Doctrine of Pith & Substance

I.
IntroductionII.
OriginIII.
ScopeIV.
Provisions in Indian ConstitutionV.
Judicial interpretation through various casesVI.
Conclusion
th
Introduction:
This doctrine envisages that the Legislation as a whole be examined to ascertain its true nature
and character of Legislation. Pith and substances is a legal doctrine in Canadian Constitutional
interpretation used to determine under which head of power a given piece of Legislation falls.
Within their respective spheres, the Union and the State Legislatures are made supreme and they
should not encroach into the sphere reserved to the other. 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 Legislature1
. In that such a cases what has to be ascertained is the pith and substances of the enactment, i.e.
the true character of the Legislation. To ascertain the true character of the Legislation in question,
one must have regard to it as a whole, to its object and to its scope and effect of its provisions. If
according to its true nature and character, the Legislation substantially relates to a topic assigned

to the Legislature which has enacted it, then it is not invalid merely because it incidentally
trenched or encroaches on matters assigned to another Legisl.ature. The Act of incidental
encroachment does not affect the vires of the law even as regard the area of encroachment. To
put it differently, incidental encroachment is not altogether forbidden
2
. Briefly Stated, what the doctrine means, is this. 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
3
. To determine the pith and substance, two aspects of the law must be examined: the purpose of
enacting body and the legal effect of the law. To assess the purpose, the courts may consider both
intrinsic evidence, such as the Legislations preamble or purposes clauses, and extrinsic evidence,
such as minutes of Parliamentary debates. In doing so, they must nevertheless seek to ascertain
the true purpose of the Legislation, as opposed to its mere Stated or apparent purpose
4
. Equally the courts may take into account the effects of the Legislation. This doctrine is to be
applied not only in case of apparent conflict between the powers of two Legislatures but in any
case where the question arises whether a Legislation is covered by a particular legislative power
in exercise of which it is purported to be made
5
. In all such cases the
1Saumya Misra, The Doctrine of pith and substance preserves and protects Constitutional
properties of Parliament and Legislatures AIR2009Journal 17.
2D.D.Basu,Comparative Constitution623(Wadhwa and Company, Nagpur, 2007).
3P.M.Bakshi, A Background Paper on Concurrent Powers of Legislation under List III of the
Constitution,availableat :http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm.
4Attorney-General for Ontario v.Reciprocal Insurers, [1924] A.C. 328 (P.C.).5D.D.Basu,Shorter
Constitution of India1737 (Wadhwa and Company, Nagpur,13th
edn., 2004).

name given by the Legislature to the impugned enactment is not conclusive on the question of its
own competence to make it. It is the pith and substance of the Legislation which decides the
matter
6
and the pith and substance is to be determined with reference to the provisions of the statute
itself
7
.
Origin:
The principle of pith and substance had come to be established by the Privy Council, when it
determined appeals from Canada or Australia involving the question of legislative competence of
the federation or the States in those countries. Canada is the first country in which doctrine of
pith and substance got evolved. Supremacy of Privy Council over Canadian Constitution is
mainly responsible to bring into picture this doctrine. The Judicial Committee of the Privy
Council (JCPV) is a court run by the House of Lords in London. It was the highest court in
Canada from 1867 to 1949, and heard Canadas important division of powers cases from that
era. It could overrule the Supreme Court of Canada; many important cases bypasses the Supreme
Court altogether and went directly to the JCPV. The decision of JCPV developed the doctrine on
pith and substance in Hodge v. The Queen
8
where the court Stated that subjectswhich in one aspect and for one purpose falls within s.92,
may in another aspect and for another purpose fall within s.91(BNA Act). In applying the
doctrine, it should be in situations where the importance of one matter should not be significantly
larger than the other. In effect, the doctrine removes the need for courts to split hairs to determine
which head of power should be assigned a particular law. In India, the doctrine of pith and
substance came to be adopted in the pre-independence period, under the Government of India
Act, 1935. The fine example is the Privy Council decisionin Prafulla Kumar Mukherjee v. Bank
of Commerce
9
, holding that a State law, dealing withmoney lending ( a State subject), is not invalid, merely
because it incidentally affects promissorynotes (now Union List, entry 46). The doctrine is

