e c n a t s b u S d n a h t i P f o e n i r t c o D
r a d a N P i j a l a B
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Doctrinal study on the Pith and Substance doctrine with the reference of various cases and legal provisions in India. In this work efforts have been made to give the readers a clear understanding understandin g of the doctrine and its application in India.
1st year LL.M The Indian Law Institute New Delhi
[email protected]
Doctrine of Pith & Substance
I.
Introduction
II.
Origin
III. Scope IV. Provisions in Indian Constitution V.
Judicial interpretation through various cases
VI. Conclusion
Introduction:
This doctrine envisages that the Legislati Leg islation on as a whole be examined to ascertain its µtrue nature and character¶ of Legislation. Pith P ith and substances is a legal doctrine in Canad ian Constitutional interpretation used to determine under which head o f power a given piece of Legislation falls. Within their respective spheres, the Union and the St ate Legislatures are made supreme and they should not encroach into the sphere reserved to the t he other. The doctrine of µpith and substance¶ is applied when the t he legislative competence of a Legislature with regard to a particular enactment is challenged with reference to t he entries in different legislative Lists, because a law dealing with a subject in one List within the competence of the Legislature concerned is also touching tou ching on a subject in another List not within the competence of that 1 Legislature . In that such a cases what has to be ascertained is the pith and substances of the enactment, i.e. the true character of the Legislation. To ascertain the true character of the Legislation in question, one must have regard to it as a whole, to its object o bject and to its scope and effect of its provisions. If according to its true nature and character, the Legislati Leg islation on substantially relates to a to pic assigned to the Legislature which has enacted it, then it is not invalid merely because it incidentally trenched or encroaches on matters assigned to another Legislature. The Act of incidenta l encroachment does not affect the vires of the law even as regard the area of encroachment. To put it differently, incidental encroachment is not altogether forbidden2. Briefly Stated, what what the doctrine doctrine means, is this. this. 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 3 does not make it invalid . To determine the pith and substance, substance, two aspects of the law law must be examined: the purpose of enacting body and the legal effect of the law. To assess the purpose, the courts may consider both bot h intrinsic evidence, such as the Legislation¶s preamble or p urposes clauses, and extrinsic evidence, such as minutes of Parliamentary debates. In doing so, t hey must nevertheless seek to ascertain the true tru e purpose of the Legislation, as opposed to its mere Stated 4 or apparent purpose . Equally the courts may take t ake into account the effects e ffects of the Legislation. This doctrine is to be applied not only in case of apparent conflict between the powers of two Legislatures but in any case where the question arises whether a Legislation is covered by a particular legislative power in exercise of which it is purported to be made5. In all such cases the 1
Saumya Misra, The Doctrine Doctrine of pith and substance preserves and protects Constitutional properties of Parliament and Legislatures AIR Legislatures AIR 2009 Journal 2009 Journal 17. 17. 2 D.D.Basu, Comparative Constitution 623(Wadhwa and Company, Nagpur, 2007). 3 P.M.Bakshi, P.M.Bakshi, A Background Paper on Concurrent Powers of Legislation under List III of the Constitution, available at : http://lawm http://lawmin.nic.in/ncrwc/ in.nic.in/ncrwc/finalreport/v2b3 finalreport/v2b3-3.htm -3.htm.. 4 Attorney-General Attorney-General for Ontario v. Reciprocal Insurers, Insurers, [1924] A.C. 328 (P.C.). 5 th D.D.Basu, Shorter Constitution of India 1737 (Wadhwa and Company, Nagpur,13 edn., 2004).
