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Interpretation of Statutes: Doctrine of Pith and Substance and its Application in Indian Legal System
DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
FINAL DRAFT
__________________________________________________________________________________
Interpretation of Statutes: Doctrine of Pith and Substance

and its Application in Indian Legal System
__________________________________________________________________________________________
Submitted To:
Submitted By:
Samreen Hussain
Apurv Singh
Astt. Professor
V Semester
Dr. Ram Manohar Lohiya National
Roll No: 28
Law University, Lucknow
Section: A
ACKNOWLEDGEMENTS
Any accomplishment requires effort of many people and this work is no different. I take this
opportunity to thank Ms. Samreen Hussain for providing me valuable training and guidance
at the various stages of my project.
I will also remain highly indebted to the librarian for providing the requisite research
material.
Lastly I am thankful to all my colleagues who have given time to help me during the
completion of the project.
Table of Contents
INTRODUCTION...................................................................................................... 4
HYPOTHESIS.......................................................................................................... 5
LITERATURE REVIEW.............................................................................................. 5
ORIGIN OF THE DOCTRINE OF PITH AND SUBSTANCE............................................8
SCOPE OF THE DOCTRINE...................................................................................... 9
PROVISIONS IN INDIAN CONSTITUTION..................................................................9
APPLICABILITY OF THE DOCTRINE IN INDIA; ANALYSIS OF CASE LAWS................13
FINDING............................................................................................................... 21
CONCLUSION....................................................................................................... 23
BIBLIOGRAPHY..................................................................................................... 23
INTRODUCTION
The distribution of powers is an essential feature of federalism. The object for which a
federal state is formed involves a division of authority between the National Government and
the separate States.. The tendency of federalism to limit on every side the action of the
Government and to split up the strength of the State among co-ordinate and independent
authorities is specially noticeable, because it forms a essential distinction between a federal
system.. and a unitary system of Government. 1 A Federal Constitution establishes the dual
polity with the Union at the Centre and the states at the periphery, each endowed with
sovereign powers to be exercised in the field assigned to them respectively by the
Constitution. The one is not subordinate to other in its own field, the authority of one is coordinate with that of the other.
The powers of Centre and States are divided. They cannot make laws outside their allotted
subjects. It is true that scientific division is not possible and questions constantly arise
whether a particular subject falls in the sphere of one or the other government. This duty in
the federal constitution is vested in the Supreme Court of India. Within their respective
spheres, the Union and the State Legislatures are made supreme and they should not encroach
into the sphere reserved to the other. A law made by one which trespasses or encroaches upon
the field assigned to the other is invalid. If a subject falls exclusively in List II, and in no
other List, then the power to legislate exclusively vests in the State legislature. But if it also
falls in List I as well, then the power belongs to the Centre. Similarly if it falls within List III
also, then it is deemed to be excluded from List II. The dominant position of Parliament in
List I and List III is thus established. But before the legislation with respect to a subject in
one List, and touching also on a subject in an other List, is declared to be bad, the Courts
apply the doctrine of pith and substance to determine whether the Legislature concerned was
competent to make it. If the pith and substance of law, i.e., the true object of the legislation
or a statute, relates to a matter with the competence of Legislature which enacted it, it should
be held to be intra vires even though it might incidentally trench on matters not within the
competence of Legislature. In order to ascertain the true character of the Legislation one must
have regard to the enactment as a whole, to its object and to the scope and effect of its
provisions.2
1 A. V. Dicey- The Law of Constitution, pp 151, 155 (10th Edn. 1959)
4
HYPOTHESIS
The doctrine of Pith and Substance introduces a degree of flexibility into the otherwise rigid
scheme of distribution of powers in the federal constitution.
LITERATURE REVIEW
D.D.Basu in Comparative Constitution (Wadhwa and Company, Nagpur, 2007) at page 623
writes,
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.
D.D.Basu in Shorter Constitution of India (Wadhwa and Company, Nagpur,13th edn., 2004)
at page 1737 writes,
This doctrine is to be applied not only in case of apparent conflict between the powers
of two Legislatures but in any case where the question arises whether a Legislation is
covered by a particular legislative power in exercise of which it is purported to be
made.
.....If on such examination it is found that the Legislation is in substance one on a
matter assigned to the Legislature, then it must be held to be valid in its entirety.
V. N. Shukla and M.P.Singh in Constitution of India (Eastern Book Company, Lucknow, 11th
edn., 2008) at page 740 write,
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.
2 A. S. Krishna v. State of Madras, AIR 1957 SC297

