Meaning & Concept

Pith and substance is a legal doctrine used to determine under

which head of power a given piece of legislation falls.
Pith means ‘true nature’ or ‘essence of something’ and
Substance means ‘the most important or essential part of
something’.
Doctrine of Pith and Substance says that 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 invalid.
Continued:
The doctrine is primarily used when a law is
challenged on the basis that one level of government
has encroached upon the exclusive jurisdiction of
another level of government.
This is essentially a Canadian Doctrine now firmly
entrenched in the Indian Constitutional
Jurisprudence.
This doctrine found its place first in the case of Cushing v.
Evolution
Dupey. of the doctrine
In this case the Privy Council evolved the doctrine, that
for deciding whether an impugned legislation was intra
vires, regard must be have to its pith and substance.
According to this doctrine, the legislation as a whole is
examined to ascertain its “true nature and character” in
order to determine in what list it falls.
If according to its “true nature and character” the
legislation substantially falls within the powers conferred
on the legislature which has enacted it, then it is not
deemed to be Invalid “merely because it incidentally
trenches or encroaches on matters which have been
assigned to another legislature.
Need of Doctrine
The doctrine has been applied to provide a degree of flexibility
in the otherwise rigid scheme of distribution of powers.
“It is not possible to make clean a cut between the powers of
various legislatures; they are bound to overlap from time to
time. (2 Prafulla Kumar v. Bank of Commerce, AIR 1947 PC 28 )
The reason for adoption of this doctrine is that if every
legislation were to be declared invalid on the grounds that it
encroaches power, the powers of the legislature would be
severely limited.
The doctrine saves the incidental encroachment, if only the
law is in pith and substance within the legislative field of the
particular legislature which has made it.
This doctrine is widely used when deciding whether a state is
within its rights to create a statute
ESSENTIALS FOR APPLYING THE DOCTRINE
For applying the principle of ‘pith and substance’
regard is to be had:
1. To the enactment as a whole;
2. To its main objects;
3. To the scope and effect of its provision
Land Mark Cases
The State of Bombay And Another v. F.N. Balsara,
This is the first important judgment of the Supreme
Court that took recourse to the Doctrine of Pith and
Substance. The court upheld the Doctrine of Pith and
Substance and said that it is important to ascertain the
true nature and character of a legislation for the
purpose of determining the List under which it falls.
Union of India v. Shah Goverdhan L. Kabra Teachers'
, held that in order to examine the true
The Court
College
character of the enactment, the entire Act, its object
and scope is required to be gone into.
The question of invasion into the territory of another
legislation is to be determined not by degree but by
substance. The doctrine of pith and substance has to
be applied not only in cases of conflict between the
powers of two legislatures but also in any case where
the question arises whether a legislation is covered by
a particular legislative field over which the power is
purported to be exercised.
Mst. Atiqa Begam and Anr. v. Abdul
Maghni Khan and Ors
The court held that in order to decide whether the
impugned Act falls under which entry, one has to
ascertain the true nature and character of the
enactment i.e. its ‘pith and substance’.
The court further said that “it is the result of this
investigation, not the form alone which the statute may
have assumed under the hand of the draughtsman, that
will determine within which of the Legislative Lists the
legislation falls and for this purpose the legislation
must be scrutinized in its entirety”.
Premchand Jain v. R.K Chhabra, AIR 1984 SC 981
As long as the legislation is within the permissible field in
pith and substance, objection would not be entertained
merely on the ground that while enacting legislation,
provision has been made for a matter which though germane
for the purpose for which competent legislation is made, it
covers an aspect beyond it.
In a series of decisions this court has opined that any
enactment substantially falls within the powers expressly
conferred by the Constitution upon the Legislature enacting
it, it cannot be held to be invalid merely because it
incidentally encroaches on matters assigned to another
legislature.
 Zameer Ahmed Latifur Rehman Sheikh v. State
This doctrine is applied
of Maharashtra andwhen
Ors. 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.
  
State of West Bengal v. Committee for Protection of Democ
ratic Rights, West Bengal
 [(2010) 3 SCC 571
The principle of federal supremacy cannot be resorted to
unless there is an irreconcilable direct conflict between
the entries in the Union and the State lists.
 In re, Special Reference No. 1 of 2001 [(2004) 4 SCC 489, the
SC said, “An endeavour must be made to solve it, … by
having recourse to the context and scheme of the Act, and a
reconciliation attempted between the two apparently
conflicting jurisdictions by reading the two entries together
and by interpreting, and, where necessary modifying the
language of the one by that of the other. … The doctrine of
pith and substance is sometimes invoked to find out the
nature and content of the legislation”.
According to this test, in the event where the ‘incidental
The test of ‘dominant legislation’
encroachment’ by a legislation conflicts with another
legislation actually enacted by the ‘dominant power’, the
latter shall prevail [ITC Limited v. Agricultural Produce
Market Committee, (2002) 9 SCC 232.
Here, ‘incidental encroachment’ signifies a situation
where a State law legislates on the subjects provided
under the Union list and vice versa; and ‘dominant
power’ signifies that entity which is authorised to make
the law. For instance, for an item under the Union list,
the Parliament is the dominant power and for an item
under the State List, the State Legislature is the
dominant power.