name given by the Legislature to the impugned enactment is not conclusive on the question of its own competence to make it. It is the pith and substance o f the Legislation which decides the 6 matter and the pith and substance is to be determined with reference to the t he provisions provisions of o f the 7 statute itself . Origin:
The principle of ³pith and substance´ had come to be established by the Privy Council, when it determined appeals from Canada o r Australia involving the question of legislative competence of the federation or the States in those countries. Canada is the first country in which doctrine of pith and substance got evolved. Supremacy of Privy Council over Canadian Constitution is mainly responsible to bring into picture this doctrine. The Judicial Committee of the Privy Council (JCPV) is a court cou rt run by the House o f Lords in London. It was the highest court in Canada from 1867 to 1949, and heard Canada¶s important division of powers cases from that era. It could overrule o verrule the Supreme Court of Canada; many import ant cases bypasses the Supreme Court altogether and went directly to the JCPV. The decision of JCPV developed the doctrine on µpith and substance¶ in Hodge v. The Queen8 where the court Stated that t hat ³subjects which in one aspect and for one purpose falls within s.92, may in another aspect and for another purpose fall within s.91´(BNA Act). In applying the d octrine, it should be in situations where the importance of one matter should shou ld not be significantly larger than the other. In effect, t he doctrine removes the need for courts to split split hairs to determine which head of power should be assigned a particular law. In India, the doctrine of pith and substance came to be adopted in the pre-independence period, under the Government of India Act, 1935. The fine example is the Privy Council decision 9 in Prafulla Kumar Mukherjee v. Bank of Commerce , holding that a State law, dealing with money lending ( a State subject), is not invalid, merely because it incidentally affects promissory notes (now Union List, entry 46). The doctrine is sometimes expressed in terms of ascertaining the ³nature and the true character of Legislation´, and it is also emphasized, that the name given by the Legislature in short title, is immaterial. Again, for app lying the ³pith and substance´ doctrine, regard is to be had (i) (ii) (iii)
6
to the enactment as a whole, to its main objects, & the scope and effects of its provisions provisions10.
Chaturbhai M.Patel v. M.Patel v. Union of India, AIR 1960 SC 424. Amar singh v. State of Rajasthan, AIR 1955 SC 504. 8 Hodge v. The Queen (1883), 9 A.C. 117(P.C.). 9 Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60. 10 supra note 3. 7
Scope:
The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of the Privy Council, effectively the British Imperial Court o f Appeal, has been carried to other commonwealth federations. The doctrine is widely accepted today. Though T hough it originated from Canadian laws, gradually gradua lly it it has been be en included in many ot her Constitutional systems. Especially the sates having Federal character found it essential to apply doctrine in working as the doctrine provides pro vides remedy for disputes arising between Union and State. T herefore other than Canada- it is used in India under the present Constitution. In Australian High Court applied this doctrine in King v. Berger 11, where Federal Excise Tariff Act, 1906 had imposed an excise duty on manufacture of agricultural implements and invalidated the law. It was also u sed in Northern Ireland, Scotland and some so me other countries. Provisions in Indian Constitution:
India as a Federal State Stat e like America, Australia and Canada the legislative powers o f the Central federation and the State St ate Provinces were given in three Lists, firstly under the Government of India Act, 1935 and then under the 1950 Constitution, where Canada had two 12 Lists and America and Australia had only o nly one List . Though the States did not join the federation, the Federal provisions of the Government Go vernment of India Act, 1935, were in Act, applied as between the Central Government and the Provinces. The division of powers between Centre and the State Provinces in the Government Go vernment of India Act, 1935 19 35 and the division made in the 13 Constitution between the Union and the t he State proceeds largely on the same lines . A threefold division was made in the Act o f 1935: (i) (ii) (iii)
Federal List for Federal Legislature, Provincial List for Provincial Legislature and Concurrent List for both Federal and Provincial Pro vincial Legislature.
