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(6) The entrnstment may be either conditional or unconditional.

(7) The power can be exercised notwithstanding anything contained in the Constitution.

It is not necessary to examine all the above ingredients which constitute the clause. The most important point which requires to be determined, as already stated is the nature and the scope of the power of entrustment and the legal effect of any notification or order which may be issued by the President in exercise of that power. This is the central fact which has got to be ascertained for the disposal of the present petition. It may be mentioned that the Clause does not require that the President must act under the Clause by the issue of a notification. Therefore, the fact that a notification has been issued in this case is not of much consequence. The President whilst exercising the function under Clause (1) may act in any mode provided it is not inconsistent with any other provision of the Constitution. It is not disputed that the President may exercise the function under Clause (1) by only making an order and doing nothing more. Therefore, the character of the impugned notification cannot derive any strength from the fact that it is a notification. It may be considered as an order made by the President and got published by him in the Government Gazette. Another important ingredient to be noticed is the subject-matter of the power of entrustment. The subject-matter is mentioned as function in relation to any matter to which the executive power of the Union extends. Now, the extent of the executive power of the Union is mentioned in Article 73, Clause (1), and it comprises of the matters mentioned in Sub-clauses (a) and (b). It is not necessary to examine the matters referred to in Article 73, Clause (1), at this stage. We will do this if it is found necessary at a later stage. For the sake of convenience, we may describe the power exercisable by the Union Under Article 73 as the executive power of the Union, Reverting to Clause (1) of Article 258 , it is clear, therefore, that the power or the function which can be entrusted by the President either to the State Government or to its officers is the executive power or function of the Union.

"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away".

