CONSTITUTIONAL LAW-I ASSIGNMENT

ON

THE DOCTRINE OF PITH AND SUBSTANCE: INDIAN EXPERIENCE.

_____________________+____________________________________________

Institute- Faculty of Law, Banaras Hindu University.

Name of Candidate – Debasmita Mishra.
Examination roll no. – 20225BLT046.
Submitted to – Dr. Vinod Shankar Mishra.
Batch – 2020-2025.
Semester- IIIrd.
Subject code- BLBH214.
Topic – The Doctrine of Pith and Substance: Indian
Experience.
ACKNOWLEDGEMENT:

I would like to express my gratitude to Dr. Vinod Shankar Mishra

for giving me the opportunity to write on this particular topic i.e. The doctrine of
pith and substance: Indian Experience. This assignment kindled my interest and
helped me expanding my knowledge.

Date- 13.12.21 Debasmita Mishra

( B.A. LL.B – IIIrd Sem.)

ABBREVIATIONS:

Ors. Others
Anr. Another
HC High Court
SC Supreme Court
SCC Supreme Court Cases
AIR All India Reporters
Cal Calcutta
Ltd. Limited
& And
Art. Article
W.B. West Bengal
CONST. Constitution
FC Federal Communications
BOMLR Bombay Law Reporter.
Supp Supplementary
v. Versus
 LISTS OF CASES:

1. State of W.B. v. Kesoram Industries Ltd., AIR 2005 SC 1646.

2. Mining and Allied Machinery Corporation Ltd.v. State of West Bengal &
Ors, 2001 SCC OnLine Cal 676.
3. Subramanyam Chettiar v. Muthuswami Goudan, AIR 1941 FC 47
4. Cushing v. Dupuy, 1880 UKPC 22.
5. State of Bombay v. F. N. Balsara, 1951 AIR 318
6. Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., (1947) 49 BOMLR
568.
7. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors,
AIR 2010 SC 2633.
8. Vijay Kumar Sharma v. the State of Karnataka, 1990 AIR 2072.
9. Indira Nehru Gandhi vs Shri Raj Narain & Anr., 1975 Supp SCC 1
10. State of Rajasthan v. G. Chawla, AIR 1959 SC 544.
11. State of bihar v. the Indian Aluminium Co., AIR 1997 SC 3592.
12. Orissa Cement Ltd. v. State of Orissa, AIR 1991 SC 1676.
13. A.S. Krishna v. State of Madras , 1957 AIR 297.
14. Assn. of Natural Gas v. Union of India & ors, 2004 (6) ALD 99 SC.
15. Premchand Jain v. R. K. Chhabra, AIR 1984 SC 981.
INTRODUCTION:

The ‘Doctrine of Pith and Substance’ refers to the essence and

substance of the very statue that is to be comprehended while interpreting a statue.
The phrase “Pith and Substance” means “true nature and character” 1. It is applied
when there is a conflict regarding the power of a level of government to make law
on a particular matter, when legislation made by the legislature is challenged or
trespasses by other legislature This doctrine relates to the violation of
Constitutional delimitation of legislative powers in a Federal State. When
evaluating whether a certain law applies to a specific subject, the court looks to the
essence of the matter, according to his doctrine. If the substance of the topic falls
inside one of the three lists, then the law's accidental encroachment into another list
does not render it invalid because they are considered intra vires.

Justice R.C. Lahoti affirms the importance of the doctrine of

“pith and substance” test in cases of “conflict”, “overlapping” or “clash” between
entries in list I and list II; or “to find out whether between two Entries assigned to
two different legislatures the particular subject of the legislation falls within the
ambit of the one or the other, while delivering the judgement on
State of W.B. v. Kesoram Industries Ltd.2

In the case of Mining and Allied Machinery

Corporation Ltd.v. State of West Bengal & Ors3, it was observed that “The
doctrine of pith and substance is applicable when the Act is impugned as ultra vires
with a view to ascertain the true character of the legislation. If an enactment falls
within the powers expressly conferred by the Constitution upon the Legislature,
which enacted it, it cannot be held to be invalid, merely because it incidentally
encroaches on matters assigned to another Legislature. Once, the pith and
substance the legislation is determined and is found to be within the powers of the
Legislature, the extent of invasion into other spheres cannot invalidate the law. It is
not an accepted mode of interpretation to disintegrate the legislation into parts

1
M.P. Jain, Indian Constitutional Law, 8th Edn, LexisNexis, (2018).
2
State of W.B. v. Kesoram Industries Ltd., AIR 2005 SC 1646.
3
Mining and Allied Machinery Corporation Ltd.v. State of West Bengal & Ors, 2001 SCC
OnLine Cal 676.
and thereafter to examine what heads of legislation these parts would severally fall
and by that process determine what portions are intra vires and which are not. It is
the true nature and character (pith and substance) of legislation and not its
consequences, which shall determine to which entry the legislation belongs”.

