TAMIL NADU NATIONAL LAW

SCHOOL TIRUCHIRAPPALLI

CONSTITUTION PROJECT

ON

DOCTRINE OF PITH AND SUPSTANCE

Submitted

to

Prof: Mahindra prabu

Submitted by

NITHYAVENDAN

BA0140037
DECLARATION OF AUTHORSHIPS

I, NITHYAVENDAN S., hereby declare that this project titled

DOCTRINE OF PITH AND SUBSTANCE submitted to Tamil

Nadu National Law School, Tiruchirappalli, is the record of a

bonafide done by me under the expert guidance of

CONSTITUTIONAL LAW faculty of Tamil Nadu National Law

School Tiruchirappalli.

All authentic information furnished in the project is true to the

best of my knowledge and belief.

CERTIFICATE

This is to certify that the project entitled Doctrine of pith and

substance submitted to Tamil Nadu National law school in partial
fulfilment of requirement of award of degree of under graduate in Law
done by Nithyavendan s under the supervision and guidance of Professor
Mr. Mahindra prabu, department of Law , Tamil Nadu National Law
School.

Prof. Mr.Mahindraprabu ( )
 Place :Tiruchirappalli

ACKNOWLEDGEMENT

First of all, I thank my CONSTITUTION LAW Professor Prof:

Mahindra prabu for having allotted me such a challenging and

dynamic topic. Even repaying him through mere words is beyond

the domain of my lexicon that was the backbone during all hurdles

that I confronted during the making of this project. Here I am

forever duly indebted to him as a student.

Also I am grateful to the staff and administration of TNNLS

who contributed useful resources tremendously in the making of

this project by providing library infrastructure and database

connection.

This entire project wouldnt have possible without the

involvement of precious inputs of my parents and friends who

sacrificed their valuable time to guide and advise me in all times of

need to make this project a successful one.

I am also grateful to the Almighty for giving me courage and

strength to withstand all hindrances during this project and make

it successful finally since its inception.

Table of contents

ChapterI
Introduction

Research Objective
 Research Questions
Research Methodology
Review of Literature
Chapter-II Essential character of the Pith and substance.
A pith and substance analysis scrutinizes the law to discover.
Saumur v. City of Quebec, [1953] 2 S.C.R. 299
Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117

Chapter-III- The Doctrine of Pith and Substance in the Indian

Context
Incidental or Ancillary Encroachment

Chapter-IV- Important Supreme Court Judgments based on the

Doctrine of Pith and Substance
The State of Bombay And Another vs F.N. Balsara ,AIR 1951 SC 318
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra
and Ors. , (2010) 5 SCC 246

Doctrine of Pith and Substanc : Supreme Court explains

Post - Script Rejoinder
Girnar Traders v. State of Maharashtra
Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna
[AIR 1947 PC 60]
Union of India v. Shah Gobardhan L. Kabra Teachers College
[(2002) 8 SCC 228

Chapter-V
Critical Analysis
Bibliography
 Doctrine of Pith and Substance

Introduction:

Doctrine of Pith and Substance Its basic purpose of this doctrine is to determine under
which head of power or field . Under list (given in the Seventh Schedule) a given
piece of legislation falls. Pith means true nature or essence of something
and Substance means the most important or essential part of something. Doctrine of
Pith and Substance says that 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. If the substance falls within Union List,
then the incidental encroachment by the law on the State List does not make it
invalid1.

Pith and substances it was used in a legal doctrine used in Canadian Constitutional
interpretation to determine under which head of power a given piece of Legislation
falls. Respective spheres, the Union and the State Legislatures are made by supreme .
They should not encroach into the sphere reserved to the other. The doctrine of pith
and substance is applied at the legislative competence of a Legislature with regard
to a particular enactment is challenged with reference to the entries in different
legislative Lists, a law dealing with subject in one List within the competence of the
Legislator econcerned is touching on a subject in another List not within the
competence of that Legislature.

