This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the doctrine of pith and substance as adopted by the Indian Constitution. When a law approved by one legislature is contested or trespassed by another legislature, the doctrine of pith and substance is applied. 

It has been published by Rachit Garg.

Introduction 

The Doctrine of Pith and Substance states that if the substance of legislation falls within a legislature’s lawful power, the legislation does not become unconstitutional just because it impacts an issue beyond its area of authority. “True nature and character” is what the phrase “pith and substance” signifies. The infringement of the constitutional delimitation of legislative powers in a Federal State is the subject of this concept. The Court uses it to determine whether the claimed intrusion is just incidental or significant. Thus, the ‘pith and substance’ concept holds that the challenged statute is fundamentally within the legislative competence of the legislature that enacted it but only incidentally encroaches on the legislative field of another legislature. The present article discusses this doctrine majorly highlighting the same on how the Indian Constitution has perceived this doctrine. 

Evolution of the doctrine of pith and substance

The Canadian Constitution inspired the doctrine of pith and substance. The country of Canada is divided into two parts, namely, the Dominion and the Provinces. In order to divide the powers of the Dominions and Provinces, the framers of the Canadian Constitution inserted two separate lists to the Constitution. Section 69 of the Canadian Constitution, which was first established in 1857 as the British North America Act, separated the powers delegated to the Dominion from those delegated to the Provinces. Furthermore, Sections 91 and 92 of the Constitution Act of 1867 define the Dominions’ and Provinces’ exclusive rights.

The origin of this doctrine can be traced back to the case of Cushing vs. Dupuy  (1880) in Canada, and it has since spread to India, where it is firmly supported by Article 246 of the Indian Constitution and the Seventh Schedule, through which the Constitution of India divides the scope of legislative powers between the Centre and states. The Union, State, and Concurrent Lists of the Indian Constitution make up this schedule. 

While the term ‘Pith’ implies genuine nature or essence of anything, ‘Substance’ indicates the most important or vital aspect of something, to break down the concept to its molecular meanings. The state and union legislatures are made supreme within their respective areas, and they should not intrude on the sphere delimited for the other, according to the doctrine’s interpretation.

When a law approved by one legislature is contested or trespassed by another legislature, the doctrine of pith and substance is applied. This doctrine states that while assessing whether a certain law applies to a specific issue, the court looks to the content of the case. If the content of the thing falls inside one of the three lists, the encroachment by law on another list does not render it illegal since it is said to be ultra vires.

Reason behind the formation of doctrine of pith and substance

The objective behind the creation of this doctrine was to prevent absolute intrusion of legislative powers by evaluating the ‘content’ of enactment and then determining which list the specific subject matter fell within. As a result, this doctrine is applied to establish the legislative competency of a given law by examining the ‘content’ of that statute. Examining an enactment’s ‘substance’ might lead to one of two outcomes:

1. The enactment’s substance corresponds to the subject matter given to the legislature for the purpose of enacting laws: This will constitute the enactment totally lawful.
2. Enactment includes subject matter that is outside the jurisdiction of the federal or state legislatures: This may result in a partial or accidental incursion of legislative powers, which may or may not render the entire statute invalid and void. Certain subject topics enumerated in the three lists indicated in the Seventh Schedule might overlap at times, therefore incidental encroachments are permitted to some extent when evaluating legislative competency.

Early takes on the doctrine of pith and substance by the judiciary

During the course of examining the scope of the intrusion, a crucial question about the grounds on which legislative competence should be confirmed arose. In the case of Cushing v. Dupey (1880), the Privy Council came to the rescue in 1880. In its judgment, the Privy Council developed the doctrine of pith and substance, holding that the ‘pith and substance’ of enactment must be considered in determining whether it falls within or beyond the scope of legislative powers allocated to either the Dominion or the Province.

Lord Watson, while testifying for the Privy Council in the matter of Union Colliery Company of British Columbia v. Bryden in 1889, caught the notion of “real essence and character” of law and treated it as a metaphor “whole pith and substance” of an enactment.

