Constitutional Law: Doctrine of Pith and Substance

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Unfolding the meaning of the doctrine, it can be stated that Pith and Substance denotes the true nature of law. The doctrine places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’. Hence, it can be stated that the very doctrine of pith and substance relates to finding out the true nature of a statute.

Article 246 of the Indian Constitution: How is it related to the doctrine?

For a better understanding of the doctrine of Pith and Substance, it becomes important to take a look at Article 246 of the Indian Constitution. Article 246 mentions the Union, State and Concurrent lists, enumerated in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the major features of such a constitution is the distribution of power between the Union and the State governments and the same has been put forth in the Seventh Schedule which comprises of:

  • List I– Union List (Parliamentary Legislation)
  • List II– State List (State Legislation)
  • List III– Concurrent List (Parliament and State Legislation)

These three divisions were made by the framers of the constitution. The Union List primarily consists of matters which are of national importance and hence the intervention of the Union government is required in such matters, empowering them with the right to legislate on these matters. Further, the State list comprises of the matters which are of local or state significance and hence, only the state governments are required to showcase interest in such matters. Lastly, the concurrent list comprises of subjects that seem to have been the common interests of both the union and state government, whereby, the power to legislate on such matters vests with both the state and the Union governments.

Historic background and evolution of doctrine of Pith and Substance

The evolution of the doctrine of Pith and Substance dates back to Canada. The inception of this doctrine was marked by the Canadian case of Cushing v. Dupuy. Subsequently, the doctrine made its way to India and is now a celebrated doctrine in the Indian context and there have been various landmark judgments with regard to the doctrine of Pith and Substance.

There are also various articles of the Indian Constitution which hold good with regard to the concept of Pith and Substance. For example, Article 246 and the Seventh Schedule have a major role to play in terms of upholding the Doctrine of Pith and Substance. The case of Cushing v. Dupuy which was seen as the first instance in terms of unfolding the doctrine of pith and Substance has been discussed below.

Cushing v. Dupuy, [1880] UKPC 22

Brief FactsOn 19th of July 1877, three of the brewing companies namely, Mc Leod, Mc Naughten and Leveille became insolvent. Dupuy was its official assignee with regard to the writ of attachment in insolvency. On the other hand, Cushing, who was the notary, produced the contract of sale which was executed on March 12th 1877, by way of which the firm had agreed to sell the assets to him. On the same day another deed was executed by the way of which Cushing had agreed to lease back the assets to the principals of the firm for a period of three years.

Further, in the petition, Cushing asserted about having the possession of the assets. But in reality no removal had taken place and the assets were still in the possession of the firm. When this matter was taken up in the court, the main question pondered upon was whether the transaction was a valid sale within the meaning of Section 1027 and 1472 of the Civil Code of Lower Canada.

Crux of the judgmentThe significant aspects which this judgment took into consideration were:

  1. The working and the nature of insolvency law in Canada.
  2. When can the appeals as of right to the privy council be excluded by the local legislature, and
  3. In which possible way can the royal prerogative be ousted by the state? 

What was held?

After thorough analysis of the case at hand, the court held that the sale under section 1027 of the Civil Code of Canada was not a genuine one. Though this judgment has been overtaken by subsequent judgments in Canada, the case of Cushing v. Dupuy remains to be one of the noteworthy cases as it laid the foundation stone for the doctrine of Ancillary or Incidental encroachment, discussed in the latter part of this article.

Salient features: Everything we need to know about Pith and Substance

  • Situations in which the doctrine is appliedIt is applied in the circumstances where subject matter of list seem to be conflicting with the subject matter of list two.
  • Reason behind adopting the doctrine– The powers of the legislature would be sternly limited if every law is declared invalid on the ground that it encroaches upon another law.
  • True nature and character The doctrine is known to examine the true nature and character of the subject in order to ascertain as to in which list it fits.
  • Provision for a degree of flexibility It takes under consideration the fact as to whether the state has the power to make a law which involves a subject mentioned in the Union list of the constitution.
  • First judgment which upheld the doctrine It was in the case of State of Bombay v. F. N Balsara that the doctrine was first applied in the case and the same was upheld.

