This article discusses the Doctrine of Pith and Substance in Indian constitution. This article is written by Gaurav Anand Gogia, law student of Symbiosis Law School, Pune.
Doctrine of Pith and Substance
This teaching comes into the picture when there is a contention between the various subjects in various records. There is an insight of List 1 and List 2 of the Constitution of India. There can be a circumstance when a subject of one rundown touché the subject of another List. Consequently, this statute is associated at that point. Pith and Substance implements the veritable thought of law. The genuine topic is tested and there is not any of the accidental impact on the other fields. This teaching has been associated in India in a similar manner so that it can give a degree of versatility in the generally inflexible plan of circulation of powers. The purpose behind the appropriation of this regulation is that if each enactment were it is to be pronounced as invalid in the light of the fact that it had infringed the powers and the forces of the law-making body which would be radically encircled.
Within their respective scopes, Parliament and the State Legislature should keep within the field assigned to them and not infringe into the scope reserved for the other, and a law made by one which trespass or encroaches upon the field assigned to the other, is not valid.
But before the Legislature purporting to deal with a subject in one of its lists and touching also on a subject in another list is considered to be bad, here the courts apply what is known as, the doctrine of pith and substance.
Pith and substance is a legal doctrine which is used to determine under which head the powers are given to the legislation. The Doctrine of Pith and Substance is mainly used when a law is tested on the basis that one of the levels of government has encroached upon the exclusive jurisdiction of the other level of government.
Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or essential part of something’. Hence, this is known as the Doctrine of Pith and Substance
This doctrine says that when there is the question of determining whether the particular law is related to a particular subject which arises (mentioned in one List or another) then the court looks into the substance of the matter. Thus, if the substance from the subject matter falls within the Union List, then the incidental encroachment by the law on the State List does not make it invalid.
This is essentially a Canadian Doctrine which is now firmly entrenched into the Jurisprudence of Indian Constitution. This doctrine was first used in the case of Cushing v. Dupey. In this case the Privy Council had evolved the doctrine, that for deciding whether or not an impugned legislation was intra vires, regard should be there to have its pith and substance.
This doctrine envisages that the Legislation as an entire be examined to establish its ‘true nature and character’ of Legislation. Pith and substances is a legal doctrine in Canadian Constitutional interpretation accustomed confirm beneath that the head of power a given piece of Legislation falls. Within their individual spheres, the Union as well as the State Legislatures are made supreme and they shouldn’t encroach into the sphere reserved for the other one. The doctrine of pith and substance is applied when the legislative competency of a Legislature with regard to a particular enactment is challenged with relation to the entries in numerous legislative Lists, because a law dealing with a subject in one List within the competence of the Legislature which is also concerned on touching the subject matter in another List and not within the competence of that Legislature. In such a case what has to be ascertained is the pith and substances of the enactment, i.e. the true character of the Legislation.
To ascertain the true character of the Legislation in question of a subject matter, one must have regard to it as a whole, to its object and to its scope and effect of its provisions. If consistent with its true nature and character, the Legislation considerably relates to a topic assigned to the Legislature which has enacted it, then it is not invalid simply as a result of iquestiont incidentally trenched or encroaches on matters assigned to another Legislature. The Act of incidental encroachment does not affect the vires of the law even as regard the area of encroachment. To put it differently, incidental encroachment is not altogether forbidden. Whenever the question arises of deciding that whether or not a specific law is related to a specific subject (mentioned in one List or another), the court looks on the substance of the subject matter. Thus, if the substance falls within Union List, then the incidental infringement by the law on the State List cannot make it invalid. To determine the doctrine of pith and substance, two aspects of the law should be examined: the aim of enacting body and also the legal effect of the law. To assess the aim, the courts might consider both intrinsic evidence, such as the Legislation’s preamble or function clauses, and accidental evidence, such as minutes of Parliamentary debates. In doing so, they must nevertheless have to establish the actuality of the true purpose of the Legislation, as opposed to its mere Stated or apparent purpose. Equally the courts might take into consideration the results of the Legislation.