Features of the doctrine of pith and substance

1. The philosophy behind the doctrine emphasises that it is the primary subject matter that must be contested, not its unintended consequences in another discipline. Pith refers to a thing’s ‘essence’ or ‘real nature,’ whereas substance refers to a thing’s most significant or fundamental portion.’
2. The adoption of this doctrine is necessary because otherwise every law would be considered unconstitutional since it encroaches on the subject matter of another realm.
3. The actual character of law is defined by pith and substance. The true subject matter is being questioned in this regard and not its unintended consequences in another discipline. The idea has also been used in India to allow some flexibility in an otherwise strict electricity distribution structure.
4. To identify which list a piece of legislation belongs to, the doctrine looks at its genuine nature and substance.
5. It considers whether the state has the authority to enact legislation that affects a subject from another list or not.

Doctrine of pith and substance under the Indian Constitution

The doctrine of pith and substance, sometimes known as incidental encroachment, is a product of Canadian jurisprudence that has been applied to the Government of India Act, 1935, and the current Constitution. Occasionally, legislation is enacted under the authority of an item in one of the VII Schedule’s Lists. The idea of pith and substance is employed in such instances to determine which legislature has the authority to implement such legislation. The court must consider the genuine nature and character of the law, whether it essentially comes within the authority of the legislature passing it, and whether it is valid even though incidentally it touches upon some matter within the competence of another legislature.

In general, the Parliament and state legislatures are supposed to stay in their allocated sectors and not trespass on each other’s jurisdiction. If otherwise, the legislation would be declared illegal by the judiciary. But first, it will apply the doctrine of pith and substance to determine the true authority that the aforementioned piece of law comes under. To put it another way, the idea of pith and substance is used to identify which category a piece of legislation belongs to. However, the powers bestowed on each level are certain to intersect at some point. It is impossible to draw a clear line between the competencies of separate legislatures as they will inevitably overlap at times.

Need for the doctrine of pith and substance in India

1. One of the key reasons for the doctrine’s adoption and use in India was to give flexibility to an otherwise inflexible framework for power allocation under a federal structure. 
2. Another important ground establishing a need for the doctrine in India is that if every legislation were to be declared invalid on the ground that it encroached on the subject of another legislature, then these powers assigned to the legislature would be enormously restrictive, and this would not serve the purpose of the power being granted to the legislature.

Article 246 of the Indian Constitution : all you need to know

The distribution of authority between the Union and the States is addressed in the Constitution’s Seventh Schedule, which is enshrined under Article 246 of the Indian Constitution. Article 246 of the Constitution defines the Union’s and states’ powers by categorising them into three lists, namely, Union List, State List, and Concurrent List. The Indian Constitution establishes the doctrine of separation of powers between the national and state governments. The three lists have been placed hereunder: 

1. Union List: This is the List in which the Centre has sole authority to enact legislation. The Union List essentially covers military, foreign affairs, railways, and banking, among other areas where Parliament can enact legislation.
2. State List: This is the List in which states have sole authority to enact legislation. Public order, police, public health, and sanitation, as well as hospitals and dispensaries, betting, and gambling, are some of the subject matters covered under the same.
3. Concurrent List: The List in which both the Centre and the states can pass legislation is the Concurrent List. The central law takes precedence over state law in circumstances of repugnancy. It covers subject matters such as education, population management, family planning, criminal law, animal cruelty prevention, wildlife and animal preservation, forests, and several others. 

The Constitution’s Seventh Schedule has been amended several times since 1950. The Union List and the Concurrent List have grown in size, while the State List has converged over the years. In 1976, the 42nd Amendment Act rebuilt the Seventh Schedule, guaranteeing that State List subject matters such as education, forest, wildlife, and bird preservation and administration of justice. Whereas, weights and measures were transferred to the Concurrent List.

Interpretation of the doctrine of pith and substance

In Kartar Singh v. the State of Punjab (1961), the Supreme Court’s Constitutional Bench explained how the doctrine of pith and substance should be applied. It was discovered that when the idea of pith and substance is applied, legislation relating to a topic in one of the lists may also be connected, if indirectly, to a subject in another list. The essence and substance of the legislation must be determined in such a case. If a comprehensive examination of the law reveals that it is on a topic listed in a list pertaining to the legislature, the act in its whole is to be deemed legal, regardless of any accidental encroachments that may exist.