5
Vepa P.Sarathi in Interpretation of Statutes (Easter Book Company, Lucknow 4 th edn., 2003)
at page 691 writes,
The various entries in the three Lists are not powers of Legislation but the fields of
Legislation.
P.M.Bakshi in A Background Paper on Concurrent Powers of Legislation under List III of

the Constitution, available
at:
http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm has
written,
In no field of constitutional law is the comparative approach more useful, than in
regard to the doctrine of pith and substance. This is a doctrine which has come to be
accepted in India and derives its genesis from the approach adopted by the courts
(including the Privy Council), in dealing with controversies arising in other
federations. Briefly stated, what the doctrine means, is this. 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. Thus, if the substance falls within Union List, then
the incidental encroachment by the law on the State List does not make it invalid.
In an article,The Doctrine of pith and substance preserves and protects Constitutional

properties of Parliament and Legislatures AIR 2009 Journal 17, author Saumya Misra
writes,
The 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 different legislative Lists, because a law dealing with a subject in one List
within the competence of the Legislature concerned is also touching on a subject in
another List not within the competence of that Legislature.
.....Both in India and elsewhere, 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.
ORIGIN OF THE DOCTRINE OF PITH AND SUBSTANCE
The principle of pith and substance had come to be established by the Privy Council, when
it determined appeals from Canada or Australia involving the question of legislative
competence of the federation or the States in those countries. Canada is the first country in
which doctrine of pith and substance got evolved. Supremacy of Privy Council over Canadian
Constitution is mainly responsible to bring into picture this doctrine. The Judicial Committee
of the Privy Council (JCPV) is a court run by the House of Lords in London. It was the
highest court in Canada from 1867 to 1949, and heard Canadas important division of powers
cases from that era. It could overrule the Supreme Court of Canada; many important cases
bypasses 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 Queen3 where the court 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, it should
be in situations where the importance of one matter should not be significantly larger than the
other. In effect, the doctrine removes the need for courts to split hairs to determine which
head of power should be assigned a particular law.
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 Privy Council
decision in Prafulla Kumar Mukherjee v. Bank of Commerce 4, holding that a State law,
dealing with money lending (a State subject), is not invalid, merely because it incidentally
affects promissory notes (now Union List, entry 46). The doctrine is sometimes expressed in
terms of ascertaining the nature and the true character of Legislation, and it 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
(i)
(ii)
(iii)
to the enactment as a whole,

to its main objects, &
the scope and effects of its provisions5.
3 Hodge v. The Queen (1883), 9 A.C. 117(P.C.).

4 Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
5 supra note 3.
8
SCOPE OF THE DOCTRINE

The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of
the Privy Council, effectively the British Imperial Court of Appeal, has 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 doctrine in working
as the doctrine provides remedy for disputes arising between Union and State. Therefore
other than Canada- it is used in India under the present Constitution. In Australian High Court
applied this doctrine in King v. Berger6, 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 IN INDIAN CONSTITUTION

India as 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 1950 Constitution, where 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 7. A
threefold division was made in the Act of 1935:
(i)
(ii)
(iii)
Federal List for Federal Legislature,

Provincial List for Provincial Legislature and
Concurrent List for both Federal and Provincial Legislature.
6 King v. Berger, (1908) 6 CLR 41.

7 D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8th
edn., 2007).
9
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 8. 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 interest9.
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 repugnancy10. 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 Lists11.
Moreover by section 100 of the Government of India Act 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 12. Under the
Government of India Act there were several attempts to argue that this hierarchical
arrangement left no room for a test 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 pith and
substance were clearly within Provincial power.
The provisions under the Constitution of India, 1950 related to the doctrine are:
8 s.102, Government of India Act,1935

9 Id s.103.
10 Ibid s.107.
11 Id s.104.
12 supra note 12.
10
A. 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
(ii) The Legislature of a State may make laws for the whole or any part of the State.
B. 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. Both in India and
elsewhere, 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
11
main principles of law throughout the country13.
Article 246(2) gives power to two
Legislatures, conflict can arise between laws passes 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.
(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
Legislation14. 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.
13 Saumya Misra, The Doctrine of pith and substance preserves and protects
Constitutional properties of
Parliament and Legislatures AIR 2009 Journal 17.
14 Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow 4th edn., 2003).
12
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 List15.
APPLICABILITY OF THE DOCTRINE IN INDIA; ANALYSIS OF

