Doctrine of Pith and Substance

The concept of pith and substance was first recognized in the Canadian constitution. It was introduced in the case of Cushing v. Dupuy[1] in the year of 1880. The Canadian and Indian system of governance and constitution is more of less similar. In the Canadian governance, the doctrine of pith and substance when applied has gone till the Privy Council for final appeal.

The Canadian constitution has two lists enumerating subject matters for the dominion and provinces respectively. similar, to how the Indian constitution enumerated subjects in the seventh schedule and laid down their powers under article 246, the constitution of Canada through section 69, 91 and 92 of the British North American Act, 1857 followed the same separation of subject matters and powers of the dominion and provinces. Even though the law lays down the separation of power, there is always an overlap of legislative powers. That is exactly where this doctrine plays a significant role in reiterating those powers and ensuring that there is no transgression of legislative powers. Although the doctrine emerged in Canada it is also applied by the Indian courts due to the similarities between the Canadian and Indian governance.

As far as India is concerned, the segregation of subject matter between the state and centre was first enumerated in the government of India Act, 1835. It was a very prominent argument that the subject matters are enumerated and separated very rigidly under section 100 of the government of India Act, 1835 thus there is no scope for overlap of the powers and subsequently the doctrine of pith and substance need not be applied. However, this was not accepted by the judges back then and they opined that pith and substance is the effect of the act on which the complaint has been made and in what list is its true nature and character is to be found.[2]

INTRODUCTION

The literal meaning of the word pith is the essence of something and substance is an essential part of something. Hence, the phrase “pith and substance” can be understood as the structure or material part of something and where the true essence lies. The doctrine is applied whenever there is a question of legislative competence. There are three lists present under the Indian constitution[3]. Each of these lists enumerates the subject matters on which the centre, state legislature and both can make laws respectively. There arises a conflict when a law dealing with a subject in one list within the competence of legislature concerned touches upon a subject in another list which is not within the competence of that legislature.[4] In these cases in order to establish whether the legislature can enact laws on the particular subject matter, the true character, nature and substance of the particular legislation made is dwelled upon by the judiciary. In cases where the legislation’s true object is in accordance with the subject matter assigned to the concerned legislature, the legislation will be held valid completely irrespective of the fact that it incidentally encroaches upon other matters which the concerned legislature is not competent to legislate on. In countries where the doctrine has been applied, they have only two lists at the maximum and thus the scope of encroachment is very less. However in India we have the concurrent list where both the state and union can legislate. In such cases when a conflict arises between the union and state, the question was whether the doctrine could be applied. The court held that the doctrine would be applied in cases where the union and state legislate in the concurrent list but on different subject matters. However, if after analyzing the substance it is found that both are the same, in such cases as per article 254(1) of the constitution the laws made by the union would prevail.[5]

In India the courts have asserted the importance of the doctrine in cases of interference in the enactment that relates to trade and commerce.[6] At the same time the court has reiterated that the doctrine cannot be applied when the question is not regarding encroachment of subject matters.[7]

OBJECTIVES

Firstly, the doctrine is applied primarily to ensure that an enactment’s nature and character does not fall under a list which the legislature concerned is not competent to legislate. The same is achieved by analyzing the scope, object, effect of the legislation. It is pertinent to understand from where the doctrine gets its basis. The doctrine finds its base at article 246 of the constitution. The powers of the union to legislate on subject matters in list I, the state under list II and both the centre and state under List III is mentioned under article 246. Since the objective of the doctrine to understand the true essence and substance of the enactment to ensure that the legislatures do not encroach upon other subjects in another list, it is significant to put in the words “with respect to” article 246 of the constitution. The doctrine is also applied in case of disputes with respect to the jurisdiction of the concerned legislation. If on analyzing its pith and substance, it fails in one list, it is not to be deemed as to fail under the other lists. Thus by deciding that incidental encroaching doesn’t make the legislation void, the curt avoids the problem of overlapping two entries of two lists which are different. Further on, in a system like India where the organs powers and functions are interconnected, there is high probability of incidental encroachment of power and the courts have to apply the doctrine of pith and substance to analyze whether the legislation is intra vires or ultra vires in nature or character.

CASE LAWS

In the case of Rajiv Sarin V, State of Uttarakhand[8], it was held that the court has to examine the nature, character, object and effect of the concerned legislation to decide whether it is referred to a field to legislation that has been allotted to the concerned legislature under the provision of constitution.

