Constitutional Law: Doctrine of Incidental or Ancillary Powers

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The Constitution of India is dynamic. The doctrines developed over time for its interpretation are a reflection of its dynamism. One such doctrine is the Doctrine of Incidental or Ancillary powers. This doctrine has been developed in addition to the doctrine of pith and substance. It helps to resolve the conflict of legislative powers between the Central and the State Governments. It may be procedural or substantive. It gets invoked to aid the main legislation in question.

Now let us understand the meaning of this doctrine.

What is the doctrine?

Ancillary or incidental powers mean those powers that support the powers that are expressly conferred. There are some express powers given to both the Central and State Governments through the three lists specified in the Seventh Schedule. The doctrine of ancillary or incidental powers means that these express powers to legislate on a matter also consist of the power to legislate on an incidental or ancillary matter.

Such a power is essential for the proper exercise of the expressly conferred legislative powers. For example, the power to legislate on banking would also include all the related powers to legislate on matters like functions of banks, the composition of their boards, relationship with RBI, etc. Similarly, the power to legislate on an entry dealing with forests would include the power of afforestation, deforestation, planning and management of forest as ancillary matters.

Its evolution

  • In Common Law System

The doctrine of ancillary/implied powers has developed through the well-known case of R. v Waterfield, (1963) 3 All ER 659. In this case, the appellants were driving dangerously and two constables approached them to gather evidence for the same. The appellants drove the car in question at the constables to avoid them. They were thus convicted for dangerous driving as well as an assault on police officers. The question before the Court was whether the police constables were acting in the due execution of their duty within the meaning of section 38 of the Offences against the Person Act, 1861. To determine whether the powers of the constables’ conduct was prima facie an unlawful interference with a person’s liberty or property, the Court laid down the following test:

It is relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

When applied to this case, it was clear that even though in the general scheme of things the police constables had the duty to bring the offender to justice but this right became limited when it interfered with the person or property. This test is also known as the Waterfield test or ancillary powers test.

The Waterfield test soon found its way into the Canadian law from where it was later adopted in the Indian Constitution.

  • In India

The doctrine of incidental or ancillary powers developed as one of the interpretive techniques used to help determine the scope of the powers of the different levels of government. This doctrine has not been specifically developed in India. However, its traces can be found in various judgments.

In the case of United Provinces v Atiqa Begum & Others, AIR 1941 FC 16, the principal question was whether the regularization of the Remission Act, 1938, an Act of the Uttar Pradesh legislature was valid. The Court held that this Act was covered “within the meaning of entry no. 21 of List II”. Gwyer C. J. observed:

The subjects dealt with in the three legislative lists are not always set out with a scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that list[…] In the case of some of these categories […] the general word is amplified and explained… while the inclusion of others might not be so obvious. […] I think however that none of the items in the Lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.”

This case laid down the way for the doctrine of ancillary or incidental powers in the Indian legal system. It clarifies that a legislature has the power to make law on matters which are ancillary or incidental to the main matters of legislation and thus, are essential to fulfil the object of the law.

Constitutional provisions

The following provisions of the Constitution reflect the power to make law on incidental matters:

  • Article 4 provides the power to make law on matters supplemental, incidental, and consequential to the law providing for adding of states under Article 2 and 3.
  • Article 110 and 199 define money bill for both the Union and the States. It includes “any matter incidental to any of the matters specified in sub-clauses (a) to (f)” of the respective articles.
  • Article 145 provides the power to the Supreme Court to make “rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein”.
  • Article 169 provides for the abolition or creation of Legislative Councils in States. This article includes the power to make rules “as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary”.
  • Article 239AAB empowers the President to suspend any provision of Article 239AA and related provisions. It also empowers him to “make such incidental and consequential provisions as may appear necessary”.
  • Article 244A provides for the formation of an autonomous State comprising certain tribal areas in Assam and the creation of local Legislature or Council of Ministers or both. It empowers the Parliament to make any “such supplemental, incidental and consequential provisions as may be deemed necessary.”
  • Article 289 provides for the exemption of property and income of a State from Union taxation. It empowers the Parliament to exempt trade “incidental” to the functioning of the Government.
  • Article 315 provides for the establishment of Public Service Commissions for the Union and the States. It provides for the law to contain “any such incidental and consequential provisions as may be necessary or desirable for giving effect to the purposes of the law”.
  • Article 323A talks about Administrative Tribunals. It provides that any law made under clause (1) of this article may include “such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals”.
  • Article 323B talks of Tribunals for other matters. It empowers the appropriate Legislature to make law on “any matter incidental to any of the matters specified in sub-clauses (a) to (i)” of this article.
  • Article 339 provides for the control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes. It empowers the President to include in his order “such incidental or ancillary provisions” as he deems necessary.
  • Article 356 provides for the provisions in case of failure of constitutional machinery in States. It empowers the President by Proclamation to make “such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation.”
  • Article 371D provides special provisions for the State of Andhra Pradesh or Telangana. It empowers the President to make an order for the constitution of an Administrative Tribunal for the above-mentioned states containing “such supplemental, incidental and consequential provisions” as he may deem necessary.

Salient features     

  1. No formal textual form:

The Indian Constitution does not have any specific provisions entailing this power. However, there are sometimes general textual authorizations for invoking powers that are not expressly given. The above-mentioned articles are good examples of the same. Necessary and Proper Clause also known as the Sweeping Clause in the U.S. Constitution is another classic example.

