Date: 27 November, 2020
by Sakshi Verma, UILS, Panjab University
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 which can be said to be reasonably included in the topic (held in State of Rajasthan vs G Chawla AIR 1959 SC 544).
For example, the power to impose tax would include the power to search and seizure to prevent the evasion of that tax. However, power relating to banking cannot be extended to include power relating to non-banking entities.
However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, the power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.
However, this does not mean that the scope of the power can be extended to any unreasonable extent. The Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, (AIR 1962 SC 594), SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.
Certain provisions given in the Constitution of India provide for the power to make laws on ancillary matters. These are: –
Article 4 is related to the parliament’s powers to make laws regarding the formation and alteration of the territory of a state. It includes all “supplemental, incidental and consequential provisions” which the parliament may deem necessary to make laws and so includes the possibility of ancillary powers.
Articles 110 and 199 define a money bill and state the prerequisites for a bill to be classified as a money bill. They also provide for “any matter incidental to any of the matters specified” in the previous clauses so as to include all related subjects.
Article 289 exempts the income and property of a state from taxation by the Union. It allows the parliament to exempt all trade which is incidental” to the ordinary functioning of the Government.
Article 315 discusses the formation of Public Service Commissions for the Union and the States. It provides for the law to contain “any such incidental and consequential provisions” that may be required for the efficient implementation of the law.
Article 339 empowers the President to appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes living in them. It empowers the President to include “such incidental or ancillary provisions” as he deems fit.
Article 356 is an emergency provision which discusses a situation of breakdown of constitutional machinery in a state. 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.”