Doctrine of Pith and Substance – Indian Polity Notes

The Legislative powers between the Centre and State have been clearly specified and demarcated by the Indian Constitution through the Seventh Schedule.

• Seventh Schedule mentions subject matters and powers which would be delegated to either the Centre, or the State.
  • List I – Union List
    • It contains matters where the Centre can make laws.
    • These include – Defence, Foreign Affairs, Currency.
  • List II – State List
    • It contains matters where the State has the power to make laws.
    • These include – Public Order, Sanitation, Health
  • List III – Concurrent List
    • It contains matters where both the Centre and State can legislate.
    • These include – Forest, Education, Administration of Justice.
• Even though there is a clear demarcation of law making authority with the help of Seventh Schedule, there are conflicts that arise between the Centre and the State.
• The Doctrine of Pith and Substance is a doctrine used by the Court of Law, to essentially deal with conflicts arising between Centre and State over power sharing.
  • Doctrine of Pith – Essence of something
  • Doctrine of Substance – Essential part of something

Doctrine of Pith and Substance – The Origin

In the Cushing vs. Dupuy case in Canada, in the year 1880, the origin of Doctrine of Pith and Substance can be traced.

The adoption of a federal character with a strong centre in India from the Canadian constitution, and later adoption of the doctrine to deal with conflicts of power is supported by Article 246 & Seventh Schedule.

What is the Doctrine of Pith and Substance?

According to the Doctrine of Pith and Substance, both the Centre and State should try avoiding any type of encroaching of power beyond the spheres of power to legislate, that each has been specified according to the Indian Constitution.

• However, in case of an encroachment of the sphere by any of the Centre and State, the Court can apply the Doctrine of Pith and Substance.
• If the real objective of the legislation is within the subject of a competent legislature according to the constitution, it should then be held intra vires, i.e within the legal power or authority of the legislator, even though it may, by accident, encroach upon the matter not within the ambit of the legislator.

Profulla Kumar Mukherjee vs the Bank of Khulna

In the Profulla Kumar Mukherjee vs the Bank of Khulna, the Privy Council applied this doctrine.

• In the Profulla Kumar Mukherjee vs the Bank of Khulna, the State Legislature’s enactment of the Bengal Money Lenders Act (1946) was challenged in front of the Privy Council.
• The Act dealt with Promissory notes, then a Central Subject, and thus wasn’t within the ambit of powers of the State to legislate upon.
• Thus, the Privy Council, while upholding the validity of the Act, stated that the Bengal Money Lenders Act was in pith and substance a law which dealt with money lenders and lending, which was a state subject, even though it incidentally encroached upon Promissory Notes – which was a central subject.

FN Balsara vs State of Bombay

• In State of Bombay v FN Balsara, the Bombay Prohibition Act was challenged on the ground that it accidentally encroaches upon import and export of liquor across custom frontier – a central subject.
• While the court upheld the impugned legislation, it declared that the act was in pith and substance a State subject, even though it incidentally encroached upon a central subject.

Doctrine of Pith and Substance – What is the basic intent behind this Doctrine?

Pith denotes the “essence of something”, or the “true nature”, while substance denotes the “most essential part of something”.

The Doctrine of Pith and Substance, thus, lays emphasis that the real subject matter of a law can be challenged, and not certain provisions which might, unintentionally or incidentally, encroach upon the legislating powers of a different legislator.

Doctrine of Pith and Substance – Important Constituents

• The Doctrine of Pith and Substance is applicable in a case where any subject matter of List I & II of the Indian Constitution comes in conflict.
• The significance of the Doctrine of Pith and Substance is that it tries to resolve a conflict between centre and state, stating that only the real subject matter, and not the unintentional incidental encroachments could lead to the law being invalid.
• In a situation where the doctrine wasn’t applicable, any law encroaching upon subject matter of any other sphere, even though unintentionally, would become invalid.
• Thus, the Doctrine of Pith & Substance focuses on examining the true nature and substance of the legislation, and not the incidental effects of it.
• Along with the Doctrine of Pith and Substance being applicable on cases relating to competency of the legislature as mentioned under Article 246, it can also be applied to Article 254, which deals with repugnancy of laws made by the Parliament and laws made by the State Legislature.
• The Doctrine of Pith and Substance is thus a way to remove any kind of inconsistency and resolve any conflict due to a law which may, incidentally, encroach upon any legislative powers of a legislator.

To Conclude…

While there might be clear demarcation of power, it is inevitable that ancillary encroachments are bound to take place during the enactment of laws.

Under the Section 100 of the Government of India Act, 1935, the demarcations were very rigid, which left no scope to application of Doctrine of Pith and Substance. Thus, with the enactment of the Indian Constitution, and post it, the Courts with the help of Doctrine of Pith and Substance were able to decide the substantiality of any law and its enactment.

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