CASE LAWS
On adjudging whether any particular enactment is within the purview of one Legislature or
the other, it is the pith and substance of the Legislation in question that has to be looked into.
This rule says that the Legislation as a whole to be examined to ascertain its true nature and
character. After having ascertained the true character of the law, the court must point out in
which of the three Lists an Act of nature truly falls. In other words, when a law is impugned
as ultra vires, what has to be ascertained is the true nature and character of the Legislation. If
on such examination it is found that the Legislation is in substance one on a matter assigned
to the Legislature, then it must be held to be valid in its entirety16.
The application of the doctrine is well illustrated in Prafulla kumar v. Bank of Commerce, (a
case interpreting section 100 of the Government of India Act, 1935, the provisions of which
were substantially similar to the present article 246). In that case the constitutional validity of
the Bengal Money Lenders Act, 1940, which had provided for limiting the amount and the
rate of interest recoverable by a lender on any loan, was challenged on the ground that it was
ultra vires the Bengal Legislature. The High Court of Calcutta held that the Act was intra
vires the Provincial Legislature, but on appeal to the Federal court the decision of the High
Court was reversed and the Act was held to be ultra vires the law making powers of the
Bengal Legislature. On appeal to the Privy Council, it was contended on behalf of the Bengal
Legislature that the Act was valid as it dealt with money lending and money lenders in the
Province a matter within the exclusive competence of the Provincial Legislature under List
15 V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th
edn., 2008).
16 supra note 5.
13
II, Entry 27. On behalf of the respondent creditor, it was contended that the Act was wholly
ultra vires the Provincial Legislature, or at least that much of the Act as affected the right of
promissory note-holders to recover the full amount due on their promissory notes. The
respondent relied upon entry 28 of List I, which assigned to the Federal Legislature exclusive
authority to make laws with respect to cheques, bills of exchange, promissory notes, and
other like instruments.
The Privy Council held that the Act was not void in whole or as part as being ultra vires the
Provincial Legislature. The pith and substance of the Act being money lending, it came
within List II, entry 27, Government of India Act, 1935, and therefore was within the
competence of the Provincial Legislature, and was not rendered invalid, because it
incidentally affected matters reserved for Federal Legislature, namely, promissory notes in
schedule VII, List I, entry 28. The following leading principles are deducible from the Privy
Council decision:
a)
It is not possible to make a clear-cut distinction between the powers of the
Union and the State Legislatures. They are bound to overlap, and where they do so,
the questions to be considered are: what is the pith and substance of the impugned
enactment, and in what List are its true nature and character to be found?
b)
The extent of invasion by the Provinces into the subjects in the Federal List in
an important matter, not because the validity of a Provincial Act can be determined by
discriminating between degrees of invasion, but for determining the pith and
substance of the impugned Act.
c)
Where the three List come in conflict, List I has priority over List II and III
and List III has priority over List II.
Subramaniam Chettiyar v. Muthuswami Goundan17 was cited with approval by the Privy
Council in prafulla kuamrs case. In this case Gwyer, C.J. in explaining the doctrine of pith
and substance said:
It must inevitably happen from time to time that Legislation though purporting to
deal with a subject in one List touches also upon a subject in another List, and the
different provisions of the enactment may be so closely intertwined that blind
adherence to a strictly verbal interpretation would result in large number of statutes
being declared invalid because the Legislature enacting them may appear to have
17 Subramaniam Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47.
14
legislated in a forbidden sphere. Hence the rule has been evolved whereby the
impugned statutes is examined to ascertain its pith and substance of its true nature
and character for the purpose of determining whether I is Legislation with respect to
matter in the lost or that.
In State of Bombay v. Vatan Medical and General Store18, the Supreme Court held that once
it is found that in pith and substance a law falls within the permitted field, any accidental
encroachment by it on a forbidden field does not affect the competence of the concerned
Legislature to enact the law. Effect is not the same thing and subject matter. If a State Act,
otherwise valid, has effect on a matter in List I do not cease to be Legislation with respect to
an entry in List II or III.
In State of Bombay v. F.N.Balsara19, constitutional validity of the Bombay Prohibition Act,

