THE DOCTRINE OF PITH AND SUBSTANCE

INTRODUCTION

The Seventh schedule under article 246 [1]of the Indian Constitution deals with the various issues within the scope of Union and the State lists .These lists specify the various issues on which both the union and the state list have the power to legislate and both have the power to enact on individually. Both the Union and the State legislative body will remain within the area allocated to it and not interfere with the area reserved for others.Article 246 of the Constitution demarcated the powers of the Union and the State by classifying their powers on 3 lists, namely the Union List,the State List and the Concurrent List. The constitution of India has provided for the separation of powers between the central and the state governments.

MEANING

The Doctrine of Pith and Substance means the “true nature of law”. This is applied when there is a conflict between the State and the Union list. The decision is taken in the public interest, which means that the Supreme Court decides what will prevail only for the good of people. The main function performed by the Supreme Court is that the list of subjects to be included is the Union list or the State list.It's a Canadian Doctrine, but now it's firmly entrenched in our Indian Jurisprudence.

CONCEPT OF THE DOCTRINE OF PITH AND SUBSTANCE

As said by Maurice Gwyer ,CJ in Subramanyam Chettiar,1940 FC“that though it must happen inevitably happen from time to time that legislation though purporting to deal with the subject in one list, touches also a subject in another list , and the different provisions of the enactment may be so closely inter wined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may have appeared to have legislated them in a forbidden sphere.Hence, the rule which has been established by the Judicial Committee, whereby the impugned statute is examined in order to ascertain its ‘Pith and Substance’, or ‘its true nature character’, for the purpose of determining if there is legislation with regard to matter in this list or in that”.

The main concern of Mauriceis that the Parliament and the State legislatures operate within the field assigned to it and not interfere upon the field assigned to the other, and the law infringing the field of the other is declared invalid.

It was also quoted in the case of Governor General in Council versus Province Of Madras , 1945 PC“that if the legislative powers of the Federal and the Provincial legislature , which are enumerated in the list 1 and the list 2 of the seventh schedule of the constitution cannot fairly be reconciled, the latter must give way to the former. But it appears to them that it is right to consider whether a fair reconciliation cannot be effected by giving to the language of the federal legislative list a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it, and equally giving to the language of the Provincial Legislative List meaning which it can properly bear.”

In the landmark case of Prafulla Kumar v/s  Bank of Commerce,ltd,Khulna[2], in this case , the question that arose before the Privy Council was whether the Bengal Moneylenders Act 1940,which specified that no borrower is liable to pay more than a certain sum in principal and interest after the beginning of the act, was a matter for the Provincial legislature to deal with money lending and money lenders as a matter of substance within the scope of the Act.The Supreme Court said that the money lending is a part of the state list and promissory note is part of the union list, and as the true object, effect and scope is money lending and the purpose is to protect it .Therefore, the act is valid and the legislation passed by the Bengal legislature is constitutional. The Privy Council was of the opinion that the act was not unconstitutional, either in whole or part, as being ultra vires in Provincial Legislature. The Pith and Substance fell within the framework of list 2, entry 27 of the Government of India Act, 1935 and was thus within the competence of the Provincial legislature and thus not rendered invalid.

In the case of State of Rajasthan v/s G Chawla[3],The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control) Act,1952 which obtained the President’s approval. According to the respondents the act is unconstitutional in so far as it interferes with the matters of the union list, while the state list contends that the matter is constitutional as it is based on the State list. As per the entry 6 of the state list, public health and sanitation is a matter for the State list and state can only make a law onit and the  state government can only make a law on public order (entry 31) and state has made the law to protect it, so it is Constitutional .The court held that the pith and substance of the impugned act is the control of the use of the amplifiers in the interest of the health and tranquility and thus falls substantially if not wholly within the powers conferred to preserve , regulate and promote and thus does not fall int he Union list. Thus, it does not conflict with entry 31 of the Union register,even though it concerns a matter given therein.

The first important judgment of the Supreme Court which appealed to the Doctrine of Pith and Substance is the State of Bombay v/s FN Balsara, In this case the question was whether the Bombay Prohibition Act, 1949 was constitutional. The question to be dealt with was whether the act falls within the scope of entry 31 of list 2 (State List)of the Government of India Act, 1935, namely 'Intoxicating Liquor.'It was argued that the prohibition on purchase, use, transport and sale of liquor would have an effect on imports. The court rejected the argument and held that the act was valid because the content of the act is the part of the entry 31 of the list 2 and not the list 1.

In the case of Zameer Ahmed Latifur Rehman Sheikh  v. State of Maharashtra and Ors.[4]Pith and Substance has been beautifully explained:

"This principle is applied when the administrative fitness of the council concerning a specific order is tested regarding the sections in different records. In the case that there is a requirement of administrative competence, the courts must seek to determine the essence and substance of such order on an investigation of the Act being referred to. In this procedure, it is vital for the courts to go into and look at the genuine character of the sanctioning, its article, its degree and impact to see if the authorization being referred to is truly referable to a field of the enactment dispensed to the separate governing body under the protected plan.

This tenet is a standard of law developed in India, which is interpreted by this Court and, in addition, by different High Courts. Where a check is made on the sacred legality of a particular State Act relating to a subject referred to in any portion of List I, the Court will look at the content of the State Act and on that inquiry and determination, on the grounds that it is discovered that, in nature and in content, it falls within the meaning of the State List and yet there is only an unintended violation of any of the provisions of that Act.

[1] Subject matter of laws made by Parliament and by the Legislaturesof States

(1) Notwithstanding anything inclauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws withrespect to any of the matters enumerated in List I in the Seventh Schedule (inthis Constitution referred to as the Union List)

(2) Notwithstanding anything inclause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of anyState also, have power to make laws with respect to any of the mattersenumerated in List III in the ninth Schedule (in this Constitution referred toas the Concurrent List)

(4) Parliament has power to make lawswith respect to any matter for any part of the territory of India not included(in a State) notwithstanding that such matter is a matter enumerated in theState List

[2](1947) 49 BOM.L.R. 568.

[3] AIR 1959 SC 544

[4]AIR 2010 SC 2633.

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