This doctrine is to be applied not solely but just in the cases of apparent conflict between the powers of two Legislatures but in any case, where the question arises whether or not a Legislation is covered by a specific legislative power in exercise of which is alleged to be made. In all such cases the name given by the Legislature to the impugned enactment isn’t conclusive on the question of its own competency to be made. It is the doctrine of pith and substance of the Legislation that decides the matter and also the doctrine of pith and substance which is to be determined with relation to the provisions of the statute itself.
The principle of “pith and substance” had come to be established by the Privy Council, when it strong-minded the appeals from Canada or Australia involving the question of legislative competency of the federation or the States in those countries. Canada is the 1st country in which the doctrine of pith and substance got evolved. Supremacy of Privy Council over Canadian Constitution is mainly accountable to bring into the highlight this doctrine. The Judicial Committee of the Privy Council (JCPV) is a court run by the Hou
se of Lords in London. It had been the highest court in Canada from the Year 1867 to 1949, and heard Canada’s most important division of powers cases from that era. It used to overrule the Supreme Court of Canada; several important cases had bypassed the Supreme Court altogether and went directly to the JCPV. The decision of JCPV developed the doctrine on ‘pith and substance’ in Hodge v. The Queen, here the court explicitly stated that
“subjects which in one aspect and for one purpose falls within s.92, may in another aspect and for another purpose fall within s.91” (BNA Act). In applying the doctrine, there had been several situations where the importance of one matter could not be significantly larger than the other. Infact, the doctrine removes the requirement for courts to split hairs so that they can determine which head of power should be assigned a particular law.
Pith and substance is a legal doctrine in the interpretation of Canadian constitution which used to determine that under which head from the various powers the power of subject matter of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
The Constitution Act, 1867, which established a federal constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, soon, it was found that the topics enumerated in the two sections overlapped, and the Privy Council repeatedly had to pass on the constitutionality of laws made by the federal and provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.
The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.
In India, the doctrine of pith and substance came to be adopted in the pre-independence period, under the Government of India Act, 1935. The fine example is the decision of Privy Council in the case of Prafulla Kumar Mukherjee v. Bank of Commerce, stating that the State law, dealing with money lending (a State subject), is not invalid, simply because it incidentally affected the promissory notes (now Union List, entry 46). This doctrine is sometimes expressed in the terms of ascertaining the “nature and the true character of Legislation”, and is also emphasized, that the name given by the Legislature in short title, is immaterial. Again, for applying the “pith and substance” doctrine, regard is to be had
to the enactment as a whole,
to its main objects, &
the scope and effects of its provisions.
The Doctrine of Pith and Substance as applied within the jurisprudence of the Judicial Committee of the Privy Council, effectively the British Imperial Court of Appeal, had been carried to other commonwealth federations. The doctrine is widely accepted today. Though it originated from Canadian laws, gradually it has been included in many other Constitutional systems, especially the sates having Federal character found it essential to apply the doctrine in working as it provides remedy for disputes arising between Union and State. Therefore, apart from Canada – it is used in India under the present Constitution. The Australian High Court applied the doctrine of Pith and Substance in the case of King v. Berger, where Federal Excise Tariff Act, 1906 had imposed an excise duty on manufacture of agricultural implements and invalidated the law. It was also used in Northern Ireland, Scotland and some other countries.
Provisions of Doctrine of Pith and Substance under Indian Constitution
There is an interpretation of List 1 and List 2 of the Constitution of India. This doctrine comes into the picture when there is a conflict between the different subjects in different lists.
There can be a situation when a subject of one list touché the subject of another List. Hence this doctrine is applied then.
Pith and Substance means the true nature of law.
The real subject matter is challenged and not its incidental effect on another field. The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers.
The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.
It was applied by the Supreme Court in the case State of Bombay Vs F.N Balasar.
