TOPIC:

PRINCIPLE OF INCIDENTAL OR ANCILLARY POWERS

SUBJECT:

INTERPRETATION OF STATUTES

SUBMITTED BY:

MEDHA SINGH

C- 179

BATCH OF 2021-2024

UNDER THE SUPERVISION OF:

PROF. CHHAYA J. SHAH

PROF. AMARO HENRIQUES

JITENDRA CHAUHAN COLLEGE OF LAW

UNIVERSITY OF MUMBAI

DATE OF SUBMISSION: 21/10/2023

1
 ACKNOWLEDGEMENT

I take this opportunity to express my earnest gratefulness to guide Prof. Chhaya J. Shah
and Amaro Henriques for mentoring me throughout the project.

I understand the magnitude of the opportunity offered to me by Jitendra Chauhan

College of Law, Vile Parle, Mumbai for providing me with scope to study the ‘Principle of
incidental or ancillary powers’, I understood the profound meaning of the adage “Research is
creating new knowledge.” Whilst studying, I came across various interpretations of the
terminologies and their contextual deviation.

The knowledge earned would be utilized at the optimum level in influencing my

understanding of the subject drawn.

This study intends to deep dive into doctrine of incidental or ancillary powers.

Sincerely,

Medha Singh

Place: Mumbai

Date: 21/10/2023

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Table of Contents

ACKNOWLEDGEMENT ...................................................................................................................... 2
CHAPTER – I ......................................................................................................................................... 4
1.1 Introduction – .......................................................................................................................... 4
1.2 Objective – .............................................................................................................................. 5
1.3 Research Methodology – ........................................................................................................ 5
1.4 Sources of study – ................................................................................................................... 5
1.5 Table of Cases – ...................................................................................................................... 6
CHAPTER – II ........................................................................................................................................ 7
2.1 Historical background – .......................................................................................................... 7
2.2 Relationship with the doctrine of pith and substance –........................................................... 7
2.3 Doctrine of Ancillary Powers – .............................................................................................. 8
1) There are constitutional powers as below – ............................................................................ 9
2) No formal textual form – ...................................................................................................... 11
3) Extension of the power to legislate – .................................................................................... 11
4) Limits on ancillary powers – ................................................................................................. 11
5) Reference judgments – .......................................................................................................... 12
2.4 Critical Analysis –................................................................................................................. 13
CHAPTER – III .................................................................................................................................... 14
Conclusion – ..................................................................................................................................... 14
BIBLIOGRAPHY – .............................................................................................................................. 15
1. Weblinks – ................................................................................................................................ 15
2. Books – ..................................................................................................................................... 15

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 CHAPTER – I
1.1 Introduction –
The 7th schedule of Indian Constitution contains the three lists, which defines the spares in
which the union government and state governments must 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 signify the expression of those
powers that support the powers that are expressly conferred. The doctrine of incidental or
ancillary powers indicates that if a legislative body has the power to legislate on a particular
matter, then they have the power to legislate on ancillary topics related to that matter. Unless
that ancillary topic is mentioned explicitly under the jurisdiction of another legislative body.

A doctrine is essentially a belief or a principle, which is in practice and gets codified or is

embodied in the legal works of a country. The role of a doctrine is to sort of give direction to
the procedural aspect of the judicature. It defines the way court is to investigate matters to
arrive at a decision which is just. It is often a derivative of the laws and acts as an aid to further
the intention of the statutes and the procedure. Indian Constitution has also enshrined various
doctrines, which is often a reflection of its dynamism. Among other doctrines, there is Doctrine
of Incidental or Ancillary power, which is considered an extension of Doctrine of Pith and
Substance. The purpose of this doctrine is to resolve the conflict of powers between central and
state governments in matters of legislation.1 It is done by the way of giving the power to
legislate on matters emanating incidentally from list of subjects the centre and state
governments have power to legislate upon. The principle of incidental or ancillary powers in
India refers to the authority granted to a legislative body, such as the Indian Parliament or state
legislatures, to make laws that are necessary or incidental to the exercise of their defined
powers. In the context of India, this principle is particularly relevant to the interpretation of the
legislative powers of the Indian Parliament as outlined in the Constitution of India.

