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Doctrine of Implied Powers in India

The document discusses the doctrine of implied powers in India. It defines implied powers as political powers that are not enumerated in the constitution but are needed to carry out express powers. The doctrine is based on the idea that those creating the constitution could not anticipate every situation, so implied powers allow the government to act reasonably within the scope of express powers. The document provides examples of cases where Indian courts have found implied procedural and substantive powers based on this doctrine.

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2K views12 pages

Doctrine of Implied Powers in India

The document discusses the doctrine of implied powers in India. It defines implied powers as political powers that are not enumerated in the constitution but are needed to carry out express powers. The doctrine is based on the idea that those creating the constitution could not anticipate every situation, so implied powers allow the government to act reasonably within the scope of express powers. The document provides examples of cases where Indian courts have found implied procedural and substantive powers based on this doctrine.

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prashansha kumud
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© © All Rights Reserved
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DOCTRINE OF IMPLIED POWERS IN INDIA

Prof. (Dr.) S. P. Srivastava


DEFINITION AND MEANING
Black’s Law Dictionary defines: Implied Powers means:
“A political power that is not enumerated but that
nonetheless exists because it is needed to carry out an
express power.”
It is something that has existence by virtue of express
power and is something without which an express power
cannot be exercised.
This means that the government can make any laws that it
feels are “necessary and proper” in helping it enforce those
powers the Constitution does mention.
The textual justification for the doctrine of implied powers
in US law is article Section 8 and paragraph
8 which secures congress with authority to make all laws
which shall be necessary and proper for carrying into
execution the enumerated powers.
WHY ?
 When the founding fathers created the Constitution,
it was impossible for them to anticipate every
individual case that would come to rely on it.
Therefore, by including the “necessary and proper
clause,” they covered their bases insofar as
allowing the government to act as it sees fit, within
reason. This is why the government often relies on
the doctrine of implied powers when creating and
passing new laws.
CONTINUED:
In Michael Fenton and James Fraser v. John
Stephen Hampton, (1857-1859) 117 R.R. 32, it was
observed that:
“Whenever anything is authorised, and especially if,
as matter of duty, required to be done by law, and it
is found impossible to do that thing unless
something else not authorised in express terms be
also done, then that something will be supplied by
necessary intendment.”
EVOLUTION- PHILOSOPHICAL BACKGROUND
“Quando lex aliquid concedit concedere videtur et
illud sine quo res ipsa ease non potest”, It means
that:
“Whoever grants a thing is deemed also to grant
that without which the grant itself would be of no
effect.”
In the Tobacco Merchants Case, the Hon’ble
Supreme Court cautioned as to the applicability of
the Doctrine of Implied Powers by stating that “the
doctrine of implied power can be invoked where
without the said power the material provision of the
Act would become impossible of enforcement”.
DOCTRINE OF IMPLIED POWERS V. CASUS OMISSUS

The Doctrine of Implied Powers is neither similar to nor an


offshoot of the latin maxim ‘casus omissus’. 
the Doctrine of Implied Powers does not talk about cases or
situations that have been omitted in the statute rather the
Doctrine of Implied Powers is only concerned with situations
where an express provision could not be given effect without
assuming something.
On the other hand, ‘casus omissus’ specifically deals with a
situation where a situation has been completely left out in
the statute and there is nothing express in the statute to
cover the said situation. Hence there is a thin yet a visible
line of difference between the Doctrine of Implied Powers
and ‘casus omissus’.
WORKING OF DOCTRINE
Implied powers may be substantive or procedural. The
classification may appear banal, however we find that a
number of implied powers cases hinge on procedural
matters and not substantive ones.
it is easier to admit a procedural power as “implied” in
the grant of an express power than it is to admit another
substantive power.
CONTINUED:

Procedural powers are more obviously “necessary


and proper” to the exercise of a given express
power; the absence of certain procedural powers
may well render a substantive power ineffective.
Implied procedural powers are common in Indian
law when it comes to the interpretation of statutes.
However, implied constitutional procedural powers
are quite rare.
LEADING CASES OF PROCEDURAL IMPLIED:
State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1,
(‘Salil Sabhlok’) is a recent one, where the Supreme
Court held that Article 316 of the Constitution,
which grants the Governor of a State the power to
appoint the Chairman and other members of the
State Public Service Commission, also grants the
implied power to lay down the procedures for such
appointments. The Court expressly referred to this
as a “constitutional power”
CONTINUED:
In Union of India v. Gopal Chandra Misra, (1978)2
SCC 301 (‘Gopal Chandra Misra’) the Court held that
a High Court judge had an implied power under
Article 217(1)(a) to revoke his resignation even
after his resignation letter had been received. The
Court repeatedly referred to the “doctrine of implied
powers”, without defining or explaining this doctrine.
CONTINUED:
In Raja Ram Pal v. Speaker, Lok Sabha, 18 (‘Raja
Ram Pal’) the Court looked at Parliament’s
privileges under Article 105 of the Constitution and
concluded in a majority decision that Parliament
has the power to expel one of its members.
IMPLIED SUBSTANTIVE POWERS IN INDIA
In Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC
388, (‘Rupa Ashok Hurra’) the Court held that it had
an inherent power or “inherent jurisdiction” that
enabled it to review its own decisions (that would
otherwise be final with no further remedy). This
could be done through a “curative petition” under
certain special circumstances, such as when there
had been a denial of natural justice.

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