The main reason behind the adoption of this doctrine of pith and substance is that the powers of the legislature would be severely limited if every law were to be declared invalid on the ground that it infringes power.
According to this doctrine, it is examined to check the “true nature and character” of the law in order to ascertain in what list it falls. It is widely used in determining whether the state is within its power to make statute which involves a subject mentioned in the union list of the constitution. India is a Federal State like America, Australia and Canada the legislative powers of the Central federation and the State Provinces were given in three Lists, firstly under the Government
of India Act, 1935 and then under the Constitution of India, 1950, whereas Canada had two Lists and America and Australia had only one List. Though the States did not join the federation, the Federal provisions of the Government of India Act, 1935, were in Act, applied as between the Central Government and the Provinces. The division of powers between Centre and the State Provinces in the Government of India Act, 1935 and the division made in the Constitution between the Union and the State proceeds largely on the same lines. A threefold division was made in the Act of 1935:
Federal List for Federal Legislature,
Provincial List for Provincial Legislature and
Concurrent List for both Federal and Provincial Legislature.
Federal Legislature had however, the power to legislate with respect to matters enumerated in the Provincial List if proclamation of emergency was made by the Governor General. The Federal Legislature could also legislate with respect to a Provincial subject if the Legislature of two or more Provinces desired this in their common interest.
In case of repugnancy in the Concurrent field, a Federal law prevailed over Provincial law to the extent of the repugnancy but if the Provincial law received the assent of the Governor General or of his majesty, having been reserved for their consideration for this purpose, the Provincial law prevailed, notwithstanding such repugnancy. The allocation of residuary power of Legislation in the Act was unique. It was not vested in either of the Central or Provincial Legislatures, but the Governor General was empowered to authorize either the Federal or Provincial Legislature to enact a law with respect to any matter which was not enumerated in the legislative Lists.
Moreover by section 100 of the Government of India Act,1935 the three Lists are carefully arranged in a rigid hierarchy of super and subordination: the power in the Federal List are exclusive notwithstanding anything in the other two Lists; the Concurrent powers can be exercised at either level subject to the Federal List and notwithstanding anything in the State List; and the State power are given only subject to the other two Lists. . Under the Government of India Act there were several attempts to argue that this hierarchical arrangement left no room for a test of “the doctrine of pith and substance”. The rigid definition of exclusive fields and the absolute supremacy of the Federal List meant that the Provinces could not trespass upon the areas of exclusive Federal power at all, not even by laws which in “the doctrine of pith and substance” were clearly within Provincial power.
The provisions under the Constitution of India, 1950 related to the doctrine are: Scheme of distribution under the Constitution.
The Constitutional provisions in India on the subject of distribution of legislative powers between the Union and the States are spread out several articles. However, the most important of those i.e. the basic one is that contained in articles 245-246. Article 245 provides, inter alia, that (i) Parliament may make laws for the whole or any part of the territory of India, and &nb
sp; (ii) The Legislature of a State may make laws for the whole or any part of the State.
Thus, article 245 sets out the limits of the legislative powers of the Union and the State from the geographical angle from the point of view subject matter of Legislation; it is article 246 which is important. Article 246 reads as under:
“246(1) notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws in respect to any of the matters enumerated in List I of the Seventh Schedule (Union List).
(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the Legislature of any State also, shall have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (Concurrent List)
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make law for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (State List).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in State, notwithstanding that such matters is a matter enumerated in the State List”.
By this article 246 the Constitution authorizes the Parliament and the State Legislatures to legislate Concurrently with respect to the subjects enumerated in the Concurrent List. According to the joint Parliamentary committee report, there is a justification for the insertion of Concurrent List which in not present in any of the Federal Constitution. Though there are certain matters which cannot be allocated exclusively either to the Central or to the State Legislature, and for which, though it is often desirable that the State Legislature should make provisions, it is equally necessary that the Central Legislature should also have legislative jurisdiction, to enable it in some cases to secure uniformity in the main principles of law throughout the country. Article 246(2) gives power to two Legislatures; conflict can arise between laws passed on the same subject by the two Legislatures.
