UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

BBA.LLB (HONS.)

SEMESTER VII

ACADEMIC YEAR: 2019-2020 SESSION: JULY- DECEMBER

PROJECT ON

DOCTRINE OF PITH AND SUBSTANCE

Under the Supervision of: Mr. Sajal Sharma

Name – Shubham Rathore

Roll no. – 113

SAP ID - 500053215
Introduction:

This doctrine envisages that the Legislation as a whole be examined to ascertain its ‘true
nature and character’ of Legislation. Pith and substances is a legal doctrine in Canadian
Constitutional interpretation used to determine under which head of power a given piece of
Legislation falls. 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. 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
Legislature1. In that such a cases what has to be ascertained is the pith and substances of the
enactment, i.e. the true character of the Legislation.

To ascertain the true character of the Legislation in question, one must have regard to it
as a whole, to its object and to its scope and effect of its provisions. If according to its true nature
and character, the Legislation substantially relates to a topic assigned to the Legislature which
has enacted it, then it is not invalid merely because it incidentally trenched or encroaches on
matters assigned to another Legislature. 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 forbidden2. 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 invalid3. To determine the pith and substance, two aspects of the law must be
examined: the purpose of enacting body and the legal effect of the law. To assess the purpose,
the courts may consider both intrinsic evidence, such as the Legislation’s preamble or purposes
clauses, and extrinsic evidence, such as minutes of Parliamentary debates. In doing so, they must
nevertheless seek to ascertain the true purpose of the Legislation, as opposed to its mere Stated
or apparent purpose4. Equally the courts may take into account the effects of the Legislation.

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 made5. In all such cases the

1
Saumya Misra, “The Doctrine of pith and substance preserves and protects Constitutional properties of
Parliament and Legislatures” AIR 2009 Journal 17.
2
D.D.Basu, Comparative Constitution 623(Wadhwa and Company, Nagpur, 2007).
3
P.M.Bakshi, 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.
4
Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.).
5
D.D.Basu, Shorter Constitution of India 1737 (Wadhwa and Company, Nagpur,13th edn., 2004).
name given by the Legislature to the impugned enactment is not conclusive on the question of its
own competence to make it. It is the pith and substance of the Legislation which decides the
matter6 and the pith and substance is to be determined with reference to the provisions of the
statute itself7.

Origin:

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 Canada’s 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 Queen8 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 Commerce9, 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) to the enactment as a whole,

(ii) to its main objects, &
(iii) the scope and effects of its provisions10.

6
Chaturbhai M.Patel v. Union of India, AIR 1960 SC 424.
7
Amar singh v. State of Rajasthan, AIR 1955 SC 504.
8
Hodge v. The Queen (1883), 9 A.C. 117(P.C.).
9
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
10
supra note 3.
Scope:

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. Berger11, 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 List12. 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 lines13. A threefold
division was made in the Act of 1935:

(i) Federal List for Federal Legislature,

(ii) Provincial List for Provincial Legislature and
(iii) Concurrent List for both Federal and Provincial Legislature.

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
General14. 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 interest15.

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
11
King v. Berger, (1908) 6 CLR 41.
12
Tony Black shield “Working the metaphor: The contrasting use of Pith and Substance in Indian and Australian
law” 50 JILI 518(2008).
13
D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8th edn., 2007).
14
s.102, Government of India Act,1935
15
Id s.103.
General or of his majesty, having been reserved for their consideration for this purpose, the
Provincial law prevailed, notwithstanding such repugnancy16. 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 Lists17.

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 Lists18. 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: Scheme
of distribution under the Constitution.
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)

16
Ibid s.107.
17
Id s.104.
18
supra note 12.
 (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 main principles of law
throughout the country19. 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”.

19
supra note 1.
 The various entries in the three Lists are not ‘powers’ of Legislation but the ‘fields’ of
Legislation20. 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. 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
List21.

Judicial Interpretation through various cases:

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 entirety22.

The application of the doctrine is well illustrated in Prafulla kumar v. Bank of

Commerce23, (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 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

20
Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow 4th edn., 2003).
21
V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th edn., 2008).
22
supra note 5.
23
supra note 9.
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 Goundan24 was cited with approval by the Privy
Council in prafulla kuamr’s 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 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 Store25, 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”.

24
Subramaniam Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47.
25
State of Bombay v. Vatan Medical and General Store, AIR 1951 SC 69.
 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.Chawla26, 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. Commonwealth27:
“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 by banks; but such regulations could not properly be
described as laws with respect to banks or banking.”

In a recent civil appeal28 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 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

26
State of Rajasthan v. G.Chawla, AIR 1959 SC 544.
27
Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186.
28
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, (2010) 5 SCC 246.
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.

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.
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.