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Doctrine Of Pith And Substance – Explanation With Case Laws

Introduction

The Indian Constitution envisages a number of legal doctrines. A legal doctrine can be a principle or set of principles that are widely followed. One of such doctrines is the doctrine of pith and substance. ‘Pith’ means the ‘essence of something’, whereas ‘substance’ would imply ‘the most important part of something’. Collectively, the doctrine would literally mean ‘true nature and substance’, and it comes into play when there is a conflict regarding the power of a level of government to make law on a particular matter.

India has a federal system of government, meaning thereby the Centre and States are ruled separately by different ruling bodies. In India, at the central level, the Parliament is the governing body, and at the state level we have State Legislatures. Both of them derive their powers from Article 246 of the Indian Constitution. The Seventh Schedule of the Constitution contains three lists – the Union List, the State List, and the Concurrent List, which further contain certain subjects for legislation.

According to Article 246, the Centre has exclusive power to legislate on any matter mentioned in the Union List, i.e. List I. The States, on the other hand, have exclusive power to legislate on any matter mentioned in the State List, or List II. However, both the Centre and the States have the power to make laws on matters mentioned under the Concurrent List, and in case of a conflict, the law made by the Centre shall prevail.

Generally, the Parliament and the State Legislatures are expected to stick to their assigned fields and not encroach upon the jurisdiction of each other, and if this happens, the Judiciary will declare the law as invalid. But before that, it will apply the doctrine of pith and substance so as to ascertain the real authority under which the said piece of legislation falls. In simple words, the doctrine of pith and substance is applied in order to determine what list a piece of legislation falls in.

Yet the powers conferred upon each level are bound to overlap at certain points. It is not possible to make a clean cut between the powers of various legislatures; they are bound to overlap from time to time.[1] A whole statute cannot be declared null and void because of incidental overlaps or effects.

Doctrine of Pith And Substance Evolution

The doctrine of pith and substance is essentially a Canadian doctrine. Canada is divided into the Dominion and the Provinces. The Canadian Constitution was enacted as the British North America Act of 1857, Section 69 of which bifurcated the powers of the Dominion and the Provinces. At that time, Canada had only two lists, but it was a step forward from Australia, which was the first great model of federalism, but had only one list. The doctrine was formulated in the case of Cushing v. Dupuy[2]. The Privy Council evolved this doctrine to decide the constitutionality of the Canadian and Australian statute regarding the violation of distribution of powers. It observed that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.

In India, the Doctrine of Pith And Substance was adopted by the Federal Court of India as well as the Privy Council to determine constitutionality under the Government of India Act of 1935. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.[3], Lord Porter said that whatever was pith and substance was the effect of the legislation regarding which an objection was raised and in which List its true spirit and character was to be found.

Doctrine of Pith And Substance Purpose

The main aim of introducing doctrine of pith and substance is to ensure that not every other law is declared invalid simply because it infringes the power and jurisdiction of another level of government, thus allowing flexibility. The doctrine is used by the courts to determine the true nature of the concerned piece of legislation.

The case of State of Bombay & Anr. v. F. N. Balsara[4] was the first case on the matter, where the Supreme Court upheld the doctrine of pith and substance and observed that it was important to ascertain the true spirit and character of an enactment so that the List under which it came could be determined.

The doctrine of pith and substance was properly explained in the case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors[5]. The court observed that the doctrine was to be applied when the legislative ability of the legislature regarding a particular law was questioned. If there was an objection regarding the ability of such legislature, the court would determine the pith and substance of such law after the Act had been scrutinised. Here, it was vital for the courts to examine the true nature of the law, its objective, scope and effect, and it was also necessary to find out whether the law challenged was genuinely covered by a subject that fell in the list concerned with the legislature in question.

Application of the Doctrine of pith and Substance

The application of the doctrine of pith and substance was defined by the Constitutional Bench of the Supreme Court in Kartar Singh v. State of Punjab[6]. It observed that the doctrine of pith and substance is used a law related to a matter in one of the Lists is also related, maybe indirectly, to a subject in another List. In such a situation, the pith and substance of the law is to be ascertained. On a careful inspection of the legislation, if it is found that the said legislation is on a subject in a list concerning the said legislature, then the act in toto is to be held valid, without taking into account any incidental encroachments that there might be. Incidental trenches cannot be altogether forbidden.

If, on application of the doctrine to a particular statute, it is found that the legislature that so enacted the statute is competent, then the Act must be held intra vires, even though the legislature might incidentally trench on matters not within its jurisdiction.

The courts have a duty to apply the doctrine of pith and substance where there is an issue of power of legislation. The court compares the matter of the enactment with the subjects mentioned under the three Lists – the Union, the State, and the Concurrent List, and analyses which of the three lists would cover the enactment. If the enactment is covered by the List which is related to the legislature concerned, then the enactment is intra vires, and thus valid. However, if the enactment is ultra vires, then it will be considered void.

