Indian Kanoon - Search engine for Indian Law

(2) Articles 73 and 162 of the Constitution deal with only distribution of executive powers between the Union and a State. The executive powers of a State are not only those mentioned in Article 162. A State has an executive power under Article 298 to carry on any trade or business and to make contracts for any purpose, A lottery conducted by a private person may be shunned but a lottery organised by a State would stand on a different footing because it would be for the benefit of the public generally and that therefore a lottery organised by a State is a business or trade or the making of a contract and is therefore within the executive powers of a State. It may be stated straightway that Mr. Parikh specifically stated that he did not at this stage canvass protection under Article 19(1)(g) and further that, as a matter of fact, he did not advance any argument based upon Article 301.

16. Articles 73 and 162 deal with distribution of executive power of the Government of India and of the States. Article 73(1) provides that subject to the provisions of the Constitution, the executive power of the Union extends to the matter with respect to which the Parliament has power to make laws. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the Legislature of that State has power to make laws. As the power to legislate in respect of lotteries organised by a State is exclusively in the Union Parliament, the executive power also in respect of lotteries organised by a State would be exclusively in the Government of India by reason of the operation of Article 73 and conversely a State would have no executive power in respect of a lottery organised by a State. As pointed out by the Supreme Court in Ram Jawaya Kapur v. The State of Punjab, , Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within its scope as they are primarily concerned with the distribution of executive power between the Union on the one hand and the component States on the other, but they do not mean that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union executive or the State executive, as the case may be, can proceed to function in respect of them. It has further pointed that the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already and that the same principle underlies Article 73.

"Notwithstanding anything in this Constitution, the President may with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends."

The non obstante clause in the beginning of this sub-article shows that the provision of that sub-article overrides the provision relating to the distribution of executive powers under Articles 73 & 162. What is to be noted is that the entrustment contemplated by this sub-article is to be by the President of India and that too with the consent of the Government of the State in whose favour the entrustment is to be made.

18. It is, therefore, clear from the above provisions of the Constitution that no State Government can organise or conduct a lottery save and except according to the provisions of the law, if any, enacted by the Parliament or unless the functions or powers of the Government of India are entrusted to the State Government under and in accordance with the provisions of Article 258(1) and only to the extent that the functions or powers are so entrusted. It follows, therefore, that as State lotteries are exclusively within the legislative competence of the Parliament and therefore, in view of Article 73, within the executive competence of the Government of India, no State Government can organise a State lottery in the absence of such an entrustment under Article 258(1), If a component State of the Union organises a lottery in the absence of any legislation in that behalf of the Parliament or in the absence of a valid entrustment under Article 258(1), the lottery would not be lawful. The word "unlawful" can have two meanings. The word can be used in the sense of unauthorised or prohibited. It can also be used in another sense, as referring to something which is not only unauthorised or prohibited, but which is a punishable crime or offence. It is, in the former sense of "unauthorised" that a lottery not organised by a State under or in accordance with a legislation of Parliament or in accordance with a valid entrustment under Article 258(1) would not be lawful.