The Hon’ble Supreme Court interprets the words “with respect to” under Article 246 to include all the incidental matters concerning the legislation thereby providing competency. In Subrahmanyan Chettiar v Muttuswami Goundan (AIR 1940 FC 25), the Canadian doctrine of the permissibility of incidental encroachment was imported for interpretation of the provisions in question. In the case of Ujagar Prints v Union of India (1988 38 ELT 535 SC), it was held that the entries in legislative lists merely provide the fields and not legislative powers. It was also held that “if the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic.” This was an expansion based on ancillary matters.

  • Extension of the power to legislate

The doctrine of ancillary and incidental powers extends the field of the legislative power. It states that the power to legislate contains within it the power to legislate on ancillary or incidental matters. These powers are meant to aid the main object of the concerned enactment. This doctrine provides for a wide and liberal interpretation of the entries in the three legislative lists.

In R. D. Joshi v Ajit Mills (AIR 1977 SC 2279), the question was whether the State legislature had the power to enact a law that allowed it to forfeit the sum collected by dealers as sales tax. The Court held that this was a punitive measure for the proper and effective enforcement of social legislation. It further held that the entries must be given a wide meaning to also contain the ancillary and incidental powers.

  • Relationship with the doctrine of pith and substance:

This doctrine is in addition to the doctrine of pith and substance. The legislative powers of the Union and the State governments have been specified under the Constitution. Neither of them should interfere with the power of the other. If one encroaches upon the powers of another then the doctrine of pith and substance comes into play. It helps to determine whether the concerned Legislature was competent to make the legislation in question. The ‘pith and substance’ of law i.e., the object of the legislation must come within the scope of the matter on which the concerned legislature has the power to legislate. If it is so, then the legislation would be intra vires even if it might appear to incidentally trench upon the power of the other.

It was in the case of Prafulla Kumar v Bank of Commerce, Khulna, AIR 1947 PC 60 that the doctrine of pith and substance was laid down in India. It stated that in case of a possible encroachment of powers, the question that arises is what is the pith and substance i.e., the true nature of the enactment.

The doctrine of ancillary or incidental powers is used to determine the object and extent of the legislative powers. It helps in extending these powers through the power to legislate on incidental and ancillary matters.

  • Limits on ancillary powers:

No power is absolute under the Indian Constitution. Thus, the power to legislate on ancillary matters is limited to a reasonable extent. It does not take within its ambit the mattes which are expressly specified in a list. The Supreme Court has been consistent in cautioning against an unreasonable and extended construction. In R. M. D. C. Mysore Private Limited v State of Mysore (1962 AIR SC 594), the Supreme Court held that the power to legislate on betting and gambling in entry no. 32 of the State List cannot include the power to impose taxes on the same as it exists as a separate entry no. 62 on the same list.

Landmark judgments

One of the most important judgments was given in the case of United Provinces v Atiqa Begum & Others. It was in this case that the doctrine of ancillary or incidental powers was first explained. Following are some more landmark judgments on this doctrine:

  • State of Rajasthan v G. Chawla, AIR 1959 SC 544

In this case, the Apex Court held that “the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic”.

  • Raja Jagannath Baksh Singh v State of Uttar Pradesh, (1962) 046 ITR 0169     

In this case, the Court was dealing with the legislative competence of the Uttar Pradesh legislature concerning the U. P. Large Land Holdings Tax Act, 1957. Gajendragadkar J. observed:

“[…] it is necessary to bear in mind that we are interpreting the words used in the Constitution and it is an elementary cardinal rule of interpretation that the words used in the Constitution which confer legislative power must receive the most liberal construction and if they are words of wide amplitude, they must be interpreted to give effect to that amplitude[…] A general word used in an entry like the present one must be construed to extend to all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it.”

Critical analysis

When any legislation passed by a legislature gets challenged on the ground of incompetence, the inquiry has two levels. First is whether it is competent and second whether there is any express limitation. Its competency can be express, implied, or incidental. The need to check for the existence of ancillary power arises in the absence of express provisions of law. The doctrine is vital to resolve the disputes that relate to the legislative competency of the States and the Union. It provides validity to a particular legislature’s actions. But, this is only to a limited extent so that there is no exceeding of powers.

 The Indian Constitution is elaborate. Its makers tried to provide explicit powers to the various organs of the government. The provisions have been laid down as such to reduce the chances of confusion and manipulation. The Seventh Schedule of the Constitution consists of three lists, namely the Union List, the State List, and the Concurrent List. These three lists very efficiently demarcate the matters on which the Union and the States can legislate. The extent of their respective powers has been provided under Article 246 of the Constitution.

In case of any confusion the Supreme Court of India comes into action. The Apex Court clarifies any doubts that might occur. It has the responsibility of interpreting the Constitution in the manner as was intended by its framers. The Court has time and again fulfilled this responsibility.

Considering the elaborate nature of the Indian Constitution, one might think it to be unnecessary to make use of the doctrine of incidental or ancillary powers. But, the reality is different. Its application might be limited but still essential.

Conclusion

The doctrine of ancillary powers is a doctrine under the Indian Constitution. It comes as a part of the power to legislate on explicit matters. The jurisprudence related to this doctrine focuses on such an interpretation of the words in the statute to provide them a liberal and the widest interpretation. This aids in the proper and effective functioning of the object of the legislature. But, this doctrine has a limited application. It gets invoked only in cases where there is a need for aiding the main matter of the legislation. The main idea behind this doctrine is to equip the legislature with all the necessary powers.

Author: Yogi Chaudhary from Uttaranchal University, Dehradun.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

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