INCIDENTAL ENCROACHMENT: A BRIEF OVERVIEW

Now coming straight to my topic which is Doctrine of Incidental Encroachment, the question of
applicability of the doctrine of incidental or ancillary powers arises where the subject- matter of
legislation falls both in Union and State lists.1 Under such circumstances a careful scrutiny of the
subject-matter of the legislation may reveal that it falls merely incidentally in one list, but
substantially in other list. The doctrine of “ancillary or subsidiary power” of the legislature is
applied when the courts record a finding 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 entrenches upon another subject of legislation assigned either to Parliament or
legislature of a State as the case may be.2 However, the said doctrines cannot be employed to
uphold a law that directly nullifies the declaratory law made by the court in the exercise of the
power of judicial review or to make the writ of mandamus or direction ineffective or
unenforceable, unless its validity is properly and constitutionally removed by employing the
appropriate language so as to make a new law within the constitutional limits or limitations or
competence of the legislature.3

The framers of our constitution established the Supreme Court with the hope that the future
evolution of the Indian Constitution was to depend on the direction given to it by this Court and
in fulfilling this expectation, "it has to keep poise between the seemingly contradictory forces. In
the process of interpretation of the constitution on certain occasion, it may appear to strengthen
the union at the expense of the units, at another, it may champion the cause of provincial
autonomy or regionalism, it is the great tribunal which has to draw the line between individual
liberty and social control."4

Thus the judiciary in India has been empowered to review the legislative acts, both of the
Parliament and of the State legislature. While interpreting the legislative powers, the entries in
the legislative lists must prima facie be given broad and comprehensive interpretation.5 These

1
S.S Bala v. Sardana, (1997) 8 SCC 522.
2
Indian Aluminium Co. v. State of Kerala, (1996) 7 SCC 637.
3
D.D Basu, Shorter Constitution of India, Wadhwa & Co. Nagpur, 12th Ed., 1999.
4
C.A. Deb. VIII P. 224.
5
Thakur Amar Singhji vs. State of Rajasthan, AIR 1955 SC 504.
provisions must be given a liberal and generous interpretation. From that point of view,' every
legislature- Parliament and State legislatures, must have certain 'incidental' or 'ancillary’ powers
to ensure the effectiveness of the legislation with respect to its enumerated powers.6 Thus in
India the principle of wide and comprehensive interpretation led to the doctrine of "Incidental
and ancillary powers. The expression used to describe the matters on which the legislature can
legislate must be given a wide and comprehensive interpretation so as to include ancillary and
subsidiaiy matters.7

We have adopted the Australian pattern of the division of powers.8 In- spite of this distribution of
the legislative powers, the Constitution has adopted a scheme of priorities, in order to avoid the
conflict, so far as possible, on the interpretation of the legislative entries. As a result of this,
certain general principles have been evolved through the rulings of the courts, which interpret
these legislative entries in case of a conflict of jurisdiction.

The entries in the lists are not mutually exclusive.9 The various entries in, the three lists do not
denote the powers of legislation but only the fields of legislation.10 Entries in the legislative lists
do not prescribe the conditions subject to which legislative power is to be exercised. The power
of the legislature to legislate on a matter specified in one of the legislative lists is not one coupled
with a duty to exercise that power. The legislature is under no obligation to make a law in respect
of that power, for no obligation of that kind can be enforced by the courts against the legislature.

In construing the entries, in the legislative lists it is the duty of the court to try to reconcile them
with each other in all cases of overlapping and to see that, as far as possible, none of these entries
becomes a dead letter and the legislative power of each legislature under the different entries is
maintained.11 The process of reconciling different legislative entries involves as a necessary
consequence that although when the legislative entries are taken in isolation from each other, an
entry may be wide enough to cover certain matters, its scope will have to be restricted and a
narrower meaning will have to be attributed to the entry so as to exclude from it any particular

6
The State of Madras vs. Gannon Dunkerley & Co., (Madras) Ltd., AIR 1958 SC
7
Supra note 8.
8
Ambedkar, B.R. C.A. Deb. Vol. VII P. 37.
9
Commissioner of Income Tax, West Bengal, Calcutta vs. Raja Benoy Kumar Sahas Roy, AIR 1957 SC 768.
10
Visweshwar Rao vs. The State of Madhya Pradesh, AIR 1952 SC 252.
11
The State of Bombay and Anr. vs. F.N. Balsara, AIR 1951 SC 318.

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aspect of the same matter which is covered by another entry.12 Where there are two entries which
are precisely expressed, the meaning of one of them should not be stretched so as to encroach on
the field of the other.13

12
Thakur Amar Singhji vs. State of Rajasthan, AIR 1955 SC 504.
13
Ram Krishna Ramnath Agarwal of Kamptee vs. Secretary, Municipal Committee, Kamptee, AIR 1950 SC 11.

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