and character to be found?

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.
Where the three List come in conflict, List 1 has priority over List II and
III and List III has priority over List II.

Subramaniam Chettiyar v. Muthuswami Goundan 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 thae"

In State of Bombay v. Vatan Medical and General Store, 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

25
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. FN.Balsara, 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 and it cannot be held to be invalid merely because it
incidentally encroached on matters which have been assigned to another
Legislature'. 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

26
State Legislations on a same subject. The following cases are some
important cases of them:

In State of Rajasthan v. G.Chawla, 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 I, 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 lI. 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 broadeasting and communication. The Supreme Court further quoted
the following Statement of Latham, C.J. in Bank of New South Wales
Commonwealth:

"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

27
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 Krishna v. State of Madras, 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 Maharastra, 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 eriminal 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 IlI.

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

28
enumerated in the List II 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 ofrepugnancy with the Central law.

In Ishwari Kehtan Sugar Mills case, 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 ofIndia, 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

29
 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 ofWestBengal v. Kesoram Industries Ltd, 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 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 II, 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

30
decisions in Hoechst Pharmaceuticals Lid. and Ors. v.State of Bihar and
Ors, relating to the legislative powers of the Legislations. They are-

The various entries in the three Lists are not 'powers' of Legislation but
ficlds' 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.

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 Ill on the other, the Stats law will be ultra vires and shall have to give
way to the Union law.

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.

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

31
in drafting the entries must be given the widest possible interpretation.
This is because, to quote V. Ramaswami, J., the allocation of 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 an
cillary matters.

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 List's I or IlI. If it
does, no further question need be asked and Parliament's 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.

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

32
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 Ill and I, and List lII has priority over
List II. However, stil, 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 appeal 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
Actin 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

33
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

and substance in essence the said part relates to maintenance of

pith as

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 above mentioned 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

Thus from the seheme of distribution of legislative powers between the

34
Union and the States it is quite evident that the framers have given more
powers to the Union Parliament as against the States. The States are not
vested with exclusive jurisdiction even over the subjects assigned to the

States by the Constitution and thus it makes the states to some extent
subordinate to the Centre. Indeed this is a clear departure firom the strict
application of federal principle followed in America and Australia.
The 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 circumseribed 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 unauthorised
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 manoeuvrability 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 favourable interpretation

on the Legislation in question use their power to support the same.

35
KASHYAP SUBHASH C., Constitutional Law of India, Vol. 1, Universal
law Publishing Co. Pvt. Ltd.

BASU D.D., Commentary on Constitution of India, 8th Ed., Vol. 4,

Wadhwa, Nagpur

JAIN M.P, Outlines of Indian Legal and Constitutional History, 6th Ed.
Lexis Nexis Butterworth's Wadhwa, Nagpur.

Constituent Assembly Debates, VOL.VIII

37