Doctrine of Pith and Substance: Applicability in the Indian Constitution

The Doctrine of Pith and Substance: The power granted to legislatures to formulate a statute under three lists of the seventh schedule in the Constitution of India is bound to overlap at certain points but this can't be used as a reason to make the whole statute null and void. Therefore, incidental effects or encroachments are permissible under Constitutional Law while determining the competence of particular legislatures to the extent of subject matters in the three lists is in question. This rule is known as the Doctrine of Pith and Substance.

In this article, Anamika Gandhi explains the doctrine through the lens of several case laws.

I. Meaning and Scope of the Doctrine

The Doctrine of Pith and Substance is one of the oldest theories used to resolve constitutional matters in India. Unfolding the literal meaning of the doctrine, the "pith" in it refers to the true nature or the essence of something and the "substance" in it means an essential part, thereby, the doctrine is termed as the "most significant part of something in which its true essence lies".

Basically, it emphasizes that the nature of law says that only the real and essential subject matter of a case has to be challenged and not its incidental or ancillary effects on something. In relation to the interpretation of a statute, the doctrine is used in a manner to find out the real essence of a statute for which it has been formulated by legislatures and not its incidental effects that may have occurred in its applicability.

The Doctrine of Pith and Substance relates to Article 246 that deals with the three lists enumerated in the Seventh Schedule of the Indian Constitution. [1] It is used when there is a question on the competence of the legislature on making a particular enactment under the three lists. The court for that matter must look into the substance of the enactment. If the court finds that the law formulated is very much within the substance of the matter assigned to the framers then the statute is deemed completely valid or as the case may be.

However, while deciding so, if the court finds out that there is an incidental effect of the application of the statute on another field that is beyond the competence of the legislature, then such findings must be discarded. The reason being, that it is possible that a particular statute may incidentally encroach upon a matter beyond the legislature's competence but such encroachment doesn't render the whole statute to be a nullity.

The salient features of the Doctrine of Pith and Substance are as given below:

1. It becomes applicable in circumstances when the subject matter of one list is in conflict with the subject matter of another list.
2. The reason behind its adoption is to avoid any limitation on the powers of legislatures by declaring every other enactment invalid basis that it encroaches upon another law.
3. It is meant to determine the true nature and character of the subject and decide under which head of the list it falls.
4. The Doctrine provides a degree of flexibility on the powers of the state to make a law that involves the subject of Union List.

II. Historical Background and Genesis of the Doctrine

The genesis and evolution of the Doctrine of Pith and Substance can be traced back to Canada. The legal doctrine was used in Canada for constitutional interpretation in order to ascertain under which head of power particular legislation falls.

The first case that marked the inception of this doctrine was Cushing v Dupuy [2] in which the court laid down the foundation for the Doctrine of Ancillary or Incidental encroachment. It is to note that both Canada and India have a common constitutional arrangement. Subsequently, when the doctrine made its way to India, several landmark constitutional judgments were given applying the rule of this doctrine.

Article 246 in the Indian Constitution is the primary article that plays a huge role in upholding the concept of this doctrine and decides matters accordingly. As Lord Porter said in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.:

"What is pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found." [3]

Since then the doctrine has been used in India over and again. The first Supreme Court judgment to apply and uphold this doctrine was the F.N Balsara case. The Supreme Court in the case held that even though the Bombay Prohibition act has incidentally encroached upon the central power of legislation, it is still valid because the "pith" and "substance" of the act fell under List II and not under List I. [4]

Therefore, though the doctrine has emerged in Canada but is still made applicable in India because of the similar federal structure of both the countries.

III. Current Scenario of the Doctrine in the Indian Constitution with Landmark Case Laws

Article 246 of the Indian Constitution has clearly demarcated subjects falling in the three lists under the seventh schedule in a rigid manner. The power given to the Union and state lists were neatly arranged so that there was no room left for any of the legislatures to encroach upon the powers of another.

However, in certain circumstances, the incidental encroachment is bound to happen and so the court uses the Doctrine of Pith and Substance to ascertain whether the given piece of legislation is intra vires or ultra vires in nature. If the legislation is found to be intra vires then it is valid and if ultra vires then it is invalid.

