The article has been written by Kanika Goel. This article provides a detailed analysis of the landmark judgement of the Supreme Court in the matter of the State of Bombay and Another v. F.N. Balsara (1951). This article elaborates upon the various peculiarities of the case including the facts, issues, arguments of the parties, relevant laws and precedents and most importantly, the judgement laid down by the Supreme Court.

This article has been published by Shashwat Kaushik.

Introduction

The case of State of Bombay v. F.N. Balsara (1951) is a landmark judgement pertaining to a situation where there arises a conflict between two statutes and there lies an observation of the incidental encroachment of the subjects of different legislative lists. If, on the evaluation of a particular legislation, it is observed that the statute is in resonance with the subject-matter assigned to the legislature making that statute, then it ought to be held valid as a whole even if it accidentally touches upon the matters beyond its competence of legislation, i.e., on the subject-matters enlisted in the list within the competence of the other legislature. Matters enshrined in different lists under the Seventh Schedule of the Indian Constitution are bound to coincide and hence, incidental trespass usually happens in such matters. 

The above-mentioned aspect of incidental encroachment is based upon the doctrine of pith and substance that brings flexibility into the otherwise stricter system of distribution of powers amongst the level of governments. It gives an additional direction to the distribution of powers amongst the Centre and the States. The reason behind the applicability of this rule is that if every statute were to be declared invalid and void despite the fact that it has only slightly touched upon the legislation pertaining to a particular subject of the other field, then the power of each legislature in the country will be significantly constricted to only deal with the subjects entrusted to it for legislation. 

Details of the case

Name of the case 

State of Bombay and Another v. F.N. Balsara

Type of the case

Civil Appeal under Article 132 of the Constitution of India

Equivalent citations

1951 AIR 318; 1951 SCR 682

Date of the judgement

25th May, 1951

Name of the court

Hon’ble Supreme Court of India

Bench

Justices Saiyid Fazal Ali, M. Patanjali Sastri, B.K. Mukherjea, Sudhi Ranjan Das and Vivian Bose

Author of the judgement

Justice Saiyid Fazal Ali 

Name of the Petitioner

The State of Bombay and the Prohibition Commissioner

Name of the Respondent

F.N. Balsara

Relevant Laws and provisions

• Constitution of India: Articles 14, 32, 19(1)(g), 47 and 132.
• Bombay Prohibition Act, 1949
• Government of India Act, 1935: Section 297(4) and Seventh Schedule

Background of the case

There were three legislative lists under the Seventh Schedule of the Government of India Act, 1935 including the Federal Legislative List (List I), the Provincial Legislative List (List II) and the Concurrent Legislative List (List III). With respect to Entry 31 of List II of the Seventh Schedule of the Government of India Act, 1935, the Provincial Government had the power to make laws in respect of “intoxicating liquors” including its production, manufacture, purchase, possession, and sale. However, with respect to Entry 19 of List I, which was considered to be the Dominion Legislature or the Federal Legislative List, the Federal Government had the authority to frame rules and regulations in relation to the “export and import across the custom frontiers”. As per the present case, the Bombay Prohibition Act, 1949 restricted the keeping of and trade of foreign liquors as it trenched on the subject of List I. Hence, the present case was initially filed in the Bombay High Court by the way of a writ of Mandamus by F.N. Balsara, making a prayer for the following:

• To enable him to exercise his rights to import and export goods across the Customs border, as well as to buy, possess, use, and consume any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines, and medicinal preparations containing alcohol. These rights included the ability to possess, consume, and use specific articles such as whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc.
• To refrain from interfering with his right to possess these things and to refrain from initiating any legal action or proceedings against him under the Act, whether criminal or otherwise.

The respondent in the present case in his plea before the High Court of Bombay prayed for the impugned Act to be held invalid and illegal. Resultantly, while delivering the verdict, the Bombay High Court declared certain provisions of the impugned Act to be invalid. However, dissatisfied with the judgement of the Bombay High Court, an appeal was preferred by both the parties before the Hon’ble Supreme Court of India.

