Study Notes: Doctrine of Pith and Substance

By Mohd. Sahil Khan 17 Minutes Read

Introduction

The constitutional framework of India is essentially federal in nature (often referred to as quasi-federal). The harmonious co-existence of the Central Government and the State Government, each yielding distinctive legislative power, is the hallmark of such a federal system. The Constitution has meticulously carved out the legislative powers of the Central and the State Governments through Article 246 of the Constitution of India, read with the Seventh Schedule, thereby demarcating legislative territories for the Union and the States. With two legislative bodies in the realm, it is often the case of potential encroachment upon each other’s legislative territories. This is where the intricate doctrine of pith and substance emerges as a vital tool for judicial interpretation, ensuring a balanced and effective federal framework. The doctrine of pith and substance transcends dry, technical exercise. It represents a refined approach to legislative analysis. Moving beyond the surface-level label of law compels courts to delve into its very essence – its core purpose and the subject matter it indeed regulates. This meticulous segregation allows for an exhaustive analysis of the law’s true character and dominant objective.

This doctrine takes into account two aspects: firstly, the ‘pith of the law’, which is essentially the primary objective for the enactment of the law, whereas the ‘substance of the law’ deals with the nature of the law, as in the subject matter which the law regulates. By examining these intertwined aspects, the court gains a profound understanding of the law’s impact and its alignment with the legislative competence of the enacting government. The judicial interpretation plays a key role in determining the constitutionality of a law. If, by applying the doctrine of pith and substance, the law falls within the domain of the entrusted enacting legislative body, it is deemed constitutional, even if it has some incidental effects on a subject matter entrusted upon another form of government. The doctrine acts as a prevention from legislative overreach by one form of government over the other and if the court finds it to be trespassing upon the domain of another government, it shall render it to be unconstitutional by the doctrine of pith and substance.

Evolution of the doctrine

The doctrine of pith and substance serves as a cornerstone in a federal structure like India, ensuring a delicate balance between the Central and State legislative bodies. The origin of the doctrine can be traced back to the Canadian constituency, wherein this concept emerged. The Canadian Constitution Act (formerly known as the British North America Act, 1867), this enactment provided for the distribution of power, i.e., the concept of federalism. This Act distributed the legislative power between the Federal Parliament and the Provincial Legislature.

The court should focus on the pith and substance of the law rather than relying upon the technical classification of the legislative list.[1] With the successful application of this doctrine, it transcended beyond borders and has been adopted in various federal structures, including India. Indian courts have actively employed the doctrine to resolve disputes between the Central and State Governments, ensuring a balance of power.

Aim and objective of the doctrine

The application of the doctrine of pith and substance comes into question when the competence (authority) of the legislature regarding certain legislative enactments is challenged. Article 246 of the Indian Constitution grants the power to the Union Government and State Legislatures to make laws within their respective legislative territories. While Article 246 empowers the Parliament and State Legislatures, the Seventh Schedule provides the specific distribution of legislative power between the Union Government (Central Government) and the State Governments with respect to various subject matters.

The Seventh Schedule comprises three lists: List I deals with subjects on which the Union Government can legislate, List II deals with subject matters on which the State Governments can legislate, and List III (also known as the Concurrent List) enumerates the subjects on which both the Union Government and the State Governments can legislate.

The problem arises when either of the two law-making bodies encroach upon each other’s legislative territory. For instance, if only the Union Government is empowered to legislate upon matters of Defense, now, if the State Government legislates upon such subject matter, it is said to be overreaching its legislative capabilities. In such circumstances, it becomes important to ascertain the pith and substance of such a law that will enable the actual nature of the enactment. By applying this doctrine, if it is found that the matter in substance is within the competency of the legislative authority, even though it might be incidentally trespassing beyond its legislative territory, it should be held valid in its entirety. The rationale behind providing this leeway is that sometimes the subject matters are such that they are bound to overlap; consequently, in such a scenario, if the substance of the law is within the legislative competence, it shall be deemed valid.

One of the earliest cases in which the doctrine was adopted in India was the landmark case of F.N. Balsara v State of Bombay[2], stating that the State Legislature has not encroached upon the Central Government’s legislative authority. Furthermore; in the landmark case of Vijay Kumar Srivastava v. State of Karnataka[3], the apex court observed that the doctrine comes into play even when both the Union Government and the State Legislature legislate on the subject matter provided under the Concurrent list but the entries are different, the court has stated that the doctrine aids in determining whether the laws deal with the same subject in a list shared by both the Parliament and the State legislatures (concurrent list), or if they concern entirely different topics. When the core nature (pith and substance) of two laws is essentially the same, Article 254(1) becomes relevant. This article states that if a provision from a State Legislature clashes with a provision from Parliament that Parliament has the power to enact, or if it conflicts with a pre-existing law on a topic listed in the Concurrent List, then the law enacted by Parliament or the existing law takes precedence. In such cases, the conflicting provision of the state law becomes invalid, but only to the extent of the clash. However, as per Girnar Traders v. State of Maharashtra[4], if the State Legislature imbibes a few features of Union law prescribed under the Concurrent list, it will be deemed valid, provided that the State Legislature is in pith and substance of the State list.

Gwyer, C.J, explained the validity of the doctrine of pith and substance in Subrahmanyan Chettiar v. Muttuswami Goudan[5] that if a strictly literal interpretation is made without providing any scope for overlapping, it will result in various statutes and enactments being declared unconstitutional; therefore, applying this doctrine to ascertain the true nature or pith and substance of the law becomes crucial.

