(a) Where does the Constitution of India vest executive power with respect to subject-matters in the Concurrent List over which…

(a) Executive Power over Concurrent List Subjects

Under the Indian Constitution, executive power is co-extensive with legislative competence, but its allocation over Concurrent List (List III) subjects requires harmonizing Article 73(1) and Article 162. Under the proviso to Article 73(1)(a), the executive power of the Union over Concurrent subjects does not automatically extend to a State unless the Constitution or a law made by Parliament expressly confers it upon the Union. Complementarily, Article 162 establishes that the executive power of the State extends to Concurrent subjects, subject to and limited by any executive power expressly vested by parliamentary law in the Union.

In Ram Jawaya Kapur v. State of Punjab (1955), the Supreme Court held that executive power is broadly co-extensive with legislative competence and is not confined to matters already covered by a law. Read with the provisos to Articles 73(1) and 162, this means that the executive authority in Concurrent matters rests ordinarily with the States; for example, criminal law and procedure are Concurrent subjects, but they are administered by State police and prosecution agencies. The Union exercises overriding supremacy only when Parliament specifically enacts a statute transferring the execution of such law to Union authorities. The Union also retains control through Article 256 (States must ensure compliance with Union laws), Article 257 (Union directions to States) and Article 258 (entrustment of Union functions to States with their consent), while Article 258A allows States to entrust functions to the Union. Thus, the constitutional scheme establishes a presumption in favour of State executive autonomy over Concurrent subjects, while reserving overriding paramountcy for the Union through express parliamentary mandate.

(b) L. Chandra Kumar and the Raison d'Être of Administrative Tribunals

In L. Chandra Kumar v. Union of India (1997), a seven-judge Constitution Bench, reviewing the scheme created by the 42nd Amendment (1976) through Articles 323A and 323B, held that the power of judicial review vested in the High Courts under Articles 226/227 and the Supreme Court under Article 32 is an inviolable feature of the Basic Structure. Consequently, it struck down the exclusion-of-jurisdiction clauses under Articles 323A(2)(d) and 323B(3)(d), ruling that tribunals act merely as supplemental courts of first instance whose decisions are compulsorily subject to scrutiny before a Division Bench of the High Court.

Critics argue this defeated the tribunals' primary *raison d'être*—providing expeditious, expert adjudication by eliminating intermediate appellate tiers and relieving High Courts of arrears, as originally envisioned by the Swaran Singh Committee and accepted in S.P. Sampath Kumar (1987), which had treated tribunals as effective substitutes for High Courts. By inserting the High Court as an inevitable intermediary, it introduced another layer of litigation. However, critically assessed, L. Chandra Kumar saved tribunals from becoming bureaucratic enclaves lacking judicial independence. It successfully balanced specialized quasi-judicial efficacy with indispensable constitutional safeguards, subordinating institutional efficiency to the supremacy of the rule of law. The real threat to tribunals has since come from executive control over appointments, tenure and service conditions, which the Court repeatedly struck down (Rojer Mathew, 2019; Madras Bar Association, 2020 and 2021). In November 2025 it struck down key provisions of the Tribunals Reforms Act, 2021 and directed the Union to set up a National Tribunals Commission, confirming that tribunals fail when they lack independence rather than because of High Court review.

(c) Advisory Jurisdiction of the Supreme Court under Article 143

Article 143 empowers the President to consult the Supreme Court on questions of law or fact of public importance under Clause (1), and on disputes arising out of pre-Constitution treaties and agreements excluded from its jurisdiction by the proviso to Article 131 under Clause (2). Clause (1) says the Court 'may' report its opinion, whereas Clause (2) says it 'shall'. In In re Kerala Education Bill (1958) and In re Special Courts Bill (1978), the Court affirmed that it has discretion to decline an opinion under Clause (1), for example where the question is vague or purely political, but must answer references under Clause (2). Important references include In re Berubari Union (1960), which held that ceding Indian territory needs a constitutional amendment under Article 368, and In re Presidential Poll (1974), which held that the election could proceed even when a State Assembly had been dissolved.

