Statutes Conferring Powers and Imposing Duties

Statutes create authorities and give them powers and duties: to assess, to license, to adjudicate, to arrest, to maintain. How such provisions are read affects every exercise of public power. Courts imply the incidental powers needed to make an express power work, insist that a power be exercised in the manner prescribed, treat some powers as carrying a duty to act, and require discretion to be exercised by the authority itself for proper purposes. This note sets out these principles and their leading cases.

1. The Principles at a Glance

Figure 1: How statutory powers and duties are read

2. Implied and Incidental Powers

Where a statute confers a power, it impliedly confers every power reasonably necessary to make the express power effective. The court will not read a grant of power so narrowly that its object is defeated.

• M.K. Mohammed Kunhi (1968). The Supreme Court held that the Income Tax Appellate Tribunal, having power to hear appeals, has the incidental power to stay recovery of a penalty pending appeal, since otherwise the appeal could be rendered nugatory.
• Savitri v Govind Singh Rawat (1985). A Magistrate deciding a claim for maintenance under s.125 of the Code of Criminal Procedure was held to have the implied power to grant interim maintenance, to make the remedy effective.
• Limit. Implied powers are ancillary to an express power; they cannot create a substantive power the statute does not confer, or override express limits.

3. Power to Be Exercised in the Manner Prescribed

• Taylor v Taylor (1875). Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all; other methods are necessarily forbidden.
• Nazir Ahmad v King Emperor (1936). The Privy Council applied the rule to a confession recorded by a Magistrate other than in the manner prescribed by the Code of Criminal Procedure.
• Singhara Singh (1964). The Supreme Court adopted the rule, holding that a confession not recorded in the manner prescribed by the Code could not be proved by the Magistrate's oral evidence.

4. Powers Coupled with Duties

• The principle. Words that are permissive in form, such as 'may', can carry a duty to act where the power is conferred to enforce a right or for the benefit of others, and the conditions for its exercise are met.
• Julius v Lord Bishop of Oxford (1880). The House of Lords held that enabling words are construed as compulsory where they are used to effectuate a legal right.
• Link. This is how 'may' is sometimes read as 'shall' (Topic 18)

5. Exercise of Discretion

• By the authority itself. In Commissioner of Police v Gordhandas Bhanji (1952) the Court held that a discretion conferred on the Commissioner must be exercised by him, not at the dictation of another authority.
• Proper purpose. A power must be used for the purpose for which it was conferred and on relevant considerations, ignoring irrelevant ones.
• Not fettered. An authority cannot fetter its discretion by rigid policy that prevents consideration of each case.
• Statutory duties. A duty imposed by statute must be performed, and its performance can be compelled by mandamus.

6. Ancillary Powers under the General Clauses Act

• Section 14. A power conferred by a Central Act may be exercised from time to time as occasion requires.
• Section 16. A power to appoint includes a power to suspend or dismiss.
• Section 21. A power to issue notifications, orders, rules or bye-laws includes a power to add to, amend, vary or rescind them in the like manner and subject to like conditions (Topic 37)

7. Frequently Asked Questions

What is the doctrine of implied powers?

Where a statute confers a power, it impliedly confers all incidental powers reasonably necessary to make that power effective. In Income Tax Officer v M.K. Mohammed Kunhi (1968) the Supreme Court held that the Appellate Tribunal had the incidental power to stay recovery pending appeal, and in Savitri v Govind Singh Rawat (1985) that a Magistrate could grant interim maintenance.

What is the rule in Taylor v Taylor?

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods are necessarily forbidden. The Privy Council applied it in Nazir Ahmad v King Emperor (1936), and the Supreme Court adopted it in State of UP v Singhara Singh (1964), both concerning confessions recorded otherwise than as the Code required.

Can a discretionary power become a duty?

Yes, where the power is conferred to enforce a right or for the benefit of others and the conditions for its exercise are satisfied. In Julius v Lord Bishop of Oxford (1880) the House of Lords held that enabling words are construed as compulsory where they are used to effectuate a legal right. In such cases 'may' is read as imposing a duty to act.

8. Related Topics

• Topic 18: Mandatory and Directory Provisions. When 'may' means 'shall'.
• Topic 37: General Clauses Act. Sections 14, 16 and 21 in context.