Present article is on the Doctrine of Pith and Substance, written by Vartika Srivastava.
India has followed the footsteps of Canada and therefore has two legislative bodies; they are the Central and the State legislatures. The two of them derive their power from Article 246 of The Constitution; which states “Subject matter of laws made by the parliament and by the legislature of the states respectively”. India has therefore three lists in the 7th schedule where various subject matters have been divided; which are to be dealt exclusively by the union, state or by both.
The union list consists of 97 subjects, the subjects which are mentioned in the union list are basically of national importance, some of them being; defence, foreign affairs, banking currency and coinage, union duties as well as taxes.
The State list consists of total 66 subjects, although some of the entries have been deleted by the constitutional amendments.(19, 20, 29, and 36) These issues are of local importance which maybe; public order, police, local government, public health sanitation, agriculture, fisheries, education, forests, and the state taxes as well as duties. The states hold an exclusive power to make laws on the subjects which are mentioned in this list.
The Concurrent list consists of a total of 47 subjects. However some new entries have been added by the recent constitutional amendments( 11-A, 17-A, 17-B, 20-A, 33-A). Both the centre as well as the states hold the power to make laws on the subjects which are mentioned in this list, but if a state of conflict arises between the centre and state government on the subjects which lie in the concurrent list then the law which is made by the central government would prevail.
The Concurrent list which has been added to the constitution is not found in any other federal constitutions, which makes it special. Legislatures added this list with a view to secure the uniformity in the major principles of law throughout the country. This list serves as a device which can control the excessive rigidity to the distribution of the two lists. Thus, this list is said to be the twilight zone; as both the union as well as the state legislatures are competent to legislate on certain matters without getting into any conflict.
Meaning of Doctrine of Pith and Substance
The phrase “pith and substance” means “true nature and character”. This doctrine relates to the violation of Constitutional delimitation of legislative powers in a Federal State. This doctrine was evolved by the Privy Council to ascertain the constitutionality of Canadian and Australian statutes regarding the violations of the rules of the distribution of powers. The doctrine was adopted by the Federal Court of India and also by the Privy Council in determining the constitutionality under the Government of India Act, 1935.
Pith refers to the true character or the true essence of something, whereas substance means an indispensable part of something. The object behind this doctrine was to get rid of the absolute encroachment of legislative powers; by scrutinising the substance of the enactment and then examining that under which list the particular subject matter falls within.
The doctrine is majorly used to determine the legislative competency with reference to a particular enactment; by observing the substance of that enactment. Now, if the substance of the enactment is within the subject matter; which has been delegated to the legislature then the enactment would be declared valid.
Hence the doctrine of pith and substance is essential because whenever there exists a conflict between the subject matters of various list then the doctrine provides a flexibility by accepting the ancillary or incidental encroachments to an extent along with determining the legislative authority’s required to deal with a particular subject matter which has been listed in the state union or the concurrent list.
Purpose and Determination factor
The doctrine of pith and substance states that the union and the state legislatures possess their respective fields which fall within their respective spheres; hence they are made supreme in their respective fields and should not encroach into the sphere which has been reserved for the other.
This doctrine has been adopted in ascertaining whether a particular impugned statute substantially encroaches upon the legislative power or is only an incidental encroachment not affecting materially the distribution of legislative powers between the Union and the States.
If the pith and substance of the law relates to the matter with the competence of the legislature concerned which enacted it then it should be held intra vires even though it might happen incidentally that it would trench on the matters which are not within the competence of such legislatures.
The process of examination which takes place to determine and to validate an enactment starts by the process of examining the pith and substance of the various subject matters which are to be dealt within the enactment in question. Then a comparison is done with the respective subject matter enumerated in the three lists which are present in the 7th schedule, then scrutinising whether the enactment is ultravires or intra virus in nature.
Now, there would be two probable outcomes of the examination – the first one is when the enactment happens to be intra vires in nature and the second one is when enactment happens to be ultra vires in nature.
If the enactment happens to be intra vires in nature then the enactment would be held valid whereas if the enactment happens to be ultra vires in nature then the enactment would be considered null and void.
Court find out the “true nature and character” or “pith and substance” of the legislation, which may be different from its consequential effects. If the pith and substance of legislation is covered by an Entry within the permitted jurisdiction of the Legislature, any incidental encroachment in the rival field is to be disregarded.
In short, this doctrine means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid, merely because it incidentally encroaches on matters assigned to another Legislature.
The most famous case with regard to this doctrine is the case of State of Bombay versus F.N.Balsara, the Bombay prohibition act which had prohibited the sale and possession of liquor in the state was challenged on the grounds that it incidentally encroached upon the export as well as the import of liquor across custom frontier which was regarded as a central subject.
It was held that the prohibition, purchase, use, possession as well as sale of liquor would gradually affect its import. Hence the court held the following act valid because the pith and substance of the act fell under the state list and not under the union list even though the act incidentally encroached upon the union powers of the legislation.
In another case of Prafulla Kumar Mukherjee v. Bank of Commerce, validity of the Bombay money lenders act was questioned with the main argument being that the promissory notes which formed a part of the central subject were not a part of the state subject.
However the Privy Council held that with reference to the doctrine of pith and substance the act is a law with respect to money lending as well as money lenders and clearly fell under a state list subject, it was further stated that the act was valid even if it encroached the subject of promissory note which was a central subject and thus upheld the principle of doctrine of pith and substance.
In the case of Ishwari Khetal Sugar Mills vs State of Uttar Pradesh, the Uttar Pradesh undertaking Act 1971 was challenged on the grounds that the state legislature possessed no competence to enact a law which has been imposed on the ground that it fell under the parliament legislative power. However it was held by the court that there was no conflict between the state act and the central act under the industries act 1951 and rejected these contentions.
In the case of Assn. of Natural Gas v UOI, Supreme Court, held that, when there is an irreconcilable conflict between the two legislations, the Central legislation will prevail. But, before declaring the State law as ultra vires, every attempt should be made to reconcile the conflict.
The doctrine of pith and substance is a legal doctrine which first emerged in the Canadian constitution; it literally means the true nature and the essence of any enactment. This doctrine is used to determine the competency of the legislature in order to enact laws as per the Article 246 of the constitution on the various subject matters which have been listed in the three lists of the 7th schedule which are responsible for the distinction between the power possessed by the central and state legislatures to legislate on certain subject matters.
This doctrine is used to resolve the issues which emerge out of repugnancy arising because of the inconsistency in the laws which have been made by the parliament and state legislature by Article 254; hence if there exists any conflict between the three lists then list l (union list) would always prevail above the other lists. It is also used in order to determine the validity of an enactment, the legislation would have said to be declared valid if the encroachment so caused is incidental or ancillary and if it turns to be a substantial one then the enactment would be rendered invalid.
What is meant by doctrine of pith and substance?
The phrase “pith and substance” means “true nature and character”. This doctrine relates to the violation of Constitutional delimitation of legislative powers in a Federal State.
What does pith and substance mean?
Pith and Substance is the first tool that courts use to determine which level of government has authority over a certain matter or issue. At its most basic, a pith and substance analysis asks what the essential character of a law is.
State of Bombay v. F.N Balsara,( AIR 1951 SC 318)
 Prafulla Kumar Mukherjee v. Bank of Commerce,( AIR 1947 PC 60)
 AIR 1980 SC 1955