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INTRODUCTION:

Parliament and the State Legislature should keep within the field assigned to it and not encroach
into sphere reserved to the other, and a law made by one which trespasses or encroaches upon the
field assigned to the other, is not valid.

But before the Legislature purporting to deal with a subject in one list and touching also on a
subject in another list is declared to be bad, the courts apply what is known as, the doctrine of
pith and substance.

Pith and substance is a legal doctrine used to determine under which head of power a given piece
of legislation falls. 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.

DEFINITION:

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.

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. Dupey1. 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.

A pith and substance analysis scrutinizes the law to discover:

the purpose of the law


1
Baines, Beverley. "Federalism and pregnancy benefits: Dividing women." Queen's LJ 32 (2006): 190.

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the legal effect of the law, that is, impacts that are expected to happen if the statute works as
planned
the practical effect of the law, that is, impacts the statute actually causes as it operates,
anticipated or unanticipated. The effects may arise from imperfect administration,
discriminatory enforcement, or unanticipated side effects caused by the law on the universe of
behaviours.
The doctrine of pith and substance works very simply. In the first stage the legislative powers of
both, Parliament and State is allowed to its fullest extent. In the second stage, the area of conflict
is seen and finally, it is seen as to where does the conflicting portion fall, i.e., in which list the
conflicting portion fall. Obviously, the conflicting portion falls either in List I or List II and
therefore, once the conflicting portion is assigned to the correct list, the conflict is gone or there
is no conflict2.

JUDICIAL INTERPRETATION THROUGH VARIOUS CASES:

1. Union of India v. Shah Goverdhan L. Kabra Teachers' College

Court held that in order to examine the true 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 exercised3. In other words, what is of paramount
consideration is that the substance of the legislation should be examined to arrive at a correct
analysis or in examining the validity of law, where two legislations are in conflict or alleged to
be repugnant.

2. The State of Bombay And Another vs 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

2
Newman, Dwight. "Changing division of powers doctrine and the emergent principle of subsidiarity." Sask. L.
Rev. 74 (2011)
3
Bell, Catherine. "Protecting Indigenous Heritage Resources in Canada: A Comment on Kitkatla v. British
Columbia." International Journal of Cultural Property 10.2 (2001): 246.

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important to ascertain the true nature and character of a legislation for the purpose of
determining the List under which it falls.

3. Mt. 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 4. 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.

4. Zameer Ahmed Rehman Sheikh v. State of Maharashtra and Ors.

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 scheme5.

5. Kartar Singh v. State of Punjab

This 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 the various
lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In
such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny

4
Gahrana, G. K. "Supreme Court and Legislative Relations between the Union and the States." The
Indian Journal of Political Science 25.2 (1964): 27-37.
5
Swarup, Aditya. "Terrorism and the Rule of Law: A Case Comment on Kartar Singh v. State of
Punjab." Browser Download This Paper (2007).

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of the Act in question, if found, that the legislation is in substance one on a matter assigned to the
legislature enacting that statute, then that Act as a whole must be held to be valid
notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter
included in the list belonging to the other legislature. To say differently, incidental encroachment
is not altogether forbidden6.

6. State of Bombay v. Vatan Medical and General Store

The Supreme Court held that once 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 II or III.

7. Ishwari Kehtan Sugar Mills case

It was held, when validity of a Legislation is challenged on the ground of want of legislative
competence and it becomes necessary to ascertain to which entry in the three Lists the
Legislation is referable to, the court has evolved the theory 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 might enter a field under another List, the Act as a
whole would be valid notwithstanding such incidental trenching7.

6
Sharma, G. S. "Concept of Leadership Implicit in the Directive Principles of State Policy in the Indian
Constitution." Journal of the Indian Law Institute 7.3 (1965): 173-188.
7
Kafaltiya, Anand Ballabh. Interpretation of statutes. Universal Law Publishing, 2008.

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8. State of Rajasthan v. G.Chawla

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 conviction8. 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.

9. State of West Bengal v. Kesoram Industries Ltd

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 9.
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

8
Taylor, Greg. India. Springer Berlin Heidelberg, 2006.
9
Oliver, Peter. "Canadian Legal Federalism Since 1982." Canadian Issues(2013): 7.

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Concurrent List or State List vests in Parliament. This is what is called the residuary
power vesting in Parliament.

10. Bennett Coleman v. Union of India

The court observed the test of pith and substance of the subject-matter and of direct and of
incidental effect of the legislature is relevant to questions of legislative competence but they are
irrelevant to the question of infringement of fundamental rights10. This is a sound and correct
approach to interpretation of legislative measure and state action in relation to fundamental
rights.

CRITICAL ANALYSIS:

In democratic countries the judiciary is given a place of great significance. The courts perform
the key role of expounding the provisions of the Constitution. The courts act as the supreme
interpreter, protector and guardian of the supremacy of the Constitution. The judiciary has to
perform an important role in the interpretation and enforcement of human rights inscribed in the
fundamental law of the country. Therefore, it is necessary to consider what should be the
approach of the judiciary in the matter of Constitutional Interpretation. The judiciary has to
devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of
various rights embodied in the Constitution. The task of interpreting the constitution is a highly
creative judicial function, which must be in tune with the constitutional philosophy. The
predominant positivist approach of interpretation followed by the Indian Judiciary emanates
from the basic traditional theory that a judge does not create law but merely declares the law11.

If the pith & substance of law (i.e. the true object of the legislation) relates to a matter within the
competence of the legislature, which enacted it, it should be held intra vires though the
legislature might incidentally trespass into matters not within its competence. The true character
of the legislation can be ascertained by having regard to the enactment as a whole to its object
to the scope and effect of its provisions.

10
Lee, Ian B. "The Assisted Human Reproduction Act Reference and the Federal Criminal Law
Power." The Canadian Bar Review 90 (2011): 469.
11
Koonan, Sujith. "Constitutionality of the Plachimada Tribunal Bill, 2011: An Assessment." Law Env't &
Dev. J. 7 (2011): 151.

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CONCLUSION:

Thus doctrine of pith and substance is not only for general understanding, in fact it goes on 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 and substance, one for
accomplishing an unauthorized object, the court would be entitled to tear the veil created by the
declaration and decide according to the real nature of the law.