Unveiling the Essence: Doctrine of Pith and Substance in the Indian

Legal Landscape"

ABSTRACT

The principle of “Pith and Substance” holds significant importance in Indian constitutional law
as it serves as a guiding principle for determining the legislative competence of both the Union
and State governments. This research paper mainly focuses on the Application of Doctrine of
pith and substance in respect with Indian Constitution. This research article studies about the
theory were absolute intrusion of legislative powers by evaluating the content of enactment and
then determining in which specific list they fall within. For validating the enactment, the Court
must look into the substance of the enactment and if it finds that the substance is competent to
the framers then the statute shall be valid.

KEYWORDS : Constitution of India, Pith and Substance, Legislation

INTRODUCTION

India’s constitution is based on the idea of Federalism, which says that the Union Parliament and
the state legislatures both have the authority to establish laws. In the 7th schedule of the
constitution, the Union Parliament, state legislatures, and both were given certain
responsibilities. Pith means 'real nature' or 'something's essence' and Substance means
'something's most important or integral component’ The doctrine of "pith and substance" is a
legal principle used in constitutional law to determine the true nature and purpose of a law. It is
particularly significant in federal systems, like India, where the distribution of legislative powers
is divided between different levels of government. The doctrine allows for an examination of the
essential character or "pith and substance" of a law to ascertain which legislative authority has
the competence to enact it.1
In essence, if a law primarily falls within the domain of a specific legislative authority as
defined by the Constitution, it is considered valid even if it incidentally affects subjects under

1 Doctrine of pith and substance - iPleaders

Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"
another authority's jurisdiction. This ensures that the legislative intent and purpose are upheld,
preventing encroachments on the powers of other government entities.
The doctrine of pith and substance helps maintain a delicate balance in federal systems by
ensuring that laws are enacted by the appropriate legislative body based on their intended subject
matter, even if they have implications in areas that may belong to a different authority. When
legislature formed by one of the legislators invades or trespasses on the area of the another, the
Doctrine of Pith and Substance is enforced. 2

RESEARCH QUESTIONS
1. How has the doctrine of pith and substance evolved within the Indian legal framework
over time ?
2. What are the key judicial decisions where the doctrine of pith and substance has been
invoked, and what were the outcomes?

HYPOTHESIS

The research article proposed the hypothesis that the doctrine seeks to uphold the spirit and
intent of federalism by preventing encroachment on subjects allocated to different levels of
government while ensuring legislative coherence and effectiveness.

RESEARCH METHODOLOGY

For carrying out the research, the doctrinal method of legal research has been carried out. For
this research, the researcher has gone through the Constitution, Statutes, journals, etc. The
researcher has also gone through websites, articles written by legal experts, study materials and
many more.

2 ijrar.org/papers/IJRAR2001996.pdf
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"
LITERATURE REVIEW

Doctrine of Pith and Substance: A Comparative Analysis"

Author: A. K. Bhattacharya
Published in: Journal of Constitutional and Parliamentary Studies
Summary: This article provides a comparative analysis of the doctrine of pith and substance,
exploring its application in different federal systems across the world. It examines how various
countries approach the concept and the impact on legislative competence.

"Doctrine of Pith and Substance: An In-depth Study"

Author: Manish Kumar
Published in: Journal of Legal Studies and Research Year: 2019
Summary: This research paper provides an in-depth study of the doctrine of pith and substance,
analyzing its principles, evolution, and significance in Indian constitutional law. It also examines
the role of the doctrine in maintaining the federal structure of the Indian Constitution.

ORIGIN OF DOCTRINE

The doctrine of Pith and substance is borrowed from the Canadian Constitution. Canada is
segregated into two parts: Dominion and the Provinces. The makers of the Canadian Constitution
thereby added two different lists in the constitution, in order to bifurcate the powers of the
dominions and the provinces. Section 69 of the Canadian Constitution[2], initially enacted as the
British North America Act, 1857, segregated the powers designated to dominion and the
provinces. Further, Section 91 and 92 of the Constitution Act, 1867 specifies the exclusive
powers entrusted with the dominions and the provinces. A vital question aroused during the
process of examining the extent of encroachment, regarding the basis on which legislative
competence should be validated. The Privy Council came to the rescue in 1880 in the case of
Cushing v. Dupey. It was a landmark judgment as it paved the road for “Ancillary” and
“Incidental” Encroachment which later made way to India, which is now strongly supported by
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"
Article 246 and the Seventh Schedule. The Seventh Schedule includes Union, State, and
Concurrent Lists.3

DOCTRINE OF PITH AND SUBSTANCE IN INDIAN CONTEXT

It is widely believed that the origin of the doctrine of pith and substance lies in Canada and it
was introduced in a case named Cushing v. Dupuy in the year 1880. The doctrine later made its
way to India and is firmly supported by Article 246 of the Constitution and the Seventh
Schedule. In India, it has evolved to become a celebrated doctrine that became the basis of many
landmark Supreme Court judgements.4

The case law "State of Bombay v. F. N. Balsara" is a landmark case in Indian constitutional
law that is often cited in discussions related to the doctrine of pith and substance. This case
pertains to the regulation of liquor and the interplay between the state's powers to regulate and
impose taxes on liquor and the fundamental right to practice any profession or occupation under
Article 19(1)(g) of the Indian Constitution.

State of Bombay v. F. N. Balsara

AIR 1951 SC 318

BACKGROUND
In this case, the Bombay Prohibition Act, 1949, imposed a prohibition on the manufacture,
possession, sale, and consumption of alcohol in the state. F. N. Balsara, a licensee for the sale of
foreign liquor, challenged the Act, asserting that it violated his fundamental right to carry on
trade and business under Article 19(1)(g) of the Indian Constitution.

KEY LEGAL ISSUES

The primary issue in this case was whether the Bombay Prohibition Act, which imposed a ban on
the sale and consumption of alcohol, fell within the legislative competence of the state
3 blog.ipleaders.in/doctrine-of-pith-and-substance/
4 What is Doctrine of Pith and Substance? - Origin, Features & More (testbook.com)
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
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government, or whether it encroached upon the central government's powers to impose taxes and
duties on alcoholic beverages.

JUDGEMENT & APPLICATION OF DOCTRINE OF PITH & SUBSTANCE

The Supreme Court of India, in its judgment, applied the doctrine of pith and substance to
determine the true character or essence of the legislation. The Court held that the Act was
primarily intended to regulate and control the sale and consumption of alcohol within the state,
rather than to levy taxes. Therefore, the legislation fell within the scope of the state's powers
related to public health and sanitation. The Court also noted that any incidental impact on trade
or business due to the prohibition was a reasonable restriction in the interest of public health and
welfare, justifying the restriction under Article 19(1) of the Constitution. 5

GUIDING CASES
The Court had referred the following American cases for the present case6
1.Selzman v. United State

2. Purity Extract & Co. v. Lynch

3. Ruppert v. Gaffey7

WHAT IS ARTICLE 246 OF INDIAN CONSTITUION ?

Article 246 of the Indian Constitution deals with the distribution of legislative powers between
the Parliament of India and the State Legislatures. It provides the framework for determining the
subjects on which each level of government can make laws. Article 246 is divided into three
parts: Clause (1), Clause (2), and Clause (3).

5 THE STATE OF BOMBAY AND ANOTHER Vs. F.N.BALSARA - Legal Vidhiya

6 State of Bombay and Ors. v. F.N. Balsara:- Case Analysis (ourlegalworld.com)
7 State of Bombay and Ors. v. F.N. Balsara:- Case Analysis (ourlegalworld.com)
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
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Article 246(1): This clause deals with the subject matter of laws on which Parliament has
exclusive powers to make laws. It consists of three lists:
The Union List: This list (List I) includes subjects on which only the Parliament can make laws.
Examples include defense, foreign affairs, atomic energy, and railways.

Article 246(2): This clause deals with the subject matter of laws on which State Legislatures
have exclusive powers to make laws. It consists of two lists:
The State List: This list (List II) includes subjects on which only the State Legislature can make
laws. Examples include police, public health, agriculture, and public works.

Article 246(3): This clause deals with the subject matter of laws on which both Parliament and
State Legislatures can make laws. It consists of one list:
The Concurrent List: This list (List III) includes subjects on which both the Parliament and the
State Legislatures can make laws. Examples include criminal law, marriage and divorce,
bankruptcy and insolvency, and education.8

In cases where there is a conflict between laws made by the Parliament and the State Legislatures
on a subject in the Concurrent List, the law made by the Parliament will prevail. However, if a
State law is repugnant to a law made by Parliament on a subject in the Concurrent List and has
received the President's assent, the State law can prevail in that State.

ARTICLE 246 IN REFERENCE WITH SCHEDULE VII AND DOCTRINE OF PITH &
SUBSTANCE

The doctrine of pith and substance comes into play when there is a challenge regarding the
legislative competence of a law. It involves analyzing the true nature and purpose (the "pith and
substance") of the legislation to determine which list it predominantly falls under. If the law is

8 Doctrine of Pith and Substance (legalserviceindia.com)

Unveiling the Essence: Doctrine of Pith and Substance in the Indian
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found to be primarily related to a subject in one of the lists, it is considered to be within the
competence of the enacting authority, even if it incidentally touches upon matters in another list.

PRIORITY OF LIST IN SEVENTH SCHEDULE

In situations, where there is a conflict between the three lists, the priority of lists has to be taken
into account.

■ List I- Union List is always given the utmost preference.

■ List III- Concurrent List has a priority over List II i.e. State List.

Therefore, in case of repugnancy, legislations of the Parliament will prevail over the enactments
of the state legislature. Apart from its applicability in cases related to the competency of the
legislature (Article 246), the Doctrine of Pith and Substance is also applied in cases related to
repugnancy in laws made by Parliament and laws made by the State Legislatures (Article 254). 9

Provisions dealing with subject matters of laws made by Parliament and by the Legislatures of
States:

● Section 100 of Government of India Act, 1935[7]

● Article 246, The Constitution of India, 1949[8]

Despite their has been division of powers among the Centre and the states, it is quite inevitable
that ancillary encroachments are bound to take place during enactment of laws. The powers
demarcated as per Section 100 of Government of India Act, 1935 was so rigid and stringent that
it gave no scope to the application of the doctrine of pith and substance. Subsequent to the
framing of the Indian Constitution in 1949, when such incidental encroachment of legislative
powers take place, courts with the aid of the doctrine of pith and substances decides the validity
and legitimacy of an enactment.10

9 Judicial Doctrines (drishtiias.com)

10 https://lawcorner.in/explain-the-rule-of-pith-and-substance-with-case-laws/
#Application_of_the_Doctrine_of_pith_and_Substance
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"

APPLICABILITY OF DOCTRINE

For applying the principle of pith and substance, the following regards need to be fulfilled,

● To the enactment as a whole;

● To its main objects;
● To the scope and effect of its provision.

Kartar Singh v. State of Punjab

The case of Kartar Singh v. State of Punjab is a significant judgment by the Supreme Court of
India that dealt with the constitutional validity of certain provisions of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA). The case involved an examination of the
"pith and substance" of the legislation to determine its constitutional validity. The application of
the doctrine of pith and substance was defined by the Constitutional Bench of the Supreme Court

TADA was enacted to deal with terrorism and activities directed against the sovereignty,
integrity, and security of India. The validity of this law was challenged on various grounds,
including that it encroached upon the State List and violated the federal structure of the
Constitution. In this context, the doctrine of "pith and substance" was applied to analyze the true
nature and character of TADA. The Court examined whether TADA primarily fell within the
Union List (List I of the Seventh Schedule) or the State List (List II of the Seventh Schedule) of
the Constitution.

The Supreme Court held that TADA primarily fell within the Union List, which covers issues
related to defense, security of India, and other subjects of national interest. The Court
emphasized that TADA aimed to combat and suppress acts of terrorism and insurgency, which
were threats to the security and integrity of the nation. As a result, it was deemed to fall under
the Union List, justifying the central government's competence to enact and enforce it.
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"

The Court's analysis and application of the doctrine of pith and substance in the Kartar Singh
case supported the constitutional validity of TADA, reinforcing the federal character of the
Indian Constitution while recognizing the central government's role in addressing matters of
national security and integrity.1112

ANCILIARY AND INCIDENTIAL ENCROACHMENT

There is no need to apply this doctrine when it is evident that the legislature does not possess the
authority to enact laws on a particular subject, as it would be straightaway invalid. In situations
where the said legislature has the competency to enact such laws but in the process of such
enactments it encroaches “incidentally” upon the powers of other legislative units, then the
enactment would not be depicted as invalid. This is known as the doctrine of ancillary or
incidental encroachment.

In cases where State Legislature dealing with any matter “incidentally” involves any content of
the Union List, the State legislature will still have the authority and the competency to enact such
laws. Hence such enactment cannot be invalidated.

There can be situations where an enactment made by the state legislature incorporates a
provision covered by an entry in State List and has a “direct and substantial” correlation to a
matter enlisted in the Concurrent List. In such cases, if there is a pre-existing law with respect to
that matter in the concurrent list then it may affect the validity of the latter enactment in the
following manner:13

■ If the new enactment is repugnant to the provisions of any existing law and both the
laws cannot co-exist, then the repugnant provision in the State List may be declared
as void.

11 Kartar Singh v. State of Punjab 1961 AIR 1787 (lawessential.com)

12 Doctrine Of Pith And Substance - Explanation With Case Laws - Law Corner
13 Doctrine of pith and substance - iPleaders
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
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■ If the enactment made by the state legislature is repugnant to the provisions of any
existing law with respect to that matter in the Concurrent List and can co-exist, then
the repugnant provision in the State List will be valid.
■ If there is no repugnancy between the new enactment and the pre-existing enactment,
■

Subramanyam Chettiar v. Muttuswami Goudan is an important case in Indian

constitutional law that dealt with the doctrine of pith and substance and the concept of
ancillary powers. The case is related to the powers of the State Legislature to enact laws
in areas falling under the Concurrent List of the Seventh Schedule of the Constitution. 1415

FACTS OF THE CASE

In this case, the Madras Legislature enacted the Madras Agriculturists' Relief Act, 1938,
which aimed to provide relief to agriculturists from indebtedness. The law, primarily falling
under Entry 30 of the Concurrent List (transfer of property other than agricultural land), was
challenged on the grounds that it also affected matters in Entry 28 of the Concurrent List (debt).

JUDGEMENT : The main legal principles and judgments in this case are as
follows:

The Court applied the doctrine of pith and substance to determine the true nature and character
of the legislation. It assessed whether the main purpose of the law was within the subject matter
falling under the State Legislature's jurisdiction. It was held that the main purpose of the Madras
Agriculturists' Relief Act, 1938, was to provide relief to agriculturists from indebtedness. This
fell within the scope of Entry 30 of the Concurrent List (transfer of property other than
agricultural land), which is a subject within the State Legislature's jurisdiction. The Court
acknowledged that the law incidentally encroached upon the subject of debt (Entry 28 of the