Federal Legislature had however, the power to legislate with respect to matters enumerated in the Provincial List if proclamation of emergency was made by the Go vernor General14. The Federal Legislature could co uld also legislate with respect to a Provincial subject if the Legislature of two or more Provinces desired this in their co mmon mmon interest15. In case of repugnancy in the Concurrent field, a Federal law prevailed over Provincial law to the extent of the repugnancy but if the Provincial law received the assent of the Governor 11
King v. Berger , (1908) 6 CLR 41. Tony Black shield Working the metaphor: The contrasting use of Pith and Substance in Indian and Australian law 50 JILI 518(2008). 13 th D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8 edn., 2007). 14 s.102, Government of India Act,1935 15 Id s.103. Id s.103. 12
General or of his majesty, having been reserved for their consideration for this purpose, the 16 Provincial law prevailed, notwithstanding such repugnancy . The allocation of residuary power of Legislation in the Act was unique. un ique. It was not vested in either of o f the Central or Provincial Legislatures, but the Governor General was empowered to authorize either the Federal or Provincial Legislature to enact a law with respect to any matter which was not enumerated in the 17 legislative Lists . Moreover by section 100 of the Government of India Act the t he three Lists are carefully arranged in a rigid hierarchy of o f super and subordination: the power in the Federa l List are exclusive notwithstanding anything in the other ot her two Lists; the Concurrent powers can be exercised at either level subject to the t he Federal List and notwithstanding anything in the St ate 18 List; and the State power po wer are given only subject to the ot her two Lists . Under the Government of India Act there were several attempts to argue that this hierarchical arrangement left no roo m for a test of ³pith and substance´. The rigid definition of exclusive fields and t he absolute supremacy of the Federal List meant t hat the Provinces could not trespass upon the areas o f exclusive Federal power at all, not even by laws which in ³pith and substance´ were clearly within Provincial power. The provisions under the Constituti Co nstitution on of India, 1950 19 50 related to the do ctrine are: Scheme of distribution under the Constitution. A) The Constitutional provisions in India on t he subject of distribution of legislative powers between the Union and t he States are spread out several articles. articles. However, the most important of those i.e. the basic one o ne is that contained in articles 245-246. Article 245 provides, inter alia, that (i) Parliament may make laws for the who le or any part of the territory of India and (ii) The Legislature of a State may make laws for the whole or any part of the State. B) Thus, article 245 sets out o ut the limits limits of o f the legislative powers of the Union and the State from the geographical angle from the point of view subject matter of Legislation; it is article 246 which is important. Article 246 reads as under: ³246(1) notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws in respect to any of the matters enumerated in List I o f the Seventh Schedule (Union List). (2) Notwithstanding anything in clause (3), P arliament, and subject to clause (1), the Legislature of any State also, also, shall have po wer to make laws with respect to any of the matters enumerated in List III in the Seventh S chedule (Concurrent List)
16
Ibid s.107. Ibid s.107. Id s.104. s.104. 18 supra note 12. 17
(3) Subject to clauses (1) and (2), the t he Legislature of any State has exclusive po wer to make law for such State or any part thereof with respect to any of o f the matters enumerated in List II in the Seventh Schedule (State (St ate List). (4) Parliament has power to make laws with respect to any matter for any part o f the territory of India not included in State, Stat e, notwithstanding that such matters is a matter enumerated in the State List´. By this article 246 the Constituti Const itution on authorizes the Par liament and the State Legislatures to legislate Concurrently with respect to the subjects enumerated in the Concurrent List. According to the joint Parliamentary committee report, there is a justification justification for the t he insertion of Concurrent List which in not present in any of the Federal Constitution. Both in India and elsewhere, though there are certain matters which cannot be allocated exclusively either to the Central or to the State Legislature, and for which, though t hough it is often desirable that the State St ate Legislature should make provisions, it is equally necessary that t he Central Legislature should also have legislative jurisdiction, to enable it in some cases to secure uniformity uniformity in the main principles of law 19 throughout the country . Article Article 246(2) gives power to two Legislatures, Legislatures, conflict can arise between laws passes on the same subject by the two Legislatures. Leg islatures. Article 254 of the Constitution mainly deals in solving repugnancy between State and Union Concurrent List. Article 254(1) If any provision of law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with w ith respect to one of the matters enumerated in the Concurrent List, then, subject to the t he provisions provisions of o f clause(2), the law made by Parliament, whether passed before or after the law made by the Legislature Leg islature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of State shall, to the extent of repugnancy, be void. (2) Where a law made by the Legislature of a State St ate with respect to one of the matters enumerated in the Concurrent Co ncurrent List contains any provisions in repugnant to the provisions of an earlier law made by t he Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, shall, if it has been reserved for the consideration of the President and has received rece ived his/her assent, prevail in the State: Provided that nothing in this clause shall s hall prevent Parliament from enacting at any t ime any law with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the Legislature of the State´.