Prafulla Kumar Mukherjee v. The Bank of Commerce is a leading example of the interpretation of this doctrine. In this case, the validity of the Bengal Money Lenders Act, 1940, was challenged, which provided a ceiling to the interest rate and the amount that can be recovered by a lender on any loan. The basis for challenging the provision was that it is ultra vires in the Bengal Legislature. The Calcutta High Court declared the provision intra vires; the decision was subsequently appealed to the Federal Court, which determined that the Act was ultra vires. Ultimately, the decision was appealed to the Privy Council, wherein the appellant contended that the State Legislature has legislated on the subject matter provided under List II, Entry 27. In contrast, the respondent claimed that the State Legislature has made law on subject matter specified under List I, Entry 28, citing that the Federal Legislature has the exclusive authority to legislate on issues pertaining to ‘cheques,’ ‘promissory notes,’ ‘bills of exchanges’, etc. The court applied the doctrine of pith and substance and ruled that the Act was not void either entirely or in part as the State Legislature had exercised its power within its competency, and it did not overreach the legislative boundaries of the Federal Legislature; rather, it incidentally affected matters pertaining to Federal Legislature; which is allowed if the pith and substance of the law are with respect to matters enumerated in the State List.

From the above-mentioned case laws, the following can be inferred:

1. The clear-cut distinction of subject matters under which the legislative authorities can legislate cannot be demarcated due to the overlapping nature of such matters; they will incidentally trespass upon each other’s legislative boundaries.
2. It is necessary to ascertain the degree of invasion to identify the pith and substance of the law; if it is within reasonable limits, it won’t be deemed as legislative overreach.
3. If the Union list, State list, and Concurrent list are in conflict with each other, the Union list has been given precedence over the State and Concurrent list.[6]

Critical Analysis

How does the court determine pith and substance of law with regards to permissible incidental effects?

The court undergoes the following tests to determine pith and substance of the law

1. Core objective

The court analyses the core objective of an enactment to determine the legislative demarcation of the legislative bodies. The court undergoes a deep study and tries to find out the reason why the Central Government or the State Legislatures have enacted a particular law. If the legislation seeks to infringe upon the other body’s law-making power on that specific subject matter, such law would be deemed unconstitutional for failing the test of doctrine of pith and substance. The case of State of Rajasthan v. G. Chawla[7], is a perfect illustration of such interpretation, in this case, the State Legislature legislated to restrict the use of sound amplifiers, under the subject-matter ‘public health and sanitation’. The Central Government argued that they have legislated on the matter of ‘broadcasting and communication,’ over which the Central Government has exclusive authority. The Supreme Court ruled that the law was in pith and substance as per the State list; hence the law was deemed valid.

2. Subject matter analysis

The courts meticulously examine the subject matter the law regulates. This involves detailed analysis of the law’s provisions and their practical impact. They comprehend the law’s provisions, not just the title, to see what it truly regulates. Imagine peeling an onion – each layer reveals more about the law’s core purpose and its practical impact. This analysis ensures the law isn’t merely dipping its toes into another government’s territory. It’s about ensuring a law truly deals with the subject matter it claims to regulate. For instance, in F.N. Balsara v. State of Bombay, the court carefully examined whether the legislation falls under Entry 31, List II, pertaining to the manufacture and production of the liquors or within Entry 19, List I, dealing with the import and export of liquors across the borders. After analyzing the subject-matter provisions, the court ruled that the pith and substance of the law fall under the Entry 31, List II; even though banning of manufacture and production of liquor would transcend upon the import and export of liquor.

3. Dominant effect

Courts analyzes the law’s core purpose and the subject it regulates. Imagine three circles: Union List, State List, and Concurrent List. The law’s dominant effect determines which circle it falls into primarily. Minor overlaps with other circles (incidental effects) are allowed, but the law’s main objective must clearly reside within one government’s legislative domain. This distinction ensures federal balance and prevents one government from overstepping its boundaries.

Conclusion

The doctrine of pith and substance occupies a critical yet evolving space within India’s federal framework. As the social, economic, and technological landscape undergoes constant transformation, the Indian judiciary can be expected to refine its approach in determining the core objective (“pith”) and dominant effect (“substance”) of legislative enactments. This nuanced analysis will be crucial in navigating the interplay between the legislative powers of the Union and the States, particularly in the face of emerging social issues and technological advancements. Fostering a continuous dialogue between the judiciary, legislature, and legal academia will be instrumental in ensuring the doctrine’s continued effectiveness. Through such collaborative engagement, the doctrine can be adapted to the demands of the 21st century, thereby safeguarding a vibrant and well-balanced federal system in India.

[1] Cushing v. Dupuy, [1880] UKPC 22.

[2] F.N. Balsara v State of Bombay, 1951 SCC 860.

[3] Vijay Kumar Srivastava v State of Karnataka, (1990) 2 SCC 562.

[4] Girnar Traders v State of Maharashtra, (2011) 3 SCC 1.

[5] Subrahmanyan Chettiar v Muttuswami Goudan, AIR 1941 FC 47.

[6] V.N. Shukla, Constitution of India, (Fourteenth edition, EBC 2022).

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

Mohd. Sahil Khan