1949 was in issue. The question was whether that Act fell under entry 31 of List II of the
Government of India Act, 1935, namely, intoxicating liquors, that is to say, the production,
manufacture, possession, transport, purchase, and sales of intoxicating liquors, or import
and export of liquors across customs frontier, which is a Central subject. It was argued that
the prohibition on purchase, use, transport and sale of liquor would affect the import. The
Supreme Court rejected the argument, held the Act valid because the pith and substance of
the Act fell under entry 31 of List II, and not under entry 19 of List I, even though the Act
incidentally encroached upon the Central power of Legislation. The court has enunciated the
rule of pith and substance in this case as
It is well settled that the validity of an Act is not affected if it incidentally trenched
on matters outside the authorized field and, therefore, it is necessary to enquire in
each case what is the pith and substance of the Act impugned. If the Act when so
viewed, substantially falls within the powers expressly conferred upon the Legislature
which enacted it the it cannot be held to be invalid merely because it incidentally
encroached on matters which have been assigned to another Legislature.
18 State of Bombay v. Vatan Medical and General Store, AIR 1951 SC 69.
19 State of Bombay v. F.N.Balsara, AIR 1951 SC 318.
15
The above seen are the cases which came up before the courts in our country before the
commencement of the constitution of India. After the constitution came into force many
principles were evolved from various cases relating to the clash between Central and State
Legislations on a same subject. The following cases are some important cases of them:
In State of Rajasthan v. G.Chawla20, the State Legislature made a law restricting the use of
sound amplifiers. The respondent who had violated the provisions of the impugned Act was
prosecuted. The judicial commissioner held the Act invalid and quashed the conviction. On
appeal to the Supreme Court, the State contended that the law was within the legislative
competence of the State Legislature since it fell under entry 6 of the List II, Public health
and sanitation. The respondent, on the other hand, contended that the impugned law fell
under entry 31 of the List I, Posts and Telegraphs, Telephones, Wireless, Broadcasting and
other like forms of communication. It was held by the Supreme Court that the impugned
Legislation in its pith and substance fell within entry 6 of List II. The power to legislate in
relation to public health includes the power to regulate the use of amplifiers as producers of
loud noises when the right of such user, by the disregard of the comfort and obligation to
others, emerged as a manifest nuisance to them. It did not fall within entry 31 in the Union
List, even though the amplifier is an apparatus for broadcasting or communication. The
Legislation in pith and substance being on a State manner, it was not invalid even if it
incidentally encroached upon the subject of the broadcasting and communication. The
Supreme Court further quoted the following Statement of Latham, C.J. in Bank of New South
Wales v. Commonwealth21:
The power to make laws with respect to a subject-matter is power to make laws
which in reality and substance are laws upon the subject-matter. It is not enough that
a law should refer to the subject-matter or apply to the subject-matter: for example,
income tax laws apply to clergymen and hotel-keepers as members of the public; but
no one would describe an income tax law as being, for that reason, a law with respect
to clergymen or hotel-keepers, Building regulations apply to building erected for or
20 State of Rajasthan v. G.Chawla, AIR 1959 SC 544.

21 Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186.
16
by banks; but such regulations could not properly be described as laws with respect
to banks or banking.
In Krishna v. State of Madras22, applying the rule of pith and substance, the Supreme Court
upheld the Madras Prohibition Act, even though it laid down procedure and principles of
evidence for trial of offences under the law in question very different from those contained in
the Criminal Procedure Code and the Indian Evidence Act, both Central Acts in the
Concurrent field. In this case, the court appears to be have gone rather too far in upholding
the State law.
In Ukha Kolhe v. State of Maharastra23, Justice Shah with him B.P.Sinha, C.J., K.N.Wanchoo
and P.B.Gajendragadkar JJ, observed that, it is true that power to legislate on matters relating
to Criminal procedure and Evidence falls within the Third List of the Seventh Schedule to the
Union Parliament and the State Legislature have Concurrent authority in respect of these
matters. The expression criminal procedures in the legislative entry includes investigation
of offences, and s. 129A and 129B must be regard as enacted in exercise of the power
conferred by entries 2 and 12 in the List III. The Code of Criminal Procedure was a law in
force immediately before the commencement of the constitution, and by virtue of Art.254(2)
Legislation by a State Legislature with respect to any of the matters enumerated in the List III
repugnant to an earlier law made by Parliament or an existing law with respect to that matter
if it has been reserved for the consideration of President and has received his/her assent,
prevails in the State.
The only difference in the situations in the two cases appears to be that, while in Ukha the
State law had received the President assent, the law involved in Krishna had not been so
reserved, and this perhaps explains the dichotomy in the judicial attitudes, for to take the
same view in Krishna, as was done in Ukha, would have been to hold the law bad on the
ground of repugnancy with the Central law24.
22 Krishna v. State of Madras, AIR 1957 SC 297.

