Constitution of India : Doctrine of Pith and Substance
Introduction
This post is
concerned with a ‘Doctrine of Pith and
Substance’. The basic purpose of this doctrine is to determine under which head
of power or field i.e. under which list (given in the Seventh Schedule) a
given piece of legislation falls.
Pith means ‘true
nature’ or ‘essence of something’ and Substance means ‘the
most important or essential part of something’.
Doctrine of Pith
and Substance says that where the question arises of determining whether a
particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter. Thus, if the
substance falls within Union List, then the incidental encroachment by the law
on the State List does not make it invalid.
This is essentially
a Canadian Doctrine now firmly entrenched in the Indian Constitutional
Jurisprudence.
This doctrine found its place first in the case of Cushing
v. Dupey. In this case 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.
Need for the Doctrine
of Pith and Substance in the Indian Context
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 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 is settled law of
interpretation that entries in the Seventh Schedule are not powers but fields
of legislation. The legislature derives its power from Article 246 and other related articles of
the Constitution. Therefore, the power to make the Amendment Act is derived not
from the respective entries but under Article 246 of the Constitution.
The language of the respective
entries should be given the widest scope of their meaning, fairly capable to
meet the machinery of the Government settled by the Constitution. Each general
word should extend to all ancillary or subsidiary matters which can fairly and
reasonably be comprehended in it. When the vires of an enactment is impugned,
there is an initial presumption of its constitutionality and if there is any
difficulty in ascertaining the limits of the legislative power, the difficulty
must be resolved, as far as possible in favour of the legislature putting the
most liberal construction upon the legislative entry so that it may have the
widest amplitude.”
Incidental or Ancillary
Encroachment:
The case of Prafulla
Kumar Mukherjee v. The Bank of Commerce, succinctly explained the
situation in which a State Legislature dealing with any matter may incidentally
affect any Item in the Union List. The court held that whatever may be the
ancillary or incidental effects of a Statute enacted by a State Legislature,
such a matter must be attributed to the Appropriate List according to its true
nature and character.
Thus, we see that
if the encroachment by the State Legislature is only incidental in nature, it
will not affect the Competence of the State Legislature to enact the law in
question. Also, if the substance of the enactment falls within the Union List
then the incidental encroachment by the enactment on the State List would not
make it invalid.
However, the
situation relating to Pith and Substance is a bit different with respect
to the Concurrent List. If a Law covered by an entry in the State
List made by the State Legislature contains a provision which directly
and substantially relates to a matter enumerated in the Concurrent List and
is repugnant to the provisions of any existing law with respect
to that matter in the Concurrent List, then the repugnant provision
in the State List may be void unless it can coexist and operate without
repugnancy to the provisions of the existing law.
Important Supreme Court
Judgments on the Doctrine of Pith and Substance
There are hundreds
of judgments that have applied this doctrine to ascertain the true nature of a
legislation. In the present post, I will discuss some of the prominent
judgments of the Supreme Court of India that have resorted to this doctrine.
1.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.
2. 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”.
3. 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.
This doctrine is an
established principle of law in India recognized not only by this Court, but
also by various High Courts.
Where a challenge is made to the constitutional
validity of a particular State Act with reference to a subject mentioned in any
entry in List I, the Court has to look to the substance of the State Act and on
such analysis and examination, if it is found that in the pith and substance,
it falls under an entry in the State List but there is only an incidental
encroachment on any of the matters enumerated in the Union List, the State Act
would not become invalid merely because there is incidental encroachment on any
of the matters in the Union List.”