PURPOSE:

The doctrine is crucial in interpreting statues as overlapping is inevitable. “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
observance to a strictly verbal interpretation would result in a large number of
statutes being declared invalid because the Legislature enacting them may appear
to have legislated in a sphere outside their ambit. Hence the rule which has been
evolved by the Judicial Committee, whereby the impugned statute is examined to
ascertain its pith and substance or its “true nature and character,” for the purpose of
determining whether it is legislation with respect to matters in this list or in that” as
observed in the case of Subramanyam Chettiar v. Muthuswami Goudan.4

When it comes to the variety and complexity of various legislation, no amount of

caution in articulating the distribution of authorities in a Federal structure will
preclude real overlapping. The various components of life in society are not
sufficiently isolated from one another to allow for a mechanical application of the
division of powers. Further, the powers of legislature will be strictly limited if
every law is termed invalid on the grounds that it is encroaching upon other laws.
Whether it is possible to determine that the parameters of the State
Legislation and the Central Legislation as distinct and different. Can a broader
meaning be given to one Entry or the having regard to the doctrine of
“pith and substance” doctrine. Addressing the question, employing a
“clear and distinct” meaning to statute seems unlikely and on such an occasion the
doctrine of “pith and substance” ceases to operate the first place.

The objective of establishing the doctrine of pith and

substance is to ensure that not every other legislation is deemed unconstitutional

4
Subramanyam Chettiar v. Muthuswami Goudan, AIR 1941 FC 47.
just because it infringes on the power and jurisdiction of another level of
government, allowing for flexibility. The doctrine is applied by courts to determine
the true essence of a piece of legislation in question.

ORIGIN:

The doctrine of pith and substance originated in the Canadian

case of Cushing v. Dupuy.5 The British North America Act of 1857 established
the Canadian Constitution, with Section 69 dividing the powers of the Dominion
and the Provinces. Canada had only two lists, the first significant model of
federalism. Cushing v. Dupuy was the decision that established the theory. This
doctrine was developed by the Privy Council to determine the constitutionality of
Canadian and Australian statutes that violated the distribution of powers. It stated
that the essence and substance of the challenged legislation must be considered
when determining whether it is intra vires.

The doctrine of pith and substance is backed by Art. 246 6 of the

Constitution of India and the seventh schedule which contains the legislative
powers as enshrined in the State, Union and the Concurrent list.

ART. 246 and DOCTRINE OF PITH AND SUBSTANCE

The Union, State, and Concurrent lists, as listed in the Constitution's

Seventh Schedule, are mentioned in Article 246. Given the Indian Constitution's
federal form, one of the primary features of such a constitution is the separation of
power between the Union and the State governments, which is detailed in the
Seventh Schedule, which includes: Union List (List I) (Parliamentary Legislation),
List II– List of States (State Legislation), Concurrent List (List III) (Parliament and
State Legislation). The Union List principally contains matters that are of national
importance, necessitating the intervention of the Union government and granting
them the authority to legislate on these issues. Furthermore, the State list includes
issues that are of local or state importance, therefore only state governments are

5
Cushing v. Dupuy, 1880 UKPC 22.
6
INDIA CONST.art. 246.
needed to express an interest in them. Finally, the Concurrent list includes items
that appear to be of similar concern to both the federal and state governments, and
for which both the state and federal governments have the authority to legislate.

INDIAN JUDGEMENT w.r.t THE DOCTRINE OF PITH AND

SUBSTANCE:

In the case of State of Bombay v. F. N. Balsara,7 the sale and

possession of liquor was restricted in the state of Maharashtra by way of the then
existing Bombay Prohibition Act and this Act was challenged on the matter that
there was an incidental encroachment on the act of importing and exporting of
liquor through the borders. This matter was taken up by the High Court of Bombay
held that the act was in its Pith and Substance and rightfully fell under the State list
even though such an act 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 legitimacy of the Bombay Money Lenders Act, 1946, was called
into doubt in the case of Prafulla Kumar Mukherjee v. Bank of Commerce
Ltd.8the key point was that promissory notes belonged to the core subject rather
than the state subject. The Privy Council, on the other hand, held that, under the
doctrine of Pith and Substance, the act is actually a law relating to money lending
and money lenders,' which is clearly a state subject; further, the court went on to
state that the act was valid even if it centred on the subject of 'Promissory note,'
which is a central subject, thus upholding the doctrine of Pith and Substance.