However, there are a lot of factors that need to be taken into consideration when declaring an Act as null and void. It may so happen that the legislature in concern may have accidentally encroached upon the powers of another legislature, and in such a case, much scrutiny is needed to make sure that it wasn’t done on purpose.

In Ishwari Khetal Sugar Mills v. State of Uttar Pradesh[7], the Act in question was the Uttar Pradesh Sugar Undertakings (Acquisition) Act of 1971, which was challenged on the basis that the state did not possess competence to enact a law and that the same was vested with the Parliament. The court, while dismissing the contention, stated that for the controversy in the present cases concerning the legislative competence of the State Legislature to enact the U. P. Sugar Undertakings (Acquisition) Act, 1971 could be adequately disposed of on the ground that the legislation fell within Entry 42 of the Concurrent List, i.e. List III, and could not be related to Entry 52 of the Union List, i.e. List I, or Entry 24 of the State List, i.e. List II. When the disputed legislation, without question, fell within Entry 42 of the Concurrent List: “acquisition and requisitioning of property”, the reason to avoid examination of the said entries, i.e. Entry 52 of the Union List and Entry 24 of the State List, was that the subject matter of these entries was “industries”, which is an entirely different area in relation to Entry 42 of the Concurrent List.

If there is an interminable conflict between the Centre and the States regarding the power of legislation, priority will be given to the Centre. But every attempt will be made to dissolve the conflict. In Assn. of Natural Gas v. Union of India & ors.[8], the Supreme Court of India viewed that when the power to legislate on a given subject is to be taken into account in order to determine the scope of that power, it was important to understand what would ordinarily be treated as “covered within that subject in legislative practice” as well as the practice of such State that had conferred such power. The Court mentioned the case of Walace Brothers & Co. Ltd. v. Commissioner of Income-tax, Bombay City and Bombay Suburban District[9], where Lord Uthwatt observed that where the Parliament conferred a power to legislate on a particular topic, it was both permissible and important in determining the scope and meaning of the power to have regard to what is ordinarily treated “as embraced within that topic in the legislative practice of the United Kingdom”. The point of the reference here was to analyse and reach the general concept that was involved in the act, and not to determine the pattern according to which a certain power was to be exercised.

Conclusion

All in all, the doctrine of pith and substance has proved to be useful in various situations where the Centre and the States have been in a tussle over legislative supremacy. In India, the Centre carries more value than the States, and that is why a lot of subjects in the Union List are of grave importance. The States are required to legislate only on those matters that concern the States themselves. Still, there may be overlaps simply because one law is connected with the other, directly or indirectly. What is imperative is that the courts perform their duty without any mistake.

In Premchand Jain v. R. K. Chhabra[10], the Supreme Court stated that as long as the legislation was within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting it, it touched an aspect beyond its reach. In a series of decisions, the court opined that any enactment that substantially fell within the powers expressly conferred by the Constitution upon the Legislature enacting it, it could not be held invalid simply because it incidentally encroached upon the subjects concerned with other legislature(s).

Frequently Asked Questiones on Doctrine of Pith And Substance

What does the doctrine of pith and substance mean?

The doctrine of pith and substance literally means ‘true nature and substance’, and this doctrine comes into play when there is a conflict between the union and state legislature regarding power.

When does the court apply doctrine of pith and substance?

The court applies this doctrine to decide and determine the true nature of the concerned piece of legislation. If, on application of this doctrine on a particular statute, it is found that the legislature that enacted the statute is competent, then the statute will be held intra vires and valid. And if the Legislature is not competent then the statute will be considered ultra vires and void.

[1] Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 28.

[2] 1880 UKPC 22.

[3] AIR 1947 PC 28.

[4] 1951 AIR 318.

[5] AIR 2010 SC 2633.

[6] 1961 AIR 1787.

[7] 1980 AIR 1955.

[8] 2004 (6) ALD 99 SC.

[9] AIR 1955 Bom 72.

[10] AIR 1984 SC 981.

Also Read – Distribution Of Powers in the Indian Constitution

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Zara Suhail Ahmed

Zahra is a student at Aligarh Muslim University, pursuing a 5-year B.A. LLB course. Currently in her 4th year, Zahra opted for Law after completing most part of her schooling from Cambridge School, New Delhi. Zahra has interned under a few lawyers and firms, participated in various moot courts and similar events, and is proficient in research and written content. A strong believer that education is the greatest virtue, Zahra seeks to learn from every platform and individual, whether working alone or as a team. Although Zahra is keenly interested to pursue ADR (Alternate Dispute Resolution) as a career, she has kept her options open and is interested in examining the different career prospects that her profession has to offer. Zahra has diversified interests apart from her professional life as well. Not only a successful lawyer, but she also aspires to become a productive human being.

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