Crucially, an opinion rendered under Article 143 is advisory and lacks the binding character of a judgment under Article 141, as the Court has repeatedly observed (for instance, in In re Cauvery Water Disputes Tribunal, 1991). Nevertheless, these opinions carry great persuasive weight and are usually followed. In the Cauvery reference the Court also held that Article 143 cannot be used to reopen or override its own judgments. Most recently, in November 2025, a five-judge Bench answered the reference on the assent of Governors and the President to Bills (Articles 200 and 201): courts cannot fix timelines or declare 'deemed assent', though Governors may not sit on Bills indefinitely and prolonged unexplained inaction is open to limited judicial review. However, the mechanism risks executive misuse when political controversies are referred to circumvent legislative deliberation, as seen in the Ayodhya Reference (1994), where the Court rightfully declined to answer. Thus, Article 143 remains a vital mechanism for constitutional clarification, provided the Court exercises self-restraint against politicized questions.

(d) Article 21 and the "Right to Die"

Article 21 guarantees the right to life and personal liberty, which encompasses the right to live with human dignity. The question whether this includes a "right not to live" witnessed major constitutional shifts. While P. Rathinam v. Union of India (1994) held that the right to live includes the right to die, a Constitution Bench in Gian Kaur v. State of Punjab (1996) overruled it, holding that Article 21 protects natural life and cannot be expanded to include the right to extinguish life, thereby upholding the validity of Section 306 and Section 309 of the Indian Penal Code. The law has since softened: Section 115 of the Mental Healthcare Act, 2017 presumes that a person attempting suicide is under severe stress and should not be punished, and the Bharatiya Nyaya Sanhita, 2023 has no general offence of attempted suicide, retaining only abetment of suicide (Section 108) and attempts to commit suicide to compel or restrain a public servant (Section 226).

The jurisprudence evolved in Aruna Ramchandra Shanbaug v. Union of India (2011), which distinguished active euthanasia from passive euthanasia and permitted the latter under strict judicial oversight. Finally, in Common Cause v. Union of India (2018), the Constitution Bench held that the right to die with dignity forms an integral part of Article 21, recognizing passive euthanasia and advance medical directives (living wills); in January 2023 the Court simplified the procedure for giving effect to living wills. Therefore, constitutional law does not recognize a positive "right to die" via suicide or active termination, but firmly recognizes the negative right to a dignified, unprolonged dying process.

(e) Doctrine of Separation of Powers in Classical vs. Modern Context

The classical structural doctrine propounded by Montesquieu in The Spirit of Laws (1748) mandates three strictly distinct organs of state with watertight functional and personnel boundaries, on the reasoning that liberty is lost when the same person or body holds more than one power. Historically and functionally, this pure model is not realized in any contemporary democracy. Even in the United States, which adopts the strictest structural separation, Madison's design in the Federalist Papers deliberately blended powers through checks and balances such as the presidential veto, Senate confirmation of judges and treaties, impeachment, and judicial review. Conversely, the United Kingdom exhibits an institutional fusion of the executive and legislative branches.

India follows a nuanced, functional separation of powers rather than a rigid structural division; in Ram Jawaya Kapur v. State of Punjab (1955) the Supreme Court said the Constitution has not recognised the doctrine in its absolute rigidity. Yet the Constitution does build in separation: Article 50 directs the separation of the judiciary from the executive, Articles 121 and 211 bar legislative discussion of judges' conduct, Articles 122 and 212 bar courts from questioning legislative procedure, and Article 361 protects the President and Governors. Under our parliamentary democracy, the executive is embedded in and collectively responsible to the legislature. The judiciary remains integrated and independent, exercising judicial review over legislative and executive acts, while Parliament exercises constituent and impeachment powers. As established in Kesavananda Bharati (1973) and Indira Nehru Gandhi (1975), separation of powers is part of the Basic Structure in India not as an unyielding structural compartmentalization, but as an operational system of constitutional checks and balances. The claim is therefore largely accurate: no modern State practises pure structural isolation, and modern governance relies on functional differentiation and mutual accountability. But the doctrine survives as a core principle — no organ may usurp the essential functions of another, as the Court held in striking down the NJAC (2015).