INTRODUCTION:

Parliament and the State Legislature should keep within the field assigned to it and not encroach
into sphere reserved to the other, and a law made by one which trespasses or encroaches upon the
field assigned to the other, is not valid.

But before the Legislature purporting to deal with a subject in one list and touching also on a
subject in another list is declared to be bad, the courts apply what is known as, the doctrine of
pith and substance.

Pith and substance is a legal doctrine used to determine under which head of power a given piece
of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one
level of government has encroached upon the exclusive jurisdiction of another level of
government.

DEFINITION:

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. Thus, if the substance falls within Union List, then the incidental
encroachment by the law on the State List does not make it invalid.

This is essentially a Canadian Doctrine now firmly entrenched 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 have to its pith and substance.

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. The effects may arise from imperfect administration,
discriminatory enforcement, or unanticipated side effects caused by the law on the universe of
behaviours.
The doctrine of pith and substance works very simply. In the first stage the legislative powers of
both, Parliament and State is allowed to its fullest extent. In the second stage, the area of conflict
is seen and finally, it is seen as to where does the conflicting portion fall, i.e., in which list the
conflicting portion fall. Obviously, the conflicting portion falls either in List I or List II and
therefore, once the conflicting portion is assigned to the correct list, the conflict is gone or there
is no conflict.

JUDICIAL INTERPRETATION THROUGH VARIOUS CASES:

1. Union of India v. Shah Goverdhan L. Kabra Teachers' College

Court held that in order to examine the true character of the enactment, the entire Act, 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.

2. The State of Bombay And Another vs F.N. Balsara

This is the first important judgment of the Supreme Court that took recourse to 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.
 3. 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
entirety.

4. Zameer Ahmed Rehman Sheikh v. State of Maharashtra and Ors.

Pith and Substance has been beautifully explained in this case:

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.

5. Kartar Singh v. State of Punjab

This doctrine of pith and substance is applied when the legislative competence of a legislature
with regard to a particular enactment is challenged with reference to the entries in the various
lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In
such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny
of the Act in question, if found, that the legislation is in substance one on a matter assigned to the
legislature enacting that statute, then that Act as a whole must be held to be valid
notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter
included in the list belonging to the other legislature. To say differently, incidental encroachment
is not altogether forbidden.
 6. State of Bombay v. Vatan Medical and General Store

The Supreme Court held that once 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 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.

7. Ishwari Kehtan Sugar Mills case

It was held, when validity of a Legislation is challenged on the ground of want of legislative
competence and it becomes necessary to ascertain to which entry in the three Lists the
Legislation is referable to, the court has evolved the theory of pith and substance. If in pit and
substance Legislation falls within one entry or the other but some portion of the subject matter of
the Legislation incidentally trenches upon and might enter a field under another List, the Act as a
whole would be valid notwithstanding such incidental trenching.

8.