interest. But the topic is of immense importance. And actually we came across this every day every minute all these things are done under these two articles. And today the time that is allotted and what we will be discussing is more like introduction of this topic and these articles, particularly for young advocates and law students. If it allows us some interest in them to make further investigation or research in the matter or even look at it from another point of view, etc. It is I would feel that the effort of this webinar is really reaching the people under our constitution. We have a rather unit unitary constitution where states as well as Union have power to legislate for that. The constitution has now provided a schedule, seventh schedule in which subject matter or fields of fields are given separately in which parliament is to legislate that is called as Union list or list one of seven schedule. Then comes the subjects which are exclusively for the state which is called as state list or list two and concurrent list contains subjects on which parliament as well as state legislatures can enact law. Just as an introduction under article 246 of the constitution, it provides that parliament will have exclusive power to make laws or enact laws, let us say enact laws in respect of subject matters in list one that is Union list. 246 too says that parliament as well as state will have power to enact laws in respect of the subject matters found in list three. 246 three provides subject to one and two, state will have exclusive power to enact laws, state legislature will have power to enact laws in the in respect of matters given in list two of the seventh schedule. As a general this thing without going to intricacies, the parliamentary legislation in respect of list one or list three would have paramount this thing over other laws of the state legislature. In respect of list two, the state laws will have paramount to see of course subject to several other limitations provided in the constitution. Main is there can be, though several subjects are divided into list one, two and three, still there can be incidental encroachment, overlapping of the subject, several such things can happen which is common. Therefore for all that there are courts have adopted several interpretative tools like with and substance theory, repugnancy, occupied field, etc. But anyway for our purpose today we shall have that parliament has the power to legislate in respect of list one and list three. Parliamentary law will have precedence over the law enacted by the state. State will have paramount see in respect of legislation made regarding the subjects in list two. With this if we are to now see article 73 that is the executive power of the union. Article 73 in a way article 162 both are worded in the same manner subject to the provisions of this constitution. Executive power of the union shall extend to the matters with respect to which parliament has power to make laws to the exercise of such rights authority or jurisdiction as are exercisable by government of India by virtue of any treaty or agreement. This part today we are not going to touch upon provided the executive power referred to in sub clause a shall not save as expressly provided in this constitution or any law made by the parliament extend in any state to matters with respect to which legislature of the state has also power to make laws. Therefore main thing that is to be noticed in this article is it starts with the world subject to provisions of this constitution. First thing that is the power under article 73 is subject to other enabling or restricting provisions of this constitution. Next word is shall extend to the matters with respect to which parliament has power to make laws. So in respect of the matters enumerated in list one of seven schedule union list and in respect of the matters enumerated in list three of the constitution parliament has power to legislate. If the parliament has power to legislate then the union government has the power to has the executive power extending to all that power which legislature has the power. Simultaneously just for the purpose of noticing that article 162 is similarly worded. See article 162 it also starts with the word subject to provisions of this constitution. So it is the power under article 162 the power of the state executive power of the state government is subject to other provisions of the constitution. The executive power of the state shall extend to the matters with respect to which legislature of the state has power to make laws. Therefore on a general this thing we can take that executive power of the state is coextensive with the legislative power that is state legislature has the power to enact laws in respect of subject matters coming under list two. Executive power also extends simultaneously in respect of all the subject matters under list two. State also has power to make laws in respect of subject matters under list three also. In respect of that there is a further limitation or rather a proviso which says under article 162 it says provided that in any matter with respect to which legislature of a state and parliament have the power to make laws that is list three. The executive power of the state shall be subject to and limited by the executive power of the union. Therefore in respect of list three the executive power of the union like the law made by the union in respect of list three will have precedence over the state law similar thing will be there. So executive power is exercisable by the state in respect of all the subject matters that they are required to they can legislate. Now what is the limitation? How do we understand this power? What is that the state is required to do? Let us say land revenue matter. Suppose state has not enacted a statute with regard to land revenue but land and land revenue is one of the subject matter exclusively coming under list two. So state legislature