The court in the case of Zameer Ahmed Latifur

Rehman Sheikh v. State of Maharashtra & Ors,9observed that the doctrine was
to be applied when the legislative ability of the legislature regarding a particular
law was questioned. If there was an objection regarding the ability of such
legislature, the court would determine the pith and substance of such law after the
Act had been scrutinised. Here, it was vital for the courts to examine the true
nature of the law, its objective, scope and effect, and it was also necessary to find

7
State of Bombay v. F. N. Balsara, 1951 AIR 318
8
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., (1947) 49 BOMLR 568.
9
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors, AIR 2010 SC 2633.
out whether the law challenged was genuinely covered by a subject that fell in the
list concerned with the legislature in question.

In the abovementioned Indian cases, the conflict is between a

legislature of the centre( union subject) and that of State legislation(state subject) ,
However In the case of Vijay Kumar Sharma v. the State of Karnataka10, the
Court held that if the doctrine of pith and substance can be applied to resolve the
conflict between the two legislations under Union and State Lists, there is no
reason why it cannot be applied to resolve the conflict between different entries in
the Concurrent List. But, when there is an irreconcilable conflict between the two
legislations, the Central Legislation will prevail. Before declaring the state law as
ultra vires, every attempt should be made to reconcile the conflict.

“The pith and substance doctrine has been applied to find out
legislative competency, and eliminate encroachment on legislative entries. If the
theory of Basic Structure or Basic Feature be applied to legislative measures it will
denude the parliament and the State Legislatures of the power of legislation or
deprive them of laying down legislative policies. This will be encroachment on the
separation of powers.”11

The Court concluded in the matter of State of Rajasthan v. G. Chawla12that the

State Legislature's Act restricting the use of sound amplifiers fell significantly
within Entry 6, List II, which deals with "Public health and sanitation." The
authority to legislate in respect to public health includes the competence to control
the use of amplifiers as loud noise makers where a user's right to do so becomes an
evident nuisance to others due to a disdain for others' comfort and obligations.
Despite the fact that the amplifier is a broadcasting and communication instrument,
it does not fall under Entry 31 of the Union List. Because the legislation was about
a state matter in essence, it was not invalid even if it encroached on the subject of
broadcasting or communication incidentally.

10
Vijay Kumar Sharma v. the State of Karnataka, 1990 AIR 2072.
11
Indira Nehru Gandhi vs Shri Raj Narain & Anr., 1975 Supp SCC 1
12
State of Rajasthan v. G. Chawla, AIR 1959 SC 544.
The Supreme Court stated in Premchand Jain v. R. K. Chhabra13, that as long as
the legislation remained within the authorised domain in pith and substance, no
argument would be heard simply because it touched on an issue beyond its reach
while enacting it. The court ruled in a series of decisions that any enactment that
fundamentally fell within the authorities expressly bestowed by the Constitution on
the Legislature enacting it could not be declared unlawful just because it
encroached on issues dealt with by other legislatures (s).

The doctrine has been significantly helped in adjudicating cases mostly relating to
conflict between the state and the centre on Taxes. State of bihar v. the Indian
Aluminium Co.14 where the court had to decide which of two entries in the state
list formed the basis for a surcharge on electricity : Entry 27, relating in part to the
“supply and distribution of goods”, or entry 53 (“Taxes on the consumption or
sale of electricity”). Although both the title of the Act and its operative provisions
had described the surcharge as a duty on “supply” (thus attracting entry 27), the
court held that it was “in pith and substance … a tax on sale or
consumption of electrical energy”, and thus within entry 53. Here again, though the
focus was on the fields of legislative power, the use of “pith and substance” was
really directed to ascertaining the nature of the tax.

The control by the union “does not divest the State

Legislature of the competence to make laws the pith and substance of which fall
within the entries in List II. in Orissa Cement Ltd. v. State of Orissa15 , again
involving a cess tax on royalties for mining operations. Again the crucial issues
related to entries 49 and 50. As to entry 49, the court again held that a tax on
royalties cannot be characterised as a tax on land. “Pith and substanc” was used not
so much to characterise the statute by reference to the relevant entry, but rather to
determine the precise nature of the tax, and to do so by reference to
considerations of substance rather than of form. Consequently,the effect of the
decisions was partly negated by the Cess and Other Minerals (Validation) Act,
1992, though ultimately its only effect was a retrospective bar to recovery of taxes
already paid.

