Doctrine of pith and substance
Auhtor: Poulomi Sen, RGSOIPL, IIT Kharagpur
The doctrine of Pith and substance is an age-old legal doctrine firmly ingrained in the jurisprudence of the Indian constitution. The concept was first acknowledged in the Canadian Constitution and it has been subsequently borrowed by the framers of the Indian Constitution. First and foremost, beginning with the literal meaning of the terms “Pith” and “Substance”:
- Pith: “True character” or “essence of something”.
- Substance: “sine qua non elements of something” or “indispensable part of something”.
Therefore, the doctrine, in toto, can be considered as sine qua non part of something in which its genuine essence lies.
The rationale behind the coining of this doctrine was to eliminate absolute encroachment of legislative powers by scrutinizing the “substance” of enactment and subsequently examining under which list the particular subject matters falls in. This doctrine is, therefore, used to determine the legislative competency with regard to a particular enactment by looking into the “substance” of that enactment. Two possible outcomes of scrutinizing the “substance” of an enactment may be:
- The substance of the enactment is in tandem with the subject matter delegated to the legislature to enact laws: This will render the enactment completely valid.
- Enactment incorporates subject matter which is beyond the competence of union or state legislature: This may result in the partial or incidental encroachment of legislative powers which is considered to an extent and hence, may not render the entire enactment null and void. Incidental encroachments, to an extent, are permissible while determining legislative competency as certain subject matters enlisted in the three lists mentioned in Seventh Schedule are ought to overlap at times.
Concluding the introductory part, the doctrine of pith and substances comes into play whenever there is a conflict between various subject matters of various lists. It is very obvious that certain subject matter enlisted in one of the three lists tend to converge with the subject matters enlisted in other lists. The application of doctrine provides a degree of flexibility by accepting ancillary or incidental encroachments to an extent while determining legislative authority to deal with a particular subject matter enlisted in the State, union and Concurrent lists.
Historical Backdrop of the doctrine:Evolutionary Progress
As mentioned above, the doctrine of Pith and substance is borrowed from the Canadian Constitution. Canada is segregated into two parts: Dominion and the Provinces. The makers of the Canadian Constitution thereby added two different lists in the constitution, in order to bifurcate the powers of the dominions and the provinces. Section 69 of the Canadian Constitution, initially enacted as the British North America Act, 1857, segregated the powers designated to dominion and the provinces. Further, Section 91 and 92 of the Constitution Act, 1867 specifies the exclusive powers entrusted with the dominions and the provinces.
- Section 91: Describes a detailed account of powers exclusively given to the Dominion
- Section 92: Elucidates on powers exclusively given to the Provinces
Utmost prominence was given to the fact that neither dominion nor the province could encroach upon each other’s authority to formulate and enact laws. This implies that the dominion has no authority to interfere with the subject matters on which only the Provinces have the competence to make laws and vice versa.
Despite the clear segregation of powers between the dominion and the provinces, descriptions of the legislative fields and matters mentioned in both the sections tend to converge and overlap with each other. This embarked on the validity of enactment to be decided on the basis of the extent of encroachment done by one on the powers of another.
A vital question aroused during the process of scrutinizing the extent of encroachment, regarding the basis on which legislative competence should be validated. The Privy Council came to the rescue in 1880 in the case of Cushing v. Dupey. The doctrine of Pith and Substance was evolved in this case and the Privy Council held that emphasis must be laid on the “Pith and Substance” of enactment to decide if it is within or beyond the ambit of legislative powers assigned to either dominion or the province.
Subsequently, in 1889, in the case of Union Colliery company of British Columbia v. Bryden, Lord Watson, speaking for the Privy Council, captured the concept of “true nature and character” of legislation and addressed it as a metaphor “whole pith and substance” of an enactment.