can enact a law. In a given situation there is no law enacted then in respect of that matter in respect of land revenue matter land and land revenue etc. Executive can issue guidelines, executive can issue government orders saying this should be done a person who cultivates the land can do this etc. Similarly you think of any other subject if a law is not enacted then executive power can be exercised. If law is enacted what is the limitation or what is the difficulty to exercise the executive power because if law can be enacted executive power also can be done. That is where the first limitation on executive power is provided. First limitation is executive power is exercised in respect of a subject matter on which there is no law enacted by the state if it is union enacted by the parliament. First limitation is if it is an occupied field by a statute enacted law is normally referred as statute law. If it is covered by a statute then executive power that is a limitation executive power cannot be exercised there. You stop there. Why it is done is in the legislation every detail is provided in respect of survey so and so let us take Karnataka Land Revenue Act or Land Revenue Act of any state. In respect of land what are the subject matters dealt with it deals with who is the authority controlling authority under the statute. It starts from lowest revenue inspector etc. Thasildar, assistant commissioner, deputy commissioner and several other authorities regional commissioner several things come into picture. When that is done those authorities are given power which is called statutory power. Thasildar can pass the, approve the mutation that is a disputed mutation. If there is a disputed case of mutation Thasildar. Now question of invoking executive power in respect of those matters will not come at all. Now that field is occupied by a statute in that authorities are enumerated who will exercise which power against what order appeal can be filed to appellate power several things. How it is done is for everything for union executive head is president of India for the state's governor but governor will not be passing the order for a very subject. Again there is transaction of business rules issue under that the subject matters are allotted to particular executive sections, irrigation, cooperation, land revenue or let us say defense. In this manner it is avoided minister, secretary, principal secretary, under secretary several ways. Though the orders are issued, executive orders are issued by and in the name of president of India. It is not sent for his approval every time because that delegation is there. Likewise under this statute, powers are given to different authorities, hierarchy of authorities. So first limitation on executive power is if the field is occupied by a statute, executive power will have to stop there. Then there might be a situation this statute which is existing may not cover entire field. If it does not cover entire field, the field which is not covered by statute is open for the executive power. Then the next thing that comes into picture is these authorities like deputy commissioner, let us say district collector or deputy commissioner. All these authorities secretary etc who are given certain powers, all these authorities if they are named in a statute they become statutory authorities. Otherwise for the purpose of executive it is said that these authorities are limbs of the government. Not that they are separate existence, they are limbs of the government. So executive power may be exercised by directly by the state, by its chief secretary or principal secretary etc. It might also be done by other hierarchy of officials who are considered as limbs of the government or the executive. First limitation is occupied field. Then there is a interesting aspect that is in respect of fundamental rights, in respect of fundamental rights chapter, part three of the constitution, there is a specific limitation is put on executive. That is one of the subjects we will be dealing with today. Why that is of importance is kindly see article 19 or for that purpose article 21 or any one of them just for the purpose of illustration kindly see article 19. All citizens shall have the right A, B, C, D, E, all these things are given. Nothing in sub-clause A shall affect the operation of any existing law, prevent the state from making any law article 19, 2. Kindly see the word, nothing in sub-clause A of clause 1 shall affect the operation of any existing law or prevent the state from making any law. Articles 19, 2 to 6 provide that by making law reasonable restrictions and be put on the rights under article 19, 1 in respect of subject matters allowed in those articles. The law that is referred here, the word law that is referred here kindly see now kindly see article 20. No person shall be convicted of any offense except for violation of a law in force. Article 21, no person shall be deprived of his life or personal liberty except in accordance to procedure established by law. Kindly go to article 25, subject to public order, morality and health and to other provisions of this part, all persons are equally entitled to freedom of conscience and right freely to profess. Nothing in this article shall affect the operation of any existing law or prevent the state from making any law. Again it provides for making any law subject to several conditions. Similarly, in article 26, establish and maintain institution manage its own affairs in the matters of religion to own and acquire movable and immobile property and to administer such property in accordance with law. Same words you will find in article 29, 30, minority rights, all those things. This word law came up for interpretation before the courts. Article 19 rights, freedom of expression, let us say, or article 21, the right guaranteed under article 21, now it includes the right to privacy. All these can be regulated by law. What is that? It is meant. It gets into, it becomes important because of the wordings in article 13. Article 13 says, any law which averages or violates the fundamental rights is white. To that extent it is white. And there is one this thing, article 13, 3, 13, 2, the state shall not make any law which takes away or averages the rights conferred by this part and any law made in contravention of this clause shall, to the extent of contravention, be white. Normally law is a concept of enacted law. Once the legislature is provided, it is enacted law would be what the general meaning is. But 13, 3 may provide say very special provision. In this article, unless the context otherwise requires, law includes any ordinance, order, by law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Therefore, what it means is article 13, as it is let us say a more a clarificatory article, it says any law made by anybody which has the force of law will be white if it affects, averages, infringes the fundamental right. Normally law as I already state is understood as a law enacted by the legislature. But what could be contented is, I have passed an order, an executive order is passed under 162. It is not law, even if it averages or affects the fundamental right, it cannot be declared as white. To avoid this mischief, more as an abundant matter of caution, article 13, 3 says whatever name you call it, any order that you pass under whatever source which is being enforced, which has the force of law, if it affects fundamental rights, it is white. So article 13 takes care to say whatever may be the type of order you pass, notification, law, enacted law or anything which averages will be white unless it is permitted under the constitution. Now, how it came up for consideration is a very interesting aspect. It came up for consideration in several case, first it came up for consideration in Correxing, that is the AR 1963 Supreme Court, 1295. What was, what had happened in that case was there were certain, a police manual, let us call it as a police manual, which provided for making, keeping surveillance over the persons whom you suspect. Keeping surveillance affects the mobility of the person. Keeping surveillance on a person affects his liberty, article 21 rights, including privacy. But this was not by any enacted law. This manual instructions were issued by the department as a procedure, but police were using it. This matter came up for consideration before the Supreme Court, in the case of Correxing. Supreme Court said, it is held that Uttar Pradesh police, police regulations questioned in the said case, averages or infringed the fundamental right of the petitioner. And it is pointed out that this regulations, these regulations are departmental instructions framed for the guidance of the police without any statutory basis. If there was a substantial enactment, if these rules are or regulations are framed under that substantial enactment, it was different. So, this was an executive order without the basis of any statute, but it affected fundamental right. For that the court said, the word law used in part three of the constitution is a statute validly made by the legislature. Therefore, the first limitation pointed out was, if it affects fundamental right in any form, it can only be by a statute made by parliament or the state legislature. Again, next condition is whether that law is valid or not is another condition. The first requirement is it should be an enacted law. Even for Article 21 in the Correxing itself, it was said the requirement is it should be a law. This has been reaffirmed in several decisions. The law used in fundamental rights chapter is this. Then matter came up in a varied manner, all these things came up before the court. In Bijoy Emmanuel, AR 1987 SC 748 National Anthem case, it is known as National Anthem case. The particular sect, let us call it as a particular sect, they don't sing anything other than something in praise of the God or their own this thing. Therefore, whenever in the classroom, National Anthem was prayed, they would stand up respectfully, but they will not sing. There were some instructions issued by the education department that unless they sing National Anthem, they are to be from the school their admission is to be removed. That matter ultimately came up before the Supreme Court. Supreme Court said in AR 1987 SC 748, it is said the law is now well settled that any law which may be made under Article 2 to 6 of Article 19 to regulate the exercise of the right to the freedoms guaranteed under Article 19 must be a law having statutory force, not a mere executive or departmental instruction. Again with reference to religious rights guaranteed under Article 25, it is said it must be a law having the force of a statute, not a executive instruction. Therefore, in that case, the circular instructions which were given were struck down as it is an executive order tracing their power to Article 162. Then matter came up in a very famous case with regard to religious rights. That is, it is called a Shiruramat case. Commissioner of Hindu Religious Endowments versus Lakshmendra Tirtha Swamya, Shiruramat case, AR 1954 SC 282. As I pointed out, Article 26 provides a denomination can acquire, establish the institutions, acquire the property and administer those property in accordance with law. Apart from Article 25 rights with regard to religion, they can also acquire property, etc. In Shiruramat case, three things were importantly decided. That is, first is the right of a Matadipati or Mahan of a mutt is not only a religious right. He has a beneficial proprietary interest in the property of the mutt or the property held by the mutt. Therefore, in respect of these rights, it was held. Article 26 guarantees religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in the matter of religion. The latter is fundamental right with no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose, which the legislature can validly impose. That is, if at all you are dealing with any rights under Article 25 or 26, it has to be by a law enacted, the laws which the legislature can validly impose. Para 17 and 23 repeatedly that's being said in the Shiruramat case. Now, right to property was a fundamental right under Article 191 F, but now it is deleted under Article 191 F. It is made as a constitutional right under Article 300 A. Article 300 A, you may see, is again a wording which is very special. No person shall be deprived of his property saved by authority of law. This word law you will find even under Article 265 that is part to impose tax, etc., levy tax, etc. See, no Article 265, no tax shall be levied or collected except by authority of law. The word law that is found in Article 265 and 300 A, again came up for consideration before the Supreme Court. Supreme Court in the case of AR 1961 Supreme Court 552, in respect of Article 265 it said, Article 265 imposes a limitation on the taxing power of the state. In so far as it provides that, state shall not levy or collected tax except by authority of law. That is to say, a tax cannot be levied or collected by mere executive fiat. It has to be done by authority of law which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the legislature imposing the tax. Legislature imposing the tax. Again, tax can be imposed only by a law enacted, passed by the legislature, parliamentary or state legislature. Similarly, the right to property 300 A also provides that it shall be by authority of law. The word law as used in Article 300 A was also considered. It said the law as referred in Article 300 A is held to be legislation. It is so held in Bishamber Dayal that is AR 1982 Supreme Court, page 33. What had happened in that case was a government land, on a government land, a particular person was permitted to construct a guest house. Guest house in the sense at old times it was for travelers to stay at that place. Charges were not made except maintenance. He had permission, then he constructed, he took further permission, he added a temple, all those constructions were made. He died, his sons and all continued that. At some point of time an order was issued on a complaint made by someone saying this person is running this guest house making profit out of it is using it for personal benefit etc. Therefore, one fine day order was made by the deputy commissioner to take over that property, take over the possession of the property. That matter came up before the Supreme Court. The Supreme Court said unless you are deputy commissioner or anybody, unless you are authorised by a statute law, a law enacted by the legislature, it cannot be done. The word that is said is in Para 41, the word law in the context of article 300A must mean an act of parliament or state legislature, a rule or a statutory order having the force of law that is positive or state made law. Therefore, under executive power, you cannot in any way deal with the rights coming under fundamental right, chapter 3 of the constitution under fundamental right. In spite of this, there are instances of several types where executive in one manner or the other pass the order under the like a GO, government order or guidance, instructions, regulations, rules etc. without there being a statutory law. Therefore, all those things in respect of these fundamental rights and in respect of property right under article 300A, taxing statute under 265, it is said executive power is not available because that it requires a law. Now, with regard to word law used in fundamental rights chapter, matter is, I would rather put it, it is conclusively concluded in the case of Puttaswamy v. Union of India right to privacy case that is 2017-10 SCC page 1. It says while it intervenes, there the contention was it is more for protecting the privacy that certain provision is enacted. The data production is of very importance. Therefore, parliament has made a law for the purpose of protecting the rights and not for taking away the right, those orders etc. Considering that argument, Supreme Court said, while it intervenes, that is the government intervenes, while it intervenes to protect legitimate state interest, the state must nevertheless put into place a robust regime that ensures the fulfillment of three-fold requirement. They emanate from the procedural content based mandate under article 21. Note this, the word that said is the first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of article 21. Therefore, even for the purpose of data protection or anything, if you are in any way touching upon the right to life, privacy etc., even for that beneficial use also, first there should be an enacted law. Under that you may frame rules etc., is separate aspect. Therefore, the requirement of a statute law in respect of certain rights is one of the limitations on the executive power. Though article says, you can exercise executive power in respect of all the matters on which you can legislate. Therefore, that is how it is understood. Then what is it that can be done if all these restrictions are put for that? How it was contained, it is being said. If all these limitations are to be put, there is no place for using the executive power. That is not a, the intricacies are not all that easy to explain. But what actually its importance is, see what happened in one of the case was in Punjab, the, that is the case of Rai Sahib Ram Javya. The case is reported in year 1955, Supreme Court 5149. In Punjab, prior to 1950, there was a practice that department would issue guidelines saying for the textbooks of classes 1, 2, 3, 4 up to 7th or up to SLC or anything. What should be the, for history, what should be the content? Then several publishers, they will invite, they will take articles from several authors and prepare a book, prepare a book. These publishers would submit each of their book for approval of the department. Department then would approve from the