TOPIC

THE DOCTRINE OF PITH & SUBSTANCE IN INDIAN

AND CANADIAN LAW

A TERM PAPER SUBMITTED IN PART FULFILLMENT

OF THE REQUIREMENT FOR 1ST SEMESTER LL.M
EXAM, UNIVERSITY OF DELHI

PREPARED BY: MANISH KUMAR

ROLL NO. 2
LL.M, 1ST TERM
(2 YEAR COURSE)

SUPERVISOR : PROF. KAMALA SHANKARAN

FACULTY OF LAW, D.U
 INDEX
[

1. INTRODUCTION

2. MEANING AND CONCEPT OF THE DOCTRINE

3. ORIGIN OF THE DOCTRINE

4. CAN THE DOCTRINE OF PITH & SUBSTANCE BE APPLIED IN ART.

254?

5. CAN THE DOCTRINE OF PITH & SUBSTANCE BE APPLIED ON

CONSTITUTIONAL RIGHTS AND FREEDOM RELATED ISSUES?

6. SARKARIA COMMISSION REPORT

7. POSITION OF PITH AND SUBSTANCE IN CANADA

8. COMPARISON BETWEEN INDIA & CANADA

9. CASE LAWS

10. CONCLUSION

11. BIBLIOGRAPHY
 INTRODUCTION

The essence of federalism lies in the sharing of legal sovereignty between the
union and the federating units. In general, the most precise way of demarcating the
respective areas of the federation and federating units is to demarcate their respective
areas with regard to legislation. There are many reason for this; but the two most
important, are the following:-

1. Demarcation of legislative powers helps in defining boundaries of the

executive power also, as usually the former controls the later.

2. It is easier to formulate, with reasonable precision, the various topics on which

legislative power can be exercised, as the legal system of a country would usually
have had occasion to deal the topic in some form or the other.

The constitutional provision in India on the subject of distribution of legislative

powers between the union and the states are spread out over several articles
(articles 245-254). However, the most important of those provisions is contained
in Articles 245-246.

- Art 245 provides inter alia, that (subject to the provision of the constitution)

(i) Parliament may make laws for the wole or any part of the territory of India,
and

(ii) The State legislature may make laws for the whole or any part of the state.

Thus, Art 245 sets out the limits of the legislative powers of the union and the
states from the geographical point of view. From the point of view of the subject
matter of legislation, it is Art. 246 which is important1.

1
P.M. Bakshi, Concurrent Powers of Legislation Under List III of the Constitution.

1
Summary of Art 246 is that Parliament has exclusive power to make laws with
respect to any of the matters enumerates in List I of VIIth Schedule called The
'Union List' . Subject to the said power of parliament the legislature of any state
has power to make laws w.r.t. any of the mattes enumerates is List III, called
'Concurrent List'. Subject to the above two provisions, Legislature of any State
has exclusive power to make laws w.r.t any of the matters enumerated in List II,
called the State List.

The various entries in the three lists are not Powers of legislation but 'fields' of
Legislation. Allocation of Subject to the lists is not by way of scientific or Logical
Precision but are mere enumeration of broad categories. However, it can be said
that a basic test applied for allocation of subject is that Functions of National
Importance should go to the centre and subject of Regional or Local Importance
should go to the states. However this test is very general and does not lead to any
uniform pattern of allocation of powers and functions between two tier of
governments.

It is obvious that when the Union or the State Legislature purports to enact a law,
it must, in the first place, decide whether it has legislative competence with
reference to the subject matter of the law or not? For this purpose the Pith and
Substance is usually applied.

2
 MEANING AND CONCEPT

In no field of constitutional law is the comparative approach more useful than in

regard to the doctrine of 'Pith and Substance'. This is a doctrine which has been so
frequently used by the courts that it has become a secured and reliable Rule of
Constitutional Interpretation.