23 Ukha Kolhe v. State of Maharastra, AIR 1963 SC 1531.
17
In Ishwari Kehtan Sugar Mills case25, it was held, when validity of a Legislation is
challenged on the ground of want of legislative competence and it becomes necessary to
ascertain to which entry in the three Lists the Legislation is referable to, the court has evolved
the theory of pith and substance. If in pit and substance Legislation falls within one entry or
the other but some portion of the subject matter of the Legislation incidentally trenches upon
and might enter a field under another List, the Act as a whole would be valid notwithstanding
such incidental trenching.
In D.C. & G.M. Co. Ltd. v. Union of India26, it has been held:
"When a law is impugned on the ground that it is ultra vires the powers of the
Legislature which enacted it, what has to be ascertained is the true character of the
Legislation. To do that one must have regard to the enactment as a whole, to its
objects and to the scope and effect of its provisions. To resolve the controversy if it
becomes necessary to ascertain to which entry in the three Lists," the Legislation is
referable, the court has evolved the doctrine of pith and substance. If in pith and
substance, the Legislation falls within one entry or the other but some portion of the
subject-matter of the Legislation incidentally trenches upon and might enter a field
under Another List, then it must be held to be valid in its entirety, even though it might
incidentally trench on matters which are beyond its competence."
In a latest judgment passed by the constitutional bench of 5 judges in State of West Bengal v.
Kesoram Industries Ltd27, it was observed that Article 245 of the Constitution is the fountain
source of legislative power. It provides - subject to the provisions of this Constitution.
Parliament may make laws for the whole or any part of the territory of India, and the
Legislature of a State may make Saws for the whole or any part of the State. The legislative
field between the Parliament and the Legislature of any State is divided by Article 246 of the
Constitution. Parliament has exclusive power to make laws with respect to any of the matters
24 M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6 th
edn., 2010).
25 Ishwari Khetan sugar Mills (P) Ltd. v. State of UP, AIR1980 SC 1955.
26 D.C. & G.M.Co. Ltd v. Union of India, AIR 1983 SC 937.
27 State of West Bengal v. Kesoram Industries Ltd, AIR 2005 SC 1646.
18
enumerated in List I in Seventh Schedule, called the Union List. Subject to the said power
of the Parliament, the Legislature of any State has power to make laws with respect to any of
the matters enumerated in List III, called the Concurrent List. Subject to the above said two,
the Legislature of any State has exclusive power to make laws with respect to any of the
matters enumerated in List II, called the State List. Under Article 248 the exclusive power
of Parliament to make laws extends to any matter not enumerated in the Concurrent List or
State List. The power of making any law imposing a tax not mentioned in the Concurrent List
or Stats List vests in Parliament. This is what is called the residuary power vesting in
Parliament.
The Supreme Court further explained the doctrine by citing the observation of a
Bench of three learned Judges of the Supreme Court on a review of the available decisions in
Hoechst Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors 28, relating to the legislative
powers of the Legislations. They are(1) The various entries in the three Lists are not powers of Legislation but fields of
Legislation. The Constitution effects a complete separation of the taxing power of the Union
and of the States under Article 246. There is no overlapping anywhere in the taxing power
and the Constitution gives independent sources of taxation to the Union and the States.
(2) In spite of the fields of Legislation having been demarcated, the question of
repugnancy between law made by Parliament and a law made by the State Legislature may
arise only in cases when both the Legislations occupy the same field with respect to one of
the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a
repugnancy due to overlapping found between List II on the one hand and List I and List III
on the other, the Stats law will be ultra vires and shall have to give way to the Union law.
(3) Taxation is considered to be a distinct matter for purposes of legislative
competence. There is a distinction made between general subjects of Legislation and taxation.
The general subjects of Legislation are dealt with in one group of entries and power of
taxation in a separate group. The power to tax cannot be deduced from a general legislative
entry as an ancillary power.
(4) The entries in the List being merely topics or fields of Legislation, they must
receive a liberal construction inspired by a broad and generous spirit and not in a narrow
pedantic sense. The words and expressions employed in drafting the entries must be given the
widest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of
28 M/S. Hoechst Pharmaceuticals Ltd. and Others v. State of Bihar and Other, AIR 1983 SC 1019.
19
the subjects to the Lists is not by way of scientific or logical definition but by way of a mere
simplex enumeration of broad categories. A power to legislate as to the principal matter
specifically mentioned in the entry shall also include within its expanse the Legislations
touching incidental and ancillary matters.
(5) Where the legislative competence of a Legislature of any State is questioned on
the ground that it encroaches upon the legislative competence of Parliament to enact a law,
the question one has to ask is whether the Legislation relates to any of the entries in Lists I or
III. If it does, no further question need be asked and Parliaments legislative competence must
be upheld. Where there are three Lists containing a large number of entries, there is bound to
be some overlapping among them. In such a situation the doctrine of pith and substance has
to be applied to determine as to which entry does a given piece of Legislation relates. Once it
