Doctrine of Implied Power

Meaning
• As per Black’s Law Dictionary, “A political power that is not enumerated but that
nonetheless exists because it is needed to carry out an express power.”
• Craies on Statute Law, “if a Legislature enables something to be done, it gives
power at the same time by necessary implication to do everything which is
indispensable for the purpose of carrying out the purposes in view”
• This Doctrine comes into play in cases where it is observed that the Statute
confers a duty upon an Authority and that duty cannot be discharged or that
power cannot be exercised unless some ‘other’ power is assumed to exist and in
absence of such ‘other’ power, the obligation prescribed under the Statute
becomes impossible to comply with.
• “Quando lex aliquid concedit concedere videtur et illud sine quo res ibsa ease non
potest”. This maxim means “Whoever grants a thing is deemed also to grant that
without which the grant itself would be of no effect“
• Applicability only when relating to “Incidental” or “auxiliary” power.
• State of Punjab v. Salil Sabhlok (2013) 5 SCC 1 In this case 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.
• Raja Ram Pal v. Speaker, Lok Sabha(2007) 3 SCC 184.
• Article 105(3) reads as follows, “(3) In other respects, the powers, privileges
and immunities of each House of Parliament, and of the members and the
committees of each House, shall be such as may from time to time be defined
by Parliament by law, and, until so defined, shall be those of that House and
of its members and committees….”
• A question arose whether the Parliament can expel member, after obtaining
majority, since the same was not given in the Constitution.
• Even though the clause says, “power, privilege and immunity”. The Court
while applying concept of Implied Power stated that, such power was an
implied power as while defining the Power and Immunity they also have the
power to define how to expel them, and therefore, the Parliament has the
power to expel the Member.
• Where Power assumed is not auxiliary or incidental the same will not be Covered
under Implied Power
• Bidi, Bidi Leaves vs The State Of Bombay AIR 1962 SC 486
• Section 3 of the Minimum Wages Act, 1948 the appropriate Government is
authorized to fix minimum rates for wages for employees in Scheduled
employment. Whereas, Section 5 lays down the procedure for fixing and
revising such minimum wages.
• The State Government published a notification dated June 11, 1958, fixing
minimum rates of wages in respect of employments in bidi making in the
Vidarbha region.
• Clauses 1 and 2 of the notification prescribed the minimum rates district
wise and provided for higher rates for making bidis known as 'Hatnakhun'
in all the districts. Clauses 3 to 7 dealt with disputes between the
employers and the employees as to how bad bidis were to be discarded
and in what proportion and as to the payment for such discarded bidis.
• The court held that Cl. 3 to 7 were though enabling and aiding the wages by
way of laying down of the rules for disputes. However, they were neither
incidental nor ancillary. Furthermore, these power were not to be taken
implied as there existence is not necessary for the implementation of the said
provision.
• Further, while remarking the court stated 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 Territorial Nexus
Background
• Article 245 lays down the territory for which the Parliament and the State,
respectively can make and enforce laws.
• The Parliament is allowed to make laws with regard to the any part of India, as
well as, outside the territory of India.
• Whereas, reading the said Article literally the State is allowed to make laws with
respect to whole or any part of that State. In other words, the State Law applies
to persons and property (both moveable and immovable) situated within that
State.
• However, going through the wordings of Article 245 (1), it states that, “State can
make law for whole or any part of State.” The court has given the term “whole”
and “part” a liberal and purposive interpretation and has formulated the Doctrine
of Territorial Nexus.
 Meaning
• The Doctrine of Territorial Nexus, is an outcome of liberal and purposive rule of
interpretation.
• This is an exception to the general rule and this doctrine enables a State to apply
law(s) extra-territorial i.e. in other State(s).
• In simple terms, Doctrine territorial nexus says that laws made by a state
legislature are not applicable outside the state, except when there is a sufficient
nexus between the state and the object.
• In order to apply this doctrine, following condition should be met: (1) the object
to which the law applies need not be physically located within the territorial
boundaries of the State, (2) but what is required is that it should have a
legitimate connection.
• If the abovementioned conditions are satisfied then this doctrine can be
imposed. In other words, there would be applicability of the State law in another
State.
• State of Bihar v Charusila Dasi AIR 1959 SC 1002
• In this case Bihar Legislature enacted the Bihar Hindu Religious Trusts Act,
1950 for protection and preservation of properties appertaining to the Hindu
Religious Trust.
• This Act was applied to all the Trusts, any part of which was situated in Bihar
and to the properties thereunder the Trust.
• The problem arose before the court was, whether the Act was entitled to
govern the properties outside Bihar but owned to the Trust situated in Bihar.
• The court applied territorial nexus and stated that the object to which the law
applies i.e. to the Property of the Trust is having legitimate connection with
the Trust situated in Bihar.
• Therefore, the court allowed the extent of the Act to properties situated
outside Bihar.
• State of Bombay v. RMDC
• The Respondent was not residing in Bombay but he conducted Competitions
with prizemoney through a newspaper printed and published from Banglore
having a wide circulation in Bombay.
• All the essential activities like filling up of the forms, entry fees etc for the
competition took place in Bombay. The state govt. sought to levy tax the
respondent for carrying on business in the State.
• The question for decision before the Supreme Court was if the respondent,
the organizer of the competition, who was outside the state of Bombay, could
be validly taxed under the Act.
• It was held that there existed a sufficient territorial nexus to enable the
Bombay Legislature to tax the respondent as all the activities which the
competitor is ordinarily expected to undertake took place mostly within
Bombay.