In that such a cases ascertained is the pith and substances of the enactment, 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. If according to its true nature and
character, the Legislation substantially relates to a topic assigned to the Legislature
which has enacted it, then it is not invalid because it incidentally trenched or
encroaches on matters assigned to another Legislature. The Act of incidental
encroachment does not affect theirs of the law even as regard the area of
encroachment. To put it differently, incidental encroachment is not altogether
forbidden2.
To determine the pith and substance, there are two aspects of the law must be
examined the purpose of enacting body and the legal effect of the law. Assess the

1
D.D.Basu,Comparative Constitution 623(Wadhwa and Company, Nagpur, 2007).

2
P.M.Bakshi, A Background Paper on Concurrent Powers of Legislation under List III of the Constitution,
availableat :http://lawmin.nic.in/ncrwc/finalreport/v2b3-3.ht
purpose,the courts may consider both intrinsic evidence, such as the Legislation
preamble or purposes clauses, and extrinsic evidence, such as minutes of
Parliamentary debates. They must nevertheless seek to ascertain the true purpose of
the Legislation, as opposed to its mere Stated or apparent purpose3

Equally courts may take into account the effects of the Legislation. Doctrine is to be
applied not only in case of apparent conflict between the powers of two Legislatures
.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 made
First time Canadian Doctrine is used in the Indian Constitutional Jurisprudence. This
doctrine found its place first in the case of Cushing v. Dupey. In this case the Privy
Council evolved the doctrine, that for deciding whether an impugned legislation
was intra vires, regard must be had to its pith and substance

Origin:
The principle of pith and substance had come to be established by the Privy
Council ,when it determined appeals from Canada or Australia involving the question
of legislative competence of the federation or the States in those countries. Canada is
the first country in to use the doctrine of pith and substance got evolved. Supremacy
of Privy Council over Canadian Constitution mainly responsible to bring the picture
this doctrine. The Judicial Committee of the Privy Council (JCPV) is a court run by
the House of Lords in London. Highest court in Canada from 1867 to 1949, and
heard Canada important division of powers cases. It could over rule on Supreme
Court of Canada, many important cases passes to the Supreme Court altogether and
went directly to the JCPV. The decision of JCPV developed doctrine on pith and
substance in case Hodge v. The Queen4

The court Stated that subjects which in one aspect and for one purpose falls within
3
Attorney-General for Ontario v.Reciprocal Insurers, [1924] A.C. 328 (P.C

4
Hodge v. The Queen(1883), 9 A.C 117(p.c)
s.92, may in another aspect and for another purpose fall within s.91(BNA Act). In
applying the doctrine, it should be in situations where the importance of one matter
should not be significantly larger than the other. The doctrine removes the need for the
courts to 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 decisionin Prafulla Kumar Mukherjee v. Bank of Commerce 5 .
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 nature 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 applying the pith and substance
doctrine, regard is to be had
(i)to the enactment as a whole,
(ii)to its main objects,
(iii)the scope and effects of its provisions6
Chaturbhai M.Patel v. Union of India, AIR 1960 SC 424.

Scope:
The Pith and Substance doctrine as applied in the jurisprudence of the Judicial
Committee of the Privy Council, effectively the British Imperial Court of Appeal, has
beencarried to other commonwealth federations. The doctrine is widely accepted
today. Though itoriginated from Canadian laws, gradually it has been included in
many other Constitutionalsystems. Especially the sates having Federal character
found it essential to apply doctrine inworking as the doctrine provides remedy for
disputes arising between Union and State. Thereforeother than Canada- it is used in
India under the present Constitution. In Australian High Courtapplied this doctrine in
King v. Berger7

5
Kumar Mukherjee v. Bank of Commerce,Khulna ,AIR1947 PC 60
6
supranote 2
7
King v. Berger(1908) 6 clr 41
, where Federal Excise Tariff Act, 1906 had imposed anexcise duty on manufacture of
agricultural implements and invalidated the law. It was also usedin Northern Ireland,
Scotland and some other countries.
Provisions in Indian Constitution:
India is a Federal State like America, Australia and Canada the legislative powers of
theCentral federation and the State Provinces were given in three Lists, firstly under
theGovernment of India Act, 1935 and then under the 1950 Constitution, where
Canada had twoLists and America and Australia had only one List8
. Though the States did not join thefederation, the Federal provisions of the
Government of India Act, 1935, were in Act, applied as between the Central
Government and the Provinces. The division of powers between Centre andthe State
Provinces in the Government of India Act, 1935 and the division made in the
Constitution between the Union and the State proceeds largely on the same lines9
A threefolddivision was made in the Act of 1935
:(i),Federal List for Federal Legislature
(ii)Provincial List for Provincial Legislature and
(iii)Concurrent List for both Federal and Provincial Legislature.Federal
Legislature had however, the power to legislate with respect to mattersenumerated in
the Provincial List if proclamation of emergency was made by the Governor General
. The Federal Legislature could also legislate with respect to a Provincial subject if
theLegislature of two or more Provinces desired this in their common interest
.In case of repugnancy in the Concurrent field, a Federal law prevailed over
Provinciallaw to the extent of the repugnancy but if the Provincial law received the
assent of the Governor 10
Research Objective
Doctrine of pith and substance is defined in the article 246 in Indian constitution. It
used in India cases to make judgment. The power to make the Amendment Act is