Landmark judgments by various Indian courts

There have been a number of landmark judgments being delivered by various High courts and the Supreme Court of India. These judgments enshrine the idea of the doctrine of Pith and Substance and the same have been discussed in the following segment of the article:

  1. State of Rajasthan v. G Chawla- This case was regarding the sound amplifiers and the confusion as to whether the state or the central government has the right to legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on the usage of sound amplifiers in the state. The same was not complied with by the respondent. As a consequence of the violation of the law, the judicial magistrate impugned the respondent.  Further on an appeal the matter was taken up by the Supreme Court of India.

Significance of the doctrine in the judgmentThe primary question involved here was the power to legislate on matters of Public health. The state government argued that entry 6 of the list IIgives power to the state government to regulate the use of amplifier as it produces loud noise. On the other hand, the opposition put forth the point that entry 31 of list I, which speaks about various means of communication like that of telegraphs, telephones, wireless broadcasting, etc., gives the union government the right to make laws regarding the use of the amplifiers.

Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I. The court justified its point by stating- ‘though amplifier is an apparatus of broadcasting and communication, the legislation in its pith and substance would lie with the state government and not the central government’.

  • State of Bombay and another v. F.N Balsara- This case acquires quite a lot of importance as it was the first case which upheld the doctrine of Pith and Substance in India.

Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way of the then existing Bombay Prohibition Act and this Act was challenged on the matter that there was an incidental encroachment on the act of importing and exporting of liquor through the borders. This matter was taken up by the High Court of Bombay and the following was held.

Significance of the Doctrine in the judgment The court gave out the judgment stating that the act was in its Pith and Substance and rightfully fell under the State list even though such an act was said to have a bearing on the import of liquor in the state.

  • Prafulla Kumar Mukherjee v. Bank of Khulna

In this case, the validity of the Bombay Money Lenders Act, 1946 came to be questioned. The main argument here was that promissory notes formed a part of the central subject and not state subject. But on the contrary, the Privy Council held that interpreting the doctrine of Pith and Substance, the act is actually a law with respect to ‘money lending and money lenders’ and this was clearly a state subject, further the court went ahead and stated an important point that this act was valid even if it entrenched upon the subject of ‘Promissory note’ which is a central subject, thus upholding the principle of the doctrine of Pith and Substance.

Critical analysis of the doctrine

  • Interpretation of the Doctrine of Pith and Substance

Recognized by various High courts and Supreme Court in India, this doctrine is an established principle of law. Whenever a law is seen to be encroaching or trespassing upon a field, the legislation of which has been assigned to another, the Doctrine of pith and Substance comes into play. The crux of the doctrine is that whenever a question arises regarding the determination of whether a particular law relates to a particular subject (which will be mentioned in one of the lists) the court while dealing with such issues looks into the substance of such matter.

Hence, from the above mentioned points it can be stated that Doctrine of pith and Substance states- “Whenever a question arises as to determination of whether a particular law relates to a particular subject (which might be mentioned either in one list or another) the courts mainly looks at the substance of the matter. Thus, for instance, if the substance falls in the union list then the incidental encroachment by the law on the State list does not make it invalid”.

  • Need for Pith and Substance in India: What effect does the doctrine have on the Indian context?

One of the main reasons behind the acceptance and applicability of the doctrine in India was to provide flexibility to an otherwise existing rigid scheme concerned with the distribution of power in a federal structure. Another important point to be interpreted here is “if it was so that every legislation was to be declared invalid on the ground that it has been encroaching on the subject of another legislature, then these powers assigned to the legislature would be enormously restrictive and this would not serve the purpose of the power being granted to the legislature”.

  • Doctrine of Ancillary or Incidental Encroachment

The doctrine of Ancillary and Incidental encroachment is actually an addition to the doctrine of Pith and Substance. The prime ideology existing behind this doctrine is that the power to legislate on a subject will automatically include the power to legislate even on the subordinate (ancillary) matters which happen to be reasonably connected to the subject of the matter.

For Instance- A power entrusted in order to impose tax would also impliedly include the power of search and seizure which should be taken up in order to prevent the evasion of tax. But at the same time, a power entrusted in relation to banking cannot be extended to that of non-banking entities.

Conclusion

Unfolding the meaning of the doctrine, it can be stated that Pith and Substance denotes the true nature of law. The doctrine places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’. Hence, it can be stated that the very doctrine of pith and substance relates to finding out the true nature of a statute.

Article 246 of the Indian Constitution: How is it related to the doctrine?