sometimes expressed in terms of ascertainingthe nature and the true character of Legislation,
and it is also emphasized, that the name given by the Legislature in short title, is immaterial.
Again, for applying the pith and substancedoctrine, regard is to be had(i)to the enactment as
a whole,(ii)to its main objects, &(iii)the scope and effects of its provisions
10
.
6 Chaturbhai M.Patel v.Union of India,AIR 1960 SC 424.
7Amar singh v.State of Rajasthan,AIR 1955 SC 504.
8Hodge v. The Queen(1883), 9 A.C. 117(P.C.).
9 Prafulla Kumar Mukherjee v.Bank of Commerce Ltd., Khulna,AIR 1947 PC 60.
10supra note 3.
India as a Federal State like America, Australia and Canada the legislative powers of theCentral
federation and the State Provinces were given in three Lists, firstly under theGovernment of
India Act, 1935 and then under the 1950 Constitution, where Canada had twoLists and America
and Australia had only one List
12
. Though the States did not join thefederation, the Federal provisions of the Government of India
Act, 1935, were in Act, applied as between the Central Government and the Provinces. The
division of powers between Centre andthe State Provinces in the Government of India Act, 1935
and the division made in theConstitution between the Union and the State proceeds largely on
the same lines
13
. A threefolddivision was made in the Act of 1935:(i)
Federal List for Federal Legislature,(ii)
Provincial List for Provincial Legislature and(iii)
Concurrent List for both Federal and Provincial Legislature.Federal Legislature had however, the
power to legislate with respect to mattersenumerated in the Provincial List if proclamation of
emergency was made by the Governor General
14
. The Federal Legislature could also legislate with respect to a Provincial subject if
theLegislature of two or more Provinces desired this in their common interest
15
.In case of repugnancy in the Concurrent field, a Federal law prevailed over Provinciallaw to the
extent of the repugnancy but if the Provincial law received the assent of the Governor
General or of his majesty, having been reserved for their consideration for this purpose, the
Provincial law prevailed, notwithstanding such repugnancy
16

. The allocation of residuary power of Legislation in the Act was unique. It was not vested in
either of the Central or Provincial Legislatures, but the Governor General was empowered to
authorize either the Federal or Provincial Legislature to enact a law with respect to any matter
which was not enumerated in the legislative Lists
17
.Moreover by section 100 of the Government of India Act the three Lists are carefully arranged
in a rigid hierarchy of super and subordination: the power in the Federal List are exclusive
notwithstanding anything in the other two Lists; the Concurrent powers can be exercised at either
level subject to the Federal List and notwithstanding anything in the State List; and the State
power are given only subject to the other two Lists
18
. Under the Government of India Act there were several attempts to argue that this hierarchical
arrangement left no room for a test of pith and substance. The rigid definition of exclusive
fields and the absolute supremacy of the Federal List meant that the Provinces could not trespass
upon the areas of exclusive Federal power at all, not even by laws which in pith and substance
were clearlywithin Provincial power.The provisions under the Constitution of India, 1950 related
to the doctrine are: Schemeof distribution under the Constitution. A) The Constitutional
provisions in India on the subject of distribution of legislative powers between the Union and the
States are spread out several articles. However, the mostimportant of those i.e. the basic one is
that contained in articles 245-246.Article 245 provides, inter alia, that(i) Parliament may make
laws for the whole or any part of the territory of India and(ii) The Legislature of a State may
make laws for the whole or any part of the State. B) Thus, article 245 sets out the limits of the
legislative powers of the Union and theState from the geographical angle from the point of view
subject matter of Legislation; it isarticle 246 which is important. Article 246 reads
as under:246(1) notwithstanding anything in clauses (2) and (3), Parliament has exclusive power
to make laws in respect to any of the matters enumerated in List I of the Seventh Schedule(Union
List).(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the
Legislature of any State also, shall have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (Concurrent List)
16

Ibid
s.107.
17
Id s
.104.
18
supra
note 12.
The various entries in the three Lists are not powers of Legislation but the fields
of Legislation
20
. The 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. The justification for the
doctrine is that in Federal Constitution, it is not possible to make a clear-cut distinction between
the powers of the Union and the State Legislatures. There is bound to be overlapping and in all
such cases, it is but reasonable to ask what in whole is the true nature and character of the law. A
strictly verbal interpretation would result in a large number of statutes being declared invalid on
the ground of overlapping. If the Legislature is to have the full scope to exercise the power
granted to it, it is necessary to assume that the Constitution does not prevent a Legislature from
dealing with a matter which may incidentally affect any matter in the other List
21
.
Judicial Interpretation through various cases:
On adjudging whether any particular enactment is within the purview of one Legislature or the
other, it is the pith and substance of the Legislation in question that has to be looked into. This
rule says that the Legislation as a whole to be examined to ascertain its true nature and
character. After having ascertained the true character of the law, the court must point out in
which of the three Lists an Act of nature truly falls. In other words, when a law is impugned as