When there is a question of legislative power, the courts must apply the theory of pith and substance. The court analyses the statute’s subject matter to the subjects covered by the three Lists, namely, the Union, the State, and the Concurrent List, and determines which of the three lists would cover the law. If the statute is covered by the List that pertains to the legislature in question, it is intra vires and hence lawful. However, if the enactment is unconstitutional, it will be declared null and invalid.

It was decided in State of Rajasthan v. Vatan Medical and General Store (2001) that once enactment is inside the four corners of an item in List-II (State List), no central law, whether issued with respect to an entry in List I or List III, can impact the legality of that state enactment. The Court further concluded that once enactment is related to Entry 8 in List II, or any other entry in List II for that matter, Article 246 cannot be used to argue that the state legislature is not competent to pass that statute. 

In the case of Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra and Ors. (2010), the notion of pith and substance was effectively articulated. The doctrine, according to the Court, should be used when the legislature’s legislative power in relation to a certain statute is called into doubt. If there was a challenge to the legislature’s capacity, the court would assess the law’s gist and content after the Act had been scrutinised. It is critical for the courts to evaluate the real character of the legislation, its goal, scope, and impact, as well as to determine if the law in issue was genuinely covered by a subject matter listed in the legislature’s concerned list.

Doctrine of ancillary or incidental encroachment

The idea of ancillary and incidental powers broadens the legislative power’s scope. It specifies that the authority to legislate includes the ability to legislate on supplementary or incidental subjects. These abilities are intended to assist the primary goal of the enactment in question. This concept allows for a broad and liberal reading of the items in the three legislative lists. The doctrine of ancillary or incidental powers is utilised to determine the legislative authorities’ goals and scope. The ability to legislate on incidental and supplementary topics aids in the extension of these powers.

The question in R. D. Joshi v. Ajit Mills (1977) was whether the State legislature had the authority to adopt a statute allowing it to forfeit the sales tax received by dealers. The Court ruled that this was a punitive measure to ensure that social policy was properly and effectively enforced. It further said that the entries must be given a broad interpretation in order to include ancillary and incidental capabilities.

The doctrine of ancillary or incidental encroachment is in addition to the doctrine of pith and substance. The Constitution specifies the legislative powers of both the Union and state governments. Neither of them should meddle with the other’s power. When one person’s powers are encroached upon, the notion of pith and substance comes into play. It aids in determining whether the legislature in issue was competent to pass the law in question. The ‘pith and substance’ of law, i.e., the legislation’s goal, must be within the limits of the issue over which the concerned legislature has the authority to legislate. If such is the case, the law would be unconstitutional, even if it appeared to trespass on the power.

Application of doctrine of pith and substance by the Indian judiciary 

When declaring an Act null and invalid, several considerations must be taken into account. It’s possible that the concerned legislature inadvertently encroached on the authority of another legislative, and in that case, careful inspection is required to ensure that it wasn’t done on purpose. The Supreme Court of India had observed in the case of Assn. of Natural Gas v. the Union of India and Ors. (2004) that understanding what would ordinarily be treated as “covered within that subject in legislative practice” as well as the practice of such State that had conferred such power.

This concept is a well-established legal theory in India, having been recognized by different high courts and the Supreme Court. The doctrine of pith and substance comes into play whenever a law is deemed to be intruding or trespassing into an area whose legislation has been allocated to another. The essence of the theory is that if a dispute arises about whether a certain law applies to a specific subject (which would be listed in one of the lists under the 7th Schedule), the court, in deciding such questions, examines the content of the case. Although there are several notable decisions by courts across India concerning the discussed doctrine, five landmark judgments that contributed to embedding this doctrine in the Indian Constitution have received explanation hereunder.

Prafulla Kumar v. Bank of Commerce, Kulna (1947)

The Bengal Moneylender Act, 1940 was passed for the greater good of the people and set a limit past which money lenders could not collect any money. Even the rate of interest was set at a maximum that the money lenders could collect. Moneylenders questioned the Act’s legitimacy since the loan rate was so low. 