8
Tony Black shield Working the metaphor: The contrasting use of Pith and Substance in Indian and Australianlaw 50
JILI 518(2008).
9
D.D.Basu,Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8 thedn., 2007).
10
s.102, Government of IndiaAct,193
derived not from the respective entries but from under Article 246 of the Constitution.
Research Questions

1. What is the pith and substance or essential character of the law?

2. Why doctrine of pith in substance was introduce in India.
3. Which case we use doctrine of pith substance in Indian .

Research methodology
Researcher will be using description method of research. Researcher working in the
dade on varies issues and will be dealing them it detail .cross-sectional method is used
for collecting data where data is collected at once and working based on those data. it
will be non-contrived research setting ,where nature environment and problems based
on it is taken up rather than certain hypothesis on artificial world etc.
Review of Literature
The researcher have referred the book DD Basu for refer doctrine of pith and
substance use in Indian constitution . Then the researcher has referred the JN Pandey
for import cases based on pith and substance . And the researcher has referred some
case laws for the issues and then the researcher has verified M.P. Jain for the purpose
of doctrine and use in India

Chapetrization 2

ISSUE

1. What is the pith and substance or essential character of the law?

It was first used in Canadas constitution divides law making power between the
Parliament of Canada and provincial legislatures. This is the essence of Canadian
federalism.The division of legislative powers is done by secs. 91-5 of the Constitution
Act, 1867. The language of these sections is quite broad, using phrases like Trade
and Commerce, Property and Civil Rights and Generally all Matters of a merely local
or private Nature. Some cases the language granting law making power is antique
 Asylums and Eleemosynary Institutions. Still responding to a challenge that a
particular law is beyond the constitutional power of either Parliament or a provincial
legislature, a court must consult secs. 91-5 if they are antique and not precise, for they
the main sources by which law making power is given to Canadian legislatures.

A court that consults these provisions will scrutinize the opening words of secs. 91
and 92 particularly. These opening phrases use several concepts to create law making
power, the main ones of which are:

law making power is in relation to matters

matters come within classes of subjects
classes of subjects are assigned by the Constitution Act, 1867
law making powers are exclusive.

These four concepts relation to, matters, comin+g within classes of subjects assigned
by the Constitution Act, exclusivity are not of universal intellectual interest, but they
are crucial .Because they are found in the text of the constitutional provisions that
assign law making power to Canadian legislatures. For example, the opening words
of s. 92 assigns power to the provincial legislatures in this way. In each Province the
Legislature may exclusively make Laws in relation to Matters coming within the
Classes of Subjects next hereinafter enumerated; that is to say sixteen classes of
subjects then follow. Section 91 grants law making power to Parliament in similar, if
more convoluted language, and by using the same the same four concepts in relation
to, matters, coming within classes of subjects, exclusivity.

The courts have built a method for dividing constitutional power out of the language
and these four concepts. The method is now well settled concept. It is specific to
Canadian federalism for two reasons(i) the language and the concepts used are
specific to Canadas constitution; and (ii)derations confront similar problems of
dividing and balancing power, but each solves this problem with its own technique to
arrive at its own specific balance11.

The concepts of matter and relation to require some explanation .Matters are
constructed by the courts. They are called intellectual fabrications. Courts build them
by taking a cue from the constitutional text, which requires that matters come within
the 16 provincial and 31 federal classes of subjects. To meet the requirement that a
matter come within a class of subject, a court must insure that the matter it constructs
is not too big. For example, the environment is too big to be a matter. It does not
come within any of the 16 provincial or 31 federal classes of subjects. But pollution
of inland rivers by the dumping of substances in them is a matter. So is control of
the emissions of smokestacks of heavy industry. These easily fit within the
enumerated classes of subjects.