For a better understanding of the doctrine of Pith and Substance, it becomes important to take a look at Article 246 of the Indian Constitution. Article 246 mentions the Union, State and Concurrent lists, enumerated in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the major features of such a constitution is the distribution of power between the Union and the State governments and the same has been put forth in the Seventh Schedule which comprises of:

  • List I– Union List (Parliamentary Legislation)
  • List II– State List (State Legislation)
  • List III– Concurrent List (Parliament and State Legislation)

These three divisions were made by the framers of the constitution. The Union List primarily consists of matters which are of national importance and hence the intervention of the Union government is required in such matters, empowering them with the right to legislate on these matters. Further, the State list comprises of the matters which are of local or state significance and hence, only the state governments are required to showcase interest in such matters. Lastly, the concurrent list comprises of subjects that seem to have been the common interests of both the union and state government, whereby, the power to legislate on such matters vests with both the state and the Union governments.

Historic background and evolution of doctrine of Pith and Substance

The evolution of the doctrine of Pith and Substance dates back to Canada. The inception of this doctrine was marked by the Canadian case of Cushing v. Dupuy. Subsequently, the doctrine made its way to India and is now a celebrated doctrine in the Indian context and there have been various landmark judgments with regard to the doctrine of Pith and Substance.

There are also various articles of the Indian Constitution which hold good with regard to the concept of Pith and Substance. For example, Article 246 and the Seventh Schedule have a major role to play in terms of upholding the Doctrine of Pith and Substance. The case of Cushing v. Dupuy which was seen as the first instance in terms of unfolding the doctrine of pith and Substance has been discussed below.

Cushing v. Dupuy, [1880] UKPC 22

Brief FactsOn 19th of July 1877, three of the brewing companies namely, Mc Leod, Mc Naughten and Leveille became insolvent. Dupuy was its official assignee with regard to the writ of attachment in insolvency. On the other hand, Cushing, who was the notary, produced the contract of sale which was executed on March 12th 1877, by way of which the firm had agreed to sell the assets to him. On the same day another deed was executed by the way of which Cushing had agreed to lease back the assets to the principals of the firm for a period of three years.

Further, in the petition, Cushing asserted about having the possession of the assets. But in reality no removal had taken place and the assets were still in the possession of the firm. When this matter was taken up in the court, the main question pondered upon was whether the transaction was a valid sale within the meaning of Section 1027 and 1472 of the Civil Code of Lower Canada.

Crux of the judgmentThe significant aspects which this judgment took into consideration were:

  1. The working and the nature of insolvency law in Canada.
  2. When can the appeals as of right to the privy council be excluded by the local legislature, and
  3. In which possible way can the royal prerogative be ousted by the state? 

What was held?

After thorough analysis of the case at hand, the court held that the sale under section 1027 of the Civil Code of Canada was not a genuine one. Though this judgment has been overtaken by subsequent judgments in Canada, the case of Cushing v. Dupuy remains to be one of the noteworthy cases as it laid the foundation stone for the doctrine of Ancillary or Incidental encroachment, discussed in the latter part of this article.

Salient features: Everything we need to know about Pith and Substance

  • Situations in which the doctrine is appliedIt is applied in the circumstances where subject matter of list seem to be conflicting with the subject matter of list two.
  • Reason behind adopting the doctrine– The powers of the legislature would be sternly limited if every law is declared invalid on the ground that it encroaches upon another law.
  • True nature and character The doctrine is known to examine the true nature and character of the subject in order to ascertain as to in which list it fits.
  • Provision for a degree of flexibility It takes under consideration the fact as to whether the state has the power to make a law which involves a subject mentioned in the Union list of the constitution.
  • First judgment which upheld the doctrine It was in the case of State of Bombay v. F. N Balsara that the doctrine was first applied in the case and the same was upheld.

Landmark judgments by various Indian courts

There have been a number of landmark judgments being delivered by various High courts and the Supreme Court of India. These judgments enshrine the idea of the doctrine of Pith and Substance and the same have been discussed in the following segment of the article:

  1. State of Rajasthan v. G Chawla- This case was regarding the sound amplifiers and the confusion as to whether the state or the central government has the right to legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on the usage of sound amplifiers in the state. The same was not complied with by the respondent. As a consequence of the violation of the law, the judicial magistrate impugned the respondent.  Further on an appeal the matter was taken up by the Supreme Court of India.

