Doctrine of Implied Powers in India - Bidi, Bidi Leaves & Tobacco Merchants' Association v. State of Bombay

Introduction

Let us revisit the celebrated Five Judges Bench Judgment of Bidi, Bidi Leaves & Tobacco Merchants' Association v. State of Bombay, 1962 Supp (1) SCR 381 (hereinafter to be referred to as “Tobacco Merchants”) M. This Judgment discussed the true scope and effect of the Doctrine of Implied Power which serves as a tool for interpretation. The Doctrine of Implied Powers is not to be confused with the interpretative tool ‘casus omissus’. The meaning of ‘casus omissus’ shall be discussed later on in this post.

Definition and Meaning

Before going through the manner in which our Supreme Court has dealt with this doctrine, let us discuss the dictionary meaning of the term ‘implied power’. Black’s Law Dictionary defines ‘implied power’ as:

“A political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.”

Thus as the name suggests, ‘implied power’ is something that has existence by virtue of express power and is something without which an express power cannot be exercised.

The Tobacco Merchants Case discusses various definitions relating to the Doctrine of Implied Powers. It starts with ‘Craies on Statute Law’ which says that:

“One of the first principles of law with regard to the effect of an enabling act is that 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.”

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.”

Thus the importance of 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. The impossibility must be of such nature that it has no exceptions and the Statute would become a dead letter if that ‘other’ power is not assumed.

Caution in invoking the Doctrine of Implied Powers

The Latin Maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”, is also relating to the Doctrine of Implied Powers. It means that:

“Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”

However, 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”.

Thus in no other circumstance can this doctrine be invoked. Only and only where there is an impossibility of enforcement to the express provisions of a Statute, the existence of some deemed power can be held to be valid. In all the other circumstances where the express power could be given effect to without assuming any ‘other’ power, the Doctrine of Implied Powers would have no applicability.

Urgency and the serious of the grievance can never be the grounds for invoking the Doctrine of Implied Powers. When the Statute itself is clear and does not suggest any existence of any implied power, then the same could not be done by invoking other grounds or reasons. The Statute must be read as a whole in order to arrive at this conclusion.

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 Black’s Law Dictionary defines ‘Casus Omissus’ as:

“[Latin “case omitted”] A situation not provided for by a statute or contract, and therefore governed by caselaw or new judge-made law.”

The Latin Maxim governing the situation of ‘casus omissus’ is “casus omissus et oblivioni datus dispositioni communis juris relinquitur” which means that “a case omitted and forgotten (not provided for in statute) is left to the disposal of the common law.

Thus 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’.

Conclusion

The Doctrine of Implied Powers has withstood the test of time and has been cited in a number of Supreme Court Cases. This doctrine is a technical one and would require a certain of ingenuity in order to convince the Court to invoke it. Normally, the Statutes are a self-contained code and it is hardly the case where something is needed to be assumed. In other words, wherever this doctrine is required to be invoked would reflect a poor instance of drafting by the legislators as it is always best to codify as far as possible through express provisions leaving no scope for any ambiguity in interpretation. Time and again, the Courts have said that if literal interpretation is able to give complete meaning and effect to a provision of law, then no other tool or aid of interpretation such as Doctrine of Implied Powers is required.


Constitutional Law Doctrines

1. Doctrine of Parens Patriae and the Constitution of India

2. Doctrine of Delegated Legislation and the Constitution of India
3. Doctrine of Territorial Nexus and the Constitution of India

4. Doctrine of Occupied Field and the Constitution of India
5. Doctrine of Pith and Substance and the Constitution of India
6. Doctrine of Colorable Legislation and the Constitution of India

7. Doctrine of Waiver and the Constitution of India

8. Doctrine of Severability and the Constitution of India 

9. Doctrine of Eclipse and the Constitution of India

10. Doctrine of Repugnancy and the Constitution of India 
11. Doctrine of bona vacantia or Escheat and the Constitution of India
12. Origin and Scope of Doctrine of Pleasure in India
13. Doctrine or Principle of 'Strict Necessity' 
14. Doctrine or Theory of 'de facto' Prejudice
15. Doctrine of "Unclean Hands"
16. Doctrine of Laches in India
17. Doctrine of Implied Powers in India