list about 5, 6 or even 10 books of different publishers. The schools are at liberty to, where at liberty to take any one of that book as the textbook for that school. In that way, it is actually publisher who would get the articles written. It is he who would print it. It is he who would publish it. And he would sell it for the price fixed by the government. In effect, he was doing all this. Then from 52 onwards, first they said, the department itself would invite articles from the professors or academicians, et cetera, in respect of subject matters 1, 2, 3, 4, et cetera. They invited the articles from the authors, selected those articles. For whose articles were selected, royalty was being paid by the government directly to the person who wrote the article. Then those articles, including those articles, et cetera, textbook would be prepared. Printed and published by the government itself and the government itself would sell it. That is the education department itself would sell it. When this was done, the word publisher or the place of the publisher and his giving the books was taken out. This resulted in publishers filing a read petition which came up before Supreme Court. The contention was there is no law, statute enacted, which authorizes the department to prepare the textbook, publish it, print it, publish it and sell it. By creating a monopoly to the government, entire textbook work is taken over by the government. Therefore, a monopoly is created. This was, this one came up for consideration. Supreme Court pointed out two things. Preparing a textbook, publishing it, printing it is alright. You can prepare textbook, you can publish it, you can do several things. But to say that my publication, that my textbook should be the textbook for the class so and so and government should allow only my textbook. That is not a right given to you under any one of the fundamental rights. Therefore, though you have the right to prepare articles, prepare the book, print, publish it, publish it but you have no right to say my book should be the book that is, that should be taken as textbook and all the schools should purchase from me. First it was held that it is not fundamental right. Therefore, the person who questioned has no right to question it but that is not of importance for our purpose. Our purpose, executive power was exercised. It is first time it was pointed out. Education department has been, there is a budget, an appropriation act passed. State legislature has allotted such and such a sum, let us say 100 crores to the education department. It is the responsibility of the education department to provide for textbooks. Therefore, they prepared the textbooks, they are distributing the textbook, they are creating a monopoly also. So, court pointed out when there is an allotment of budget, expenditure is permitted, expenditure on what it should be done is for the department to decide unless that field is occupied by any other statute made by the legislature. Of course, there was no statute made, therefore court said under executive power this is a field not occupied by any statute. Budget allotment has been properly made by appropriation act. Therefore, government that is education department can proceed to print, publish and sell the textbook, prescribe the textbook and create a monopoly in respect of textbook. So, executive power, though not authorised by any special statute, it was pointed out this is a field not occupied by the statute. At the same time, there is budgetary allotment, therefore executive power is available, even creating monopoly also can be done under article 162. So, first this thing, there the court said it is not for a implementing an already existing act or for filling the gaps in respect of subject matters for which enactment is there. It is actually executive power in a situation can be exercised in respect of all the matter where there is no statute. Well, after that case, another matter came up for the Supreme Court that is Manoj Paul, Paul Manoj Pandian versus Veladurai, 2011, 5 ESCC 214. In that Supreme Court pointed out the rights under article 162, executive power can be exercised in respect of there will be several types of situations might arise before the executive. They are required to immediately act on it to meet those contingencies they should act. It is for that purpose they are given the power under article 162. Therefore, in the absence of a statute, in the absence of field being occupied by the statute, the executive can proceed to make all the law, even classification, even policy decision, all these things can done under article 162. So long as the order passed by them is not affecting somebody else's right. If it affects somebody else's right, that means he has some right under some statute. Therefore, you are affecting a right under a statute that is not permissible. If you are affecting a right of a third party by issuing a government order under 162, then so long as it is clear of anybody's right, yes, it is within article 162. If it affects somebody else's right, then you will have to have a statutory backing for doing that. That is, there should be an enacted law which authorizes you to do that. Therefore, now it is understood that so long as the field is not occupied by a statute. So long it will not take away either fundamental right or any other right of a citizen. Executive power can take policy decision, they can make classification, they can make, of course, validity is separate thing, but they can exercise all those powers invoking article 162. This is, in explaining this, the court said the very power under article 73 and 162 is meant for meeting every type of contingency for which law may not have been contemplated at all. Cable laying came, it was not something which was involved earlier, came for cable laying, government orders were issued regulating it because it was not covered by it. But later, law was enacted covering that