Doctrine of Pith and Substance in Indian Context
Like Canada, India also has two legislative bodies i.e. the Centre and the state legislature which derives its power mainly from Article 246 of the constitution. India has three lists enumerated in Seventh Schedule accommodating various subject matters with a vivid demarcation of matters which can be dealt with exclusively by the union or by the state. Unlike the Canadian Constitution, there are certain subject matters enlisted in List 3 i.e. the Concurrent List in the Seventh Schedule on which both the Centre and State can legislate and exercise their powers. In Indian constitution the residual powers vest with the Centre.
Priority of Lists in Seventh Schedule
In situations, where there is a conflict between the three lists, the priority of lists has to be taken into account.
- List I- Union List is always given the utmost preference.
- List III- Concurrent List has a priority over List II i.e. State List.
Therefore, in case of repugnancy, legislations of the Parliament will prevail over the enactments of the state legislature.
Provisions dealing with subject matters of laws made by Parliament and by the Legislatures of States:
Despite the vivid segregation of powers among the Centre and the states, it is quite inevitable that ancillary encroachments are bound to take place during enactment of laws. The powers demarcated as per Section 100 of Government of India Act, 1935 was so rigid and stringent that it gave no scope to the application of the doctrine of pith and substance. Subsequent to the framing of the Indian Constitution in 1949, when such incidental encroachment of legislative powers take place, courts with the aid of the doctrine of pith and substances decides the validity and legitimacy of an enactment.
Steps followed by Indian Courts to validate an enactment
Significant Judgements on the Doctrine of Pith and Substance
- The most ancient case regarding the doctrine of pith and substance is the case of Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.in which the court held that in order to find out that the subject matter dealt with in an enactment falls under which entry, one has to fathom out the true nature and character of the enactment by applying the doctrine of ‘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 11 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”.
- One of the most historic cases on the doctrine of pith and substance is the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. Where Lord Porter concluded that “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.”
- In the case of State of Bombay And Another vs F.N. Balsara , the honorable Supreme court observed that the Doctrine of Pith and Substance has to be applied for the purpose of determining the List under which it falls by ascertaining the true essence of the subject of an enactment.
- In the case of Atiabari tea co. ltd. v. State of Assam, the court opined that in cases where there is the encroachment of powers to legislate, the doctrine can be applied, else the doctrine is of no use.
Ancillary or Incidental Encroachment: Midway between the two probable Outcomes
The doctrine of pith and substance is employed in situations where there is an encroachment on the legislative powers due to the unauthorized exercise of power beyond the scope of the subject matters enumerated in the three lists. There is no need to apply this doctrine when it is evident that the said legislature does not possess the authority to enact laws on a particular subject, as it would be straightaway invalid. In situations where the said legislature has the competency to enact such laws but in the process of such enactments it encroaches “incidentally” upon the powers of other legislative units, then the enactment would not be depicted as invalid. This is known as the doctrine of ancillary or incidental encroachment.
- Doctrine of Pith and Substance with respect to the State List: In cases where State Legislature dealing with any matter “incidentally” involves any content of the Union List, the State legislature will still have the authority and the competency to enact such laws. Hence such enactment cannot be invalidated.
- Doctrine of Pith and Substance with respect to the Concurrent List:
There can be situations where an enactment made by the state legislature incorporates a provision covered by an entry in State List and has a “direct and substantial” correlation to a matter enlisted in the Concurrent List. In such cases, if there is a pre-existing law with respect to that matter in the concurrent list then it may affect the validity of the latter enactment in the following manner:
- If the new enactment is repugnant to the provisions of any existing law and both the laws cannot co-exist, then the repugnant provision in the State List may be declared as void.
- If the enactment made by the state legislature is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List and can co-exist, then the repugnant provision in the State List will be valid.
- If there is no repugnancy between the new enactment and the pre-existing enactment, the new enactment will be valid.