Article 254 of the Constitution mainly deals in solving repugnancy between State and Union Concurrent List.
Article 254(1) If any provision of law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of State shall, to the extent of repugnancy, be void.
Article 254(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provisions in repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his/her assent, prevail in the State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the Legislature of the State”.
The various entries in the three Lists are not ‘powers’ of Legislation but the ‘fields’ of Legislation. The doctrine of pith and substance is to be applied and if the impugned Legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. The justification for the doctrine is that in Federal Constitution, it is not possible to make a clear-cut distinction between the powers of the Union and the State Legislatures. There is bound to be overlapping and in all such cases, it is but reasonable to ask what in whole is the true nature and character of the law. A strictly verbal interpretation would result in a large number of statutes being declared invalid on the ground of overlapping. If the Legislature is to have the full scope to exercise the power granted to it, it is necessary to assume that the Constitution does not prevent a Legislature from dealing with a matter which may incidentally affect any matter in the other List.
Need for doctrine of Pith and Substance in India
The doctrine has been applied in India to provide a degree of flexibility within the otherwise rigid theme of distribution of powers. The reason for adoption of this doctrine is that if each legislation were to be declared invalid on the grounds that it encroaches power, the powers of the legislature would be severely restricted.
According to this doctrine, the legislation as a whole is examined to determine its “true nature and character” in order to determine what list it falls in. If according to its “true nature and character” the legislation considerably falls within the powers conferred on the legislature which has enacted it, then it’s not deemed to be Invalid “simply because it incidentally trenches or encroaches on matters that have been assigned to another legislature.
The doctrine of “pith and substance” postulates for its application, that the law in question is considerably among the legislative competency of the particular legislature which made it but had only incidentally encroached upon the legislative field of the other legislature. The doctrine saves the incidental encroachment, if only the law is in pith and substance within the legislative field of the actual legislature which made it.
This doctrine is widely used in deciding whether a state is within its rights to create a statute that involves a subject which is mentioned in the Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the actual nature of the act or the provision is about a subject that falls within the State list.
Comparison of the Doctrine between Canada and India
This Doctrine was initially enumerated in Canada with the dispute which arose in a Case of Cushing V/s. Dupey. In the same way the doctrine was enumerated in India from the dispute which arose in a case reported in AIR 1951 SC 318 between the State of Bombay V/s. F. N. Balasar.
Referring to the various Judgments mentioned herein below it appears that there is no distinction between the Doctrine of Pith and Substance in Indian Legal System and Canadian Legal System.
Judicial Interpretation Through Various Cases
There are several landmark cases in India through which we can understand the Judicial Interpretation of the Doctrine of pith and Substance. They are as follows:-
In Union of India v. Shah Goverdhan L. Kabra Teachers’ College this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question
of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only in cases of conflict between the powers of two legislatures but also in any case where the question arises whether a legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount consideration is that the substance of the legislation should be examined to arrive at a correct analysis or in examining the validity of law, where two legislations are in conflict or alleged to be repugnant.
The State of Bombay And Another vs F.N. Balsara – This is the first important judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of a legislation for the purpose of determining the List under which it falls.
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors. – The court held that in order to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this investigation, not the form alone which the statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized in its entirety”.
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. – Pith and Substance has been beautifully explained in this case:
“This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.”
A Constitutional Bench of this Court while discussing the said doctrine in Kartar Singh v. State of Punjab observed as under:
This doctrine of ‘pith and substance’ is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.”
The brief about the conclusion is that the Doctrine of Pith and Substance has evolved in all the constitutions where the legislative subjects have been enumerated in more than one of the lists in the Constitution of that Particular Country. Thus, it is not only for general understanding but also the facts are that it helps the judiciary in finding out what actually the law is trying to say.