The Doctrine of Pith & Substance means The Central and Most Important Part,
essence, heart etc of an act. The 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 different legislative lists. This is
because, a law dealing with a subject in one list lying within the competence of a
legislature concerned may also touch upon subject in another list which is within
the competence of another legislature.2

The Doctrine means that if an enactment substantially falls within the power
expressly confirmed by the constitution upon the legislature which has enacted it,
it can't be held to be invalid merely because it incidentally encroaches on a matter
assigned to another legislature.3 Because each general word of an entry should be
held to extend to all ancillary or subsidiary matters which can fairly be
apprehended therein.

Thus the Doctrine of Pith & Substance saves an act as a whole even if it
incidentally encroaches upon another list but only when the law in 'Pith & Substance'
falls within an entry within legislative field of a particular legislature. It is trite to
mention here that, the validity of an impugned legislation is not determined
by the degree of invasion into the field assigned to the other legislature but by
the 'Substance' of the matter. The doctrine of Pith and Substance

2
Chamber's Dictionary
3
Saumya Mishra, The Doctrine of Pith & Substance preserves and protects The Constitutional Properties
of Parliament and Legislature. AIR Feb. 2009, P. 17.

3
is sometimes expressed in terms of ascertaining the true character & nature of
legislation. The name given by the legislature to the concerned legislation is
immaterial, regard must be had to :-

ii. To the enactment as a whole.

iii. To the legislation's may object / purpose / wholesomeness.

iv. To the Scope and Effect of legislature provisions. 4

4
M.P. Jain, 'Indian Constitutional Law', P. 591.

4
 ORIGIN OF THE DOCTRINE5

This is a doctrine which came to be established in India and derives its genesis
from the approach adopted by the courts including Privy Council is dealing with
controversies arising in different federations of the British Empire. The principle
came to be established by the Privacy Council When it determined appeals from
the courts of Canada and Australia involving the question of Legislative
competence of the federation or the states in those countries.

In India the doctrine of Pith & Substance came to be adopted in the pre-
independence period, under the Government of India Act, 1935. The classical
example is the Privy Council Judgment in Prafulla Kumar v. Bank of Commerce,
Khulna

Prafulla Kumar v. Bank of Commerce, Khulna (AIR 1947 PC 60)

In this case, the Bengal Money Lenders Act was passed to scale down debts owned
by the agriculturists. It was challenged on the ground that being a provincial law, it
affected provisionary note, a central subject (E 46 List I). Lord Porter delivering
the judgement laid down that in distinguishing between powers of divided
jurisdiction under List I, II, III of VIIth Schedule, it is not possible to make a clear
cut distinction between the powers of legislation between various legislatures.
They are bound to overlap from time to time and the rule which has been evolved
by the judicial committee whereby a challenged statute is examined to ascertain its
Pith and Substature, its true purpose and character for the purpose of determining
in which particular list the legislation falls, applies to central as well as provincial
legislation also. The Privy Council further observed that the overlapping of
Subject - Matter is not avoided by substituting three lists for two, or even by
arranging for a hierarchy of jurisdiction. Subjects must still overlap and where

5
P.M. Bakshi, Constitution of India, P. 221

5
they do, the question must be asked "What in Pith and Substance is the effect of
the enactment of which complaint is made and in what list is its true nature and
character to be found".

Lord Porter further observed that, once it is found that a law made by the
provincial legislature was w.r.t one of the matters enumerated in the provincial
list, the degree or extent of invasion into the forbidden field is immaterial. The
invasion of the provincial legislation into subjects in the Federal list was important
not because the validity of an act can be determined by discriminating between
degrees of invasion, but for the purpose of determining as to what is the Pith &
Substance of the impugned act.

The question is not, has it trespassed more or less but is the tresspass whatever it
be, such as to show that Pith & Substance of the impugned act is not Money-
Lending but promissory notes. Once that question is determined that the Act falls
on one or other side of the line of Provincial Subject, the matter is over.

