Introduction:

Within their respective spheres, Parliament and the State Legislature should keep within the field assigned to it and not encroach into sphere reserved to the other, and a law made by one which trespasses or encroaches upon the field assigned to the other, is not valid. But before the Legislature purporting to deal with a subject in one list and touching also on a subject in another list is declared to be bad, the courts apply what is known as, the doctrine of pith and substance. Pith and substance is a legal doctrine used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government.

Pith means „true nature‟ or „essence of something and

Substance means „the most important or essential part of something‟.

 Doctrine of Pith and Substance says that 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. This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence.

This doctrine found its place first in the case of

Cushing v. Dupey

 In this case the Privy Council evolved the doctrine, that for deciding whether an impugned legislation wasintra vires, regard must be have to its pith and substance.[1]

Need of Doctrine of Pith and Substance:

The doctrine has been applied in India also to provide a degree of flexibility in the other wise 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 encroaches power, the powers of the legislature would be severely limited. According to this doctrine, the legislation as a whole is examined to ascertain its “true nature and character” in order to determine in what list it falls. If according to its “true nature and character” the legislation substantially falls within the powers conferred on the legislature which has enacted it, then it is not deemed to be invalid “merely because it incidentally trenches or encroaches on matters which have been assigned to another legislature.

The doctrine of “pith and substance” postulates for its application, that the law in question is

substantially within legislative competence of the particular legislature which has made it butonly incidentally encroaches upon the legislative field of another legislature. The doctrinesaves the incidental encroachment, if only the law is in pith and substance within thelegislative field of the particular legislature which has made it.This doctrine is widely used when deciding whether a state is within its rights to create as tatute 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 about a subject that falls in the State list.

Land Mark Cases on Doctrine Of Pith and Substance:

1. In Union of India v. Shah Goverdhan L. Kabra Teachers’ College this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only in cases of conflict between the powers of two legislatures but also in any case where the question arises whether a legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount consideration is that the substance of the legislation should be examined to arrive at a correct analysis or in examining the validity of law, where two legislations are in conflict or alleged to be repugnant.[2]

2. 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 upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of a legislation for the purpose of determining the List under which it falls.

3. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.

 The court held that in order to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and character of the enactment i.e. its „pith and substance‟. The court further said that “it is the result of this investigation, not the form alone which the  statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized in its entirety”

4. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.

  Pith and Substance has been beautifully explained in this case:

“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.

5. Kartar Singh v.State of Punjab

 observed as under:

This 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 the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.”

Conclusion:

Entries in each of the lists must be given the most liberal and widest possible interpretation and no attempt should be made to narrow or whittle down the scope of the entries. The application of the doctrine of pith and substance really means that where legislation falls entirely within the scope of an entry and within the competence of the State Legislature then this doctrine will apply and the Act will not be struck down. The consideration of encroachment of one list in another and the extent thereof is also well-established. If then croachment is minimum and does not affect the dominant part of some other entry, which is not within the competence of the State Legislature, then the Act may be upheld constitutionally valid. Where ever the Central and the State legislation covers the same field, then the Central legislation would prevail.

[1] https://www.legalbites.in/doctrine-of-pith-and-substance-applicability/

[2] https://lexlife.in/2020/05/09/constitutional-law-doctrine-of-pith-and-substance/

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on Facebook, Twitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge