Part-1: Agriculture Marketing Reforms and Constitutional Provisions

Part-1

Agriculture Marketing Reforms and Constitutional Provisions

Indian Constitution & The Doctrine of Pith and Substance

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Introduction:

In "Atmnirbahar Bharat" (Self-reliant India) announcement many people started debating the role of the union government in policy reforms. Most of the articles and debates are based on perceptions and common narrative which was flooded in the market. There is a major confusion due to the use of wrong terminologies to explain the point.

Examples: 

1. The terms "Agriculture" and "food grains" are the same or different?

2. Whether "market" and "trade" are the same thing or different?

Let us first understand what the constitution says:

Whenever there is a debate on agriculture marketing policy reforms in the country, the first question that comes to the mind is who should do it - State Government or Union government. Who's domain is this?

Before I go into the detailed analysis, let me explain the legal position of the Union & State domain under the constitution. 

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.

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 impugned legislation was intra vires, regard must be had to its pith and substance.

Doctrine is the foundation of the Indian Federal structure:

Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or an essential part of something’.

The 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 the Union List, then the incidental encroachment by the law on the State List does not make it invalid.

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 the adoption of this doctrine is that if every legislation were to be declared invalid because 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 enactment are 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 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 concerning 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 concerning 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 the legislation. The prominent judgments of the Supreme Court of India that have interpreted and resorted to this doctrine are given below:

1.The State of Bombay and Another vs F.N. Balsara- This is the first important the 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 legislation to determine the List under which it falls.

2. Ms. Atiqa Begam & Anr. v. Abdul Maghni Khan & Ors.– The court held that to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and the character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this the 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.– Doctrine of Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature concerning 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 the law in India recognized by various Courts.

In brief, we can say:

Whenever there is a challenge 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 go for detailed 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.

In the next article, we will discuss what are the constitutional provisions related to the following activities:

• Agriculture
• Agriculture produce
• Market
• Agriculture trade
• Commerce
• Import and Export

Please keep in mind that all these terminologies are not the same and are NOT interchangeable. The wrong interpretation was leading to confusion, concerns and disputes.

In the next article, we will discuss these issues in detail. 

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Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.