field also, it will have to be done according to the statute, then question of invoking the executive power will not arise. So in that way, now executive power can extend to several things so long as it will not affect the rights of some third party. So long matter is not covered by statute, so long it is not a fundamental right on which you are passing, you are exercising the executive order. So now ultimately it comes down to a situation that for many of these things there will have to be a enacted law by state legislature or the parliament. Without that, the executive power will not be able to, will not, is not available to be exercised in respect of matters covered under fundamental rights chapter article 265, article 308. If that is so, how it can be understood? Article 162 empowers the executive to pass any type of order, but it will not authorize the content of article 62, length and breadth width of executive power under article 162 and 73 will not extend to making law. Making law by the executive is again covered by altogether different provisions, that is see article 213 of the constitution heading itself is, article 213 heading itself is legislative power of the governor, governor is an executive. He has legislative power, that is issuing of ordinance. Therefore in a given situation where a law is to be made and under the limitations provided under article 213 or for the union it is I think article 123, article 123. Legislative power of the president, it can be done by issuing an ordinance. The ordinance will be treated as enacted law for the period for which it can remain in force. That is unless it is disapproved by the legislature, it will continue to be in force for six months, six weeks, but if it is not followed by a legislation, then at that period it lapses. Therefore, the ordinance issued under the ordinance making power also came up for consideration in several cases including the Bihar, Wadhwa case. And later in KT Plantation, later in the case of Krishnakumar Singh and another, Krishnakumar Singh and another 2017 3 SCC page 1, it is held during the tenure of the ordinance that is within six months. During the tenure of ordinance, it has same force and effect as a law enacted by the legislature. Therefore, in case the executive wants to do something in respect of certain rights coming under part 3 fundamental rights or article 265 or article 308, then it is not 162 that is available. If at all they satisfy the conditions provided under article 123 or 213, they can issue ordinance. Of course, ordinance simply because they have the power to make law, it does not mean that what they make is valid. Validity is a separate thing, but it can be called as law or a statute law. It is in that way, this power under article 162 and 73, executive power, such a enormous power is given to meet extraordinary situations or any situations that arise. At the same time, for that limitations are also put under the constitution, like who can issue it, whether it is occupied field, whether it is affecting the right of a third party, whether it is backed by a statute, all these things will come into picture, giving the limitations, providing limitations on the executive power. I think we have in a way for the purpose of introducing the subject, it is more than introducing the subject. I would say the intricacies are something which all the listeners, particularly the law students and young lawyers, I will be very happy if it arouses your interest and pushes you to make some research on these things. It would be a very, even for the purpose of gaining knowledge, working of the constitution can be understood. Thank you. Thank you. It was an enlightening session. As you said that you had just told that it will be a bird eye view, but I think that there is a deep dive into your entire session. Like one question I just received on the WhatsApp, like you said that could you just elaborate what will be the occupied field of legislation? I think slightly your voice is not audible Mr. Vikas. I am saying somebody has sent a text. What do you mean by occupied field of legislation? You have muted. Occupied field with reference to executive power that is article 73 and 162 is if the subject matter is covered by a statute, let us say municipality. In respect of constituting the municipality, there are constitutional provision under article 243 K onwards. At the same time, there are state enactments, how municipality is to be constituted, what should be their functions, etc. That is a field now covered by a statute. Authorities are provided. Deputy commissioner shall publish the, shall convene the first meeting or the state election commission shall issue notification calling for election. All these functions are now provided for under the statute. Only those authorities as per the statute they can do it. You cannot ignore that municipalities act and under article 162 go on doing something. The field with regard to municipality, constitution of municipality, the working of municipality is now covered by a local legislation and certain constitutional provisions. Therefore it is a occupied field. This is by D. Devesh. If you want it's a big question, I can read it also. The pith and substance according to me, he wants to understand the doctrine of repigency. Of course, in this, in respect of article 73 and 162 pith and substance may not be of any, I mean importance, but pith and substance what I referred is, if the union has made law in respect of some subject matter in list one, at the same time in respect of a connected matter, which is also found in list two, state legislature also can make law. If state legislature, the law made by state legislature and incidently encroaches upon some field which is meant for union or the parliament under list one. At that stage, courts have held that in substance, in pith and substance if the state law is in respect of a matter which is given under list two as a state