The issue that arose with respect to the case of Prafulla Kumar v. Bank of Commerce, Kulna (1947) concerned the constitutionality of the Bengal Moneylenders Act, 1940, which was adopted by state legislatures. It was contested on the grounds that the Act only applied to promissory notes. As the subject matter of promissory note comes under the Union List, it was argued that the state had no power to create laws concerning a union matter.

Privy Council’s observations

1. The Privy Council correctly determined that the genuine object, scope, and effect of the Act is money lending and interest on the same, that the primary issue is not promissory notes, and that the state legislature can pass legislation to safeguard the true object, extent, and effect.
2. In this case, the doctrine of pith and substance is critical in interpreting the case’s main subject matter. The doctrine is used to safeguard the rigorous pattern of power-sharing between the state and the Union since the major subject matter is money lending.
3. Whatever is supplementary or indirectly influences legislation established by a state legislature must be credited to the proper list according to its genuine nature and character to serve the wider public interest.

State of Bombay and another v. F.N Balsara (1951)

The decision in the case of State of Bombay and another v. F.N Balsara (1951) is noteworthy in constitutional law because it clarified several ambiguities around the doctrine of pith and substance. When a legislature’s legislative competence in regard to a particular enactment is challenged with reference to entries in different legislative lists, the doctrine of pith and substance is applied, as a law dealing with a subject in one list within the competence of the legislature concerned also touches on a subject in another list, not within the competence of that legislature. In such a circumstance, what must be determined is the essence and content of the legislation, its genuine character, and nature.

Observations of the Supreme Court of India

1. Under List II, Entry 31 of the Indian Constitution, the state legislature has the authority to entirely outlaw the keeping, marketing, and use of intoxicating wine. As a result, there is no issue about the state’s and the centre’s jurisdictions clashing with each other in this regard.
2. The Apex Court viewed that any act passed by the state legislature that prohibits or restricts the export of the items listed in Entries 27 and 29 of List II outside the state’s borders is illegal. However, because this Act was approved under List II Entry 31, Section 297(1)(a) of the Bombay Prohibition Act, 1949 does not apply to it. As a result, the exemption granted to Army men, Land Forces messes, and Water Ships cannot be ruled unconstitutional under Section 37 of the aforementioned Act.
3. The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt with maintaining alcohol-mixed medications and toilet products, selling and buying them, as well as using them, were unconstitutional under Article 19(1)(g) of the Constitution, but the remainder of the provisions were upheld to be valid. It was also established that an Act cannot be deemed entirely invalid simply by declaring any of its sections to be illegal.
4. The Apex Court had also stated that under Article 277 of the Constitution, any taxes, duties, cesses, or fees that were lawfully levied by the government of any State or municipality or other local authority or body for the purpose of the state, municipality, district, or another local area immediately before the commencement of the Constitution may continue to be levied and applied for the same purpose until provisions to the contrary are made by Parliament by law. Thus the legal principle that has been established provides that if the state government has adopted an Act on a topic over which it has constitutional authority, the Act is valid.

Synthetics and Chemicals Ltd. and Others v. the State Of U.P. and Ors.

The above-discussed case is no longer relevant because it was overturned by the Apex Court’s decision in the case of Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and Others (1989).

This decision was made on the grounds that there could not be a full restriction of therapeutic remedies including alcohol. As a result, it was argued that in the case of alcohol that is unfit for human consumption, commerce in such an object cannot be regarded as a noxious trade. Only when it is produced or processed for human use will it be a toxic trade.

The reasoning provided in the FN Balsara’s case was followed here. As alcohol is counted under luxurious goods, the state legislature will have to collect taxes on the ownership of alcoholic liquors suited for human consumption. However, because alcohol that is unfit for human consumption is not a luxury, state legislatures will not be able to charge taxes on it, according to the learned Attorney General. It was held that all alcohol taxes not covered by any other entries in Lists I and II will be levied by Parliament. 