is so determined, any incidental trenching on the field reserved to the other Legislature is of
no consequence. The Court has to look at the substance of the matter. The doctrine of pith and
substance is sometimes expressed in terms of ascertaining the true character of Legislation.
The name given by the Legislature to the Legislation is immaterial. Regard must be had to
the enactment as a whole, to its main objects and to the scope and effect of its provisions.
Incidental and superficial encroachments are to be disregarded.
(6) The doctrine of occupied field applies only when there is a clash between the
Union and the State Lists within an area common to both. There 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. While reading the three Lists, List I has
priority over Lists III and II, and List III has priority over List II. However, still, the
predominance of the Union List would not prevent the State Legislature from dealing with
any matter with in List II though it may incidentally affect any item in List I.
In a recent civil appeal29 decided by the Supreme Court, it was held
One of the proven methods of examining the legislative competence of a Legislature
with regard to an enactment is by the application of the doctrine of pith and
substance. 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
29 Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, (2010) 5 SCC 246.
20
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.
And it is clear that anything that affects public peace or tranquility within the State or
the Province would also affect public order and the State Legislature is empowered to
enact laws aimed at containing or preventing Acts which tend to or actually affect
public order. Even if the said part of the MCOCA incidentally encroaches upon a field
under Entry 1 of the Union List, the same cannot be held to be ultra vires in view of
the doctrine of pith and substance as in essence the said part relates to maintenance
of Public Order which is essentially a State subject and only incidentally trenches
upon a matter falling under the Union List.
The doctrine was there from pre-independence era, under Government of India Act, 1935.
Then after was inculcated under Constitution of India. Eventually the doctrine has been
pronounced in many judgments as discussed earlier. The doctrine proved very significant as it
saved incidental encroachment of two pieces of Legislature on each other. Therefore we can
infer from the abovementioned cases, in the Indian scenario, that the judiciary had applied
three basic principles under the doctrine of pith and substance while deciding the matters; the
enactment as a whole, its main object, and scope and effect of its provisions has to be
regarded.
21
FINDING
Where a law passed by the State Legislature while being substantially within the scope of the
entries in the State List entrenches upon any of the entries in the Central List the
constitutionality of the law may be upheld by invoking the doctrine of pith and substance if
on an analysis of the provisions of the Act it appears that by and large the law falls within the
four corners of the State List and entrenchment, if any, is purely incidental or
inconsequential.
The honourable Supreme court in the case of Jijubhai Nanbhai Kachar v. State of Gujarat
[1995 Supp(1) SCC 596], referring to the principle of interpretation of Entries in the
legislative lists, observed that entries in the Seventh Schedule are not powers but fields of
legislation. 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
Thus, though, there is distribution of powers through three lists among the center and states.
If the Union law trenches upon the State subjects or vice versa, the courts apply a principle of
interpretation known as the "Doctrine of Pith and Substance". This doctrine validates the law
despite the entrenchment into the domain of one by another. It proves the elastic nature of
powers.
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
22
Constitution does not prevent a Legislature from dealing with a matter which may
incidentally affect any matter in the other List30.
But the sad scenario is witnessed when the Courts go too far in upholding the State laws. In
Krishna v. State of Madras31, applying the rule of pith and substance, the Supreme Court
upheld the Madras Prohibition Act, even though it laid down procedure and principles of
evidence for trial of offences under the law in question very different from those contained in
the Criminal Procedure Code and the Indian Evidence Act, both Central Acts in the
Concurrent field.
The Courts should remember that the interpretation should be such that it does not violate the
principles enshrined in the constitution itself. The Central Supremacy should be maintained
along with the rights of the States to work in full swing in the sphere allotted to them.
CONCLUSION
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 introduces a degree of flexibility into the otherwise rigid scheme of
distribution of powers. It gives an additional dimension to the powers of Centre as well as the
States. The reason behind the rule is that if every Legislation were to be declared invalid,
howsoever, slight or incidental the encroachment of the other filed by it, then the power of
each Legislature will drastically circumscribed to deal effectively with the subjects entrusted
to it for Legislation.
30 V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th
edn., 2008).
31 Krishna v. State of Madras, AIR 1957 SC 297.
23
Thus 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 other
words, if a law passed ostensibly to give effect to the policy of the State is, 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 tool to
uphold Legislation, for it for them to decide its true nature and character and, thus, they have
a number of choices open to them and most often the Courts by putting a favorable
interpretation on the Legislation in question use their power to support the same.
BIBLIOGRAPHY
H.M. Seervai, Constitutional Law of India, ( Volume I, 3 rd Edition), Universal Law
Publishing Company Ltd., New Delhi

