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17. Articles 73 and 162 of the Constitution delineate the extent of executive powers of the Union and the State respectively. Said Articles 73 and 162 are as under:-

“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 or agreement:

18. As regards clause (b) of Article 73(1) there is no dispute that in such matters the executive power of the Union is absolute. The area of debate is with respect to clause (a) of Article 73(1) and the Proviso to Article 73(1) and the inter-relation with Article 162. Clause (a) of Article 73(1) states that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. Parliament has exclusive power in respect of legislative heads mentioned in List I of the 7th Schedule whereas in respect of the entries in the Concurrent List namely List III of the 7 th Schedule, both Parliament and the State have power to legislate in accordance with the scheme of the Constitution. The Proviso to Article 73(1) however states, subject to the saving clause therein, that the executive power so referred to in sub-clause (a) shall not extend in any State to matters with respect to which the legislature of the State has also power to make laws. The expression “also” is significant. Under the Constitution the State has exclusive power to make laws with respect to List II of the 7th Schedule and has also concurrent power with respect to entries in Concurrent List namely List III of the Constitution. The Proviso thus deals with situations where the matter relates to or is with respect to subject where both Parliament and the Legislature of the State are empowered to make laws under the Concurrent List. Subject to the saving clause mentioned in the Proviso, it is thus mandated that with respect to matters which are in the Concurrent List namely where the Legislature of the State has also power to make laws, the executive power of the Union shall not extend. The saving clause in the Proviso deals with two exceptions namely, where it is so otherwise expressly provided in the Constitution or in any law made by Parliament. In other words, only in those cases where it is so expressly provided in the Constitution itself or in any law made by Parliament, the executive power of the Union will be available. But for such express provision either in the Constitution or in the law made by Parliament which is in the nature of an exception, the general principle which must govern is that the executive power under sub-clause (a) of Article 73 shall not extend in any State to matters with respect to which the legislature of the State has also power to make laws. In the absence of such express provision either in the Constitution or in the law made by Parliament, the normal rule is that the executive power of the Union shall not extend in a State to matters with respect to which the legislature of the State has also power to make laws.

23. As regards definition of appropriate Government, Section 432(7) of Cr.P.C. adopts a slightly different approach. It defines Central Government to be the appropriate Government in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends. In that sense it goes by the same principle as in Article 73 of the Constitution and Section 55A of the IPC. The residuary area is then left for the State Government and it further states that in cases other than those where the Central Government is an appropriate Government, the Government of the State within which the offender is sentenced shall be the appropriate Government. In other words, it carries the same essence and is not in any way different from the principle in Article 73 read with Article 162 on one hand and Section 55A of the IPC on the other. The specification as to the State where the offender is sentenced serves an entirely different purpose and helps in finding amongst more than one State Governments which is the appropriate Government as found in State of Madhya Pradesh v. Ratan Singh and others13, State of Madhya Pradesh v. Ajit Singh and others14, Hanumant Dass 13 (1976) 3 SCC 470 14 (1976) 3 SCC 616 v. Vinay Kumar and others15and Govt. of A.P. and others v. M.T. Khan16. According to this provision, even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government.

P.C. does not give primacy to the executive power of the Union.
Our Answer to Question posed in Para 52.4. is:-
Question 52.4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the 7th Schedule to the Constitution of India for exercise of power of remission?
Answer: In respect of matters in list III of the 7 th Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle there are two exceptions as stated in Proviso to Articles 73(1) of the Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend.