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UNDER GUIDANCE OF AMIT GARG (EX-FACULTY VAJIRAM & RAVI)

INDIAN POLITY
DOCTRINE & TERMS
PROCEDURE ESTABLISHED BY LAW
Concept originated in England (UK).
Under this doctrine when a person is deprived of his life and liberty then court will
examine if or not there is law in existence which authorise the executive to deprive of
his life and liberty.
Further, court will examine whether the law was passed by a competent authority
(legislature) or not.
Further that the court will examine whether the law which has been used by executive
was passed, following the right procedure or not.
The court however will not examine the fairty of law or motive behind the law and
thus cannot declare the law unconstitutional and void.
This doctrine of procedure established by law rely more on good sense of legislature
and strength of public opinion in the country. This doctrine of judicial review provide
protection to an individual only against the arbitrary action of executive but not against
unfair action or intention of legislature.
DUE PROCESS OF LAW
Concept originated in America (USA).
It gives greater power on judiciary. Under this doctrine the court will not only examine
whether the action of executive is baked by a law which is made by proper authority
following the proper procedure but also whether the law itself is fair or not i.e the
intention of the legislature while enacting the law.
So this approach of judicial review extent the protection to an individual both against
the arbitrary reaction of executive as well as legislature.
Under article 21 judiciary was supposed to follow the procedure established by law
however supreme court in Maneka Gandhi case 1978 held that under article 21 ,they
will follow due process of law approach by reading or by incorporating the principle
of natural justice under article 21.

ARTICLE 13-DOCTRINE OF SEVERABILITTY

The need of this doctrine arises when there is an issue of invalidity and
unconstitutionality of part of a statute. Then question arises whether the whole Act
should be declared to be void or only that part, which is inconsistent with the
Constitution. In order to sort out this problem, Supreme Court devised this doctrine.
The basis of this doctrine lies in the word "to the extent of such inconsistency (Article
-13(1))". This doctrine is subject to one exception. Sometimes, it happens that valid
and invalid parts are so closely mixed up that they can't be separated. In such case, the
whole act is held to be void. To know whether they are separable or not, we have to
see the intention of the legislature i.e. legislature would have enacted valid part without
enacting void part. If the answer is YES then severable and if the answer is NO then
it is not severable.
ARTICLE 13-DOCTRINE OF ECLIPSE

An existing law which is inconsistent and violates the Fundamental Rights becomes
inoperative from the date, when Constitution came into force i.e. Existing law remain
eclipsed and dormant to the extent when it comes under shadow of Fundamental Right.
It is dormant and eclipsed but not dead. And as soon as the eclipse is removed the law
begins to operate from the date of such removal.
Bhikaji Narain Vs. State of M.P. [AIR 1955 SC 781| is an excellent illustration of
the Doctrine of Eclipse. The amended provisions of the Motor Vehicles Act enabled
the Provincial Government to operate the entire motor transport business to the
exclusion of private transport operators. The provision became void when the
Constitution came into force as it was violative of Art. 19(1)(g). On 18.6.51, the
Constitution was amended and the State could carry on business to the complete or
partial exclusion of citizens or otherwise. The Government then issued a notification
which was challenged and the Supreme Court observed that the amended provision
was void between 26. 1.1950 and 18.6.1951; the impugned provision was eclipsed for
the time being on account of the provision of Article 19(1)(g). The moment the
limitation was removed, the impugned provision became enforceable. It was held that
all laws, existing or future which are inconsistent with the provisions of Part III of the
Constitution are by express provision of Article 13 rendered to be void to the extent
of such inconsistency. Such laws are not dead for all purposes, they are valid as regards
pre-constitution rights and liabilities and after the Constitution came into force, as
against non-citizens. The law remains in a dormant or moribund condition only against
citizens.
DOCTRINE OF PITH AND SUBSTANCE

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 legislature. In such a case, what has to
be ascertained is the pith has substance of the enactment-the true character and nature
of the legislation. If, on examination of the statute, it is found that the legislation is in
substance on a matter assigned to the legislature enacting that statute, then it must be
held valid in the entirety even though it may incidentally trench upon matters beyond
its competence, i.e. on matters included in the list within the competence of the other
legislature. Legislative matters in different lists are bound to overlap and therefore
incidental encroachments shall take place. In such cases "the question must be asked,"
said Lord Porter in [Prafulla Kumar Vs. Bank of Commerce AIR 1947 PC 60; 74
IA 23] what in pith and substance is the effect of the enactment of which complaint is
made and in what list is its true nature and character to be found." After having
ascertained the true character of law, the court must point out in which of the three
Lists an Act of that nature truly falls. In the absence of this rule, the legislature
concerned, particularly State legislatures, cannot effectively deal with the subject
matters assigned to them. Therefore, this rule has been evolved in all Constitutions
where the legislative subjects are enumerated in more than one list falling within the
competence of different legislatures. In Prafulla Kumar Case the question was with
respect to Bengal Moneylender's Act, 1940. In this Act, Sec. 30 provided that no
borrower will be liable to pay more than a limited sum with respect principal amount
and interest. (This case relates to pre- constitutional era). Earlier it concerned Entry 28
of Federal List and Entry 27 of Provincial List. Now it is Entry 46 of Union List (BOE
Cheques, Promisory Notes and other like instruments i.e. negotiable instruments) and
Entry 30 of State List (Money lending and money lenders, relief of agricultural
indebtedness). The Court held law will not be efficacious if it did not include
Promissory Notes because Promissory Notes were involved in all cases of law. They
are not regulating Promissory notes. Touching on Promissory Note was incidental
encroachment. It is basically with respect to and upon money lending through it refers
to Promissory Notes. The Supreme Court in State of Rajasthan Vs. G. Chawla AIR
1959 SC 544 held that the impugned Act in its pith and substance is with respect to
Entry 6 of list II. (though it refers to amplifiers). In this case the entries concerned
were Entry 31 List I (Wireless, Broad coasting and other like forms of communication)
and Entry 6 of List II (Public health, sanitation, hospitals and dispensaries). To
ascertain the true character of law, the law has to be seen as a whole and organic whole.
It performs the task of saving incidental and ancillary encroachment. This brings
flexibility into the rigid scheme of distribution of power. Encroachment is permitted
if ancillary or incidental but not if substantial. The Supreme Court held that powers to
legislate with respect to public health includes power to regulate use of amplifiers or
producers of loud noise. The indiscriminate use of sound amplifiers, whereby people
of locality cannot live in peace, adversely affects members of society and the law has
been passed in order to safeguard public health and for peaceful living. Non- nuisance
can't be curbed unless you curb means of communication 1.e. in this case sound
amplifiers. It is incidental encroachment rather than being substantial one. It refers to
amplifiers but is not with respect to amplifiers.
D.N. Banerjee Vs. P.R. Mukherjee AIR 1953 SC 58: Industrial Disputes Act
enacted by Parliament, even though it applies to employees of municipality is valid as,
in substance it deals with industrial and labour disputes (Entry 22 of List III) and not
with local government (Entry 5 of List I). It is with respect to employees of
Municipality and not with respect to Municipality (although it refers to Municipality).
In Vijay Kumar Sharma Vs. State of Karnataka AIR 1990 SC 2072: the Supreme
Court has held that the doctrine of pith and substance applies even when Parliament
and State legislatures legislate in the same List., i.e., the Concurrent List but with
respect to different Entries. The Court has said that the doctrine is relevant for the
purpose of determining whether a law of Parliament or an existing law and a law of
the State legislature are on the same matter in the Concurrent List or they pertain to
different matter. If the pith and substance of the two laws is the same then Article
254(1) applies otherwise it does not. Gwyer, C.J. in [Subramanyam Chettiar Vs.
Muthuswami Goudan AIR 1941 FC 47, 51], in explaining the validity of the doctrine
of pith and substance said:
It must inevitably happen from time to time that legislation thought 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 intermixed that blind adherence 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
forbidden sphere. Hence the rule has been evolved..... where by the impugned statue
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 matter in the List of
that.
In State of Bombay Vs. F.N. Balsara AR 1951 SC 318: 1951 SCR 682,
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 (corresponding Entry 8 of the Constitution), namely, "intoxicating liquors, that
is to say, the production, manufacture, possession, trans- port, purchase, and sale of
intoxicating liquors", or under Entry 19 of List I (corresponding Entry 41 of the
Constitution),namely, "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 Court, rejecting the argument, held the Act
valid because the pith and sub- stance 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 rule that in delimiting the legislative powers of the Union and State legislature
resort is to be made to the principle of pith and substance, find support from the
expression "with respect to" used in clauses (1) to (4) of Article 246. To explain that
in State of Rajasthan Vs. G.Chawala AIR 1959 SC 544, the Supreme Court quoted
the following statement of Latham, C.J. in Bank of New South Wales Vs. The
Commonwealth (1948) 76 CLR 1, 186.
The power to make law 'with respect to' a subject-matter is a 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 the reason. a law with respect
to clergymen or hotel-keepers. Building regulation apply to buildings erected for or
by banks; but such regulation could not properly be described as laws with respect to
bank or banking.
The doctrine of pith and substance introduces a degree of flexibility into the otherwise
rigid scheme of distribution of powers. It gives an additional dimension to the powers
of the 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 by it of
the other field, then the power of each legislature will be drastically circumscribed to
deal effectively with subjects entrusted to it for legislation. Though the rule applies to
both, the Centre and the States, and helps both to some extent, yet since Parliament is
the more dominant legislature and its powers are more generally and broadly worded,
the State legislature benefit much more by the rule than Parliament, for the rule enables
them too incidentally trespass into the much larger and comparatively more
importance, Central Area.

COLOURABLE LEGISLATION :
If the Constitution of a State distributes the legislative powers amongst different
bodies, which have to act within their respective spheres marked out by specific
legislative entries, or if there are limitations on the legislative authority in the shape of
fundamental rights. questions do arise as to whether the legislature in a particular case
has or has not, in respect of the subject-matter of the statute, or in the method of
enacting it, transgressed the limits of its constitutional power. Such transgression may
be patent, manifest or direct, but it may also be disguised, covert and indirect and it is
to this latter class of cases that the expression "colourable legislation" has been applied
in certain Judicial pronouncements.
In K.C. Gajapati Narayan Deo Vs. State of Orissa, there was the question of the
validity of the Orissa Agricultural Income Tax (Amendment) Act of 1950 which
greatly enhanced the rate of tax on agricultural income. It was argued that the Act is
not a bona fide taxation statute at all, but is a colourable piece of legislation, the real
object of which is to reduce by artificial means the net income of intermediaries, so
that the compensation payable to them under the Orissa Estates Abolition Act, 1952
be kept as low a figure as possible, agricultural income tax being deducted from the
gross income in order to arrive at the net income on the basis of which the amount of
compensation is to be determined. The Supreme Court did not accept this contention
and declared the Act as valid. It was observed that the Act is certainly a legislation on
"taxing of agricultural income", as described in Entry 46 of List II of the Seventh
Schedule. The State legislature has undoubted competency to legislate on agricultural
income tax, and the Act purports to increase the existing rates of income tax. The
increase in rates may be unjust or inequitable, but that does not affect the competency
of the legislature. Even if it is assumed that the Act was made under the guise of a
taxation statute with a view to accomplish an ulterior purpose, namely, to reduce the
amount of compensation, still it cannot be regarded as a colourable piece of legislation.
Under Entry 42 of List Il, the legislature can adopt any principle of compensation in
respect of properties acquired. Whether the deductions are large or small, inflated or
deflated, they do not affect the constitutionality of a legislation under this entry. It
would be colourable legislation only if it is shown that the real object is to attain
something which is beyond any constitutional limitation or that it lies within the
exclusive field of another legislature. It could be noticed that the two Acts did not
make any reference to each other and were in no way interconnected.
Taking each Act on its merit, the Court had no hesitation to declare them valid as being
within the competence of the legislature.
K.T. Moopil Nair Vs. State of Kerala, where the provisions of the Travancore
Cochin Land Tax Act of 1955 were declared to be unconstitutional in view of Articles
14 and 19)1(f). It was found that a person making an income of Rs. 3,100 per year was
liable to pay Rs. 54,000 under its operative provisions so the Supreme Court held that
the provisions of the Act were confiscatory in character, and reached the conclusion
that in passing the Act, the legislature had merely adopted a device and a cloak to
confiscate the property of the citizen taxed.