Significant Judgements on the Doctrine ancillary or incidental encroachment
- One of the most ancient cases regarding the Rule of ancillary or incident encroachment is the case of Subramanyam Chettiar v Muttuswami Goudan where one of the provisions of the Debt Relief Act, 1938, enacted by the State of Madras was found to be repugnant with Negotiable Instruments Act, 1881, one of the central legislations. In this case the court opined that though the latter enactment was inconsistent with the central legislation, it cannot be rendered invalid as the field of legislation was closely interweaved and hence, the enactment was intra vires in nature.
- The case of Prafulla Kumar Mukherjee v. Bank of Commerce is also one of the most historic cases regarding incidental encroachment. In this case, Bengal Money Lenders Act,1940, was challenged on the ground of being ultra vires the Bengal legislature. The High Court of Calcutta came up with the verdict that the enactment was ultra vires in nature. The judgement was challenged and was referred to the Privy Council where the “Doctrine of pith and substance” was applied and it was concluded that the “substance” of the enactment was “moneylending” which is covered by Entry 27 of List II of Government of India Act,1935. Hence, the subject matter can be very well dealt by the state legislature to enact a law.
- The next is the case of State of Bombay v. F.N Balsara. In this case, the major issue was regarding the validity of the Bombay Prohibition Act, 1949. The court while applying the doctrine of ‘pith and substance’ and employing the rule of “ancillary encroachment” held the enactment to be valid as it was covered under the State list and even though it resulted into encroachment upon the Union List, such encroachment was only incidental. As a result, it was not sufficient to declare the whole act void.
Apart from its applicability in cases related to the competency of the legislature as mentioned in Article 246, the doctrine of Pith and Substance is also applied in cases related to Article 254, which deals with the repugnancy in-laws made by Parliament and laws made by the Legislatures of States. The doctrine is employed in such cases to resolve the inconsistency between laws made by the Centre and State legislature. First and foremost, the extent of encroachment or inconsistency has to be examined. Depending on the extent of encroachment the validity of an enactment can be decided.
- Enactment will be valid if the encroachment is ancillary or incidental.
- Enactment will be rendered invalid if encroachment turns out to be substantial.
The doctrine of ‘pith and substance’ is a historic legal doctrine which was first emerged in the Canadian Constitution, has its significance in constitutional matters. The literal meaning of the “doctrine of pith and substance” is the true nature and essence of an enactment. The doctrine is predominantly used in cases to determine the competency of the legislature to enact laws as per Article 246 on subject matters enlisted in the three Lists of Seventh Schedule which vividly draws a distinction between the power of Centre and State legislatures to legislate on certain subject matters. Besides this, the doctrine is also used to resolve the issues of repugnancy arising because of inconsistency in the laws made by the Parliament and the state legislatures by virtue of Article 254. In case there is a conflict between the three lists. List I will always have a priority over the other two lists and list III will have a priority over List II. In case of repugnancy of laws made by both the legislatures under List III, the law made by the Union legislature would prevail. Further, in order to determine the validity of an enactment, the degree of invasion or encroachment has to be considered. The legislation will be declared valid if the encroachment is incidental or ancillary. If the invasion turns out to be substantial, the enactment will render invalid.
 Constitutional Law I, Relation between the Union and the States, by Dr. Syed Asima Refayi, available at, http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Constitutional_Law_I
 Sections 91, 92 and 121 of the Constitution Act, 1867 (Canada), available at, https://exhibits.library.utoronto.ca/items/show/2434
 Cushing Vs Dupey,  UKPC 22
 Union Colliery company of British Columbia v. Bryden,  AC 580
 Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors, AIR 1940 All 272
 Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60
 State of Bombay And Another vs F.N. Balsara, AIR 1951 SC 318
 Atiabari tea co. ltd. v. State of Assam, AIR 1961 SC 232
 Subramanyam Chettiar v Muttuswami Goudan, (1941) 1 MLJ 267
 Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60
 State of Bombay v. F.N Balsara, AIR 1951 SC 318