Doctrine of Pith and Substance

Submitted to:
Mr. Bharat Kumar
Assistant Professor
Faculty of Law

Submitted by:
Permanika Chuckal
VIIth Semester
201275

Damodaram Sanjivayya National Law University

ACKNOWLEDGMENT

I would like to express my special appreciation and thanks to my advisor Mr.Bharat Kumar , who
have been a tremendous mentor for me. I would like to thank you for encouraging my research,
advice for the research has been priceless.
I would extend my thanks to the University Authorities, for providing me with is opportunity to
submit my project. I am indebted to all those who have helped me in developing this project for
their suggestion and guidance.

Permanika Chuckal
201275

Table of Contents

Research Methodology

List of Cases

Chapter I: Introduction

Chapter II: Origin

Chapter III: Scope

Chapter IV: Provisions in Indian Constitution

Chapter V: Judicial interpretation through various cases

12

Conclusion

21

Bibliography

22

Research Methodology
Objectives of study: The aim of this project is to perform a comprehensive study and analysis of
the doctrine of Pith and Substance. The aim of this project is to study the doctrine its origin and

scope in detail along with relevant provisions of the Indian Constitution and also substantiate
with relevant case laws.
Significance & Benefit of Study: The significance and benefit of study of this research paper is
to sense the idea of how interpretation of the Doctrine is being done and its applicability in
various cases.
Scope of Study: The scope of this research paper extends to the ambit of studying of the concept
of interpretation of statutes, laws, and Doctrine of Pith and Substance through the help of various
cases.
Research Methodology: The researcher while doing the research has followed the doctrinal
research methodology and uniform of citation has been adopted.
Hypothesis: The researcher is trying to find as to how rules of interpretation can be used under
different perspective of cases.

List of cases:
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
Subramaniam Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47.

State of Bombay v. Vatan Medical and General Store, AIR 1951 SC 69.

State of Bombay v. F.N.Balsara, AIR 1951 SC 318.

State of Rajasthan v. G.Chawla, AIR 1959 SC 544.

Krishna v. State of Madras, AIR 1957 SC 297.

Ukha Kolhe v. State of Maharastra, AIR 1963 SC 1531.
Ishwari Khetan sugar Mills (P) Ltd, v. State of UP, AIR1980 SC 1955.
D.C. & G.M.Co. Ltd v. Union of India, AIR 1983 SC 937.
State of West Bengal v. Kesoram Industries Ltd, AIR 2005 SC 1646.
M/S. Hoechst Pharmaceuticals Ltd. and Others v. State of Bihar and Other, AIR
1983 SC 1019.
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others,
(2010) 5 SCC 246.
Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186.
Hodge v. The Queen (1883), 9 A.C. 117(P.C.).

Chapter I: 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 Legislature. 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 forbidden2. 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
invalid3. To determine the pith and substance, two aspects of the law must be examined: the
1 Saumya Misra, The Doctrine of pith and substance preserves and protects Constitutional properties of
Parliament and Legislatures AIR 2009 Journal 17.

2 D.D.Basu, Comparative Constitution 623(Wadhwa and Company, Nagpur, 2007).

3 P.M.Bakshi, A Background Paper on Concurrent Powers of Legislation under List III of the Constitution,
available at: http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.htm.

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
purpose4. 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
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
matter6 and the pith and substance is to be determined with reference to the provisions of the
statute itself7.
Chapter II: 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 subjects which in one
aspect and for one purpose falls within s.92, may in another aspect and for another purpose fall
4 Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.).
5 D.D.Basu, Shorter Constitution of India 1737 (Wadhwa and Company, Nagpur,13th edn., 2004).
6 Chaturbhai M.Patel v. Union of India, AIR 1960 SC 424.
7 Amar singh v. State of Rajasthan, AIR 1955 SC 504.
7

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 decision
in Prafulla Kumar Mukherjee v. Bank of Commerce 9, holding that a State law, dealing with
money lending ( a State subject), is not invalid, merely because it incidentally affects promissory
notes (now Union List, entry 46). The doctrine is sometimes expressed in terms of ascertaining
the 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 substance
doctrine, regard is to be had
(i)
(ii)
(iii)

to the enactment as a whole,

to its main objects, &
the scope and effects of its provisions10.

