This post has been created by Monesh Kumar, a third year law student from Guru Gobind Singh Indraprastha University, New Delhi.
“Example moves the world more than doctrine. – Henry Miller”
It is important to know the true nature of everything before judging it or accepting it. Pith means “true nature” or “essence” and substance means the essential nature that is cardinal in a situation. The rudimentary objective of this doctrine is to determine that, to which list (under the Seventh Schedule) a given morsel of legislation, statute, law, subject or enactment belongs.
Nature of the doctrine
The simple meaning of the doctrine is “true nature of law”. This doctrine comes into picture when there is a conflict between the different subjects in different lists. There is an interpretation of List 1 and List 2 of the Constitution of India. There can be a situation when a subject of one list touches the subject of another List. Hence, this doctrine is applied.
Article 246 states the Union, State and Concurrent lists, enumerated in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the major features of such a constitution is the distribution of power between the Union and the State governments and the same has been put forth in the Seventh Schedule which comprises of:
- Union List– Matters over which the Central Government has the power of making laws.
- State List– Matters over which the State Government shall have the power of making laws.
- Concurrent List– Matters over which both the Central and State Government have the power of making laws.
This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is regarding a subject that falls in the State list.
It is a “Canadian Doctrine” been established in the Indian Constitution. This doctrine found its origin in the case of Cushing v. Dupey. In this case the Privy Council established the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be given to its pith and substance.
Need of the doctrine
The doctrine has been applied in India also to provide a degree of flexibility in the rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it trespassed the powers, the powers of the legislature would eventually be restricted.
Jijubhai Nanbhai Kachar v. State of Gujarat, 1995 Supp. (1) SCC 596
“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favor of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude.”
Bondu Ramaswamy & Ors v. Bangalore Development Authority & Others, SLP (C) No. 4318 of 2006
The situation relating to Pith and Substance is different with respect to the Concurrent List. If a Law covered by an entry in the State List made by the State Legislature contains any provision which directly and substantially relates to a matter specified in the Concurrent List and is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List, then the repugnant provision in the State List may be void unless it can coexist and operate without repugnancy in accordance with the provisions of the existing law.
Elements of the doctrine
- When to adopt the doctrine– It is applied in the circumstances where subject matter of list seem to be conflicting with the subject matter of the other list.
- Why to adopting the doctrine– The powers of the legislature would be strictly limited if every law is declared invalid on the ground that it encroaches upon another law.
- Essence– The doctrine is to examine the true nature and character of the subject in order to ascertain as to in which list it really exists.
- Flexibility– It takes under consideration the fact as to whether the state has the power to make a law which involves a subject mentioned in the Union list of the constitution.
Doctrine of Ancillary or Incidental Encroachment (Critical Analysis)
The doctrine of Ancillary and Incidental encroachment is actually an addition to the doctrine of Pith and Substance. The theory and reason behind this doctrine is that it means that the power to legislate on a subject also includes the power to legislate on ancillary matters that are reasonably connected to that subject.
The State of Bombay And Another vs F.N. Balsara
This is the first important judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court gave out the judgment stating that the act was in its Pith and Substance and justifiably fell under the State list even though such an act was said to have a bearing on the import of liquor in the state.
The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of legislation for the purpose of determining the List under which it falls.
The doctrine of ‘pith and substance’ is an old doctrine used in the constitutional matters in India. The literal meaning of the doctrine is the true nature and essence of anything. What is worth noting here is that the subject matters given under the three lists are not to be construed as powers of the legislatures but merely entries on which they could legislate. The power of the legislature is given by Article 246 of the constitution of India. So, it can be concluded that the Doctrine has tried to reduce the gap when it comes to determining whether a particular law relates to a particular subject. The doctrine has further helped in maintaining the true basis of the powers being granted to the legislature.