Doctrine of Pith and Substance
|Doctrine of 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.
Origin in India
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.
- 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.
The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers.
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.
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:
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.
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.
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.
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.
- 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.).