ultra vires
, what has to be ascertained is the true nature and character of the Legislation. If on such
examination it is found that the Legislation is in substance one on a matter assigned to the
Legislature, then it must be held to be valid in its entirety
22
.The application of the doctrine is well illustrated in Prafulla kumar v. Bank of Commerce
23
, (a case interpreting section 100 of the Government of India Act, 1935, the provisions of which
were substantially similar to the present article 246). In that case the constitutional validity of the
Bengal Money Lenders Act, 1940, which had provided for limiting the amount and the rate of
interest recoverable by a lender on any loan, was challenged on the ground that it was
ultra vires
the Bengal Legislature. The High Court of Calcutta held that the Act was
intra vires
the Provincial Legislature, but on appeal to the Federal court the decision of the High Court was
reversed and the Act was held to be
ultra vires
the law making powers of the Bengal Legislature. On appeal to the Privy Council, it was
contended on behalf of the Bengal Legislature that the Act was valid as it dealt with money
lending and money lenders in the Province a matter within the exclusive competence of the
Provincial Legislature under List II,Entry 27. On behalf of the respondent creditor, it was
contended that the Act was wholly ultravires the Provincial Legislature, or at least that much of
the Act as affected the right of promissory note-holders to recover the full amount due on their
promissory notes. The
20Vepa P.Sarathi,Interpretation of Statutes691 (Easter Book Company, Lucknow 4th edn., 2003).
21V.N.Shukla and M.P.Singh,Constitution of India740 (Eastern Book Company, Lucknow, 11thedn.,
2008).
22supranote 5.
23supranote 9.

respondent relied upon entry 28 of List I, which assigned to the Federal Legislature exclusive
authority to make laws with respect to cheques, bills of exchange, promissory notes, and
other like instruments.The Privy Council held that the Act was not void in whole or as part
as being
ultra vires
the Provincial Legislature. The pith and substance of the Act being money lending, it
camewithin List II, entry 27, Government of India Act, 1935, and therefore was within the
competence of the Provincial Legislature, and was not rendered invalid, because it incidentally
affected matters reserved for Federal Legislature, namely, promissory notes in schedule
VII,List I, entry 28. The following leading principles are deducible from the Privy Council
decision:a)It is not possible to make a clear-cut distinction between the powers of the Union and
the State Legislatures. They are bound to overlap, and where they do so, the questions to be
considered are: what is the pith and substance of the impugned enactment, and in what List are
its true nature and character to be found? b)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.c)Where the three List come in conflict, List I has priority
over List II and III and List IIIhas priority over List II.Subramaniam Chettiyar v. Muthuswami
Goundan
24
was cited with approval by the PrivyCouncil in prafulla kuamrs 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 that. In State of
Bombay v. Vatan Medical and General Store
25

, the Supreme Court held thatonce 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
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 .
24
Subramaniam Chettiyar
v.
Muthuswami Goundan,
AIR 1941 FC 47.

25
State of Bombay
v.
Vatan Medical and General Store
, AIR 1951 SC 69.
In State of Bombay v. F.N.Balsara
26
, 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 the 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 State
Legislations on a same subject. The following cases are some important cases of them: In State
of Rajasthan v. G.Chawla
27
, 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 II, Public health and sanitation. The respondent, on the other hand,
contended that the impugned law fell under entry31 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
II. 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 broadcasting and communication. The
Supreme Court further quoted the following Statement of Latham, C.J. in Bank of New South
Wales v. Commonwealth
28
:The power to make laws with respect to a subject-matter is power to make laws whichin
reality and substance are laws upon the subject-matter. It is not enough that a law should refer
26
State of Bombay
v.

F.N.Balsara,
AIR 1951 SC 318.
27
State of Rajasthan
v.
G.Chawla,
AIR 1959 SC 544.
28
Bank of New South Wales
v
. Commonwealth,
(1948) 76 CLR 1, 186.

