Report No. 62
2.39. Constitutional aspect considered.-
Before coming to our conclusion in this regard, we have carefully considered the constitutional aspect. In our view, the vesting of the power concurrently in the Central Government and the State Governments) is not likely to conflict with the scheme of the Constitution relating to the distribution of the executive power between the Centre and the States. The power to add an 'employment' in the Schedule by a notification is an "executive" one. But it is permissible to vest an executive power in the Central Government concurrently with the State Government1. Subject to the provisions Of the Constitution, the executive power of the Union extends2 under Article 73(1) of the Constitution to matters with respect to which Parliament has power to make laws.
But there is a proviso to this article under which this executive power shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws, i.e., matters mentioned in the Concurrent List. The subject of workmen's compensation is in the Concurrent List.3 Hence an executive power relating to the Workmen's Compensation Act can be conferred on the Central Government, if it is expressly so provided in a law made by Parliament. It is true that the Workmen's Compensation Act, 1923, though a Central Act, is not a law made by Parliament. But any amendment now to be made in that Act by Parliament will be a law made by Parliament and will therefore satisfy the above constitutional requirement.
Under another provision of the Constitution4-Article 162-the executive power of a State extends to matters with respect to which the Legislature of the State has power to make lawful but the proviso to that article also enacts that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and shall be limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. An express provision conferring concurrently on the Central Government the power under section 2(3) would therefore seem to be consistent with the scheme of the relevant provisions of the Constitution as analysed above. Thus there is no constitutional difficulty if the power to notify the employment is given concurrently to both the Governments.
1. Para. 2.38, supra.
2. Article 73(1)(a) of the Constitution.
3. Seventh Schedule, Concurrent List, Item 24.
4. Article 162 of the Constitution.