19
supra note 1.
The various entries in the three Lists L ists are not µpowers¶ of Legislation but the µfields¶ of 20 Legislation . The doctrine of pith and substance is to be app lied and if the impugned Legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. The justification for the doctrine is that in Federal Constitution, it is not possible to make a clear-cut distinction between the powers of the Union and the State Legislatures. Leg islatures. There is bound to be overlapping and in all such cases, ca ses, it is but reasonable to ask what in whole is the true nature and character of the law. A strictly verbal interpretation would result in a large number of statutes being declared invalid on the ground of overlapping. If the Legislature is to have the full scope to exercise the power granted to it, it is necessary to assume that the Constitution does not prevent a Legislature from dealing with a matter which may incidenta lly affect any matter in the other 21 List . Judicial Interpretation through various cases:
On adjudging whether any part icular enactment is within the purview of one Leg islature or the other, it is the p ith and substance of the Legislation in quest ion that has to be looked into. This rule says that the Legisl Leg islation ation as a whole w hole to be examined to ascertain its µtrue nature and character¶. After having ascertained the true tru e character of the law, the court co urt must point out in which of the three Lists an Act of nature truly falls. In other words, when a law is impugned as ultra vires, vires, what has to be ascertained is the true nature and character of the Legislation. If on such examination it is found that the t he Legislation is in substance one on a matter assigned to the 22 Legislature, then it must be held to be valid in its entirety . The application of the doctrine do ctrine is well illustrated in Prafulla kumar v. Bank o f 23 Commerce , (a case interpreting section 100 o f the Government of India Act, 1935, 19 35, the provisions of which were substantially similar to the present article 246). In t hat case the constitutional validity of the Bengal Money Le nders Act, 1940, which had provided for limiting the amount and the rate of interest recoverable by a lender on any loan, was challenged on the ground that it was ultra vires the Bengal Legislature. The High Court of Calcutta held that the Act was intra vires the Provincial Legislature, but on appeal to the Federal court the decision of the High Court was reversed and t he Act was held to be ultra vires the law making powers of the Bengal Legislature. On appeal to the Privy Council, it was contended on behalf of the Bengal Legislature that the Act was valid as it dea lt with µmoney lending¶ and µmoney lenders¶ in the Province ± a matter within the exclusive competence of the Provincial Legislature under List II, Entry 27. On behalf of the t he respondent creditor, it was contended that t hat the Act was wholly ultra vires the Provincial Legislature, or at least that much of the Act as affected the t he right of promissory note-holders to recover the full amount due o n their promissory notes. The 20
th
Vepa P.Sarathi, Interpretation of Statutes 691 (Easter (Easter Book Company, Lucknow 4 edn., 2003). 21 th V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11 edn., 2008). 22 supra note 5. 23 supra note 9.
respondent relied upon entry 28 o f List I, which assigned to the Federal Leg islature exclusive authority to make laws with respect to ³cheques, bills of exchange, promissory notes, and other like instruments´. The Privy Council held that t hat the Act was not void in whole or as part as beingultra being ultra vires the Provincial Legislature. The pith p ith and substance of the Act being money lending, it came within List II, entry 27, Government of India Act, 1935, and therefore t herefore was within the competence of the Provincial Legislature, and was not rendered invalid, because it incidentally affected matters reserved for Federal Legislature, namely, ³pro missory notes´ in schedule VII, List I, entry 28. The following following leading principles are deducible from the Pr ivy Council decision: a)It is not possible to make a clear-cut c lear-cut distinction between the powers of the Union and the State Legislatures. They are bound to overlap, and where they do so, the questions to be considered are: what is the pith and substance of the impugned enactment, and in what List are its true nature and character to be found? b)The extent of o f invasion invasion by the Provinces into t he subjects in the Federal List in an important matter, not because the validity of a Provincial Act can be determined by discriminating between degrees of invasion, but for determining the pith and substance of the impugned Act. c)Where the three List come in conflict, conf lict, List I has priority over List II and III and List III has priority over List II. 24
Subramaniam Chettiyar v. Muthuswami Goundan was cited with approval by the Pr ivy Council in prafulla kuamr¶s case. In this case Gwyer, C.J. in explaining the doctrine of pith and substance said: ³It must inevitably happen from time t ime to time that Legislation though purporting to deal with a subject in one List touches to uches also upon a subject in another List, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in large number of o f statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule has been evolved« whereby the impugned statutes is examined to ascertain its µpith and substance¶ of its µtrue nature and character¶ for the purpose of determining whether I is Legislation with respect to matter in the lost o r that´. 25 In State of Bombay v. Vatan Medical and General Store , the Supreme Court held that ³once it is found that in pith and substance a law falls within the permitted field, any accidental encroachment by it on a forbidden field does not affect the competence of the concerned Legislature to enact the law. Effect E ffect is not the same thing and subject matter. If a State Act, otherwise valid, has effect on a matter in List I do not cease to be Legislation with respect to an entry in List II or III´. 24 25
Subramaniam Chettiyar v. Chettiyar v. Muthuswami Goundan, AIR 1941 FC 47. State of Bombay v. Bombay v. Vatan Medical and General Store, Store, AIR 1951 SC 69.