Chapter III: Scope

The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of the
Privy Council, effectively the British Imperial Court of Appeal, has been carried to other
commonwealth federations. The doctrine is widely accepted today. Though it originated from
Canadian laws, gradually it has been included in many other Constitutional systems. Especially
the sates having Federal character found it essential to apply doctrine in working as the doctrine
provides remedy for disputes arising between Union and State. Therefore other than Canada- it is
used in India under the present Constitution. In Australian High Court applied this doctrine in

8 Hodge v. The Queen (1883), 9 A.C. 117(P.C.).

9 Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
10 supra note 3.
8

King v. Berger11, where Federal Excise Tariff Act, 1906 had imposed an excise duty on
manufacture of agricultural implements and invalidated the law. It was also used in Northern
Ireland, Scotland and some other countries.

Chapter IV: Provisions in Indian Constitution:

India as a Federal State like America, Australia and Canada the legislative powers of the Central
federation and the State Provinces were given in three Lists, firstly under the Government of
India Act, 1935 and then under the 1950 Constitution, where Canada had two Lists and America
and Australia had only one List12. Though the States did not join the federation, 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 and the State Provinces
in the Government of India Act, 1935 and the division made in the Constitution between the
Union and the State proceeds largely on the same lines 13. A threefold division was made in the
Act of 1935:
(i)
(ii)
(iii)

Federal List for Federal Legislature,

Provincial List for Provincial Legislature and
Concurrent List for both Federal and Provincial Legislature.

Federal Legislature had however, the power to legislate with respect to matters enumerated in the
Provincial List if proclamation of emergency was made by the Governor General 14. The Federal

11 King v. Berger, (1908) 6 CLR 41.

12 Tony Black shield Working the metaphor: The contrasting use of Pith and Substance in Indian and Australian
law 50 JILI 518(2008).

13 D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8th
edn., 2007).
14 s.102, Government of India Act,1935
9

Legislature could also legislate with respect to a Provincial subject if the Legislature of two or
more Provinces desired this in their common interest15.
In case of repugnancy in the Concurrent field, a Federal law prevailed over Provincial law 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 repugnancy16. 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 Lists17.
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 clearly within Provincial
power.
The provisions under the Constitution of India, 1950 related to the doctrine are: Scheme of
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
15 Id s.103.
16 Ibid s.107.
17 Id s.104.
18 supra note 12.
10

most important 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 the
State from the geographical angle from the point of view subject matter of Legislation; it is
article 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)
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make
law for such State or any part thereof with respect to any of the matters enumerated in List
II in the Seventh Schedule (State List).
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in State, notwithstanding that such matters is a matter
enumerated in the State List.
By this article 246 the Constitution authorizes the Parliament and the State Legislatures to
legislate Concurrently with respect to the subjects enumerated in the Concurrent List. According
to the joint Parliamentary committee report, there is a justification for the insertion of Concurrent
List which in not present in any of the Federal Constitution. Both in India and elsewhere, though
there are certain matters which cannot be allocated exclusively either to the Central or to the
State Legislature, and for which, though it is often desirable that the State Legislature should
make provisions, it is equally necessary that the Central Legislature should also have legislative
jurisdiction, to enable it in some cases to secure uniformity in the main principles of law

11

throughout the country19. Article 246(2) gives power to two Legislatures, conflict can arise
between laws passes on the same subject by the two Legislatures.
Article 254 of the Constitution mainly deals in solving repugnancy between State and Union
Concurrent List.
Article 254(1) If any provision of law made by the Legislature of a State is repugnant to
any provision of law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause(2), the law made by Parliament,
whether passed before or after the law made by the Legislature of such State, or as the
case may be, the existing law, shall prevail and the law made by the Legislature of State
shall, to the extent of repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters
enumerated in the Concurrent List contains any provisions in repugnant to the provisions
of an earlier law made by the Parliament or an existing law with respect to that matter,
then, the law so made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his/her assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time
any law with respect to the same matter, including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.
The various entries in the three Lists are not powers of Legislation but the fields of
Legislation20. 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
19 supra note 1.
20 Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow 4th edn., 2003).
12

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
List21.
Chapter V: 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 entirety22.
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
21 V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th edn.,
2008).
22 supra note 5.
23 supra note 9.
13

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 ultra vires 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 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 came within
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 III has
priority over List II.
Subramaniam Chettiyar v. Muthuswami Goundan24 was cited with approval by the Privy
Council 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
24 Subramaniam Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47.
14

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 Store25, 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.
In State of Bombay v. F.N.Balsara26,
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:
25 State of Bombay v. Vatan Medical and General Store, AIR 1951 SC 69.
26 State of Bombay v. F.N.Balsara, AIR 1951 SC 318.
15

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 entry
31 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. Commonwealth28:
The power to make laws with respect to a subject-matter is power to make laws which
in reality and substance are laws upon the subject-matter. It is not enough that a law should refer
to the subject-matter or apply to the subject-matter: for example, income tax laws apply to
clergymen and hotel-keepers as members of the public; but no one would describe an income tax
law as being, for that reason, a law with respect to clergymen or hotel-keepers, Building
regulations apply to building erected for or by banks; but such regulations could not properly be
described as laws with respect to banks or banking.
In Krishna v. State of Madras29, applying the rule of pith and substance, the Supreme
Court 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 the
27 State of Rajasthan v. G.Chawla, AIR 1959 SC 544.
28 Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186.
29 Krishna v. State of Madras, AIR 1957 SC 297.
16

Criminal 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 Maharastra30, 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 on
matters relating to Criminal procedure and Evidence falls within the Third List of the Seventh
Schedule to the Union Parliament and the State Legislature have Concurrent authority in respect
of these matters. The expression criminal procedures in the legislative entry includes
investigation 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 in
force 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 III
repugnant to an earlier law made by Parliament or an existing law with respect to that matter if it
has been reserved for the consideration of President and has received his/her assent, prevails in
the State.
The only difference in the situations in the two cases appears to be that, while in Ukha the
State law had received the President assent, the law involved in Krishna had not been so
reserved, and this perhaps explains the dichotomy in the judicial attitudes, for to take the same
view in Krishna, as was done in Ukha, would have been to hold the law bad on the ground of
repugnancy with the Central law31.
In Ishwari Kehtan Sugar Mills case32, 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
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.
17

incidental trenching.
In D.C. & G.M. Co. Ltd. v. Union of India 33, it has been held: "When a law is impugned
on the ground that it is ultra vires the powers of the Legislature which enacted it, what has to be
ascertained is the true character of the Legislation. To do that one must have regard to the
enactment 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 Legislation
is 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 subjectmatter 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 West Bengal v.
Kesoram Industries Ltd34, 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
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.
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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
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 a
liberal 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 possible
interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the
Lists is not by way of scientific or logical definition but by way of a mere simplex enumeration
of broad categories. A power to legislate as to the principal matter specifically mentioned in the
entry shall also include within its expanse the Legislations touching incidental and ancillary
matters.
(5) Where the legislative competence of a Legislature of any State is questioned on the
ground that it encroaches upon the legislative competence of Parliament to enact a law, the
question 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

35 M/S. Hoechst Pharmaceuticals Ltd. and Others v. State of Bihar and Other, AIR 1983 SC 1019.
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be upheld. Where there are three Lists containing a large number of entries, there is bound to be
some overlapping among them. In such a situation the doctrine of pith and substance has to be
applied to determine as to which entry does a given piece of Legislation relates. Once it is so
determined, any incidental trenching on the field reserved to the other Legislature is of no
consequence. The Court has to look at the substance of the matter. The doctrine of pith and
substance is sometimes expressed in terms of ascertaining the true character of Legislation. The
name given by the Legislature to the Legislation is immaterial. Regard must be had to the
enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental
and superficial encroachments are to be disregarded.
(6) The doctrine of occupied field applies only when there is a clash between the Union
and 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 expressly
conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned
to 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 the Union
List would not prevent the State Legislature from dealing with any matter with in List II though
it may incidentally affect any item in List I.
In a recent civil appeal36 decided by the Supreme Court, it was held One of the proven
methods 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 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
36 Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, (2010) 5 SCC 246.
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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.
And it is clear that anything that affects public peace or tranquility within the State or the
Province would also affect public order and the State Legislature is empowered to enact laws
aimed at containing or preventing Acts which tend to or actually affect public order. Even if the
said 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 in
essence the said part relates to maintenance of Public Order which is essentially a State subject
and 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 it
saved incidental encroachment of two pieces of Legislature on each other. Therefore we can infer
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; the enactment 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 the legislative
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 scheme of
distribution of powers. It gives an additional dimension to the powers of Centre as well as the
States. 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 each

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Legislature 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 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. The doctrine gives quite a good
deal of maneuverability to the courts. It furnishes them tool to uphold Legislation, 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 the Legislation in question use
their power to support the same.

Bibliography
List of Books referred :

o V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company,

Lucknow, 11th edn., 2008).
o Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow
4th edn., 2003).

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o D.D.Basu, Comparative Constitutional law 623(Wadhwa and Company, Nagpur,

2nd edn., 2008).
o M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa,
Nagpur,vol-1, 6th edn., 2010).
List of Articles:
Tony Black shield Working the metaphor: The contrasting use of Pith and
Substance in Indian and Australia law 50 JILI 518(2008).
Saumya Misra, The Doctrine of pith and substance preserves and protects
Constitutional properties of Parliament and Legislatures AIR 2009 Journal 17.

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