Introduction
In the last post, we discussed the Doctrine of Colorable Legislation. We saw how Colorable
Legislation doctrine dealt with the issue of Legislative Competence. We also
understood that when anything is prohibited directly, it is also prohibited
indirectly. The legislature cannot seek to achieve a purpose on which it is
otherwise not competent to legislate on.
This post is
concerned with a doctrine of similar sorts called as ‘Doctrine of Pith and
Substance’. The basic purpose of this doctrine is to determine under which head
of power or field i.e. under which list (given in the Seventh Schedule) a
given piece of legislation falls.
Pith
means ‘true nature’ or ‘essence of something’ and Substance
means ‘the most important or essential part of something’.
Doctrine of
Pith and Substance says that where the question arises of determining whether a
particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter. Thus, if the
substance falls within Union List, then the incidental encroachment by the law
on the State List does not make it invalid[1].
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. 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 its pith 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 the State 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 the repugnant
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.”
[1] A
Background Paper on Concurrent Powers of Legislation under List III of the
Constitution by Shri P.M. Bakshi.
[2] [1880]
UKPC 22.
[3] Jijubhai
Nanbhai Kachar v. State of Gujarat, 1995 Supp. (1) SCC 596.
[4] (1947)
49 BOM.L.R. 568.
[5] Bharat
Hydro Power Corpn. Ltd. v. State of Assam, (2004) 2 SCC 553.
[6] Bondu
Ramaswamy & Ors v. Bangalore Development Authority & Others, SLP
(C) No. 4318 of 2006.
[7] AIR
1951 SC 318.
[8] AIR
1940 Allahabad 272.
[9] AIR
2010 SC 2633.
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