Quick answer
Yes. In Rai Sahib Ram Jawaya Kapur v. State of Punjab (decided 12 April 1955), the Supreme Court held that under Articles 73 and 162 the executive power of the Union and the States is not limited to matters on which a law has already been passed. It extends to all matters on which the legislature can make laws, so the Punjab Government could take up printing and publishing school textbooks without first passing a statute. Executive action must still respect fundamental rights and existing laws, and specific legislation is needed where the government has to encroach on private rights.
The case
Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, Supreme Court of India, 12 April 1955. Judgment delivered by Mukherjea, C.J. Six persons carrying on the business of printing and publishing textbooks under the name Uttar Chand Kapur & Sons filed a writ petition under Article 32. The government began preparing and publishing certain textbooks itself, and a notification of 9 August 1952 invited only "authors and others" (not publishers) to submit books, with copyright to be transferred to the government. The publishers said this executive policy, made without any law, destroyed their business. The main petition was dismissed with costs, and the connected petitions failed for the same reasons.
Key holdings
- No prior law needed for every executive act: Article 162 extends the executive power of a State to matters on which the State Legislature can legislate. It is not confined to matters already covered by a law. Article 73 makes a similar provision for the Union.
- Meaning of executive power: it is hard to define exhaustively. The Court described it as the residue of governmental functions left after legislative and judicial functions are taken away, including making and carrying out policy.
- Government trade: the government can carry on a trade or business without a specific statute if the expenditure is authorised by the legislature through the budget and Appropriation Acts.
- Limits: executive action cannot violate fundamental rights or an existing law. Where the government must encroach upon private rights, specific legislation is required. Here no such power was needed, because the government could simply contract with authors (Article 298).
- No Article 19(1)(g) violation: the publishers had only a chance or prospect that their books would be approved, not a right to have them adopted. They remained free to print and sell other books.
- No Article 31 question: the hope of selling books to particular customers is not property or an interest in an undertaking, so no compensation issue arose.
- Cabinet system: the Governor is the formal head of the State executive; real executive power lies with the Council of Ministers responsible to the legislature.
Articles 73 and 162 compared
| Point | Article 73 | Article 162 |
|---|---|---|
| Whose executive power | The Union | A State |
| Extent | Matters on which Parliament can make laws (subject to the Constitution) | Matters on which the State Legislature can make laws (subject to the Constitution) |
| Applied directly in this case | Discussed for the general principle | Yes, because Punjab is a State |
Example
A State government decides, by an executive order backed by budget money, to publish its own Class 5 science textbook. Zoya, a private publisher, had hoped her book would be prescribed. Following Ram Jawaya Kapur, she cannot complain of a breach of Article 19(1)(g), because she had no right to have her book chosen. But if the government ordered all private bookshops to stop selling her books without any law, that would encroach on her rights and would need valid legislation.
Why it still matters
The case remains the leading authority on the scope of executive power and on Cabinet government in India. For a fuller case summary, see Rai Sahib Ram Jawaya Kapur v. State of Punjab.
Exam point
Ram Jawaya Kapur (1955): executive power under Articles 73 and 162 is co-extensive with legislative competence, so prior legislation is not required; but executive action cannot infringe fundamental rights or law, and encroachment on private rights needs a law.