The degree of encroachment is not taken into account to decide the validity of the legislation. As long as the substance of the legislation is legitimate and valid as per the rule of this legal doctrine, the legislation is deemed valid even if it has ancillary effects on the subject matter of other legislature. [5]

Regarding the application of the doctrine, there were varied opinions given by the courts in various judgments. For instance, in the case of State of Bombay v. R.M.D Chamarbaugwala, the court opined that the doctrine can be of help in assessing the interference of enactment in relation to trade and commerce. [6]

While in the case of Atiabri Tea Co. Ltd. v. State of Assam, the court said that the doctrine is useful only to decide cases which require determination of whether there is an encroachment in the powers to make laws on the subjects given under three lists. [7]

This was about cases related to the Union and State List. But whether the doctrine is applicable to matters concerning the Concurrent List? Yes, it is.

The above was clarified by the Apex Court through the Vijay Kumar Sharma vs. State of Karnataka case[8]. The court was of the view that the Doctrine of Pith and Substance is applicable even on the matters of the Concurrent List in which both the Central and State legislature have the power to legislate.

However, the power given to both the legislatures will be in respect to different entries. The court further held that in circumstances of the substance of laws made by both the Parliament and State legislature is same, then Art 254(1) will apply that and the law made by Parliament will prevail. [9]

IV. Landmark Judgments

To have a detailed and fair understanding of the doctrine, let us refer to some of the landmark case laws:

• State of Rajasthan v. G Chawla [10]

In this case, the matter was of public interest in violation of existing law by using sound amplifiers in the state. The issue to decide before the court was that which legislature has the right to legislate on matters concerning public health and interest.

State Government's Contention: Entry 6 of the List II grants power to the state government regarding regulation on the use of amplifiers to prevent loud noises.

Union Government' Contention: Entry 31 of List I that deals with various means of communications such as telephones, wireless broadcasting, telegraphs, etc., gives the power to Union Government to make laws regarding the use of amplifiers.

Held: The court held that the use of amplifier doesn't come under Entry 31 of List I. It was stated that: though an amplifier is one of the apparatus of communication and broadcasting, the legislation in its "pith" and "substance" rests with the state government to legislate and not the Union Government.

• Gujarat University v. Krishna Ranganath Madholkar [11]

The facts of the case state that the Union List covers the subject matter of medium of instruction at the university level, however, there was no provision yet provided by the centre for the particular medium. Gujarat University (Petitioner) then enforced a scheme and decided "English" as a medium of instruction. But the issue arises as to whether the Petitioner was empowered to decide the medium of instruction at all? The matter reached before the Supreme Court.

By the majority opinion given in the case, it was held that neither by the original legislation nor by any subsequent amendment, the Petitioner is empowered to prescribe the language of instruction. To this, the dissenting opinion was given by Jus. Subba Rao. He said that there can be no education without the medium of transfer of knowledge and the State government has the power to legislate on matters concerning education.

Subsequently, if we apply the Doctrine of Pith and Substance in the said enactment, then it clearly falls under the power of the State Government.

V. Conclusion

From the aforesaid discussion, it is clear that the Doctrine of Pith and Substance has now become indefinitely well-established in the Indian constitutional jurisprudence. It is a paramount legal doctrine that aids the judiciary to decide upon the validity and legitimacy of an enactment. Without its applicability, the powers of the legislature were bound to become drastically circumscribed but the degree of flexibility it provides to take a balanced approach is certainly commendable.

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References

[1] Indian Constution. Art. 246.

[2] [1880] UKPC 22.

[3] AIR 1947 PC 60.

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

[5] State of Bombay v. Narottamdas Jethabhai, AIR 1951 SC 61.

[6] AIR 1957 SC 699.

[7] AIR 1961 SC 232.

[8] (1990) 2 SC 562.

[9] INDIAN CONST. art. 254(1).

[10] AIR 1959 SC 544.

[11] AIR 1963 SC 703.

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