Another way to think about this is that if the environment were allowed to be a
matter, it would be exclusively federal or exclusively provincial. This would disturb
the necessary balance between federal and provincial governments that Canadian
courts have found necessary for the Canadian federal system. Balance is really the
whole point. All the rest is technique.

Relation to be understood in light of an opposing concept ancillary. The

constitutional jurisprudence makes it clear. In relation to meaning that the law is
really all about matter. The law is really all about this matter as opposed to ancillary.
Ancillary meaning that law may affect the matter, that is not central focus, or what it
is really all about. A law is relation to a matter when its dominant or important
characteristics, its leading features, its pith and substance are really all about that
matter. The law affects the matter in ancillary or incidental way perhaps the law
impacts on matter in passing or ways that are beside the real thrust of the law, but that
does not make the law in relation to the matter. Law affect many things in a variety of

11
M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6thedn., 2010 pg;;562
ways, large and small. Side winds do not determine what matter a law is in relation to
determined by analysing the central focus of the law.12

In order to analyse what matter a challenged law is in relation to to separate from it

matters incidentally affected by the law requires a pith and substance analysis.

A pith and substance analysis scrutinizes the law to discover

The purpose of the law
The legal effect of the law, that is impacts that are expected to happen if the
statute works as planned
The practical effect of the law, that is impacts the statute actually causes as it
operates, anticipated or unanticipated .Effects may arise from imperfect
administration, discriminatory enforcement, and unanticipated side effects
caused by the law on the universe of behaviors.

For example, in Saumur v. City of Quebec13, the Court struck down a municipal by
law that prohibited leafleting because it had been applied so as to suppress the
religious views of Jehovah's Witnesses. Attorney-General for Alberta v. Attorney-
General for Canada14, the Privy Council struck down a law imposing a tax on banks
because the effects of the tax were so severe that the true purpose of the law could
only be to destroy banks, not taxation. Merely incidental effects will not disturb the
constitutionality of a law otherwise in relation to a matter that comes within the
classes of subjects assigned the enacting legislature.
There are 97 entries in the Union List8, 66 entries in the State List9, 47 entries in the
Concurrent List10. However, the entries in all three lists are generally given in the
wide possible terms. Not only that as the matters concerning those lists are to be taken
into consideration for framing law in future it may different wings, it is utmost
necessary to give widest amplitude to the words of different entries. However, it is

12
V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11 thedn., 2008)

13
Saumur v. City of Quebec, [1953] 2 S.C.R. 299
14
Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117
always found that there is overlapping, the doctrine of pith and substance is applied
to find out the true scope of the words used in different entries. The doctrine of the
pith and substance means whatever is specifically provided in a particularly entry
prevails over anything, though incidental or connected does not fall within the scope
of that entry if the said incidence of the matter is specifically covered by any other
entry in other list.
Chapterization 3
ISSUE
2. . Why doctrine of pith in substance was introduce in India

The Doctrine of Pith and Substance in the Indian Context

This doctrine has been applied in India also to provide a degree of flexibility in the
otherwise rigid scheme of distribution of powers. The reason for adoption of this
doctrine is that if every legislation were to be declared invalid on the grounds that it
encroached power of the legislature would be drastically circumscribed.

It is settled law of interpretation that entries in the Seventh Schedule are not powers
but fields of legislation. The legislature derives the power from Article 246 and other
of it related articles of the Constitution. The power to make the Amendment Act is
derived not from the respective entries but from under Article 246 of the Constitution.
The language of the respective entries should be given the widest scope of their
meaning, fairly capable to meet the machinery of the Government settlement by the
Constitution. Each general word should extend to all ancillary or subsidiary matters
which can fairly and reasonably be comprehended. When the vires of an enactment is
impugned, there is an initial presumption on the constitutionality and if there is any
difficulty in ascertaining to the limits of legislative power, the difficulty must be
resolved, as far as possible in favor of legislature putting the most liberal construction
on the legislative entry so that may have the widest amplitude.
Incidental or Ancillary Encroachment

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce 15 succinctly

explained the situation in which a State Legislature dealing with any matter may
incidentally affect any Item in the Union List. The court held that whatever it may be
the ancillary or incidental effects on a Statute enacted by a State Legislature, such a
matter must be attributed to the Appropriate List according to its true nature and
character.

