The doctrine of incidental or ancillary power is based upon the principle that on the face of the Constitution, some legislative subject falls both in the Union as well as the State lists, but on a careful scrutiny and detection of the subject of enactment, it becomes clear that it falls merely incidentally in one list, but substantially in the other list. The courts always take diligence and precaution on its part and examine whether the Act is within the permissible and constitutional principles.
It is related to power to legislate on the subject which is incidental to each other. A subject matter enter in a state list may incidentally affect other matter in a union list. The doctrine says that if the matter in state list is only incidental in nature, the state may make law , but if the substance falls within the union list then the state legislature would become invalid.
MEANING OF INCIDENTAL POWERS
The legislative powers of parliament and the state legislatures are mentioned in the seventh schedule of the constitution. Every such power that is expressly mentioned legislative power carries with it the incidental or ancillary power which is necessary to execute that power in other words the incidental and ancillary powers are those powers which are required to be exercised by the legislatures for the effective exercise off the legislative powers expressly bestowed on them by the constitution. In the USA such powers are called as necessity and proper powers while in Australia they are described as power is incidental to the execution of that power.
According to this doctrine the entries enumerated in the three legislative lists are not to be read in an arrow or restricted sense and each general word in any entry should be held to all incidental or ancillary matters which can fairly and reasonably be comprehended in it. Hence the power to levy tax would include the power to make provisions for checking tax invasions similarly the power to legislate with respect to the collection of rent includes the power to legislate to remission of rent,
However the above logical wider interpretation does not mean the scope of the incidental or ancillary powers can be extended to any unreasonable extent hence the power to levy tax cannot be held to include the power to confiscate goods.
Further this doctrine cannot be used as the cloak But extending the power of a legislature to comprehend a subject which is explicitly mentioned in a list for example the legislative powers in respect of betting and gambling in entry 34 of state list does not include the power to impose taxes on betting and gambling which is explicitly mentioned as a separate subject in entry 62 off the state list.
Moreover this doctrine cannot be extended to exercise of legislative power colourably Or by fraud on the constitution.
RATIONAL OF THE DOCTRINE
The Supreme Court has founded the doctrine of incidental and ancillary powers to relieve a statute from its invalidity or unconstitutionality. Court while explaining the rational of the doctrine made the following observation-
The courts have applied the doctrine of “pith and substance” and in some cases the doctrine of “incidental” or “ancillary” or “subsidiary power” of the legislature to uphold the law or to validate the law declared by the courts as invalid. Equally, the doctrine of “ancillary or incidental power” of the legislature is applied when the Court finds that the impugned Act is substantially within the legislative competence or within the assigned field of legislation dealt with under a particular subject specified in the respective lists of the Seventh Schedule to the Constitution, but incidentally it trenches upon another subject of legislation assigned either to Parliament or the legislature of a State as the case may be.
IMPORTANT JUDGEMENTS ON THE DOCTRINE INCIDENTAL POWERS
- One of the most historic cases relarted with the Rule of ancillary or incident powers is the case of Subramanyam Chettiar v Muttuswami Goudanwhere one of the provisions of the Debt Relief Act, 1938, enacted by the State of Madras was found to be violative with Negotiable Instruments Act, 1881, one of the legislations made by center. In this case the court held that though the latter enactment was inconsistent with the central provisions, it cannot be declared as invalid as the area of legislation was closely interweaved and hence, the enactment was under under its legislation.
- 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.
- In the case of Chaturbhai v UOI, the supreme court used it incidental powers and held that the power to impose tax includes the power of raising revenue by imposing license fee.
- In the case of Rai Ramkrishna v State Of Bihar , the apex court held that the power to enact laws on a subject includes a power to make a valid law retrospectively if the existing law on the same subject is declared as unconstitutional.
- One important case under this doctrine is state of Godfrey Phillips India Limited v State of U.P. in which the supreme court held that the power to impose tax includes all events concerning that tax unless an event is included in any other list.
Doctrines are basically some beliefs , principles and position which the court usually upheld. The doctrine of incidental power is also one of the gem doctrine adopted by the court . This doctrine is adopted to safeguard the powers of the government and to ensure its effective functioning.
 (1941) 1 MLJ 267
 AIR 1947 PC 60
 AIR 1960 SC 424
 AIR 1963 SC 1667
 (2005) 2 SCC 515
Author: Sonakshi Singla from Army Institute of Law, Mohali.