Entries in each of the lists should be given the most liberal and widest possible interpretation and no attempt should be made to narrow or whittle down the scope of the entries. The application of the doctrine of pith and substance really meant that where the legislation falls in entirety within the scope of an entry and within the competency of the State Legislature then this doctrine will apply and the Act won’t be struck down. The consideration for the encroachment of one list in another and the extent thereof is also well-established. If the encroachment is very minimal and does not affect the dominant part of some of the other entries, which is not within the competency of the State Legislature, then the Act may not be upheld constitutionally valid. Wherever the Central and the State legislation covers the same field, the Central legislation prevails.
This doctrine of pith and substance has been evolved in all constitutions where the legislative subjects are enumerated in more than one List falling within the competence of different Legislatures. This rule introduced a degree of flexibility into the otherwise rigid scheme of distribution of powers. It also gave an additional dimension to the powers of Centre as well as the States. The reason behind this rule is that if every Legislation were to be declared invalid, and if slight or incidental the encroachment of the other filed by it, then the power of each Legislature will drastically be circumscribed to deal effectively with the subjects entrusted to it for Legislation.
Thus, this Doctrine of Pith and Substance is not only for general understanding, in fact it goes on to help the judiciary in finding out what actually the law is trying to object for. In a simpler language, if a law is passed supposedly to give effect to the policy of the State, in truth and substance, one for accomplishing an unauthorized object, the court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. The doctrine gives quite a good deal of maneuverability to the courts. It furnishes them to uphold Legislation, for them to decide its true nature and character and, thus, they have a number of choices open to them and mostly the Courts which by putting a favorable interpretation on the Legislation in question use their power to support the same. CLICK HERE TO JOIN LAW COLUMN’S TELEGRAM AND WHATSAPP GROUPS
List of Books
D.D.Basu, Shorter Constitution of India 1737 (Wadhwa and Company, Nagpur,13th edn., 2004).
V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th edn., 2008).
D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8th edn., 2007).
Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow 4th edn., 2003).
D.D.Basu, Comparative Constitutional law 623(Wadhwa and Company, Nagpur, 2nd edn., 2008).
M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6th edn., 2010).
List of Articles
Saumya Misra, “The Doctrine of pith and substance preserves and protects
Constitutional properties of Parliament and Legislatures” AIR 2009 Journal 17.
Tony Black shield “Working the metaphor: The contrasting use of Pith and Substance in Indian and Australia law” 50 JILI 518(2008).
Balaji P Nadar “The Doctrine of Pith and Substance”
List of Cases
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
Subramaniam Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47.
State of Bombay v. Vatan Medical and General Store, AIR 1951 SC 69.
State of Bombay v. F.N.Balsara, AIR 1951 SC 318.
State of Rajasthan v. G.Chawla, AIR 1959 SC 544.
Krishna v. State of Madras, AIR 1957 SC 297.
Ukha Kolhe v. State of Maharastra, AIR 1963 SC 1531.
Ishwari Khetan sugar Mills (P) Ltd, v. State of UP, AIR1980 SC 1955.
D.C. & G.M.Co. Ltd v. Union of India, AIR 1983 SC 937.
State of West Bengal v. Kesoram Industries Ltd, AIR 2005 SC 1646.
M/S. Hoechst Pharmaceuticals Ltd. and Others v. State of Bihar and Other, AIR 1983 SC 1019.
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, (2010) 5 SCC 246.
Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186.
Hodge v. The Queen (1883), 9 A.C. 117(P.C.).
 Saumya Misra, “The Doctrine of pith and substance preserves and protects Constitutional properties of
Parliament and Legislatures” AIR 2009 Journal 17.
 D.D.Basu, Comparative Constitution 623(Wadhwa and Company, Nagpur, 2007).
 P.M.Bakshi, A Background Paper on Concurrent Powers of Legislation under List III of the Constitution, available