CIA III:

Constitutional Law II

Principles of Interpretation relating to the powers of the

Union Legislature over State subjects: Doctrine of Pith and
Substance

Submitted to: Submitted by:

Saurav Mandal Sanjana S Rao

Associate Professor 6 BA LLB C

School of law, Christ University 1316247

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 Legislature . 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 forbidden. 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 invalid. To determine
the pith and substance, two aspects of the law must be examined: the 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 purpose. Equally the courts may take into account the effects of the Legislation.

BACKGROUND OF PRINCIPLE

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 Legislature.1 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 forbidden.2
.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
invalid.3
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

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.
Canada; many important cases by passes 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 Queen4 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 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

RELATED 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 List. 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. A threefold division was made in the Act of 1935:
(i)Federal List for Federal Legislature,
(ii) Provincial List for Provincial Legislature and
(iii) 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. The Federal Legislature could also legislate with respect to a Provincial subject if
the Legislature of two or more Provinces desired this in their common interest.
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 repugnancy. 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 Lists.

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

 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 . 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
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 throughout the country .
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 Legislation. 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 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 List.

JUDICIAL INTERPRETATION

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 entirety5.

The application of the doctrine is well illustrated in Prafulla kumar v. Bank of Commerce 6,
(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 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.

5 supra note 5.

6 supra note 9.
 In a recent civil appeal7 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 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

7 Zameer Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, (2010) 5 SCC 246.
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 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 manoeuvrability 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.