In the case of UCO Bank & Anr v. Dipak Debbarma,[9] Justice Ranjan Gogoi held that while applying the doctrine of pith and substance and interpreting article 246 of the constitution, the federal structure of the Indian government which renders exclusive power to the union and state legislature has to be kept in mind. If there are two legislations in question, from the union and state legislature, the court has to first decide whether they can exist mutually. If not then the legislation made by the parliament will prevail, even if the state legislature’s legislation is well within the limits provided by the constitution.

When the legislative encroachment is under consideration the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence.[10]

In the case of The Kerala State electricity Board v. Indian Alluminum co., If in pith and substance a legislation falls within one List or the other but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching.” The Court found that the Kerala Act was a matter falling under entries 26 and 27 of List II of Schedule VII of the Constitution of India. Therefore, it was held that the State Act does not trench upon the field occupied by the 1948-Act which falls partly under Entry 43 of List I and partly under Entry 38 of List III.[11]

Similarly in the case of ITC Ltd. V. Agricultural Produce Market Committee, the federal system of governance will aid in nullify the incidental encroachment made by the parliamentary legislation on subject matters of state legislation. This view was expanded by the Supreme Court:

“The parliament and legislature of the state have exclusive power to legislate upon any subject or subjects in the concurrent list. The question of incidental or ancillary encroachment or to trench into forbidden field does not arise. The determination of its true nature and character also is immaterial.”

The doctrine when applied favors social welfare legislation over a central act. In the case of Vishal N Kalsaria v. Bank of India & ors, the Supreme Court held that a landlord cannot ve permitted to o indirectly what he has been barred from doing under the Rent Control act, which is social welfare legislation, more so when SARFAESI act and Rent control act operate in two completely different fields.[12]

The doctrine has also been applied by the Supreme Court to determine the scope and operation of an act constructed by the parliament. The question before the court in one such case was whether the SARFAESI act could be construed to extend and apply to transfer of property. The court observed that in pith and substance the act falls under Entry 45 List I read with Entry 95 List I. Hence the transfer of property by sale or assignment is only one of the many options to secure debt being owed to a bank. Thus the act cannot relate or extend to transfer of property.[13]

Conclusion

The doctrine has been applied in India and all around the globe even before the constitution was commenced. The doctrine is largely applied in cases where the court had decided whether the legislature had the power to legislate on a particular subject matter and if it was in accordance to the three lists mentioned in the constitution. The doctrine is applied where the central or state legislature encroach the power vested on the other. The doctrine when applied and if it results in substantial encroachment it would be declared completely void and if there is an incidental encroachment the concerned legislation is declared to be not void or unreasonable. Thus what the court focuses on is the extent of the encroachment. It is believed that in cases of incidental encroachments, the enactment must not be rendered void because in a system like that of India, such encroachments are bound to happen and if all such enactments are rendered void then there will be a large number of invalid enactments.[14] The doctrine at large has ensured that while the federal autonomy is kept in mind, the rule of checks and balances, where judiciary is given the power to determine the competency of the legislature is ensured. Article 246 and seventh schedule of the Indian constitution ensures that when a conflict with respect to the legislature’s competence and encroachment of powers arise the courts and judges can have a foundation for the application of the doctrine. What is needed as far as the doctrine is concerned is for the scope to extend to the concurrent list also since that is where the conflict arises. Even though the parliament’s legislation prevails, it is imperative for the doctrine to be applied and find out if the extent of encroachment of the legislation’s character, object and nature is substantial or incidental. At the same time it is also important to acknowledge the fact that, the judiciary has been give vast and independent functions through the application of this doctrine.

[1] 1880 UKPC 22, (1880) 5 AC 409

[2] Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60

[3] The Constitution of India, 1950, Seventh Schedule

[4] E.V. Chinnaiah v. State of A. P., (2005) 1 SCC 394

[5] Vijay Kumar Sharma v. State of Karnataka (1990) 2 SC 562

[6] State of Bombay v. R. M. D. Chamarbaugwala, AIR 1957 SC 699

[7] Atiabari tea co. ltd. V. State of Assam, AIR 1961 SC 232

[8] (2011) 8 SCC 708

[9] 2016 SC 1391

[10] Vijay Kumar Sharma v. State of Karnataka, AIR 1990 SC 2072

[11] Prof. Dr. Mohan R Bolla, The Doctrionaire rident Testing Constitutionality of the Laws, Doctrine of Pith and Substance

[12] < http://judis.nic.in/supremecourt/imgs1.aspx?filename=43272 >

[13] State Bank of India v. Santosh Gupta, 16 December 2016

[14] Doctrine of Pith and – ‘the’ Metaphor, International Journal of Research and Analytical Reviews (IJRAR)