We see that if the encroachment by the State Legislature is only incidental in nature, it
will not affect the Competence of the State Legislature to enact the law in question.
Also, if the substance of the enactment falls within the Union List then the incidental
encroachment by the enactment on the State List would not make it invalid.

How the situation are relating to Pith and Substance is a bit different with respect to
the Concurrent List. If a Law covered by an entry in the State List made by theState
Legislature contains a provision which directly and substantially relates to a matter
enumerated in the Concurrent List and is repugnant to the provisions of any existing
law with respect to that matter in the Concurrent List, then the repugnant provision in
the State List may be void unless it coexist and operate without repugnancy to the
provisions of the existing law.

Chapterization 4
ISSUE
3) What are the case in we use doctrine of pith substance to in Indian constitution

Important Supreme Court Judgments based on the Doctrine of Pith and

Substance

15
Prafulla Kumar Mukherjee v. The Bank of Commerce
In india there are hundreds of judgments that have applied this doctrine to ascertain
the true nature of a legislation. In the present post it will discuss some of the
prominent judgments of the Supreme Court of India that have resorted to this
doctrine.

1. The State of Bombay And Another vs F.N. Balsara 16 This is the first important
judgment of the Supreme Court that took the Doctrine of Pith and Substance. The
court upheld the Doctrine of Pith and Substance and said that it is important to
ascertain the true nature and character of a legislation for the purpose of determining
the List under which it falls.

2 Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.
The court held that in order to decide whether the impugned Act falls under which
entry, one has to ascertain the true nature and character of the enactment i.e. its pith
and substance. The court further said that it is the result of this investigation, not the
form alone which the statute may have assumed under the hand of the draughtsman,
that will determine within which of the Legislative Lists the legislation falls and for
this purpose the legislation must be scrutinized in its entirety17.

3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.

This doctrine is applied when the legislative competence of the legislature with 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 and substance of such enactment on a scrutiny of the Act in question. In this
process, it is necessary for the courts to go into and examine the true character of the
enactment, its object, its scope and effect to find out whether the enactment in
question is genuinely referable to a field of the legislation allotted to the respective
legislature under the constitutional scheme.18
16
The State of Bombay And Another vs F.N. Balsara ,
AIR 1951 SC 318
17
Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.
18
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. , (2010) 5 SCC 246
This doctrine is established principle of law in India recognized not only by this
Court, but also various High Courts. Where a challenge is made to the constitutional
validity of a particular State Act with reference to a subject mentioned in any entry in
List I, the Court has as look to the substance of State Act and on such analysis and
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 of the matters
enumerated in the Union List, the State Act would not become invalid because there
is incidental encroachment on any of the matters in the Union List.

Doctrine of Pith and Substanc : Supreme Court explains

This decision reviews and explains the Doctrine of Pith & Substance, as applicable in
India. One of the proven methods of examining the legislative competence is a
legislature with regard to an enactment is by the application of the doctrine of pith and
substance. This doctrine is applied when the legislative competence of the legislature
with 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 and substance of such enactment on a scrutiny of the Act in
question. In this process, it is necessary for the courts to go into and examine the true
character of the enactment, its object, its scope and effect to find out whether
the enactment in question is genuinely referable to a field of the legislation allotted to
the respective legislature under constitutional scheme. This doctrine is established
principle of law in India recognized not only by this Court, but also by various High
Courts. When a challenge is made to the constitutional validity of a particular State ]
0ttAct reference to a subject mentioned in any entry in List I, the Court has to look to
the substance of the State Act and on such analysis and 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 of 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.

Post - Script Rejoinder

Subsequent to writing this post a Constitutional Bench of the Supreme Court
pronounced its decision in Girnar Traders v. State of Maharashtra19 in which the
Bench inter alia examined the law relating to the doctrine of pith and substance. For
the benefit of our readers we are continuing this post with the observations of the
Bench in this decision.