14 Doctrine of Pith and Substance - Indian Legal Solution

15 Al. Sp. Pl. Subramanian Chettiar ... vs Muthusami Goundan And Ors. on 10 October, 1940
(indiankanoon.org)
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"
Concurrent List). However, the encroachment was held to be incidental to the main purpose of
providing relief to agriculturists.16

This case set a precedent regarding the doctrine of pith and substance and the concept of
incidental encroachment. It clarified that incidental encroachment into a subject under the
Concurrent List is permissible as long as the main purpose of the legislation aligns with the
subjects within the jurisdiction of the enacting legislature. It underscored the importance of
examining the essential character and main objective of the legislation while considering
incidental encroachments.the new enactment will be valid.17

CASELAWS AND THEIR OUTCOMES IN RESPECT WITH THE DOCTRINE

State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (AIR 1958 SC 560):

1. This case is significant for its application of the doctrine of pith and substance.
The court held that the true nature and character of a legislation must be
determined to see if it falls within the field of a particular legislative list. 18

S.R. Bommai v. Union of India (AIR 1994 SC 1918)19

2. While the case primarily dealt with issues related to Article 356, the Doctrine of
Pith and Substance was not directly invoked in this case. However, the case
established important principles related to federalism, state autonomy, and the limited
scope for imposing President's Rule, which are intertwined with the doctrine.

The case emphasized the importance of upholding federalism and the principle of "pith
and substance" in interpreting laws and the Constitution. It reinforced that the true

16 Al. Sp. Pl. Subramanian Chettiar ... vs Muthusami Goundan And Ors. on 10 October, 1940
(indiankanoon.org)
17 Constitutional Law: Doctrine of Incidental or Ancillary Powers – Lexlife India
18 Pith and substance-Application of doctrine – Advocatetanmoy Law Library
19 S.R Bommai v/s union of India (legalserviceindia.com)
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"

nature and character of legislation, or in this case, executive actions, must be examined
to determine if they align with the Constitution's division of powers and the essence of
federalism.

Municipal Corporation of Greater Mumbai v. Indian Oil Corporation (AIR 2014 SC

1540):

2. In this case, the Supreme Court reiterated the doctrine of pith and substance and
emphasized that the substance of a law must be the determining factor when
deciding its validity, and it should not be obscured by its form.

These cases illustrate how the doctrine of pith and substance is used by Indian courts
to ascertain the true essence and purpose of legislation, ensuring that laws are applied
within the appropriate domain of legislative competence.

SUGGESTIONS

To regulate or control the true essence of the legislature the Doctrine of pith and
substance should be applied.

CONCLUSION

The doctrine of pith and substance is a fundamental principle in constitutional law,

especially in federal systems like India, that plays a pivotal role in determining the
legislative competence of different levels of government. The essence of this doctrine
lies in discerning the true nature and purpose of a law to ascertain the domain within
which it falls, thereby ensuring a careful and accurate allocation of legislative powers.
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"

Through an analysis of various research papers, articles, and case law, it becomes
evident that the doctrine of pith and substance serves as a crucial tool for maintaining
the delicate balance of power between the central and state governments. It facilitates
the preservation of the federal structure envisaged in the Indian Constitution by
preventing encroachments on the powers allocated to different levels of government.

Key judicial decisions, such as "State of Bombay v. F. N. Balsara" and "Kartar Singh v.
State of Punjab," have reinforced and shaped the application of this doctrine,
underlining its importance in upholding the spirit of federalism, maintaining legislative
coherence, and preventing unintended intrusions into the powers of other government
entities. In conclusion, the doctrine of pith and substance stands as a beacon of
guidance, ensuring that laws are interpreted and applied in line with their intended
subject matter, even if they incidentally touch upon areas falling under the jurisdiction of
other legislative authorities. It not only safeguards the constitutional framework but also
contributes to a just and equitable distribution of powers, essential for the effective
functioning of a federal democratic system like India.
Unveiling the Essence: Doctrine of Pith and Substance in the Indian
Legal Landscape"