26
In State of Bombay v. F.N.Balsara , constitutional validity of the Bombay Prohibiti Pro hibition on Act, 1949 was in issue. The question was whether that Act fell under entr y 31 of List II of the Government of India Act, 1935, namely, ³intoxicating liquors, that is to say, the pro duction, manufacture, possession, transport, purchase, and sales of intoxicating liquors´, or ³import and export of liquors across customs frontier´, which is a Central subject. It was argued that the prohibition on purchase, use, transport and sale of liquor would affect the import. The Supreme Court rejected the argument, held the Act valid because the pith and substance of the Act fell under entry 31 of o f List II, and not under entry 19 o f List I, even though the Act incidentally encroached upon the Central power of Legislation. The court has enunciated the rule of pith and substance in this case as ³It is well settled that the validity of an Act is not affected if it incidentally trenched on matters outside the au thorized field and, therefore, it is necessary to enquire in each case what is the pith and substance of the Act impugned. If the Act when so viewed, substantially falls within the powers expressly conferred upon t he Legislature which enacted it the it cannot be held to be invalid merely because it incidentally encroached on matters which have been assigned to another Legislature´. The above seen are the cases which came up before the courts in our country before the commencement of the constitution co nstitution of India. After the constitution came into force many principles were evolved from various cases relating to t he clash between Central and State St ate Legislations on a same subject. The following following cases are some important cases of them: 27 In State of Rajasthan v. G.Chawla G.Chaw la , the State Legislature made a law restricting restricting the use of sound amplifiers. The respondent who had violated the provisions of the impugned Act was prosecuted. The judicial commissioner held the Act invalid and quashed the conviction. On appeal to the Supreme Co urt, the State contended that the law was within the legislative competence of the St ate Legislature since it fell under entry 6 of the List II, ³Public health a nd sanitation´. The respondent, on the other hand, contended that the impugned law fell under entry 31 of the List I, ³Posts ³Po sts and Telegraphs, Telephones, Wireless, Broadcasting and other like forms of communication´. It was held by the t he Supreme Court that the impugned Legislation in its pith and substance fell within entry 6 of List II. The power to legislate legislate in relation re lation to public health includes the power to regulate the t he use of amplifiers as producers of loud noises when t he right of such user, by the disregard d isregard of the comfort and obligation to others, ot hers, emerged as a manifest nuisance to them. It did not fall within entry 31 in the Union L ist, even though the a mplifier mplifier is an apparatus for broadcasting or communication. The Legislation in pith and substance being on a State manner, it was not invalid even if it incidentally encroached upon the subject of the broadcasting and communication. The Supreme Court further quoted the following Statement of Latham, C.J. in Bank of o f New South Wales v. Commonwealth28: ³The power to make laws µwith respect to¶ a subject-matter is power to make laws which in reality and substance are laws upon the subject-matter. It is not enough t hat a law should refer 26
State of Bombay v. F.N.Balsara, AIR 1951 SC 318. State of Rajasthan v. G.Chawla, AIR 1959 SC 544. 28 Bank of New South Wales v. Commonwealth, (1948) 76 CLR 1, 186. 27
to the subject-matter or apply to the subject-matter: su bject-matter: for example, income tax laws apply to clergymen and hotel-keepers as members of the public; but no one would describe an income tax law as being, for that t hat reason, a law with respect to clergymen o r hotel-keepers, Building regulations apply to building erected for or by banks; but such regulations regu lations could not properly be described as laws with respect to banks o r banking.´ 29