The doctrine of pith and substance can be applied to examine the validity or
otherwise of a legislation for want of legislative competence as well as where two
legislations are embodied together for achieving the purpose of the principal Act.
Keeping in view that we are construing a federal Constitution, distribution of
legislative powers between the Centre and the State is of great significance.
Serious attempt was made to convince the Court that the doctrine of pith and
substance has a very restricted application and it applies only to the cases where the
Court is called upon to examine the enactment to be ultra vires on account of
legislative incompetence. We are unable to persuade ourselves to accept this
proposition. The doctrine of pith and substance find its origin from the principle that it
is necessary to examine the true nature and character of the legislation to know
whether it falls in a forbidden sphere. This doctrine was first applied in India in the
case of Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna20
The principle has been applied to the cases of alleged repugnancy and we see no
reason why its application cannot be extended even to the cases of present kind which
ultimately relates to statutory interpretation founded on source of legislation. In the
21
case of Union of India v. Shah Gobardhan L. Kabra Teachers College ,this
Court held that in order to examine the true character of the enactment, the entire Act,

19
Girnar Traders v. State of Maharashtra
20
Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60]
21
Union of India v. Shah Gobardhan L. Kabra Teachers College [(2002) 8 SCC 228
its object and scope is required to be gone into. The question of invasion into the
territory of another legislation is to be determined not by degree but by substance.
The doctrine of pith and substance has to be applied not only in cases of conflict
between the powers of two legislatures but also in any case where the question arises
whether a legislation is covered by a particular legislative field over which the power
is purported to be exercised. In other words, what is of paramount consideration is
that the substance of the legislation should be examined to arrive at a correct analysis
or in examining the validity of law, where two legislations are in conflict or alleged to
be repugnant. An apparent repugnancy upon proper examination of substance of the
Act may not amount to a repugnancy in law. Determination of true nature and
substance of the laws in question and even taking into consideration the extent to
which such provisions can be harmonized, could resolve such a controversy and
permit the laws to operate in their respective fields. The question of repugnancy arises
only when both the legislatures are competent to legislate in the same field, i.e. when
both, the Union and the State laws, relate to a subject in List III [(Hoechst
Pharamaceuticals Ltd. v. State of Bihar 22
We have already noticed that according to the appellant, the source of legislation
being Article 246 read with Entry No. 42 of the Concurrent List the provisions of the
State Act in so far as they re in conflict with the Central Act, will be still born and
ineffective. Thus, provisions of Section 11A of the Land Acquisition Act would take
precedence. On the contrary, it is contended on behalf of the respondent that the
planned development and matters relating to management of land are relatable to
Entry 5/18 of State List and acquisition being an incidental act, the question of
conflict does not arise and the provisions of the State Act can be enforced without any
impediment. This controversy need not detain us any further because the contention is
squarely answered by the Bench of this Court in Bondu Ramaswamis case (supra)
where the Court not only considered the applicability of the provisions of the Land
Acquisition Act vis--vis the Bangalore Act but even traced the source of legislative

22
[(Hoechst Pharamaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45)].
competence for the State law to Entry 5 of List II of Schedule VII and held as under.
Where the law covered by an entry in the State List made by the State Legislature
contains a provision which directly and substantially relates to a matter enumerated in
the Concurrent List and is repugnant to the provisions of any existing law with respect
to that matter in the Concurrent List, then the repugnant provision in the State List
may be void unless it can coexist and operate without repugnancy to the provisions of
the existing law. This Court in Munithimmaiah v. State of Karnataka23 has held that
the BDA Act is an Act to provide for the establishment of a Development Authority to
facilitate and ensure planned growth and development of the city of Bangalore and
areas adjacent thereto, and that acquisition of any lands, for such development, is
merely incidental to the main object of the Act, that is, development of Bangalore
Metropolitan Area.
This Court held that in pith and substance, the BDA Act is one which squarely falls
under Entry 5 of List II of the Seventh Schedule and is not a law for acquisition of
land like the LA Act, traceable to Entry 42 of List III of the Seventh Schedule, the
field in respect of which is already occupied by the Central Act, as amended from
time to time. This Court held that if at all, the BDA Act, so far as acquisition of land
for its developmental activities is concerned, in substance and effect will constitute a
special law providing for acquisition for the special purposes of BDA and the same
will not be considered to be a part of the LA Act. The fallacy in the contention of the
appellants is that it assumes, erroneously, that the BDA Act is a law referable to Entry
42 of List III, while it is a law referable to Entry 5 of List II. Hence the question of
repugnancy and Section 6 of the LA Act prevailing over Section 19 of the BDA Act
would not at all arise.
While holding as above, the Bench found that the question of repugnancy did not
arise. The Court has to keep in mind that function of these constitutional lists is not to
confer power, but to merely demarcate the legislative heads or fields of legislation and
the area over which the appropriate legislatures can operate. These Entries have
always been construed liberally as they define fields of power which spring from the

