DOCTRINE OF INCEDENTAL AND ANCILLARY POWERS
BY NUPUR GARG
A doctrine is a principle, theory, or position that is usually applied and upheld by courts of law. In Indian Constitutional law also, there are different judicial doctrines that develop over time as per the interpretation given by the judiciary.
Unfolding the meaning of the Doctrine of Incidental or Ancillary powers, it refers to the power given to the legislature to legislate on a particular subject which will also include the power to legislate even on the ancillary matters that are reasonably connected to the concerned subject.
This doctrine is in addition to the Doctrine of Pith and Substance. The latter is invoked in situations when a subject of one list touches upon the subject of another list as mentioned in the seventh schedule of the Indian Constitution. That means the Doctrine of Pith and Substance deals only with subjects but the Doctrine of Incidental or Ancillary Powers deals with the power to legislate on such subjects and the matters connected thereto.
The powers conferred to the Central and State governments under the three lists of the Seventh Schedule are expressly mentioned but the Constitution gives flexibility to the governments to even legislate on any related incidental or ancillary matter. Then in a true manner, it would be called as a proper exercise of the expressly conferred legislative powers.
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.
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.
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.
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.
The case of Prafulla Kumar Mukherjee v. Bank of Commerce is also one of the most important and relevant cases regarding incidental powers. In this case, Bengal Money Lenders Act,1940, was alleged on the ground of being ultra vires the Bengal legislature. The High Court of Calcutta declared that the enactment was ultra vires in nature. The judgement was challenged and was referred to the Privy Council where the “Doctrine of pith and substance” was applied and it was concluded that the “substance” of the enactment was “moneylending” which is covered by Entry 27 of List II of Government of India Act,1935. Hence, the subject matter can be easily dealt by the state legislature to enact the respective law.