1
India, A. L. (n.d.). Constitutional law: Doctrine of incidental or ancillary powers. Lexlife India.
https://lexlife.in/2020/05/14/constitutional-law-doctrine-of-incidental-or-ancillary-powers/

4
 The Indian Constitution, under Article 246, divides legislative powers between the
Parliament (Union List), State Legislatures (State List), and both (Concurrent List). While these
lists define the specific subjects on which each legislative body can make laws, the Constitution
also allows these bodies to make laws on matters that are incidental or ancillary to the items
enumerated in these lists. The principle of incidental or ancillary powers essentially means that
if a subject matter is directly related to the items specified in these lists, even if not explicitly
mentioned, the legislative body can enact laws on those related matters. However, the
relationship between the incidental or ancillary power and the main subject matter should be
reasonably proximate and intimately connected. This is to prevent legislative bodies from
overstepping their defined powers and encroaching on the jurisdiction of the other. In addition
to Article 246, Article 248 of the Indian Constitution grants the Parliament the power to make
laws on any matter not covered by the State or Concurrent Lists if it's in the national interest.
This is a broader power that can encompass incidental and ancillary subjects. The principle of
incidental or ancillary powers helps ensure that legislative bodies have the necessary flexibility
to effectively legislate without being overly constrained by a rigid list of subjects. However,
the courts play a crucial role in interpreting and defining the boundaries of these powers to
prevent any abuse or excessive expansion of legislative authority.

In this research, we will discuss what is the doctrine of incidental or ancillary powers and
the famous Supreme Court Judgements in which this doctrine is used to check the validity of
the law.

1.2 Objective –
• Understand the meaning of the doctrine
• Its application

1.3 Research Methodology –

This paper will rely on secondary data in the form of Journal Articles, Books, and Weblinks
to explain the main objective, and the secondary data, in turn, will be critically analyzed. So, it
will be qualitative in nature. The objectives of the project will be verified when the project is
concluded, as a form of a top-down method.

1.4 Sources of study –

Secondary sources in the form of written documents such as Books, Magazines, Texts,
Reports, Journal Articles, and previous analysis reports served as sources of study for this
project.

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1.5 Table of Cases –
Cases Citation

Prafulla Kumar v Bank of Commerce, Khulna AIR 1947 PC 60

United Provinces v Atiqa Begum & Others AIR 1941 FC 16
Subrahmanyan Chettiar v Muttuswami Goundan AIR 1940 FC 25

Ujagar Prints v Union of India 1988 38 ELT 535 SC

R. D. Joshi v Ajit Mills AIR 1977 SC 2279

R. M. D. C. Mysore Private Limited v State of Mysore 1962 AIR SC 594

State of Rajasthan v G. Chawla AIR 1959 SC 544

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

6
 CHAPTER – II
2.1 Historical background –
The Doctrine of Pith and Substance, which was followed before the Doctrine of Incidental and
Ancillary Powers, was used to determine which matter should be determined by whom by
considering the genuine nature, essence, and fundamental components of the subject. To avoid
duplication and encroachment on one level of government by another, this was done. The
inadvertent intrusion by law on one of the other lists does not render it unlawful if the essence
of the topic falls inside one of the three lists because those lists are intra vires. To determine
the authority on a given subject matter, the court considers its substantive aspects. This aids in
easing the tight separation of center and state in terms of authority. This is supplemented by
the doctrine of incidental or auxiliary power, which is used to establish the goal and boundaries
of legislative authority2. By having the ability to pass laws pertaining to supplementary and
incidental issues, it aids in extending these powers. This doctrine establishes the scope on the
issues decided by the previous doctrine. In contrast to doctrine of pith and substance, which
only considers the essence of the subject, concept of incidental or ancillary power considers
the influence of the power on the topic.

The principle of incidental or ancillary powers has evolved over time to adapt to the changing
needs of governance and administration. As India has grown and developed, the government's
functions have expanded, and the concept of incidental and ancillary powers has been used to
justify various actions and legislations that are considered necessary to fulfil these functions.
In summary, the principle of incidental or ancillary powers in India has its roots in the colonial
period, was formalized in the Government of India Act, 1935, and has been a crucial component
of India's constitutional and legal framework, providing governments with the necessary
flexibility to carry out their functions effectively. Court interpretations and evolving
jurisprudence continue to shape the application of this principle in contemporary India.3

2.2 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

2
Javdekar, S. (n.d.). Doctrine of Pith and Substance. Lawyers in India - Advocates,Law Firms,Attorney
directory,Lawyer,vakil. https://www.legalserviceindia.com/legal/article-6766-doctrine-of-pith-and-
substance.html.
3
Gandhi, A. (n.d.). Doctrine of incidental or ancillary powers: Explanation with related case laws. Legal Bites.
https://www.legalbites.in/doctrine-of-incidental-and-ancillary-powers/?infinitescroll=1

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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,4 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 the pith and substance is 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.