to the subject-matter or apply to the subject-matter: for example, income tax laws apply
toclergymen and hotel-keepers as members of the public; but no one would describe an income
taxlaw as being, for that reason, a law with respect to clergymen or hotel-keepers,
Buildingregulations apply to building erected for or by banks; but such regulations could not
properly bedescribed as laws with respect to banks or banking.In Krishna v. State of Madras
29
, applying the rule of pith and substance, the SupremeCourt 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 theCriminal 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
30
, 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 onmatters relating to Criminal procedure and Evidence falls
within the Third List of the SeventhSchedule to the Union Parliament and the State Legislature
have Concurrent authority in respectof these matters. The expression criminal procedures in the
legislative entry includesinvestigation 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 III. The Code of
Criminal Procedure was a law inforce 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 enumerated in the List IIIrepugnant to an earlier law made by Parliament or an
existing law with respect to that matter if ithas been reserved for the consideration of President
and has received his/her assent, prevails inthe State.The only difference in the situations in the
two cases appears to be that, while in Ukha theState law had received the President assent, the
law involved in Krishna had not been soreserved, and this perhaps explains the dichotomy in the
judicial attitudes, for to take the sameview in Krishna, as was done in Ukha, would have been to
hold the law bad on the ground of repugnancy with the Central law
31
.In Ishwari Kehtan Sugar Mills case
32
, it was held, when validity of a Legislation ischallenged on the ground of want of legislative
competence and it becomes necessary toascertain to which entry in the three Lists the Legislation
is referable to, the court has evolved thetheory 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 mightenter a field under another List, the Act as a
whole would be valid notwithstanding suchincidental trenching.
29
Krishna
v.
State of Madras,
AIR 1957 SC 297.
30
Ukha Kolhe
v.
State of Maharastra,
AIR 1963 SC 1531.

31
M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6
th
edn., 2010).
32
Ishwari Khetan sugar Mills (P) Ltd,
v.
State of UP,
AIR1980 SC 1955.
In
D.C. & G.M. Co. Ltd. v. Union of India
33
, it has been held: "When a law is impugnedon the ground that it is
ultra vires
the powers of the Legislature which enacted it, what has to beascertained is the true character of
the Legislation. To do that one must have regard to theenactment 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 Legislationis 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 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 of WestBengal v. Kesoram Industries Ltd
34
, 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 III, 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 decisions in Hoechst Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors
35
, relating to the legislative powers of the Legislations. They are-(1) The various entries in the
three Lists are not powers of Legislation but fields 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.(2) 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 III on the other, the Stats law will be
ultra vires
and shall have to give way to the Union law.(3) 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
33
D
.C. & G.M.Co. Ltd

v.
Union of India,
AIR 1983 SC 937.
34
State of West Bengal
v.
Kesoram Industries Ltd,
AIR 2005 SC 1646.

35
M/S. Hoechst Pharmaceuticals Ltd. and Others
v.
State of Bihar and Other
, AIR 1983 SC 1019.
group. The power to tax cannot be deduced from a general legislative entry as an
ancillary power.(4) The entries in the List being merely topics or fields of Legislation, they must
receive aliberal construction inspired by a broad and generous spirit and not in a narrow pedantic
sense.The words and expressions employed in drafting the entries must be given the widest
possibleinterpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects
to theLists is not by way of scientific or logical definition but by way of a mere simplex
enumerationof broad categories. A power to legislate as to the principal matter specifically
mentioned in theentry shall also include within its expanse the Legislations touching incidental
and ancillarymatters.(5) Where the legislative competence of a Legislature of any State is
questioned on theground that it encroaches upon the legislative competence of Parliament
to enact a law, thequestion one has to ask is whether the Legislation relates to any of the entries
in Lists I or III. If it does, no further question need be asked and Parliaments legislative
competence must be upheld. Where there are three Lists containing a large number of entries,
there is bound to besome overlapping among them. In such a situation the doctrine of pith and
substance has to beapplied to determine as to which entry does a given piece of Legislation
relates. Once it is sodetermined, any incidental trenching on the field reserved to the other

Legislature is of noconsequence. The Court has to look at the substance of the matter. The
doctrine of pith andsubstance is sometimes expressed in terms of ascertaining the true character
of Legislation. Thename given by the Legislature to the Legislation is immaterial. Regard must
be had to theenactment as a whole, to its main objects and to the scope and effect of its
provisions. Incidentaland superficial encroachments are to be disregarded.(6) The doctrine of
occupied field applies only when there is a clash between the Unionand the State Lists within an
area common to both. There the doctrine of pith and substance is to be applied and if the
impugned Legislation substantially falls within the power expresslyconferred upon the
Legislature which enacted it, an incidental encroaching in the field assignedto another
Legislature is to be ignored. While reading the three Lists, List I has priority over Lists III and II,
and List III has priority over List II. However, still, the predominance of theUnion List would
not prevent the State Legislature from dealing with any matter with in List IIthough it may
incidentally affect any item in List I.In a recent civil appeal
36
decided by the Supreme Court, it was held One of the provenmethods 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 whenthe legislative competence of the
Legislature with regard to a particular enactment is challengedwith 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 isgenuinely referable to a field of
the Legislation allotted to the respective Legislature under theconstitutional scheme. This
doctrine is an established principle of law in India recognized notonly by this Court, but also by
various High Courts. Where a challenge is made to theconstitutional validity of a particular State
Act with reference to a subject mentioned in any entryin List I, the Court has to look to the
substance of the State Act and on such analysis and
36
Z
ameer Ahmed Latifur Rehman Sheikh