23
in Munithimmaiah v. State of Karnataka [(2002) 4 SCC 326]
constitutional mandate contained in various clauses of Article 246. The possibility of
overlapping cannot be ruled out and by advancement of law this has resulted in
formulation of, amongst others, two principal doctrines, i.e. doctrine of pith and
substance and doctrine of incidental encroachment. The implication of these doctrines
is, primarily, to protect the legislation and to construe both the laws harmoniously and
to achieve the object or the legislative intent of each Act. In the ancient case of
24
Muthuswami Goundan v. Subramanyam Chettiar Sir Maurice Gwyer, CJ
supported the principle laid down by the Judicial Committee as a guideline, i.e. pith
and substance to be the true nature and character of the legislation, for the purpose of
determining as to which list the legislation belongs to. This Court in the case of
25
Jijubhai Nanbhai Kachar v. State of Gujarat referring to the principle of
interpretation of Entries in the legislative lists, held as under:

CRITICAL ANALYSIS

This doctrine of pith and substance has been evolved in all constitutional where the
legislative subjects are enumerated more than one list falling within the competence
of difference legislatures. This rules introduce a degree of flexibility into the
otherwise rigid scheme of distribution of power. It gives an additional dimenction to
the power of centre as well as the states. The reason behind the rules is that if every
legislation were to be declared invalid,however ,slight encroachment of the other filed
by it , then the power of each legislature will drastically circumscribed to deal
effectively with the subjects entrust to it for legislation.
Doctrine of pith and substance is not only for general understanding, it goes on to
help the judiciary in finding out what actually the law is trying to object .In other
world if a law passed ostensibly to give effect to the real natural of the law . The
Doctrine gives quite a good deal of maneuverability to the courts. It furnishes them

24
Muthuswami Goundan v. Subramanyam Chettiar [1940 FCR 188],
25
Jijubhai Nanbhai Kachar v. State of Gujarat [1995 Supp.(1) SCC 596],
tool to uphold legislation ,for it to decide its true nature and character and thus, they
have a number of choices opean to them and most often the courts by putting a
favourable interpatation on the legislation in question use their power to support the
same

There may sometimes be cases where the impungned legislation does not on achoice
between entries in lists of areas of legislation does depend on the choice so directly
analogous that resort to a pith and substance test is clearly legitimate.It has been
seen that under entry 66 of list I the union parliament has exclusive responsibility for
coordination and determine of standerd in institution of higher education The kind of
provis that mights fall within this description was teached in 2002 in relation to the
national council for recognized teacher colleges to their recognition withdrawn and
sub-section provide that in the event.
It was argued that the pith and substance of this provision relation related to
employment and particularly to employment by astate government a matter which
under 309 of constitution is one for the appropiratiate legislature. But the court had no
different in seeing the provision as an integral part legislation whose pith and
substance was coordination and determination of standards..where the pith and
substance of legislation is ascertained by reference to legislative purpose, the sc of
India has show that what may sometimes be dead metaphor can also be a dynamic
tool
Primary source
Article 246 Constitution of India, 1950

There are 97 entries in the Union List8,

66 entries in the State List9,
47 entries in the Concurrent List10

The BDA Act is one which squarely falls under Entry 5 of List II of the Seventh
Schedule and is not a law for acquisition of land like the LA Act, traceable to Entry 42
of List III of the Seventh Schedule

The State, in terms of Entry 5 of List II of Schedule VII,

the LA Act, traceable to Entry 42 of List III of the Seventh Schedule.

Secondary source
BOOKS;

Page no:246 P.M.Bkshi The constitution of India

Page no:694 to 695 Dr.J.N.Pandey The constitution of india

Page no ;562 to566 M P Jain The constitution of india