Skip to main content

DOCTRINE OF INCIDENTAL AND ANCILLARY POWERS

 DOCTRINE OF INCEDENTAL AND ANCILLARY POWERS

BY NUPUR GARG

INTRODUCTION 

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.

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.

  1. 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.

  1. 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.

  1. 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.

CASES

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.


Comments

Popular posts from this blog

LAW INTERNSHIP AND TRAINEE OPPORTUNITY

  LAW INTERNSHIP AND TRAINEE OPPORTUNITY: LEXIS AND COMPANY, renowned for its excellence in the legal field, is thrilled to announce an exceptional internship and trainee opportunity for aspiring final year law students and newly enrolled Advocates. This highly coveted internship  and trainee opportunity  is a paid position, providing a remarkable platform for career growth and experiential learning in a corporate environment. Eligibility: Only for final year Students and Newly Enrolled Advocates. We are offering a limited number of vacancies, designed for law students and newly enrolled advocates in the dynamic world of the legal profession. This is an immediate joining opportunity, available to candidates who are interested to work in the area of commercial and civil litigation and have interest towards drafting, and legal research. As a team member at  LEXIS AND COMPANY,  you will refine your research and drafting skills while witnessing the meticulous professional conduct expected

Physical Internship & Training Program - Legal (LEVEL - 1)

   Physical Internship & Training Program - Legal (LEVEL - 1) --- PLEASE READ THE COMPLETE JOB DESCRIPTION BEFORE APPLYING ---   Urgent Hiring for: LAW STUDENTS/CS STUDENTS/ FRESHER LAW GRADUATES/ FRESHER CS. Position: Physical Internship & Training Program - Legal (LEVEL - 1) Department: Legal. Firm Name: LEXIS AND COMPANY – LAW FIRM. Location: Janakpuri, New Delhi. CTC: RS 5000/- Per Month. Additional Allowance: All official expenses including travelling allowance for official purposes will be paid from the day 1 of the service with the firm.   We are urgently looking for LAW STUDENTS / CS STUDENTS / FRESHER LAW GRADUATES / FRESHER CS for the position of Physical Internship & Training Program - Legal (LEVEL - 1) for our Law Firm in Janakpuri, New Delhi.   Eligibility: Mandatory Qualification: Any LAW STUDENTS / CS STUDENTS / FRESHER LAW GRADUATES / FRESHER CS who wants to learn as a beginner. Desired Qualification: Any additional qualification  will be pre

The Doctrine of Alternative Danger

  THE DOCTRINE OF ALTERNATIVE DANGER Although the plaintiff is supposed to be cautious in spite of the defendant’s Negligence, there can also be certain situations when the plaintiff is justified in taking some threat where some unsafe state of affairs has been created by way of the defendant. The plaintiff may appear as puzzled or worried through a hazardous state of affairs created via the defendant and to store his man or woman or property, or now and again to store a third party from such danger, he may take a choice risk. The law, therefore, lets in the plaintiff to come across a choice danger to shop by himself from the chance created via the defendant. If the path adopted by him results in some harm to himself, his motion in opposition to the defendant will now not fail. The judgment of the plaintiff, however, is not rash. The position can be defined by means of the case of Jones v . Boyce . In that case, the plaintiff used to be a passenger in the defendant’s train and instruct