v. S
tate of Maharastra and Others
, (2010) 5 SCC 246.
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 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 anyof the matters in the Union List.And it is clear that anything that affects
public peace or tranquility within the State or theProvince would also affect public order and the
State Legislature is empowered to enact lawsaimed at containing or preventing Acts which tend
to or actually affect public order. Even if thesaid 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 pith and substance as inessence the said part relates to maintenance of
Public Order which is essentially a State subjectand 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 itsaved incidental encroachment of two pieces of Legislature on each other.
Therefore we caninfer from the abovementioned cases, in the Indian scenario, that the judiciary
had applied three basic principles under the doctrine of pith and substance while deciding
the matters; theenactment as a whole, its main object, and scope and effect of its provisions has
to be regarded.
Conclusion:
This doctrine of pith and substance has been evolved in all constitutions where thelegislative
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 schemeof
distribution of powers. It gives an additional dimension to the powers of Centre as well as
theStates. 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 eachLegislature will drastically circumscribed 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 goeson 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
andsubstance, one for accomplishing an unauthorized object, the court would be entitled to tear
theveil created by the declaration and decide according to the real nature of the law. The doctrine
gives quite a good deal of maneuverability to the courts. It furnishes them tool
to upholdLegislation, 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 favorable interpretation
on theLegislation in question use their power to support the same.

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[1].
This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional
Jurisprudence. This doctrine found its place first in the case ofCushing v. Dupey[2]. In this case
the Privy Council evolved the doctrine, that for deciding whether an impugned legislation
was intra vires, regard must be had to itspith and substance.
Need for the Doctrine of Pith and Substance in the Indian Context
The doctrine has been applied in India also to provide a degree of flexibility in the otherwise
rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every
legislation were to be declared invalid on the grounds that it encroached powers, the powers of
the legislature would be drastically circumscribed.

It is settled law of interpretation that entries in the Seventh Schedule are not powers but
fields of legislation. The legislature derives its power from Article 246 and other related
articles of the Constitution. Therefore, the power to make the Amendment Act is derived
not from the respective entries but under Article 246 of the Constitution. The language of
the respective entries should be given the widest scope of their meaning, fairly capable to
meet the machinery of the Government settled by the Constitution. Each general word
should extend to all ancillary or subsidiary matters which can fairly and reasonably be
comprehended in it. When the vires of an enactment is impugned, there is an initial
presumption of its constitutionality and if there is any difficulty in ascertaining the limits of
the legislative power, the difficulty must be resolved, as far as possible in favour of the
legislature putting the most liberal construction upon the legislative entry so that it may
have the widest amplitude.[3]
Incidental or Ancillary Encroachment
The case of Prafulla Kumar Mukherjee v. The Bank of Commerce[4] succinctly explained the
situation in which a State Legislature dealing with any matter may incidentally affect any Item in
the Union List. The court held that whatever may be the ancillary or incidental effects of a
Statute enacted by a State Legislature, such a matter must be attributed to the Appropriate List
according to its true nature and character.
Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will
not affect the Competence of the State Legislature to enact the law in question. Also, if the
substance of the enactment falls within the Union List then the incidental encroachment by the
enactment on the State List would not make it invalid[5].
However, the situation relating to Pith and Substance is a bit different with respect to
the Concurrent List. If a Law covered by an entry in the State List made by theState
Legislature contains a provision which directly and substantially relates to a matter
enumerated in the Concurrent List and is repugnant to the provisions of any existing law with
respect to that matter in the Concurrent List, then therepugnant provision in the State

List may be void unless it can coexist and operate without repugnancy to the provisions of the
existing law[6].
Important Supreme Court Judgments on the Doctrine of Pith and Substance
There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a
legislation. In the present post, I will discuss some of the prominent judgments of the Supreme Court
of India that have resorted to this doctrine.
1. The State of Bombay And Another vs F.N. Balsara[7] - 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.
2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.[8] 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.
3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.[9] Pith and
Substance has been beautifully explained in this case:
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 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.
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
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.