2.3 Doctrine of Ancillary Powers –

This doctrine helps the judiciary determine if the statute made by a legislative body is valid or
not along with the doctrine of Pith and Substance. What this means is that the authority to
legislate on a subject includes the ability to legislate on ancillary subjects that are reasonably
related to that subject. For example, the power of the central government to impose income tax
would include the ability to examine and seize property to prevent income tax evasion. Powers
connected to banking, on the other hand, cannot be extended to non-banking businesses.
However, a subject cannot be considered auxiliary if it is specifically specified in a State or
Union list. For example, pilgrimage is a state subject, but it cannot include pilgrimage outside
India is not ancillary as it is a separate entry in the Union List. With the adoption of the
Constitution of India in the year 1950, Part III in the form of fundamental rights also came into
effect. The fundamental rights are a set of inherent rights which guarantees to every citizen of
this country a life of dignified existence and holistic all-round development. Any law that
infringes upon these rights is liable to be struck down by the courts.

The question however arises as to what happens when only a portion of the impugned
law is violative of fundamental rights, and it is in instances like these that the doctrine of
severability is invoked.5 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

4
AIR 1947 PC 60
5
Amit. (n.d.). Important doctrines under Indian Constitution – Part 2 – Indian Constitution. StudyIQ.
https://www.studyiq.com/articles/doctrines-under-indian-
constitution/#:~:text=The%20doctrine%20of%20incidental%20or%20ancillary%20powers%20indicates%20tha
t%20if,jurisdiction%20of%20another%20legislative%20body.

8
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 & Others6,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.

1) There are constitutional powers as below –

• 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”.

6
AIR 1941 FC 16

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• 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.

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2) No formal textual form –
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 Goundan7, 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 India8, 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.

3) Extension of the power to legislate –

The area of the legislative power is expanded by the theory of supplementary and incidental
powers. It claims that the ability to legislate on supplementary or incidental problems is a part
of the ability to legislate. These abilities are intended to support the primary goal of the relevant
legislation. The entries in the three legislative lists may be interpreted broadly and liberally
under this doctrine.

In R. D. Joshi v Ajit Mills9 , 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.

4) Limits on ancillary powers –

Under the Indian Constitution, no power has absolute authority. As a result, the ability to
legislate on ancillary issues is constrained to an appropriate degree. The mattes that are
expressly listed in a list are not included in its scope. The Supreme Court has consistently
advised against an arbitrary and expansive interpretation. The Supreme Court ruled in R. M.
10
D. C. Mysore Private Limited v. State of Mysore that the authority to tax betting and
gaming cannot be included in item no. 32 of the State List because it already exists as a distinct
entry no. 62 on the same list.

7
AIR 1940 FC 25
8
1988 38 ELT 535 SC
9
AIR 1977 SC 2279
10
1962 AIR SC 594

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5) Reference judgments –
• State of Rajasthan v G. Chawla11 -

The respondent broke the law, and the judicial magistrate declared the deed unconstitutional.
On appeal to the Supreme Court, the state argued that the law was within the legislative
competence of the state legislature under Entry 6 of List II, that is the power to legislate in
relation to public health includes the power to regulate the use of amplifiers because they
produce a loud noise, whereas the opposition argued that amplifiers fell under Entry 31 of List
I that includes post and telegraphs, telephones, wireless, broadcasting and other like forms of
communication. The Court held that the Act of the State Legislature which restricted the use
of sound amplifiers fell substantially within Entry 6, List II, which is regarding “Public health
and sanitation”. The power to legislate in relation to public health includes the power to regulate
the use of amplifiers as producers of loud noises when the right of such user, by the disregard
of the comfort and obligation to others, emerges as a manifest nuisance to them. It does not fall
within Entry 31 in the Union List, even though the amplifier is an apparatus for broadcasting
and communication. The legislation in pith and substance being on a State matter, it was not
invalid even if it incidentally encroached upon the subject of broadcasting or communication.
In this case, the Supreme 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.
Only the matters which are reasonably connected with, and related to expressly mentioned
powers, constitute subject matter of this doctrine.12

• Raja Jagannath Baksh Singh v State of Uttar Pradesh13 -

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.”

11
AIR 1959 SC 544
12
Law, I. light of. (2022, October 10). Doctrine of ancillary or incidental powers: A brief explanation. In light of
Law. https://www.inlightoflaw.com/2022/10/doctrine-of-ancillary-or-incidental-powers.html
13
(1962) 046 ITR 0169

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2.4 Critical Analysis –
The investigation has two levels when a piece of law that a legislature has approved is contested
based on incompetence. The first thing to consider is competence, followed by any specified
limitations. Its competence may be stated explicitly, obliquely, or incidentally. When there are
no stated legal provisions, it is necessary to determine whether there are any auxiliary powers.
The concept is essential for settling disagreements over the Union's and the States' legislative
authority. It gives a certain legislature's activities legitimacy. To prevent powers being
exceeded, this is only done in a small way. 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.14

The Supreme Court of India steps in when there is confusion. Any uncertainties are
resolved by the Apex Court. It oversees interpreting the Constitution in the way that its framers
intended. The Court has consistently carried with this duty. One can believe that the idea of
incidental or auxiliary powers is unnecessary given the complex nature of the Indian
Constitution. But the truth is rather different. Despite its potential limitations, it is nonetheless
vital. The doctrine of ancillary or incidental encroachment is in addition to the doctrine of pith
and substance. The Constitution specifies the legislative powers of both the Union and state
governments. Neither of them should meddle with the other’s power. When one person’s
powers are encroached upon, the notion of pith and substance comes into play. It aids in
determining whether the legislature in issue was competent to pass the law in question. The
‘pith and substance’ of law, i.e., the legislation’s goal, must be within the limits of the issue
over which the concerned legislature has the authority to legislate. If such is the case, the law
would be unconstitutional, even if it appeared to trespass on the power.

14
Lawcirca. (2020, November 10). Everything you need to know about the doctrine of pith and substance. Law
Circa. https://lawcirca.com/the-doctrine-of-pith-and-substance/

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 CHAPTER – III
Conclusion –
In conclusion, it can be claimed that the continual appearance of different subjects
inside a more general subject entry made it necessary to come up with a way to settle the dispute
over who should pass legislation on it. There must be an amicable solution to the ongoing
power struggle. The doctrine is a remedy for it because it examines a specific legislative act to
determine if it truly derives authority incidentally from the legislation or whether it abuses
authority by deception. This doctrine has helped to increase the effectiveness of the justice
system by making it simpler to assign suitable legislation its corresponding responsibilities,
together with the doctrines of pith and substance. The doctrine of Ancillary and incidental
intrusion is a supplement to the doctrine of Pith and Substance. The primary idea behind this
concept is that the authority to legislate on a subject entails the ability to act on ancillary matters
that are reasonably related to the main subject of the matter. To minimize the inconvenience of
having to decide it separately every time, a common channel of how to classify a given feature
of the subject as incidental and another aspect as remote from it should be developed.

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. However, 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.15

15
Sonakshi Singla, Doctrine of Incidental Powers, Juris Centre (May 29, 2021)
https://juriscentre.com/2021/05/29/doctrine-of-incidental-powers/.

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 BIBLIOGRAPHY –
1. Weblinks –
• https://lexlife.in/2020/05/14/constitutional-law-doctrine-of-incidental-or-ancillary-
powers/
• https://www.legalserviceindia.com/legal/article-6766-doctrine-of-pith-and-
substance.html.
• https://www.inlightoflaw.com/2022/10/doctrine-of-ancillary-or-incidental-
powers.html
• https://lawcirca.com/the-doctrine-of-pith-and-substance/
• https://prepp.in/news/e-492-doctrine-of-incidental-or-ancillary-powers-indian-polity-
notes#concept
• https://blog.ipleaders.in/doctrine-of-pith-and-substance/

2. Books –
• D.D. Basu, Commentary on the Constitution of India, Part 12, 9th Edn, LexisNexis,
2018.
• V.N. Shukla, Constitution of India, 10th Edn, Eastern Book Company, pg 651-655
(2006).
• M.P. Jain, Indian Constitutional Law, 8th Edn, LexisNexis, (2018).
• Laskin, Canadian Constitutional Law, 1951.

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