AUTHOR- Kareena Wadhwani, Indore Institute of Law.
The Constitution of India includes three types of lists that are Union List, State List and Concurrent list. Article 246 of Indian Constitution distributes various subject matters and provides limitations within which the union and state must legislate on. However, in some cases, it may happen that subject of one list intrudes another causing confusion. At this point of time, Doctrine of Pith and Substances is applied. Pith means ‘essence of something’ and substance means ‘essential part of something.’ The concept of this doctrine is that whenever the question regarding determination of whether a particular subject is part of one list or other arises, the court finds essence of matter. This is a Canadian Doctrine but found a place in Indian Constitution too.
Keywords: Article 246, Pith, Substance, Lists, Constitution.
Need For Doctrine Of Pith And Substance In Indian Context
This doctrine is necessary to provide flexibility in the system of distribution of power. It is important to eliminate the encroachment legislative powers absolutely by inspecting its essence. Two possible outcomes that can be gained through application of this doctrine can be:
· If the substance of enactment is in tandem with the subject matter assigned to legislature for law making, this will make enactment completely valid.
· If the enactment includes subject matter that is outside the competence of centre or state legislation, this may cause partial or incidental violation of legislative powers and hence may not render the entire enactment null and void. Incidental encroachment is permissible while determining legislative competency because some subjects included in three lists of seventh schedule overlap sometimes.
This doctrine is basically very important for to providing flexibility in accepting ancillary or incidental encroachments to an extent while determining legislative authority to deal with subject as mentioned in three lists.
Historical Background Of Doctrine And Its Application
The Doctrine of Pith and Substance was borrowed from Canadian Constitution. Just like Canada, India too has centre and state legislatures. Two different lists were added in Canadian Constitution to divide power among the dominions and provinces. In the case of Cushing v. Dopey, this doctrine was first evolved and Privy Council prioritised the application on this doctrine to decide the subject matter. Also in 1889, the case Union Colliery company of British Columbia v. Bryden, Lord Watson described the idea of true nature and character on the behalf of Privy Council.
Indian Constitution includes three lists as described in seventh schedule. Unlike Canadian Constitution, India has three lists and the concurrent list involves some matters on which both the centre and state can exercise power in legislation. In situation of conflict regarding this matter, the priority of these lists must be taken in account. Union list is given most preference and concurrent list is prior over state list. Section 100 of Government of India Act and Article 246 of the Constitution of India include provisions dealing in subject of laws made by parliament and state legislatures. The most historic case regarding this doctrine was of Mt. Atiqa Begum v. Abdul Maghni Khan and Ors. in which the court held that order to find the subject matter of the enactment being dealt with, it is important to fathom out its true nature.
Steps involved in application of this doctrine:
1. The first step is to examine the pith and substance of the subject matter in which the enactment is being dealt with.
2. Comparing this with respective subject matters included in the three lists.
3. Determining if the enactment is ultra vires or intra vires in nature.
4. If enactment is intra vires in nature, it will be declared valid; if enactment is ultra vires in nature, it will be declared null and void.
Ancillary Or Incidental Encroachment
This doctrine is not needed to be applied in cases where is it completely evident the legislature does not possess authority to enact laws on any subject matter. It will directly be considered invalid. However, sometimes it may happen that the legislature has authority to enact such laws, but that enactment encroaches above the power of other units of legislation ‘incidentally.’ In such case, the enactment will not be determined as invalid. This is known as Doctrine of Ancillary or Incidental Encroachment. For example, in cases where state legislature dealing in any matter incidentally involves any matter included in state list, the state legislature still has authority to enact these laws and therefore, it cannot be validated. On other hand, in the situations where any state legislation has a direct and substantial relation with subject matter included in Concurrent List, then there can be different consequences.
· If the enactment is offensive to any existing law and both these law cannot coexist, then the provision in state list will be declared void.
· If enactment made by state is offensive to any existing law as per subject matter of state list and can coexist, then the provision enacted by state legislature will be held valid.
· When there is no repugnancy between pre- existing and new enactment, the state legislation will be declared as valid.
One of the landmark case regarding the Rule of Incidental or Ancillary Encroachment is Subramanyam Chettiar v. Muttuswami Goudan in which a provision of Debt Relief Act, 1938 was found as contradictory with Negotiable Instruments Act, 1881. The state legislation (Debt Relief Act) was considered intra vires in nature because it was inconsistent with central legislation.
In the case of Prafulla Kumar Mukherjee v. Bank of Commerce, Bengal Money Lenders Act, 1940 was challenged for being ultra vires on behalf of state legislation. The High Court of Culcutta provided the verdict that the enactment was ultra vires in nature. This judgement was challenged in Privy Council where Doctrine of Pith and Substance was applied and it was finally held that the substance of enactment was ‘moneylending’ that is part of List 2 of Government of India Act, 1935. The matter can be dealt by state legislature.
This doctrine is also applicable in cases related to Article 254, which deals with the repugnancy in-laws made by Parliament and laws made by the Legislatures of States. This doctrine is applied whenever there is any kind of inconsistency laws made by the union and the state legislature. In the beginning the extent of this inconsistency is determined and depending on that, the validity of the legislation is decided. The enactment will be valid in case of ancillary or incidental encroachment. However, in cases of substantial encroachment, the enactment will be considered null and void.
The doctrine of ‘pith and substance’ is a historic doctrine and has a lot of significance of constitutional and legal matters. Whenever the competency in cases related to Article 254 and Article 256 arises, this doctrine is the best option to be applied. It has been very significant in number of case laws. Whenever there is conflict between three lists, list one will prevail most and list three will prevail over list two. 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.
1. Suyash Verma, [31st May 2014], Doctrine of Pith and Substance and the Constitution of India, [online], Available at: http://www.desikanoon.co.in/2014/05/constitutional-law-doctrine-of-pith-and-substance.html
2. Jishnu Adhikari, [8th October, 2019], Explain The Rule of ‘Pith And Substance’ With Case Laws, [online], Available at: https://lawcorner.in/explain-the-rule-of-pith-and-substance-with-case-laws/
3. Jiyaur Rehman, [15th November, 2015], Doctrine of Pith and Substance, [online], Available at: https://abhipedia.abhimanu.com/Article/CAPF/NjQ3MDYEEQQVV/Doctrine-of-Pith-and-substance-Indian-Polity-CAPF
4. Lexlife India, [9th May, 2020], Constitutional Law- Doctrine of Pith and Substance, [online], Available at: https://lexlife.in/2020/05/09/constitutional-law-doctrine-of-pith-and-substance/
 Article 246 of Constitution of India, 1949, available at, https://indiankanoon.org/doc/77052/  Cushing v. Dupey  UKPC 22.  Union Colliery company of British Columbia v. Bryden,  AC 580.  Seventh Schedule, available at, https://www.mea.gov.in/Images/pdf1/S7.pdf.  Section 100 of Government of India Act, 1935, available at, https://www.constitutionofindia.net/  Article 246 of Constitution of India, 1948, available at, https://indiankanoon.org/doc/77052/  Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors, AIR 1940 All 272  Subramanyam Chettiar v Muttuswami Goudan, (1941) 1 MLJ 267.  Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60.  Article 254, The Constitution of India, 1949, available at, https://mhrd.gov.in/article-254