Doctrine of Ancillary or incidental powers: A Brief Explanation

 

The 7^th schedule of Indian Constitution contains the three lists, which defines the spares in which the union government and state governments have to work. But sometimes, it is not expedient to legislate on a particular topic, though the said topic falls in the domain of concern state government or Central government. In such scenario, the doctrine of ancillary or incidental powers comes into the frame.

This doctrine states that the express powers to legislate on a matter also consist of the implied power to legislate on an incidental or ancillary matter to the reasonable extent. Here, the term ancillary and incidental signifies the expression of those powers that support the powers that are expressly conferred.

 

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Objective

Such a power is essential for the proper exercise of the expressly conferred legislative powers, and smooth adjudication on matters related to the three lists. To a better understanding, some of the illustrations are listed down:

1.       Alcohol is the subject of the state list under the 7^th schedule of Constitution of India. Suppose , if state of Rajasthan wants to impose licker ban, expressly; it is only empower to prohibit its production, consumption, buying and selling within the state, but not to its procurement from other states, as inter-state trade is the subject of union list. But due to the effect of this doctrine, the state becomes impliedly empower to legislate on this aspect as well, as without banning its import and export, the total prohibition is not possible.

2.       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.

3.       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”.

4.       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.”

 

Important Cases

1.      United Provinces Vs. Atiqa Begum & Others, AIR 1941 FC 16

This was known to be the first case in which this doctrine applied in India. The reference was taken from the common law and Canadian Constitution.

 

2.      Ujagar Prints v Union of India, AIR 516, 1988 SCR Supl. (3) 770

In this case, it was held that the entries in legislative lists merely provide the fields and not legislative powers.

 

3.      State of Rajasthan Vs. G. Chawla, 1959 AIR 544, 1959 SCR Supl. (1) 904

It was held that only the matters which are reasonably connected with, and related to expressly mentioned powers, constitute subject matter of this doctrine.

 

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