13
Premchand Jain v. R. K. Chhabra, AIR 1984 SC 981.
14
State of bihar v. the Indian Aluminium Co., AIR 1997 SC 3592.
15
Orissa Cement Ltd. v. State of Orissa, AIR 1991 SC 1676.
A.S. Krishna v. State of Madras16, where an attempt was made to argue that
evidentiary and procedural provisions in the Madras Prohibition Act, 1937 were
repugnant to the Indian Evidence Act, 1872 17and the Criminal Procedure Code of
189818 (both relevant as “existing laws”). Given the above interpretation, the
repugnancy issue could only be raised if the relevant state provisions were enacted
under the entries in the concurrent list relating to criminal procedure and evidence,
rather than under the entry in the provincial list relating to intoxicating liquors. The
Supreme Court rejected this first step in the argument, by relying on the pith and
substance rule. Clearly the Madras Prohibition Act, viewed “as a whole”, was a
law in respect of intoxicating liquors and essentially the court insisted that the
Act must be viewed as a whole. It was not permissible to treat it “as a mere
collection of sections, then disintegrate it into parts’, and proceed to accord a
different character to those parts which “might incidentally trench” on matters
which, taken singly, might lie beyond the competence of the relevant
legislature.That, said the court, is precisely what the doctrine forbids.

FUNDAMENTAL RIGHTS AND THE DOCTRINE:

The Courts have abandoned the pith and substance test in the context of
fundamental rights, and violations of fundamental rights will be predicated on the
"direct and inevitable" consequence of a statutory provision. The test of the subject
matter's brevity and substance, as well as the legislation's direct or indirect effect,
are significant to concerns of legislative competence, but they are irrelevant to
questions of basic rights infringement. In such circumstances, the true test is
whether the contested action has the effect of removing or restricting basic rights.

Mr. Palkhivala said that the tests of doctrine of pith and substance of the subject
matter and of direct and incidental effect of the legislation are relevant to questions
of legislative competence but they are irrelevant to the question of infringement
of fundamental rights. In our view this is a sound and correct approach.

Centripetal Nature of the Indian Constitution:

16
A.S. Krishna v. State of Madras , 1957 AIR 297.
17
Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
18
The Code of Criminal Procedure, No.2, Acts of Parliament, 1882 (India).
If there is an unresolved controversy between the Centre and the States over
legislative power, the Centre will be granted precedence. However, every effort
will be taken to end the conflict.

The Supreme Court of India observed in the case of Assn. of Natural

Gas v. Union of India & ors., that when the power to legislate on a given subject
is to be taken into account in order to determine the scope of that power, it was
important to understand what would ordinarily be treated as “covered within that
subject in legislative practice” as well as the practice of such State that had
conferred such power. 19

19
Assn. of Natural Gas v. Union of India & ors, 2004 (6) ALD 99 SC.
CONCLUSION:

The doctrine of pith and substance has been applied by the Indian Courts while
adjudicating a number of cases. When the issue of overlapping or encroachment
arises, the doctrine of Pith and Substance clarifies the subject matter and the list to
which it belongs. This doctrine is thought to make the otherwise inflexible federal
framework that divides powers between the federal and state governments more
manageable. The Doctrine attempts to bridge the gap between assessing whether a
certain law applies to a specific issue and has been incidental in its application in
India. The idea has also aided in the preservation of the true basis of the
legislature's powers.

If every law was declared unconstitutional because it encroached on

the territory of other legislatures, the powers would be rendered meaningless, and
the goal of the bifurcation of powers would be lost due to severe rigidity.
BIBLIOGRAPHY:

1. M.P. Jain, Indian Constitutional Law 776 (2018).

2. D.D. Basu, Commentary on the Constitution of India, (2018)
3. Priyadarshini Venkatesh, Everything you need to know about the doctrine of pith and
substance, LAW CIRCA, ( Dec. 15, 2021, 10:17PM), https://lawcirca.com/the-doctrine-
of-pith-and-substance/

4. Tony Blackshield, Working the Metaphor : The Contrasting use of 'Pith and Substance' in
Indian and Australian Law, 50 JILI (2008) 518.