In Krishna v. State of Madras , applying the rule rule of pith and substance, the Supreme Supreme Court upheld the Madras Prohibition Act, even though it laid down procedure and principles of evidence for trial of offences under the t he law in question very different from those contained in the Criminal Procedure Code and the t he Indian Evidence Act, both Central Centra l Acts in the Concurrent field. In this case, the court co urt appears to be have gone rather rat her too far in upholding the St ate law. 30 In Ukha Kolhe v. State of Maharastra , Justice Shah with him B.P.Sinha, C.J., K.N.Wanchoo and P.B.Gajendragadkar JJ, observed that, it is true that power to legislate on matters relating to Criminal procedure and Evidence falls within within the Third List o f the Seventh Schedule to the Union Parliament P arliament and the State Legislature Leg islature have Concurrent authority in respect of these matters. The expression ³criminal procedures´ in the legislative entry includes investigation of offences, and s. 129A and 129B must be regard as enacted in exercise of the power conferred by entries 2 and 12 in the List III. The Code of o f Criminal Procedure was a law in force immediately before the commencement o f the constitution, and by virtue of Art.254(2) Legislation by a State Legislature with respect to any of the matters enumerated in the List III repugnant to an earlier law made by Parliament or an existing e xisting law with respect to that matter if it has been reserved for the co nsideration of President and has received his/her assent, prevails in the State. The only difference in the situations situat ions in the two cases appears to be that, while in Ukha the State law had received the President assent, the law involved in Krishna had not been so reserved, and this perhaps explains the d ichotomy in the judicial attitudes, for to take t he same view in Krishna, as was done in Ukha, would have been to hold the law bad on the ground of 31 repugnancy with the Central Centra l law . 32
In Ishwari Kehtan Sugar Mills case , it was held, when validity of o f a Legislation is challenged on the ground of want of legislative competence and it becomes necessary to ascertain to which entry in the three t hree Lists the Legislation is referable to, the court has evo lved the theory of pith and substance. If in pit and substance Legislation falls within one entry o r the other but some portion of the subject matter of the Legislation incidentally trenches upon and might enter a field under anot her List, the Act as a whole would wo uld be valid notwithstanding such incidental trenching.
29
Krishna v. State of Madras, AIR 1957 SC 297. Ukha Kolhe v. State of Maharastra, AIR 1963 SC 1531. 31 th M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6 edn., 2010). 32 Ishwari Khetan sugar Mills (P) Ltd, v. State of UP, AIR1980 SC 1955. 30
33
In D.C. & G.M. Co. Ltd. v. Union of India , it has been held: "When " When a law is impugned on the ground that t hat it is ultra vires the powers of the Legislature which enacted it, what has to be ascertained is the true character o f the Legislation. To do that one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. To resolve the controversy if it becomes necessary to ascertain to which e ntry in the three Lists," the Legislati Leg islation on is referable, the court has evolved t he doctrine of pith and substance. If I f in pith and substance, the Legislation falls within one entry o r the other but some portion of the subjectmatter of the Legislation incidentally trenches upon a nd might enter a field under Another Ano ther List, then it must be held to be valid in its entirety, even though t hough it might incidentally trench on matters which are beyond its competence." In a latest judgment passed by the constitutional bench of 5 judges in State of West 34 Bengal v. Kesoram Industries Ltd , it was observed that Article 245 of the Constitution is the fountain source of legislative power. It provides prov ides - subject to the provisions of this Constitution. Parliament may make laws for the who le or any part of the t erritory erritory of India, and the t he Legislature of a State may make Saws S aws for the whole or any part of the State. The legislative field between the Parliament and the Legislature Leg islature of any State is divided by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in Seventh Schedule, called the ¶Union List¶. Subject to the said po wer of the Parliament, the Legislature of any State Stat e has power to make laws with respect to any of the matters enumerated in List III, called the ¶Concurrent L ist¶. Subject to the above said two, the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the ¶State List¶. Under Article 248 the exclusive power of Parliament to make laws extends to any matter not enumerated in the Concurrent Co ncurrent List or State List. The power of making any law imposing a tax not mentioned in the Co ncurrent List or Stats List vests in Parliament. This is what is called the residuary power vesting in Parliament. The Supreme Court further explained the doctrine by citing the observation of a Bench of three learned Judges of the Supre me Court on a review of the available a vailable decisions in Hoechst 35 Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors , relating to the legislative powers of the Legislations. They are(1) The various entries in the three Lists are not ¶powers¶ of Legislation but ¶fields¶ of Legislation. The Constitution effects a complete separation o f the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to t he Union and the States. (2) In spite of the fields of Legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the Legislations occupy the same field with respect to one of the matters enumerated in the Concurrent Co ncurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the Stats law will be ultra vires and shall have to give way to the Union law. (3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of Legislation and taxation. The general subjects of Legislation are dealt with in one gro up of entries and power of o f taxation in a separate
33
& G.M.Co. Ltd v. Union of India, AIR 1983 SC 937. State of West Bengal v. Kesoram Industries Ltd, AIR 2005 SC 1646. 35 M/S. Hoechst Pharmaceuticals Ltd. and Others v. State of Bihar and Other , AIR 1983 SC 1019. 34
D.C.
group. The power to tax cannot be deduced from a general legislative entry as an ancillary power. (4) The entries in the List being merely topics or fields of Legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narro w pedantic sense. The words and expressions employed in dra fting the entries must be given the w idest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to t he Lists is not by way of scientific or logical log ical definition definition but by way of a mere simplex enumeration of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the t he Legislations touching incidental and ancillary matters. (5) Where the legislative competence of o f a Legislature of any State is questioned on the ground that it encroaches upon upo n the legislative competence of Parliament to enact a law, the question one has to ask is whether the Legislation relates to any of the entr ies in Lists I or III. If it does, no further question need be asked and Parliament¶s Par liament¶s legislative legislative competence co mpetence must be upheld. Where there are three Lists containing a large number of o f entries, there is bound to be some overlapping among them. In such suc h a situation the doctrine of pith p ith and substance has to be applied to determine as to which entry does a given piece o f Legislation relates. Once it is so determined, any incidental trenching on o n the field reserved to the other Legislature Leg islature is of no consequence. The Court has to look at the substance of o f the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character o f Legislation. The name given by the Legislature Leg islature to the Legislation is immaterial. Regard must be had to t he enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. (6) The doctrine of occup ied field applies only when there is a clash between the Union and the State Lists within within an area common to both. There the doctrine d octrine of pith and substance is to be applied and if the impugned Legislation substantially falls within within the power po wer expressly conferred upon the Legislature which enacted enact ed it, an incidental encroaching in the field assigned to another Legislature is to be ignored. While reading the three Lists, List I has priority over Lists III and II, and List III has priority over List II. However, still, the predo minance of the Union List would not prevent the State Legislature from dealing with any matter with in List II though it may incidentally affect any item in List I. 36
In a recent civil appeal decided by the Supreme Court, it was held ³One of the proven methods of examining the legislative legislative competence of a Legislature with regard to an enact ment is by the application of the doctrine of pith and substance. This doctrine is applied when the legislative competence of the Legislature w ith 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 p ith and substance of such enactment o n a scrutiny of the Act in question. In this process, it is necessary for the co urts to go into and examine the true t rue character of the enactment, its o bject, its scope and effect to find out whether t he enactment in question is genuinely referable to a field field of o f the Legislation allotted to the respective Legislature under the constitutional scheme. This doctrine is an established principle o f law in India recognized not only by this Court, but also also by various var ious High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any e ntry in List I, the Court has to look to the substance of the State Act and on such analysis and 36
Z ameer ameer
Ahmed Latifur Rehman Sheikh v. State of Maharastra and Others, Others, (2010) 5 SCC 246.
examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any o f the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List. And it is clear that anything that affects public peace or tranquility within the State o r the Province would also affect public p ublic order and the State Legislature is empowered to enact laws aimed at containing or preventing Acts which tend to or actually affect public order. Even if the said part of the MCOCA incidentally encroaches encro aches upon a field under Entry Entr y 1 of the Union List, the same cannot be held to be ultra vires in view of the doctrine of pith p ith and substance as in essence the said part relates to maintenance of Public Order which is essentially a State subject and only incidentally trenches upon upo n a matter falling under the Union List´. The doctrine was there from pre-independence era, under Government of India Act, 1935. Then after was inculcated under Constitution of India. Eventually the doctrine has been pronounced in many judgments as discussed earlier. The doctrine proved very significant as it saved incidental encroachment of two pieces of Legislature on each other. Therefore we can infer from the abovementioned cases, in the Indian scenario, that the judiciary had app lied three basic principles under the doctrine do ctrine of pith and substance while deciding the matters; the enactment as a whole, its main object, and scope and effect e ffect of its provisions has to be regarded. Conclusion:
This doctrine of pith and substance has been evolved in all constitutions where the legislative subjects are enumerated in more than o ne List falling within the competence of o f different Legislatures. This rule introduces a degree o f flexibility flexibility into the otherwise rigid scheme of distribution of powers. It gives an additional dimension to t he powers of Centre as well as the States. The reason behind the t he rule is that if every Legislation were to be declared invalid, howsoever, slight or incidental the encroachment of the other filed by it, then the power p ower of each Legislature will drastically circumscribed to deal effectively with the subjects entrusted to it for Legislation. Thus doctrine of pith and substance is not only for general understanding , in fact it goes on to help the judiciary in finding out what actually the law is trying to object for. In other words, if a law passed ostensibly to give effect to the policy of the St ate is, in truth and substance, one for accomplishing an unauthorized object, the court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. The doctrine gives quite a good deal of maneuverability to the courts. It furnishes them tool to uphold Legislation, for it for them to decide its true tru e nature and character and, thus, they have a number of choices open to them and most often the Courts by putting putt ing a favorable interpretation on the Legislation in question use their power to support the same.
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P ra ra f ulla Kum Kumar Muk herjee v. B v. Bank ank of of C Commerce o mmerce Ltd., K hulna, AIR 1947 PC 60.
S ubram ubramaniam aniam C hettiyar v. ettiyar v. Mut Mut huswam uswami Go Goundan, AIR 1941 FC 47.
S tate tate of Bom Bombay bay v. V atan atan Medical and General S General S t to re, re, AIR 1951 SC 69.
S tate tate of Bom Bombay bay v. F .N. .N. Balsara, Balsara, AIR 1951 SC 318.
S tate tate of Rajast Rajast han v. G.C hawla, AIR 1959 SC 544.
Krish Krishna v. S tate tate of Madras, Madras, AIR 1957 SC 297. U k kh a K ol he v. S tate tate of Mah Maharastra, AIR 1963 SC 1531. Ish Ishwari K hetan sugar Mills ( P) Ltd, v. S tate tate of UP UP , AIR1980 SC 1955.
D.C.
& G.M.C o. Ltd v. U nio nion of India, India, AIR 1983 SC 937.
S tate tate of West West Bengal Bengal v. Kes v. Keso oram ram Industries Ltd, AIR 2005 SC 1646. M/ S S. H oech ech st P P har maceuticals Ltd. and Ot hers v. S tate tate of Bi Bihar and Ot her , AIR 1983 SC 1019.
Z ameer Ahm Ahmed ed
Lati f f ur Rehm Rehman an Sheik Sheik h v. State of Mah Maharastra and Ot hers, ers, (2010) 5 SCC 246.
Bank Bank of of New New Sout Sout h Wales v. C ommonwealt ommonwealt h , (1948) 76 CLR 1, 186.
H odge v. T he Queen (1883), 9 A.C. 117(P.C.).