PRINCIPLE OF ANCILLARY POWERS7 min read

By- Sai Akanksh Deekonda

INTRODUCTION

While the law places police under “broad general duties.” To perform these responsibilities, there are only minimal powers. Where conduct interferes with an individual’s freedom, the conduct must be “legally authorized.” The doctrine of common law ancillary powers allows a police officer to interfere with the freedom or privacy of a person during the lawful execution of his duty as long as the actions satisfy the following (The Waterfield test): the police act in the execution of their duties under common law or statute; and conduct constitutes a justifiable interference with the freedom or privacy of the individual.

This theory was never so broad that it justified actions in the performance of police duties.

First Stage

In the first level, The police forces are recognized would derive from the essence and scope of policing responsibilities,” including “preserving order, stopping violence, and protecting life and properties.” That is to say, this stage questions if the conduct falls under the general framework of a legislative or common law police duty

Second Stage

The second step balances would balance the conflicting needs of the responsibility of the police and the values which put justice at stake. This issue requires whether an infringement of human freedoms is appropriate for peace officers to perform their role or whether it is fair to consider this infringement in terms of the public interests served by successful regulation of illegal activities on the one side and protection for the independence and basic dignity of persons on the other.

The police action must be “reasonably appropriate” to perform the responsibility “keeping in mind all the circumstances.” It will require analysis of the importance of fulfilling the service to the general interest, the requirement of interfering with individual freedom for the execution of the task; and the extent of interfering with individual freedom If these ‘factors, when measured together, contribute to the assumption that the police operation was sufficiently appropriate, then the conduct wouldn’t be involved.

In the Indian sense, incidental and ancillary powers are an elementary cardinal rule of interpretation that the words used in the Constitution which grant legislative power must obtain the most liberal construction and must be interpreted to give effect to that magnitude if they are words of large magnitude. Putting a limited or constrained structure on wide-ranging terms in a Constitution wouldn’t be correct.

The theory is an extension of the Pith and Material doctrine. What this means is that the right to legislate on a subject always requires the power to legislate on ancillary issues relevant to the subject. Determining the constitutionality of an act is not necessarily enough merely by looking at the pith and essence of the statute. In these situations, it must be decided if the matter referred to in the act is necessary to impact the act’s principal issue. For example, the right to enforce tax should require the ability to check and seize and stop tax evasion. 

Similarly, the right of lawmaking on Land legislation requires the ability to legislate on a property mortgage. Nevertheless, control over the banking industry can not be expanded to include control over non-bank institutions. Unless a subject is specifically stated in a list of States or Unions, however, it can not be considered to be an ancillary matter. Of eg, the power to tax is listed in different entries in the lists and thus the power to tax can not be stated as an ancillary to any other entry in the lists.

BACKGROUND

By relation to the Pith and Substance doctrine, this concept ensures that the right to legislate on a subject often requires the power to legislate on ancillary matters which are fairly connected to that subject. Determining the constitutionality of an act by only looking at the pith and the essence is not always appropriate. In these situations, it must be decided if the matter referred to in the act is necessary to give effect to the act’s principal subject matter. For example, the power to enforce taxes will include the power to legislate on land changes including the power to legislate on the land mortgage. However, it cannot be assumed that power relating to banking is ancillary to power relating to the lists.

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READ ALSO: OVERVIEW OF PANCHAYAT RAJ PROVISIONS




CASE LAWS

  1. Rajasthan state v. G. Chawla of 1959

It was held that the right to legislate on an issue requires the power to legislate on an ancillary subject that may be assumed to be fairly included in the subject matter. The fundamental premise behind this theory is that everything required to exert that power is included in the grant of authority. This does not, though, mean that the control spectrum should be applied to any extent irrational. The Supreme Court has repeatedly cautioned against the expanded construction of this type.

  • R. M. D. Chambagwala v. State of Mysore of 1962

The Supreme Court holds that betting and gambling is a state subject as stated in entry 34 of the state list but that it requires the right to levy taxes on gaming and gambling as it operates as a separate item as entry 62 in the same list.

  • Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City of 1951.

Facts:

The appellant was assessed for the assessment year 1947-1948 by the Income Tax Officer, Bombay (by an assessment order dated 31 March 1948) on a gross income of rs.19,66,782 including an amount of Rs.9,38,011 representing capital gains paid in the hands of the4 appellant under section 12(B) of the Indian Income Tax Act, 1922. Today, the appellant’s received this specified sum of capital gains in the following circumstances. The appellant had a half share of other immovable property found in Bombay, which the appellant himself and his co-owners sold to a private limited company in the year ended 31 December 1946.

The company is known as Gagalbhai Mafatlal & Company Limited. The income on the selling of the said property amounted to Rs.18,76,023 and there half share of the appellants came to a total of Rs. 9,38,011 which was included in the tax computation under Section 12(B) of the Act.

Issue of the Case

  • Whether the imposition of a tax by the Central Legislature comes under the head “capital gains” and is it ultra vires?
  • The key question that emerges is that Section 12(B) of the Indian Income Tax Act, 1922; which allowed the taxation of capital gains would fall under Entry 82 or Entry 86 of List 1 of the Seventh Schedule of the Indian Constitution?

The judgment of the case

Section 12(B) is supra vires the powers of the Central Legislative functioning in compliance with Entry 82 (which notes income taxes other than agricultural revenue) of List 1 in the seventh schedule of the Indian constitution. It is utterly unnecessary, in this view of the matter, to consider or express any opinion on the context, purpose, and application of Entry 86 in the same article. The appeal is therefore dismissed.

Conclusion

Section 12(B) is supra vires the powers of the Central Legislative functioning in compliance with Entry 82 (which notes income taxes other than agricultural revenue) of List 1 in the seventh schedule of the Indian constitution. It is utterly unnecessary, in this view of the matter, to consider or express any opinion on the context, purpose, and application of Entry 86 in the same article. And the appeal is rejected.

The constitution’s letters are relatively unchanged and not very easy to modify but the laws passed by the legislature are very fluid and represent the actual condition of the nation. To ensure that the new laws are compatible with the fundamental framework of the constitution, it is important to read the constitution in a broad and egalitarian way giving substance to all its sections and the assumption must be that its framers do not mean any dispute or repugnance. The clauses relating to human rights were viewed generally and liberally in favor of the subject by applying the same reasoning. Likewise, various statutory entries in the Republic, State, and Concurrent Register have been established widely and Liberally




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