CONSTITUTIONAL GOVERNANCE ASSIGNMENT

(Term paper towards partial fulfilment of the assessment in the subject of Specific Contracts)

Submitted to:

Submitted by:

Ms. Aakanksha Kumar

Utkarsh Saxena (1289)

Assistant Professor, Faculty of Law

B.B.A LL.B. (Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SEMESTER

FACTS
Haryana Government got its approval for Haryana Gauvansh Sanrakshan and Gausamvardhan
Bill from the President of India after it got passed in the Vidhan Sabha earlier in the year.
According to the Gauvansh Sanrakshan and Gausamvard-han Bill, cow slaughter in Haryana will
invite rigorous imprisonment ranging from three to 10 years and a fine of up to Rs 1 lakh.
Any person who attempts to export cows for slaughter would be imprisoned for not less than
three years and up to seven years. Fine between Rs 30,000 and Rs 70,000 would be imposed.Any
person who wants to export cows will have to seek permission for the same. Sale of beef and
beef products is also banned.
M/s Al Nafees Proteins (P) Ltd. (ANP) is company engaged in the business of manufacture
and export of boneless cow and buffalo meat at Village Satakpuri, Tehsil Punhana, Distt.
Gurgaon (Haryana). After the enactment of the act, the business of the company dropped
drastically.
ISSUES
WHETHER SECTION 2(f) OF THE ACT IS UNCONSTITUTIONAL?
APPLYING THE RULE OF PITH AND SUBSTANCE THE ENACTMENT IN
QUESTION INTENTIONALLY ENCROACHES UPON THE AREA OF LEGISLATION
RESERVE FOR THE UNION LEGISLATURE.
DOCTRINE OF COLOURABLE LEGISLATION IS APPLICABLE.

ARGUMENTS
ISSUE 1
The state cannot ban the export of Beef.
The Indian Constitution contains an elaborate scheme of distribution of power between the
centre and the state. It creates three functional areas:

i.
ii.
iii.

First, an exclusive functional area for the Centre (Union)

Second, an exclusive functional area for the States
Third, a concurrent area where both Centre and States may operate
simultaneously, with the overall majority of the union.

Article 246(1) of the Constitution confers an exclusive power on the Parliament to make laws
with respect to certain subject matter. The list of subject matter which falls under the exclusive
power of the Parliament is given in List-I in the Seventh Schedule. These are those entries which
need to be consistent and uniform throughout the country. The States are prohibited in all respect
from legislating on these subject matters. Any state legislation which transgresses into any one of
the subject matters under the List-I is unconstitutionally invalid.
Entry 41 of the Union list in seventh Schedule of the Constitution of India states that
Trade and commerce with foreign countries, import and export across customs frontiers;
definition of customs frontiers and entry 42 of the Union List in Seventh Schedule of the
Constitution of India states that Inter-State trade and commerce.
Under section 2(f) of the Haryana Gauvansh Sanrakshan and Gausamvardhan Bill export means
taking out cow from the state to any other place.
This section of the bill violates entry 41 and 42 of the Union list as export is stated in the Union
list and the Union has the exclusive power to impose a ban on the export of beef and not the
Haryana government.
Inter-state trade and commerce is an exclusive central matter and the states have power only on
intra-state trade and commerce as stated in entry 33 of the concurrent list of seventh schedule.
Hence, Haryana government has no power to stop the export of beef as it is a matter of the union
and not of a state government.
ISSUE II
The rule of pith and substance is applicable if the legislation with respect to a subject in one list
and touching also on a subject in other list is declared to be bad.
To prove the rule of pith and substance the three ingredients have to be fulfilled.

i.
ii.
iii.

To the enactment as a whole

To its main objectives
To the scope and effect of its provision

The substance of enactment falls with the Union list then the incidental encroachment by the
enactment on the state list would not make it invalid.1
The doctrine of pith and substance saves the incidental encroachment if only the law in pith and
substance falls within an entry within the legislative field of the particular legislature which has
enacted it.2
Once it is found that in pith and substance a law falls within the permitted field, any incidental
encroachment by it on a forbidden field does not affect the competence of the concerned
legislature to enact a law.
Effect is not the same thing as subject matter. If a state act, otherwise valid, has effect on a matter
in List I it does not cease to be legislation with respect to an entry in List II and List III.3
Entry 41 of the Union list in seventh Schedule of the Constitution of India states that
Trade and commerce with foreign countries, import and export across customs frontiers;
definition of customs frontiers and entry 42 of the Union List in Seventh Schedule of the
Constitution of India states that Inter-State trade and commerce.
Encroachment upon the power to legislate the union under entry 41 and 42 of list I, so therefore
there is no incidental encroachment. It is a case of intentional encroachment therefore the state
legislation is not covered under the rule of pith and substance and encroaches the right reserve
for the Union.
ISSUE III

1 Bharat Hydro Power Corpn. Ltd. v. State of Assam, AIR 2004 SC 3173
2 M.P. Jain, 7th edition, pg. 563.
3 Southern Pharmaceuticals and Chemicals v. State of Kerala, AIR 1981 SC 1863

The doctrine of colourable legislation states that what cannot be done directly cannot also be
done indirectly. The doctrine is applicable when a legislature seeks to do something in an indirect
manner what it cannot do directly.4
In this case state legislature has no power to enact such a law to ban export of beef because
export according to the act means taking out cow from the state to any other place. Under entry
41 and 42 of Union list in seventh schedule of the Constitution of India which clearly states the
trade and commerce between states and import and export across custom frontiers, trade and
commerce with foreign countries. It is the centre government which can impose any ban
regarding to export of any product.
Therefore, the state does not have the legislative power to impose such a ban. Hence, the
doctrine of colourable legislation is applicable as the state does not have legislative competence
to enact such a law.

4 M.P. Jain, 7th edition, pg. 565.