State of Rajasthan v. G Chawla (1959)

The state of Rajasthan passed legislation prohibiting the use of sound amplifiers in the case of State of Rajasthan v. G. Chawla (1959). The respondent broke the law, and the judicial magistrate declared the deed unconstitutional. On appeal to the Supreme Court, the state argued that the law was within the legislative competence of the state legislature under Entry 6 of List II, that is the power to legislate in relation to public health includes the power to regulate the use of amplifiers because they produce a loud noise, whereas the opposition argued that amplifiers fell under Entry 31 of List I that includes post and telegraphs, telephones, wireless, broadcasting and other like forms of communication.

Supreme Court’s observation

The Apex Court observed that even though the amplifier is a broadcasting and communication apparatus, it did not fall under Entry 31 of List I because the legislation was a state matter in its essence and was not held invalid even if it encroached on the subject of broadcasting and communication by accident.

State of Karnataka v. Drive-In Enterprises (2001)

The imposition of tax on ‘drive-in-cinemas’ was at issue in State of Karnataka v. Drive-In Enterprises (2001). A drive-in cinema is an open-air theatre premise in which entrance is generally granted to people who want to see the movie while sitting in their automobiles. The state assessed an entertainment tax on automobiles entering the theatre, in addition to collecting an entertainment tax on those being entertained. The dispute arose as to whether the state legislature has the authority to adopt legislation imposing a tax on entry of cars/motor vehicles within such theatres under Entry 62, List II of the 7th Schedule or not. It is to be noted that the state legislature has the authority to charge a tax on ‘luxuries, entertainment, amusements, betting, and gaming,’ according to Entry 62.

Observations by the Apex Court 

1. The Supreme Court stated that what must be determined is the true character of the levy, its essence and content and that it is in this light that the state legislature’s competence must be assessed. The doctrine of pith and substance states that enactment cannot be held ultra vires simply because its nomenclature indicates that it encroaches on matters assigned to another heading of legislation if it substantially falls within the powers expressly conferred on the legislature by the Indian Constitution.
2. The Court further observed that the true nature and character of the contested tax, in this case, is not on the entrance of cars/motor vehicles, but on the person amused who drives their automobile into the theatre and watches the movie from their car. In essence, the tax is placed on the person who is entertained, and it makes no difference under whichever name or forms it is enforced. The term ‘entertainment’ is broad enough to encompass the luxury or comfort with which one entertains oneself. The levy is justified and lawful if a link between legislative competence and the subject matter of taxes is established.

State of A.P. v. K. Purushotham Reddy (2003)

The A.P. State Council of Higher Education Act, 1988, established a State Council for higher education in the present case. The Council’s responsibilities and tasks are divided, and it must operate in accordance with Central UGC’s rules. It must support the UGC in determining and maintaining standards, as well as proposing corrective actions for higher education in the state. It lacks the authority to operate as an independent entity in the areas of coordination and standard-setting for higher education, research, and technical institutes. The state Act is within the legislative competence of the state legislature and does not trespass on the Central field. In addition, the Act is not a colorable piece of legislation.

Observations by the Supreme Court of India 

1. It was decided in State of A.P. v K. Purushotham Reddy (2003) that the state legislation may only be declared ultra vires when it cannot coexist with the Central legislation. The legislation should be construed in such a way that its constitutionality is preserved. 
2. The Apex Court further noted that the entries in Schedule VII should be construed broadly. On a combined reading of List I Entry 66 and List III Entry 25, it is evident that, while the State has a large legislative field to cover, it is subject to List I Entries 63-66. When it is determined that a state Act does not encroach into the legislative sphere defined by Entry 66 List I, the state Act cannot be declared illegal.

Conclusion 

The doctrine of pith and substance has been relevant in a number of cases in which the Centre and the States have fought for legislative primacy. Because the Centre has more clout in India than the states, several of the subjects on the Union List are extremely important. States are only obligated to legislate on things that affect them. Even yet, overlaps may exist merely because one legislation is linked to another, either directly or indirectly. It is therefore important that the courts carry out their responsibilities without error.

References 

1. https://lawcirca.com/the-doctrine-of-pith-and-substance/.
2. https://lawcorner.in/explain-the-rule-of-pith-and-substance-with-case-laws/.
3. https://www.researchgate.net/publication/322236376_The_Doctrinaire_Trident_Testing_Constitutionality_of_the_Laws.

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