Mr. Nanavaty contends, and this is not disputed by the learned Assistant Government Pleader, that the performance of the aforesaid function of entrustment is not the performance of any judicial function. Mr. Nanavaty further contends that the above function is not also a legislative function. According1 to Mr. Nanavaty, the only legislative function which has been assigned by our Constitution to the President is, the function of promulgating Ordinances under Article 123 during recess of Parliament. Mr. Nanavaty submits that the only way in which the President. can exercise the legislative function is under Article 123 and, inasmuch as the function under Clause (1) of Article 258 is not to be performed in that manner, the activity of the President under that Clause is not a legislative activity. We do not propose to consider the validity of this submission either. The only criticism which one can make against this submission is that Article 123 cannot be read in such a way as necessarily, to circumscribe the legislative power only in the mode mentioned therein. That Article is not intended to circumscribe the powers of the President which otherwise he may possess under the Constitution by restricting the exercise of them to the mode mentioned in Article 123 . But, for the purposes of the present argument, there is no doubt whatsoever that the function under, Clause (1) of Article 258 is. not a legislative function within the meaning of Article 123 . But, that does not mean that the function must automatically come under the third category of executive function. It will be noticed that the observations on which Mr. Nanavaty relies are prefaced by the word "ordinarily". The aforesaid observations, in our judgment, were not intended by Their Lordships to-mean that the powers and functions mentioned in the Constitution must rigidly, come within the purview of any one of the aforesaid categories. An examination of the question on its own merits, in our judgment, reveals that the function of entrustment stands in a category by itself and does not necessarily lend itself easily to be placed under one or the other of the three categories mentioned above in the first' instance, the above observations, were made by Their Lordships whilst examining the meaning and the connotation of Article 162 of the Constitution, which is in the same terms as Article 73 except with a slight difference which is not malarial for the purposes of our discussion. Now, if we examine the language of Article 73, we find that, although it does not define what an executive function, is, it does mention the matters over which the executive power is exercised. The exercise of the executive power is to be over (a) the matters with respect, to which Parliament has power to make laws, and {b) the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. It is true that this definition of the extent of the executive power is not exhaustive. There are some other Articles in the Constitution which expressly designate the powers conferred under them as executive powers. Instances of those are to be found in Articles 257 and 257 which occur in Part XI, Chapter II, in which Article 258 occurs under the same heading "Administrative Relations". The powers conferred under these Articles do not come within the purview of clauses (a) and (b) of Article 73 (1) and yet the exercise of those powers are expressly described as falling within the extent - of the executive power of the Union. In Article 257 , it is enjoined that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State and the Union Government has been given the right to give such directions to a State as may appear to the Government of India to be necessary for that purpose. Under Article 257, it is enjoined that every State shall exercise its executive power in such a manner as not to impeach or prejudice' the executive power of the Union and a power is given to the Union to give such directions to the States as may appear to be necessary to the Government of India for the purpose. Under the same Article, a power is given also to the Union to give directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance. Under the same Article, some further powers have been given to the Union over the State in respect of certain other matters. All these powers have been, in express terms, stated to fall within the ambit of "the executive power of the Union". But, it Is noteworthy that the power or the function conferred upon the President under Clause (1) of Article 258 does not say in express terms that that power is within the ambit of the executive power of the Union. We may mention that our Constitution confers a number of functions upon the President without expressly designating them either as legislative, judicial or executive. For example, under Article 72, the President has been given the power to grant pardon. Under Article 78, Clause (a), which enumerates the duties of the Prime Minister, the President derives (1) the power to be informed of all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation; (2) the power to be furnished information relating to the administration of the affairs of the Union and proposal for legislation; and (3) the power to call upon the Prime Minister to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister, but which has not been considered by the Council. Under Article 80, Clause (a), the President has been given the power to nominate 12 members to the Council of States. Under Article 86, the President has got the power to address either House of Parliament or both houses assembled together and to send messages to either House with respect to a bill then pending in Parliament or otherwise. Under Article 124, the President has got the power of appointing the Judges of the Supreme Court. We need not enumerate exhaustively all the functions which have been specially conferred upon the President by various Articles of the Constitution. It is enough to say that the powers conferred upon the President by the Constitution are found reposed in a number of Articles of the Constitution. Now, obviously, all these powers, though they have not been mentioned to be in the nature of legislative or judicial functions, do not automatically fall within the purview of the third category of executive functions. The argument must certainly fait in respect of the power to grant pardon, which, according to all constitutional jurists, is the exercise of a judicial function. In our judgment, if all the aforesaid other powers were automatically to be described as executive powers without examining the content and the scope of each of the powers, it might lead to a number of complications and difficulties. If all these other functions were to be regarded as executive functions of the Union, then, according to Article 53, these powers can be exercised not only by the President personally, but also through the officers subordinate to him. Not only this, but if these other powers fall within the executive field of the Union, then, under Clause (3) of Article 53, the Parliament will have the right of conferring those functions on authorities other than the President by enacting a suitable law. Having regard to the importance and the nature of some of the aforesaid functions and the purpose for which those functions have been conferred upon the President, the argument will require the closest scrutiny if the result thereof is going to be that those functions can be delegated by the President to his subordinate officers or by the Parliament to the same authorities. The Constitution having reposed those functions in the highest dignitory of the State, in our judgment, it would not be proper to hold off-hand that those powers could also be exercised by persons other than the President. The Constitution having reposed those functions in the President, prima facie, the view must prevail that those functions can be performed by the President alone, of course, subject to the provisions contained in Article 74. But, it is important in this connection to notice the difference between the language used in Article 53 and Article 74, Article 53 relates to the executive power of the Union, whereas Article 74 relates to the exercise of the Presidential functions. In respect of the latter functions, whether they fall within the legislative, judicial or any other field, the Constitution has enjoined that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions. The President being the nominal head of our State, there is considerable force in the argument that, in the exercise of all his functions, to whatever field they may belong, the President is bound to consult and act according to the advice of the Council of Ministers. But, this is so not only with respect to the executive functions, but with respect to all other functions, whether they fall In the three recognized categories or not. The President is bound to consult his Council of Ministers in respect of all these functions. But the functions which can be delegated either by the President or by Parliamentary legislation are only those which may be described as the executive functions of the Union and not the functions of the President. Under the circumstances, we are not convinced that the argument that any function exercised by the President which does not fall within the purview of the legislative or judicial function must necessarily be designated as an executive function. As in the case of the exercise of the power to grant pardon, the nature, the scope and the content of the power itself must be examined before putting any function within one or the other category. An examination may not necessarily put the function into one of these recognized categories; it may have to be placed in the category of miscellaneous functions. Therefore, in our judgment, the point raised by Mr. Nanavaty cannot necessarily be answered in favour of the petitioner by merely holding that the exercise of the function of entrustment under Clause (1) of Article 258 pertains neither to the legislative nor to the judicial activity of the President.

10. The same discussion also leads us to the conclusion that the function performed by the President under Clause (1) of Article 258 of the Constitution cannot be equated with the executive power of the Union mentioned in Article 73 and the other Articles of the Constitution in which a reference is made to the said executive power.

11. But, that does not necessarily mean that the function performed by the President under Clause (1), Article 258 , is not an executive function. An executive function in modern times takes within its connotation a large number of powers. It is not merely the execution of the will of the State or a power to administer its laws. The executive function in modern tunes also includes, besides execution of laws, such powers as the maintenance of public order, the management of nationalised Industry and services, the direction of foreign policy, the conduct of military operations and the provisions or supervision of such services as education, public health, transport and State insurance, (vide Halsbury's Laws of England, Third Edition, Volume II, page 187). Therefore, it still requires to be ascertained, in spite of our conclusion that the Presidential function of entrustment under Clause (1) cannot be equated with the executive power of the Union, whether that function can properly belong to one of the aforesaid or similar activities which, in modem times, is included in the connotation of the word "executive power".