Significance of the doctrine in the judgmentThe primary question involved here was the power to legislate on matters of Public health. The state government argued that entry 6 of the list IIgives power to the state government to regulate the use of amplifier as it produces loud noise. On the other hand, the opposition put forth the point that entry 31 of list I, which speaks about various means of communication like that of telegraphs, telephones, wireless broadcasting, etc., gives the union government the right to make laws regarding the use of the amplifiers.

Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I. The court justified its point by stating- ‘though amplifier is an apparatus of broadcasting and communication, the legislation in its pith and substance would lie with the state government and not the central government’.

  • State of Bombay and another v. F.N Balsara- This case acquires quite a lot of importance as it was the first case which upheld the doctrine of Pith and Substance in India.

Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way of the then existing Bombay Prohibition Act and this Act was challenged on the matter that there was an incidental encroachment on the act of importing and exporting of liquor through the borders. This matter was taken up by the High Court of Bombay and the following was held.

Significance of the Doctrine in the judgment The court gave out the judgment stating that the act was in its Pith and Substance and rightfully fell under the State list even though such an act was said to have a bearing on the import of liquor in the state.

  • Prafulla Kumar Mukherjee v. Bank of Khulna

In this case, the validity of the Bombay Money Lenders Act, 1946 came to be questioned. The main argument here was that promissory notes formed a part of the central subject and not state subject. But on the contrary, the Privy Council held that interpreting the doctrine of Pith and Substance, the act is actually a law with respect to ‘money lending and money lenders’ and this was clearly a state subject, further the court went ahead and stated an important point that this act was valid even if it entrenched upon the subject of ‘Promissory note’ which is a central subject, thus upholding the principle of the doctrine of Pith and Substance.

Critical analysis of the doctrine

  • Interpretation of the Doctrine of Pith and Substance

Recognized by various High courts and Supreme Court in India, this doctrine is an established principle of law. Whenever a law is seen to be encroaching or trespassing upon a field, the legislation of which has been assigned to another, the Doctrine of pith and Substance comes into play. The crux of the doctrine is that whenever a question arises regarding the determination of whether a particular law relates to a particular subject (which will be mentioned in one of the lists) the court while dealing with such issues looks into the substance of such matter.

Hence, from the above mentioned points it can be stated that Doctrine of pith and Substance states- “Whenever a question arises as to determination of whether a particular law relates to a particular subject (which might be mentioned either in one list or another) the courts mainly looks at the substance of the matter. Thus, for instance, if the substance falls in the union list then the incidental encroachment by the law on the State list does not make it invalid”.

  • Need for Pith and Substance in India: What effect does the doctrine have on the Indian context?

One of the main reasons behind the acceptance and applicability of the doctrine in India was to provide flexibility to an otherwise existing rigid scheme concerned with the distribution of power in a federal structure. Another important point to be interpreted here is “if it was so that every legislation was to be declared invalid on the ground that it has been encroaching on the subject of another legislature, then these powers assigned to the legislature would be enormously restrictive and this would not serve the purpose of the power being granted to the legislature”.

  • Doctrine of Ancillary or Incidental Encroachment

The doctrine of Ancillary and Incidental encroachment is actually an addition to the doctrine of Pith and Substance. The prime ideology existing behind this doctrine is that the power to legislate on a subject will automatically include the power to legislate even on the subordinate (ancillary) matters which happen to be reasonably connected to the subject of the matter.

For Instance- A power entrusted in order to impose tax would also impliedly include the power of search and seizure which should be taken up in order to prevent the evasion of tax. But at the same time, a power entrusted in relation to banking cannot be extended to that of non-banking entities.

Conclusion

This article has discussed in length the Doctrine of Pith ad Substance. From all the foresaid discussion it can be concluded that the Doctrine has tried to bridge the gap when it comes to determining whether a particular law relates to a particular subject and has been incidental in the way it functions in the Indian context. The doctrine has further helped in maintaining the true basis of the powers being granted to the legislature.

This article has discussed in length the Doctrine of Pith ad Substance. From all the foresaid discussion it can be concluded that the Doctrine has tried to bridge the gap when it comes to determining whether a particular law relates to a particular subject and has been incidental in the way it functions in the Indian context. The doctrine has further helped in maintaining the true basis of the powers being granted to the legislature.

Author: Namrata Kandankovi from Symbiosis Law School, Pune.

Editor: Avani Laad from Symbiosis Law School, Pune.

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