Facts of State of Bombay and Another vs. F.N. Balsara (1951)

F.N. Balsara, claiming to be an Indian citizen, filed a writ of Mandamus against the State of Bombay and the Prohibition Commissioner in the High Court of Bombay in order to restrict them from enforcing the provisions of the Bombay Prohibition Act, 1949 against him. Further, it was prayed on behalf of F.N. Balsara that the High Court may issue a writ of Mandamus in his favour in order to allow him to use and consume various products and articles such as brandy, whiskey, wine, beer, eau-de-cologne, medicated wine etc. and to allow him to exercise, the right to possess, import and export of such articles including foreign liquor, lavender water, medicated wines and medicinal preparations consisting of alcohol across customs frontier.

Decision of the High Court of Bombay

High Court in its verdict while agreeing with some of the contentions of the petitioner, F.N. Balsara, declared certain provisions of the Bombay Prohibition Act as invalid. These provisions included:

• Sections 23(a) and 24(1)(a) so far as they refer to the word “commending” by stating that it “prohibits not merely soliciting the use of or the offering of any intoxicant, but also commending any intoxicant and the contravention of this provision has been made penal”;
• Sections 39 in part on the ground that the relaxation of the general laws with respect to the individuals are not arbitrary but based upon the reasonable classification;
• Sections 52, 53 in part and Section 139(c) on the grounds of non-involvement of the powers of the delegated legislation;
• Sections 136(1) and 136(2)(b), (c), (e), (f) in as much as they were violative of the Article 19 of the Indian Constitution.

However, dissatisfied with this decision, a Civil Appeal was preferred before the Supreme Court under Article 132 of the Indian Constitution to declare the Bombay Prohibition Act, 1949 unconstitutional as a whole. 

Issues raised in the appeal to the Supreme Court

The following issues were raised in the case:

• Whether there were any adequate grounds to declare the Bombay Prohibition Act, 1949 invalid as a whole? And whether it is contravening the fundamental right enshrined under Article 19(1)(g) of the Indian Constitution?
• Whether the Bombay Prohibition Act, 1949, trespasses upon the authority of the Federal Government to make laws in relation to the “import and export” in order to ascertain the maintainability of the judgement of the High Court with respect to the specific provisions of the impugned Act that were declared as void by the High Court?

Arguments of the parties

Petitioners

• State of Bombay, the petitioner in the present case (respondent in the case filed in the High Court of Bombay) through which the present appeal lied to the Supreme Court was represented by N.P. Engineer along with G.N. Joshi, R.J. Kolah and Nani Palkiwala. As per their contentions, the power of making provisions relating to the Articles mentioned by the respondent was out of the purview of the Provincial Legislature. According to the petitioner, the competency of the legislature to enact related legislation was to be read and interpreted in accordance with the Seventh Schedule of the Government of India Act, 1935.
• On the behalf of the petitioner, it was also contended that “the impugned Act, to the extent that it made the provisions with regard to the usage, consumption and keeping of alcoholic  liquors, but which were not intoxicating, was beyond the competence of the Provincial Legislature to enact.”
• It was also urged on the behalf of the petitioner, that the prohibition of possession, use and consumption of certain articles, which were not intoxicating drinks, was justified as being ancillary to the prohibition of intoxicating drinks and for that purpose he had relied on several decisions of the Supreme Court of the United States of America in relation to legislation for the enforcement of prohibition of intoxicating beverages.
• It was also urged on the behalf of the petitioners that, “according to the Legislature, drinking was immoral, hence, any recommendation of a drink would offend against morality.” While supporting this argument, the Advocate-General averred that “the Legislature was fully justified in prohibiting not only the direct contravention of the Act, but even the evasion of it.”
• The Advocate-General on the behalf of the petitioners has contended that the respondent’s challenge to the Act was very extensive.
• The petitioner also contended that the High Court was erroneous in showing a liberated view of the warships, troopships, military, and naval masses and also contended that it was violative of the principle of equality. 

Respondents

• The respondent in the present case, Fram Nusservanji Balsara (petitioner in the case filed in the High Court of Bombay) through which the present appeal lied to the Supreme Court was represented by  M.C. Setalvad and C.K. Daphtary.
• As per the contentions made by the respondent, the Bombay Prohibition Act, 1949 was challenged for being ultra vires of the State Legislature and void to the extent of it violating his fundamental rights enshrined under Part III of the Indian Constitution. The reason behind him challenging the said Act was that he was in a regular practice of the usage of controlled qualities of foreign liquors and perfumes along with medicinal preparations and according to him, the impugned Act was in contravention of his fundamental rights.
• It was also contended on the behalf of the respondent that certain provisions of the impugned Act violated his right guaranteed under Article 19(1)(a) of the Constitution.
• While challenging Sections 23(a) and 24(1)(a), it was contended that these provisions prohibits not merely soliciting the use of or the offering of any intoxicant, but also commending any intoxicant and the contravention of this provision has been made penal under Section 75(a) of the Act.
• Resultantly, the respondent in the present appeal had filed for the issuance of a writ of mandamus or a suitable order under the Specific Relief Act, 1963 in order to enable him to exercise his right of possession, consumption and usage of wines, liquors, eau-de-cologne, brandy and other such articles.

Laws and provisions referred to in State of Bombay and Another vs. F.N. Balsara (1951)

Constitution of India

Article 14 of the Indian Constitution

Article 14 uses two expressions, “equality before the law” and “equal protection of the laws”. The term “equality before the law” means all are equal before the law and no one is above the law and the term “equal protection of laws” means that the law treats all individuals equally without any discrimination.

Somehow being a negative concept, “equality before law” implies the absence of any special advantage in favour of any particular individual and the equal treatment of all classes to the law. The concept of equality before the law does not involve the idea of total equality amongst all, which is physically not possible to achieve. Article 14 guarantees the similarity of treatment and similar situations and not homogenous treatment. It signifies that law should be handled and dealt with equally amongst the equals and that the likes should be treated alike.

However, being a more positive concept, equal protection of laws signifies the right of citizens to equality of treatment in similar situations, both in immunities and liabilities imposed by the law upon them. There ought to be no discrimination between the likes, and equal laws should be applied to all in the cases of similar situations. Thus, the rule is that there should be alike treatments for the likes and unlikes should not be treated alike.

The essence and the scope of this Article have also been laid down in the present case by giving the reference to the landmark case, Chiranjit Lal Chowdhuri v. The Union of India (1951), wherein the Supreme Court held that a law may be held constitutionally valid even though it concerns a single individual if, on occasion of a few extraordinary circumstances or reasons that may be applicable to him and not applicable to others, that person may be treated as a class in itself.

Article 19(1)(g) of the Indian Constitution

Article 19 confers six fundamental rights in the nature of freedom to the citizens, and each of such rights has exceptions to it provided in Articles 19(2) to 19(6).

These six rights as enumerated in Article 19(1) are:

• Right to freedom of speech and expression;
• Right to assemble peacefully and without arms;
• Right to form associations or unions or co-operative societies;
• Right to move freely throughout the territory of India;
• Right to reside and settle in any part of the territory of India; and
• Right to practise any profession or to carry on any occupation, trade or business.

This right aims at the betterment, benefits, and well-being of the citizens as well as the nation in its entirety. However, there is no right to carry on a business which is dangerous or immoral.

The State may under Article 19(6) impose certain reasonable restrictions on this right, which are enumerated as follows:

• Reasonable restrictions in the interest of the public;
• Prescribe professional or technical qualifications, necessary for practising any profession, or carrying on any occupation, trade or business; and
• Enable the state to carry on any trade or business to the exclusion of citizens, wholly or partially.

In Bombay Hawkers’ Union v. Bombay Municipal Corporation (1985), the Apex Court held that the public streets have a particular purpose and are meant for the use of the general public and no individual has an inherent fundamental right to carry any business which causes nuisance, abstinence or inconvenience to the public. It was, therefore, stated by the Supreme Court that the provisions of the Bombay Municipal Corporation Act, 1888 which provided the power to the authority for granting or refusing licences to hawkers on public streets and for prohibiting the unauthorised hawkers without giving them a chance of being heard comes under the purview of reasonable restrictions which is in the interest of public and are not in contravention of Article 19(1)(g) of the Indian Constitution.

Article 32 of the Indian Constitution

Article 32 of the Constitution deals with the “Right to Constitutional Remedies”, or bestows upon the citizens, the right to move the Supreme Court by the institution of appropriate petitions for the enforcement of the rights conferred in Part III of the Constitution. It means that if any of the fundamental rights are violated, a person can directly file a petition before the Supreme Court under Article 32.

During the Constituent Assembly debates in December 1948, a discussion on this fundamental right was going on and Dr. B.R. Ambedkar had said, “If I was asked to name any particular Article in this Constitution as the most important one, an article without which this Constitution would be a nullity, I could not refer to any other Article except this one.” It is the very soul of the Constitution and the very heart of it. This Article makes the Supreme Court, both the guarantor and defender of the fundamental rights.

Article 32(2) has bestowed a power upon the Supreme Court to issue directions or orders or writs including the writs in the nature of habeas corpus, mandamus, quo-warranto, prohibition and certiorari whichever may be suitable for the discharge of any of the fundamental rights in a given case. These writs are also known as “Prerogative writs” for the reason of being taken from the English law.

Talking about the writ of mandamus, the literal meaning of the writ of mandamus is “we command”. It is issued when a court commands a public authority or a lower court to perform its functions appropriately. It may be issued against any lower court, a public body, a company, a tribunal or even the government, however, it cannot be issued against a private individual. It can be issued to restrict a public body from implementing any unconstitutional law. This writ, also being known as “judicial remedy” seems both positive as well as negative. 

In Hari Krishna Mandir Trust v. State of Maharashtra (2020), the Division Bench of the Supreme Court comprising Hon’ble Justices Indira Banerjee and Indu Malhotra has held that the courts are duty-bound to issue a writ of Mandamus for the enforcement of a public duty.

Article 47 of the Indian Constitution

Article 47 is listed as one of the Directive Principles of the State Policy that are enumerated under Part IV of the Indian Constitution. According to this Article, it is the duty of the State to ensure the rising levels of the standards of living and nutrition in the people of that respective State. Improvement of public health and the prohibition on the consumption of harmful intoxicating drinks and drugs that pose injury to health shall be considered as one of the prime duties of the State. 

In State of Kerala v. Kandath Distilleries (2013), the Apex Court held that trading and doing business in liquors does not come under the purview of the fundamental rights given to the citizens. Therefore, the State has the power to completely restrict the trade or business in potable liquor and the State can also create a class in itself for such trade. 

Article 132 of the Indian Constitution

Article 132 deals with the Appellate jurisdiction of the Supreme Court in the cases where the appeals arise from the decisions of the High Courts.

An appeal may lie to the Supreme Court from any judgement, decree or order of a High Court if two conditions are adhered to:

• That the case includes a substantial question of law as to the interpretation of the Constitution; and
• That the High Court issues a certificate under Article 134A to that effect.

Bombay Prohibition Act, 1949

The constitutional validity of the various provisions of the Bombay Prohibition Act, 1949 (now the Maharashtra Prohibition Act, 1949) was in question in the present case. These provisions included Sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53, and 139(c). Brief information of the important Sections is given below:

• Section 2(24)(a): It is the provision that deals with the inclusive definition of “liquor” in the Act. Section 2(24)(a) enumerates that “liquor” includes spirits, wines, toddy, beer, denatured spirits and all other liquids containing alcohol.
• Section 12: This provision deals with the prohibition of the manufacturing of liquor and the construction and working of a brewery or a distillery. This particular provision imposes restrictions on people to manufacture liquor; construct or work in any brewery or a distillery; sell or buy liquor or import, export, possess or transport liquor.
• Section 13: This provision specifically deals with the prohibition and restriction on the people for the sale of liquor, its consumption or even the use of any material or apparatus for the manufacture of any liquor.
• Section 23: This Section deals with the restriction and prohibition posed on people to solicit the use of any hemp or any intoxicant or restriction to do any act which instigates the general public to commit the offence.
• Section 24: Restriction and prohibition of publication and advertising of any sort of intoxicant has been dealt with under this provision.
• Section 39: Section 39 gives the State Government, the power to permit the use or consumption of foreign liquor on warships, in messes and canteens of armed forces and in troopships. 
• Section 139(c): This provision of law has given the State Government the power in respect of granting licences. The State Government has the power to exempt any person or institution from any conditions or regulations relating to the licences.

Government of India Act, 1935

Section 297

Section 297 of the Government of India Act, 1935 mentions the prohibition of certain restrictions on internal trade and is produced in verbatim below:

“Section 297(1): No Provincial Legislature or Government shall-

1. by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that list relating to the production, supply, and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the Province of goods of any class or description; 
2. or by virtue of anything in this Act have power to impose any tax, cess, toll, or due which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former, or which, in the case of goods manufactured or produced outside the Province, discriminates between goods manufactured or produced in one locality and similar goods manufactured or produced in another locality. 

Section 297(2): Any law passed in contravention of this section shall, to the extent of the contravention, be invalid.”

Seventh Schedule

The Seventh Schedule of the Government of India Act, 1935 comprises the three Legislative Lists that are enumerated as follows:

1. List I or the Federal Legislative List encompasses the subjects that were solely under the purview of the then Federal Government of India such as Defence forces, external affairs, fisheries, banking regulations, posts and telegraphs, import and export across custom frontiers etc.
2. List II or the Provincial Legislative List comprises the subjects that were under the purview and control of the Provincial Governments such as public order, police, acquisition of land, education, salaries of provincial ministers, water, forests, agriculture, adulteration of foodstuffs, intoxicating liquor and narcotic drugs etc.
3. List III or the Concurrent Legislative List as the name suggests comprises the subjects of common interest to both the Governments, Federal and Provincial Governments such as criminal laws, marriage and divorce laws, trust and trustees, stamp duties, labour regulations, factories etc.

Issue-wise judgement of the case

The constitutional bench of the Supreme Court with the full majority gave the following judgement:

Whether there were any adequate grounds in order to declare the Bombay Prohibition Act, 1949 invalid as a whole? And whether it is contravening the fundamental right enshrined under Article 19(1)(g) of the Indian Constitution?

While sustaining the impugned statute in question, the Supreme Court declared that the Act was pith and substance of a subject matter that was under the purview of the State Legislature, even though it incidentally trenched upon a subject matter of the Centre. The Legislature of the State has the authority to prohibit in entirety, the possession, sale, and usage of intoxicating liquors that are listed under Entry 31 of List II of the Government of India Act, 1935, hence, there does not lie any question of dispute over the subject matter jurisdiction of the State and the Centre. The Apex Court in its own words stated that “in the present case, as already pointed out, the words “possession and sale” occurring in Entry 31 of List II are to be read without any qualification whatsoever, and it will not be doing any violence to the construction of that entry to hold that the Provincial Legislature has the power to prohibit the possession, use and sale of intoxicating liquor absolutely”. The Court even stated that while assuming that the encroachment, if any, is only incidental and hence, cannot affect the competence of the Provincial Legislature to enact the law in question.

The Supreme Court therefore declared only the certain provisions of the impugned Act as invalid and not the Act as a whole stating that the legislature has totally prohibited the use and possession of all liquids containing alcohol except under permits to be granted by Government contravening the fundamental right under Article 19(1)(g) of the Indian Constitution. These provisions were in relation to the possession of alcohol-infused medicines and other related articles and also to trading them. However, the other provisions along with the rest of the Act were declared to be legal and valid. Thus, the Supreme Court held that it could not hold the entire Act in question as invalid due to some provisions being invalid and illegal.

The Apex Court in its own words held that “we hold that to the extent to which the Prohibition Act prevents the possession, use and consumption of non-beverages and medicinal and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending against Article 19(1)(g) of the Constitution even if they may be within the legislative competence of the Provincial Legislature.” 

Whether the Bombay Prohibition Act, 1949, trespasses upon the authority of the Federal Government to make laws in relation to the “import and export” in order to ascertain the maintainability of the judgement of the High Court with respect to the specific provisions of the impugned Act that were declared as void by the High Court?

The Supreme Court held that the Bombay Prohibition Act, 1949 did not encroach on the authority of the Federal Government to make laws in relation to “import and export” while stating that the word used in Entry 31 of List II, i.e., “possession and sale” without any modification and that the Entry 19 of List I consisting of the word “import” does not by itself include the possession and sale of any article which is imported in the country. Hence, there cannot be any conflict between both the entries and hence, leading to the court’s conclusion of the issue.

Rationale behind the judgement

The Apex Court relied upon the applicability of the doctrine of pith and substance while giving the verdict in this present landmark case. As argued by the parties, the validity of the Bombay Prohibition Act, 1949 was in question. The matter in issue was whether the Act falls under Entry 31 of List II of the Government of India Act, 1935 which corresponds to Entry 8 of List II of the Seventh Schedule in the Constitution of India namely, “intoxicating liquors”, or under Entry 19 of the List I of the Government of India Act, 1935 corresponding to the Entry 41 of the List I in the Seventh Schedule of the Constitution of India namely, “import and export of liquors across custom frontiers”, which is a subject-matter in the competence of the legislative powers of the Central government. It was argued that putting restrictions on the sale and purchase, usage and transportation of liquor would affect its trade. The Supreme Court while doing away with the arguments upheld the constitutional validity of the Act because the true essence of the Act fell under Entry 31 of List II, and not under Entry 19 of List I of the Government of India Act, 1935, even though the Act slightly trespassed upon the power of the legislation of the Federal Government (now Central Government).

The Apex Court also dealt with the American doctrine of original package which stated that importation should not get over as long as the goods are in their original package. However, the Court held that the doctrine is not applicable in India given the legislative framework established by the Government of India Act, 1935, and the Indian Constitution, which both clearly and precisely define the various subjects as mentioned in the Legislative Lists under the Seventh Schedule.

Overruling of the judgement of State of Bombay vs. FN Balsara

The judgement in the present case was overruled by the judgement laid down in Synthetics and Chemicals Limited and others v. State of Uttar Pradesh and Ors (1989) on the grounds of imposition of complete restriction upon the therapeutic remedies which involved the usage of alcohol. The Apex Court in this case stated that unless the trade of intoxicating articles is for human use, it cannot be considered as obnoxious. However, if taxes are levied upon the liquors that are fit for human consumption, it will be considered as valid.

While deciding the case, the court relied upon the reasoning laid down in the FN Balsara case. It stated that the State Legislature will be required to collect taxes on the possession of alcohol suitable for human use, since alcohol is classified as a luxury good. But, as mentioned by the Attorney General in his arguments, State Legislatures will not be able to impose taxes on alcohol that is unfit for human consumption because it is not a luxury. It was decided that Parliament would impose any alcohol taxes not already covered by another Entry in Lists I or II. 

Analysis of the case

In this case, the Bombay Prohibition Act, 1949 was challenged on the grounds that it prohibited the sale and keeping of liquor in the State and was also in question for incidentally encroaching upon the import and export of liquor through the custom frontiers which is considered to be a subject of the legislature in the competence of the Central Government. It was argued that such restrictions on the purchase, usage and consumption, possession and sale of liquor will affect its import and export.

The Apex Court while giving the verdict in this case upheld the Act as valid because the true nature and character of the Act fall under the competence of the legislature of the State and was not a subject matter under the Union List even though it incidentally trespasses upon the law-making powers of the Parliament.

Incidental Doctrines to the case

The present case is a significant example of how the Indian judicial system examined the scope of legislative competence and developed the doctrine of “pith and substance” and the doctrine of “severability or separability”. Let us discuss the doctrines in detail.

Doctrine of Pith and Substance

When any law is made as a subject of one entry in one list and touches upon another entry in another list, then the question may be raised about the competency of the Legislature to enact that law. In such a situation, the doctrine of pith and substance provides a solution.

What do you mean by the doctrine of pith and substance?

The doctrine of pith and substance is considered as a constitutional principle. The phrase “pith and substance” denotes the “true nature and character” of legislation. According to this doctrine, it is the duty of the court to see what is the “pith and substance” of the law which means that the court has to see the true nature and character of the law and the purpose to be achieved by that law. It is required to see the law in reality and in substance with respect to one matter and not on the other matter. Therefore, it can be said that the applicability of this doctrine is to have a check on the legislative competence of a given law and examine its “substance”. In Bank of New South Wales v. The Commonwealth (1948), the bench gave the following examples while explaining the doctrine of pith and substance:

Example 1: If the law is made with respect to Income Tax, anybody earning income will have to pay taxes according to that law and it cannot be said that it refers to a specific class of persons like doctors, CAs, or lawyers earning salaries etc. Even though the law may refer to them, it will apply to all whoever earns income.

Example 2: If there is a building which is being constructed for a school and the law is with respect to such building such as for instance, the Building Regulation Act. Though, it refers to the school, but will apply to all such buildings like hospitals, complexes etc.

Significant features of the doctrine of pith and substance

1. It was necessary to adopt this doctrine in order to verify the encroachment of one subject of law on the other.
2. In order to test the true nature and the character of a particular law, the adoption of this doctrine proved to be an important step in the history of the Indian Judiciary.
3. It became important to bring the application of this doctrine in the Indian judiciary to foresee if the State has the power to legislate upon any subject mentioned in List III (Concurrent List) of the Seventh Schedule under the Indian Constitution.

Indian Constitution and the doctrine of pith and substance

As adopted under the Government of India Act, 1935 as well as the present Constitution of India, this doctrine finds its place under the purview of Article 246 which talks about the subject matter of laws that are made by the State Legislatures and the Parliament along with the substantial interpretation of the Seventh Schedule. This doctrine has been a significant step in creating a balance amongst the competencies of different legislatures (Union and the State).

The following case laws are an example of how the Indian judiciary adopted this doctrine in an efficient manner in order to give a flexible approach to the otherwise stringent legislative framework.

The Supreme Court explained the application of the doctrine of pith and substance in Kartar Singh v. State of Punjab (1994) stating that the essence and the significance of the substance of legislation must be opined in such a situation when it is witnessed that the legislation on a particular subject in one list is touching upon the subject in another list of the Constitution.

Further, the Apex Court in the case of State of Rajasthan v. Vatan Medical and General Store (2001), held that whenever a situation arises where legislation is enforced upon a subject of State List, it must not be held invalid by the reason of another legislation touching upon the similar subjects in either of the other lists.

Even in the case, Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (1947), wherein the constitutionality of the Bengal Money Lenders Act, 1946 was challenged stating that the promissory notes were a subject of Union List and not State List, the Privy Council upheld the constitutionality of the said Act. It was held that the concerned Act in question was in pith and substance of the law with respect to the subject of “money lenders” and that it was a subject of the State List even if it overlaps with the subject of promissory notes which were mentioned as a subject of Union List. 

Doctrine of Severability

The “doctrine of severability” states that if a part of any law is inconsistent with the fundamental rights, then the rest of such law will remain valid if it is severable from the rest of the Act. It applies to both, pre-constitutional and post-constitutional laws. In case the violating part of the statute is not severable from the rest of the statute, then the whole statute will be declared as void. The basis of this doctrine lies in the concept of “to the extent of such inconsistency”.

This doctrine was applied by the Supreme Court in A.K. Gopalan v. State of Madras (1950), and the court observed that Section 14 of the Prevention of Detention Act, 1950 was violating Article 14 of the Constitution so it was declared void by the Supreme Court but the rest of the statute was separable and hence, operative.

In the landmark judgement of Kihoto Hollohan v. Zachillhu and Ors. (1992), para 7 of the Tenth Schedule which was inserted by the 52nd Constitutional Amendment in 1985 was declared unconstitutional by the Supreme Court because it had violated the provisions of Article 368(2) and encroached upon the basic structure of the “judicial review” in the Indian Constitution. However, the rest of the Schedule was held to be operative.

Now the question arises, how does this doctrine find its relevance in the case of State of Bombay v. F.N. Balsara? The Supreme Court has clearly stated that the Bombay Prohibition Act, 1949 was not unconstitutional and invalid as a whole, rather, few of its provisions which were invalid to the extent of Part III of the Constitution were separable from the rest of the statute and as a result of the application of this doctrine, eight Sections of the Bombay Prohibition Act, 1949 got deleted and severed from the rest of the statute which was held to be operative.

Conclusion

The present case is a perfect depiction of the application of the constitutional doctrine of “pith and substance” by the Supreme Court. This doctrine is applicable in such situations wherein the appropriateness of a statute in relation to a particular legislation or a statute is questioned with reference to the subject matters present in different legislative lists under the Seventh Schedule of the Indian Constitution. The reason behind this is that a law dealing with an entry into one legislative list within the authority of the legislature concerned can also coincide with the entry into another legislative list, which is not within the authority of that legislature. In such situations, what has to be observed is whether the pith and substance of the statute is the true essence of the legislation in question.

Though the rule applies to both, the Union and the State legislatures, and helps them to a similar extent. However, even though the Parliament is the principal legislature as the subject matters in the Union List of the Seventh Schedule of the Indian Constitution are comparatively more comprehensive, and its competence is more substantially and broadly described. The legislatures of the States benefit a lot because the general rule allows the State Legislature to incidentally encroach into wide-ranging subject-matters of the Union List. This enables the State Legislature to even frame the legislations on those subjects that may incidentally encroach upon the subject-matters of the Union Legislature. 

Frequently Asked Questions (FAQs)

What is a writ of mandamus?

The literal meaning of the writ of mandamus is “we command”. It is issued when a court commands a public authority or a lower court to perform its functions appropriately. It may be issued against any lower court, a public body, a company, a tribunal or even the government, however, it cannot be issued against a private individual. It can be issued to restrict a public body from implementing any unconstitutional law. This writ, also being known as “judicial remedy” seems both positive as well as negative.

What is meant by the doctrine of pith and substance?

According to this doctrine, it is the duty of the court to see what is the “pith and substance” of the law, which means that the court has to see the true nature and character of the law and the purpose to be achieved by that law.

How far the provisions of the Bombay Prohibition Act, 1949 were held valid in the present case?

Supreme Court held the Bombay Prohibition Act, 1949 to be valid as it was of the opinion that the Act was in the resonance of its pith and substance falling under List II of the Seventh Schedule, i.e., the State List even though the Act might have an impact on the import of liquor and such other substances.

Under which Article of the Constitution, the genesis of the doctrine of pith and substance can be found?

Genesis of the doctrine of pith and substance can be found underlying Article 246 which talks about the subject matter of laws that are made by the State Legislatures and the Parliament along with the substantial interpretation of the Seventh Schedule.

Under what circumstances, the Supreme Court can exercise its appellate jurisdiction?

As per Article 132 of the Indian Constitution, an appeal lies to the Supreme Court from any judgement, decree or order of a High Court if two conditions are satisfied:

• That the case involves a substantial question of law as to the interpretation of the Constitution; and
• That the High Court issues a certificate under Article 134A to that effect.

What is meant by the doctrine of severability?

According to the doctrine of severability, any specific provision which is against the constitutional framework or offends the constitutional limitation but is separable in nature from the rest of the statute, the court can declare that specific provision as void and not the statute as a whole. 

Which case overruled the verdict that was passed in this landmark judgement of the State of Bombay v. F.N. Balsara?

The judgement in the case of the State of Bombay v. F.N. Balsara was overruled by the judgement passed in the matter of Synthetics and Chemicals Limited and others v. State of Uttar Pradesh and Ors. (1989). In this case, the Apex court held that the State Legislature had no power to impose duty or tax on industrial alcohol, which is unfit for human consumption and that could only be levied by the Centre. The basis of this judgement was that there cannot be an imposition of full prohibition or restriction upon the therapeutic substances, including alcohol.

References

• https://blog.ipleaders.in/liquor-right-privacy-examining-limits-privacy-india/