Durga Das Basu, Introduction to the Constitution of India, (Twelfth Edition), Lexis
Nexis Butterworths Wadhwa Nagpur

M.P. Jain Indian Constitutional Law, (Fifth Edition) Lexis Nexis Butterworths
Wadhwa Nagpur
V.N.Shukla and M.P.Singh, Constitution of India (Eastern Book Company, Lucknow,
11th edn., 2008).

B. Shiva Rao, Framing of the Indias Constitution - A Study(1968)
Vepa P.Sarathi, Interpretation of Statutes (Easter Book Company, Lucknow 4 th edn.,
2003).
P.M.Bakshi A Background Paper on Concurrent Powers of Legislation under List
III of the Constitution: http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm

Saumya Misra, The Doctrine of pith and substance preserves and protects
Constitutional properties of Parliament and Legislatures AIR 2009 Journal17.

www.manupatra.com
https://scconline.co.in
24

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Interpretation of Statutes: Doctrine of Pith and Substance and its Application in Indian Legal System

DR. RAM MANOHAR LOHIYA

Interpretation of Statutes: Doctrine of Pith and Substance

Dr. Ram Manohar Lohiya National

Law University, Lucknow

ORIGIN OF THE DOCTRINE OF PITH AND SUBSTANCE............................................8

SCOPE OF THE DOCTRINE...................................................................................... 9

PROVISIONS IN INDIAN CONSTITUTION..................................................................9

APPLICABILITY OF THE DOCTRINE IN INDIA; ANALYSIS OF CASE LAWS................13

2 A. S. Krishna v. State of Madras, AIR 1957 SC297

P.M.Bakshi in A Background Paper on Concurrent Powers of Legislation under List III of

In an article,The Doctrine of pith and substance preserves and protects Constitutional

to enable it in some cases to secure uniformity in the main principles of law

ORIGIN OF THE DOCTRINE OF PITH AND SUBSTANCE

to the enactment as a whole,

3 Hodge v. The Queen (1883), 9 A.C. 117(P.C.).

SCOPE OF THE DOCTRINE

PROVISIONS IN INDIAN CONSTITUTION

Federal List for Federal Legislature,

6 King v. Berger, (1908) 6 CLR 41.

8 s.102, Government of India Act,1935

A. The Constitutional provisions in India on the subject of distribution of legislative powers

Article 245 provides, inter alia, that

main principles of law throughout the country13.

Article 246(2) gives power to two

APPLICABILITY OF THE DOCTRINE IN INDIA; ANALYSIS OF

It is not possible to make a clear-cut distinction between the powers of the

In State of Bombay v. F.N.Balsara19, constitutional validity of the Bombay Prohibition Act,

20 State of Rajasthan v. G.Chawla, AIR 1959 SC 544.

22 Krishna v. State of Madras, AIR 1957 SC 297.

H.M. Seervai, Constitutional Law of India, ( Volume I, 3 rd Edition), Universal Law

Publishing Company Ltd., New Delhi

Nexis Butterworths Wadhwa Nagpur

11th edn., 2008).

III of the Constitution: http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm

Constitutional properties of Parliament and Legislatures AIR 2009 Journal17.

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