On the need for applying this doctrine, Sir Maurice Gywer in the Case of
Subramanyam Chettiaz v Muttuswami Goundan6 had said that "given the
inevitability of overlap, the 'Pith & Substance' test was needed because without it,
"blind adherence to a strictly verbal interpretation would result in a large number
of statutes being held invalid"

The Privy Council after applying Pith & Substance test found that Bengal Money
Lenders Act, 1950 was valid because it related in Pith & Substance to money lending
and money lenders even though it contained references to banking, corporation and
Pro. Notes which appeared to trench upon entries in the Federal list (E 28 in
particular).

6
AIR 1941 FC 47

6
So, what we can forward in the light of this case is that the Doctrine of Pith &
Substance 'Introduces a degree of flexibility into the otherwise rigid scheme of
distribution of power. It gives an additional dimension to the powers of the centre
as well as states. The reason behind the rule is that if every legislation were to be
declared invalid, howsoever, slight or incidental the encroachment by it of the
other field, then the power of each legislature will be drastically circumscribed to
deal effectively with the subject entrusted to it for legislation. The rule i.e., Incidental
Encroachment is permissive has been reiterated in may cases thereafter such as:-

1. STATE OF BOMBAY V. NAROTTAM DAS JETHABHAI7

Patanjali Shastri J. observed that as long as the provincial law is valid under the
Pith & Substance test, it will still be valid even if it 'encroaches practically on the
whole of the federal field'. The result of this case was that the doctrine of Pith &
Substance was further given flexible approach. Describing the doctrine of Pith &
8
Substance Augustus Lefroy, a Canadian Writer said that, "what is really sought
by the Pith & Substance, "inquiry is the true aspect of the law, and adding that this
word 'aspect' refers to the aspect or point of view of the Legislator in legislating
the object purpose and the scope of the legislation".

2. R.S. JOSHI, SALES - TAX OFFICER, GUJARAT V. AJIT MILLS LTD,

AHMEDABAD9

Bombay Sales Tax Act, 1959 was challenged on the ground that the State act had
gone beyond what E 54 (State List) permitted by providing that Sales Tax
Collected illegally should be forfeited to the state. The forfeiture provision were
said to be a mere Colourable device - a specious attempt to get additional revenue.

7
AIR 51 SC 69 at 77
8
A.H.F. Lefro y, A Short - Treatise on Canadian Constitutional Law (1919)
9
AIR 1977 SC 2279

7
Rejecting this argument, Krishna Iyer J expressed that such expression like
'Colourable Device' have a tendency to mislead. Logomachy is tricky legal trade,
semantic nicety is a slipping compass for courts.

It is submitted that Krishna Iyer J. reasoning depended essentially on a purposive

understanding of the Pith & Substance drawing not only on the purpose of legislation
but on those of the constitution.10 He further observed that, "The true key to
constitutional construction is to view the equity of the statute and sense the social
mission of the law against the triune facets of justice highlighted in the preamble to
the paramount parchment i.e., the constitution, read with a spacious
signification of the listed entries concerned".

10
Blackshield Tony, working the Metaphor: The contrasting use of "Pith and Substance" in Indian and Australian
Law.

8
CAN 'PITH AND SUBSTANCE" BE APPLIED IN ARTICLE 254?

It is known that the co-existence of central and state laws is a particular area can
give rise to litigation. Such problem arises, either because:-

1. The Union or a State law illegally encroach upon the province of the Other i.e.,
Parallel legislature, or

2. Though there is no encroachment, as such on each other's sphere, the two laws
clash with each other.11

The two situations are, strictly speaking, different form each other, and they must
be judged by two different tests. Where the subject-matter of the legislation in
question falls within either the Union or the State list only, then the question is to
be decided with reference to the legislative competence. In this situation, one of
the two laws must necessarily be void, because (leaving aside matters in the
concurrent list), the Indian Constitution Confers exclusive jurisdiction upon
parliament for matters in the Union list and upon a state legislature for matters in
the state List. The correct doctrine to be applied in such cases is that of Ultra vires.
Since one of the two laws must be void, the question of inconsistency between the
two has no relevance. Only one law will survive, and the other law will not
survive, because ex-hypothesis, it has no life.12

