Notes Towards a Theory of Implied Powers in (Indian) Constitutional Law
Volume 7 Issue 3-4 (2014)
“Implied powers” pose difficult conceptual problems for legal scholars. They are invoked in many contexts and appear to comprise several distinct legal phenomena. Yet there is no clear understanding of what we mean by an “implied power” – apart from the very basic notion that it is not an express power – and of what forms it may take, and no existing theoretical framework that can help us in this respect. This article takes a first step towards creating such a theoretical framework by identifying criteria – the content of the power, the authority holding it, and the nature of the implication involved – that may be used to classify all references to “implied powers” in the positive law. The article focuses on Indian constitutional law to see how the relative paucity of implied powers in the Supreme Court’s jurisprudence on constitutional matters may be analysed using the proposed framework. In this perspective, the paper suggests that the separation of powers and the judicial emphasis on restricting governmental powers vis-à-vis citizens are relevant factors in explaining both the absence of a general implied powers doctrine and its specific use in an intergovernmental context.