subject, then even if it encroaches on some portion of the subject which is given in list one, still that law will be valid because in pith and substance what the state is doing is within its legislative competence. But for incidentally, it encroaches upon something, but that is a interpretative matter which may not be of much significance while dealing with article 73 and 162. Now, another question which has come is that you have said that you see that the government has, the governor has exercised the past. Sometimes it is written by the state of a particular state. So, will it have the same trappings like that of article 73 or article 162, let us assume. That is why I said all these officers of the government are treated as limbs of the government. They are not something like an independent authority unless under the statute a particular designation is used. The orders, whoever issues, if it is not backed by statute law or an enacted law, then it is traceable to article 162, it becomes an executive order. Even if issued by the principle Secretary of the Digital Chiefs, if he is issuing the order under the municipality side, it is different. Then that statute says what should be done, what should not be done. But without reference to that, if it is done, it definitely is an executive order. Traceable to 162, it will have to meet all those limitations of the requirements. And then since it is again, let's say the next question is, like we normally say that the instructions cannot supplant the rules, but it can only supplement the rules. So it will have the same meaning under article 73 or 162 or it will be having a difference. Yes, there are cases where the courts have said suppose a statute is made. One of the provision under that statute authorizes the government to frame the rules, but government has not framed the rules or the legislature or whoever is the authority has not framed the rules. Courts have said so long as rules are not framed, that field remains open without contravening the substantial provision under article 162 guidelines or circulars can be issued using the power under article 162. And the next question is you have referred to rules of business. In case there is any violation of rules, firstly explain rules of business and in case there is any violation of the rules of business, what is the effect thereof in the framing of the instruction? Rules of business provide for the distribution of the subjects to different departments in the government, down planning, defense, irrigation, public works. Each one will have some cabinet control and chief minister or the prime minister will have overall control. Rules of business is more a matter of internal administration. Again limitations are provided that in respect of a matter pertaining to defense, a principal secretary of public works department cannot pass an order. It has to go before the defense department whoever is the authority under the defense department. If it is to go to cabinet, it will have to go to cabinet or if it is to be approved by the honorable minister, it should be approved by honorable minister for defense like that. The business transaction rules, business transaction rules are more for interdepartmental authority. Though slightly different. He says let's assume in a punishing authority or any way, the principal secretary is the decision making body. Then where would be the appeal like it will have to be through rules of business to the minister or what will happen? There is no, in that sense, if the principal secretary passes the order under article 162, there is no appeal provided unless that order itself says it is subject to an appeal. Appeals are created by statute saying if an order is passed by the deputy commissioner, the agreed party can go to so and so file an appeal like that unless that order itself creates an appellate authority, there will be no appeal as such in respect of an executive order. Sometimes in rules we find that they say that there is an appeal but the principal secretary himself is the punishing authority. Let's assume in a service matter. In a service matter, an appeal to the, in service matter there are situations wherein the appeal is provided to the governor. In respect of orders which are passed by the state government in that sense, appeal is provided to governor. Otherwise there is no meaning in filing any appeal. You will have to go to read totally. The last question we are taking, delegated legislation is permissible in law. If it violates the legislation, what is the relief for the public? Of course, violation of any rights, validity of the law can only be challenged in a writ proceeding. If it is fundamental right, article 32 can be invoked. Otherwise it is article 226 and 227. I have a question. Many thanks for your very scholarly presentation in your usual intriguing way you have presented the topic. My question is, does doctrine of repugnancy, sir, has any say here? Repugnancy will not come for the reason. If there is a statute in respect of that subject matter, the executive power is out. Repugnancy you can put it in this way. There is a statute it provides for certain procedure, but government claims that the courts will have to find out whether it is covered. If it is covered, the action of the executive becomes repugnant. In that way, otherwise repugnancy is in respect of two laws in place where one of these provisions contradicts the other like that. Thank you sir for sharing your knowledge. It's always enriching from learning from you. And friends, before we part on Friday we have a session on by Justin Sunil Thomas, the differences between legal here legal representatives and nominee. Do stay connected with us at 5pm on Saturday on Friday. Thank you everyone stay safe, stay blessed. And once again, thank you to many thanks to you sir. And thank you to Mr. Jay Kumar Espatel, who is always an epitome of knowledge. Thank you everyone, stay safe, stay blessed.