In contrast, where the legislation passed by the Union and the state is on a subject
matter included in the concurrent list, then the matter cannot be determined by
applying the test of Ultra vires because both the laws are constitutionally valid.
The correct test to be applied in such cases, is that of Repugnancy, under of 254
(2), of the constitution.13

11
Supre Note 1
12
Ibid
13
Ibid

9
From this scenario, let us peep into few important decisions touching the subject:-

HOECHST PHARMACEUTICALS LTD & OTHERS V. STATE OF

BIHAR & OTHERS;14

A State Surcharge on the turnover of certain deals was challenged on the ground
that the Price-Fixation of essential commodities was an occupied field covered by
Central Government order under the Essential Commodities Act, 1955. Sen J.,
insisted that 'the true principle applicable was 'Pith & Substance' and not
repugnancy and the surcharge was valid because in Pith & Substance it fell within
entry 54 (State List) i.e., Taxes on Sale or Purchase of Goods).

But majority in this case observed that inspite of the fields of legislation having
demarcated, the question of Repugnancy between the law made by parliament and
a law made by the State legislature may arise only when both the legislation
occupy the same field w.r.t. one of the matters enumerated in the concurrent list
and a direct conflict is seen. It is only when both requirements are fulfilled that the
state law will, to the extent of repugnancy become void. Art 254 (1) has no
application to cases of repugnancy due to overlapping found between list II on the
one hand and List I and List III on the other.

If such overlapping exists in any particular case, the State Law will be Ultra Vires
because of 'Non-obstante Clause' in Art. 246 (1) read with opening words 'Subject
to ' is Article 246 (3). In such a case the state law will fail not because of
Repugnancy but due to want of Legislative competence. Before applying the rule,
however, the court should make an attempt to construe in such a way so as to
reconcile the conflict and avoid overlapping.

14
AIR 1983 SC 1019

10
 VIJAY KUMAR SHARMA & OTHERS V. STATE OF KARNATAKA &
OTHERS15

In this case, one of the question for determination was whether the Doctrine of
Dominant Purpose and Pith & Substance would be applied to the matter covered
under the concurrent list? Main issue was whether a Karnataka Law passed in
1976 and providing for contract carrying business to be taken over by the State
Government had been overridden by the Parliament's enactment of the Motor
Vehicles Act, 1988?

The Majority held that there was no repugnancy: the two laws dealt with different
subject matter and occupied different feilds. Sawant J. & Rangnath Mishra J.
could see no reason why the issue of repugnancy should not be decided by using
the test of 'Pith & Substance'. "Sawant J. observed that if it is open to resolve the
conflict between two entries in different lists by examining the dominant purposes
and therefore the Pith & Substance of the two legislations, there is no reason why
the repugnancy between the provisions of the two legislations between different
entries in the concurrent list should not be resolved by the same touchstone. In
both cases, the cause of conflict is the apparent identity of subject matter. The tests
for resolving is therefore can't be different.

Ramawamy J. who held minority judgement said that there was a repugnancy and
insisted that the Pith & Substance test could have no application when the matter
in question is covered by an entry or entries in the concurrent list and has occupied
the same field both in Union and the State law. The question of incidental or ancillary
encroachment or to trench into forbidden field does not arise.

As recently as 2004, the S.C appeared to have accepted the view held in Vijay
Kumar Sharma Case when it applied the same test in the case of Bharat - Hydro

15
AIR 1990 SC 2072

11
Power Corp. Ltd. v. State of Assam16 where the state law was saved as the
Supreme Court found no repugnancy as both central and state law operated in
different fields.

Not Let's see the combined effect of the cases:-

1. That we apply 'Pith & Substance so as to determine the legislative competency

of the Union and State Legislature. Here we apply principle of federal
supremacy laid down in Art. 246, but only after ascertaining that reconciliation
in impossible. Here, either whole law will be saved or struck down.

2. If the matter falls in concurrent list, we will still apply Pith & Substance to see
whether the impugned legislation is on same subject matter or on different
field. If is falls on different subject matter then still both the legislation will co-
exit. However if it falls on same subject matter, then rule of repugnancy under
Art 254 (1) will apply.

16
AIR 2004 SC 3173

12
 CAN THE DOCTRINE BE APPLIED IN CONSTITUTIONAL RIGHTS &
FREEDOM RELATED ISSUES? 17

It seems to be now settled that the test of 'Pith and Substance' has no role to play in
assessing the impact of legislations on constitutional rights and freedoms. Earlier,
during the initial years of Post-Independence Period, courts assumed the relevance
of the Pits & Substance on this question. This doctrine was assumed by S.R. Das J
18
in State of Bombay & R.M.D.C. A.K. Gopalan Case19 etc In A.K. Gopalan's
Case the court assumed that in any case where the Fundamental Rights
Fundamental Rights were invoked, the court should begin by examining as to
which of the Fundamental Rights was involved. The assumption was that various
Fundamental Rights in Part - III were separate and self - contained like the
separate entries in List I, II & III so that, once it was seen which right was in issue,
any other right were irrelevant. It was Bhagwati J. in Maneka Gandhi Case20, who
first suggested that approach in Gopalan's Case was analogous to Pith &
Substance approach to the entries in list I, II, III.

But when Part III of the Constitution were started to be given wider interpretation,
application of this doctrine was curtailed down. Such application of the doctrine
was denied by the majority judgement of Gajendragadkar J. in Atiabazi Tea Co.
Ltd v. State of Assam and again denied by dissenting judgement of Hidayatullah J.
in Automobile Transport (Rajasthan)k Ltd. V. State of Rajasthan,21 when the court
were interpretating Art. 301 relating to freedom of trade, commerce and
intercourse throughout the territory of India.

17
Blackshield Tony : Article on Pith & Substance
18
AIR 1957 SC 699
19
AIR 1950 SC 27
20
AIR 1978 SC 597
21
AIR 1962 SC 1406

13
Application of this doctrine was also in question in Benett Coleman & Co. v. U.O.I 22
where the court held that "notions of Pith & Substance & incidental effect" are irrelevant
to the question of infringement of Fundamental Rights their proper role is confined to
"Question of legislative Competence".

In R.C. Cooper v. U.O.I.23 the Indian Bank Nationalization case, where court insisted that
cases involving Fundamental Rights must be governed not by the object of the legislation
nor by the form of action" but by its direct operation upon an individual's rights. In
Bachan Singh v. State of Punjab24 Sarkaria J., delivering majority judgement held that
R.C. Cooper and Maneka Gandhi cases have not done away with the approach in A.K.
Gopalan's Case. Sarkaria J, instead offered what he called a "Comprehensive Test"
essentially combining the Gopalan's approach (expressed in terms of Pith & Substance)
with R.C. Cooper approach in terms of 'direct operation'.

To sum, the view of Bhagwati J. is Bachan Singh's Case25 appears to command general
acceptance. "It is sufficient for we to state that the 'Object & Form' test or the Pith &
Substance Test has been completely discarded by decision in R.C. Cooper & Maneka
Gandhi's Case and it is now well settled that in order to locate the Fundamental Rights
Violated by a Statue, the court must consider what is direct and inevitable consequence of
a statute. Merely because a stature satisfied the requirement of one Fundamental Rights it
is not freed from the obligation to meet the challenge of another applicable Fundamental
Rights ".

22
AIR 1973 SC 106
23
AIR 1970 SC 564
24
AIR 1980 SC 898
25
AIR 1982 SC 1325

14
 SARKARA COMMISSION REPORT, 1988, THE SARKARIA
COMMISSION REPORT DESCRIBED THE DOCTRINE IN THE
FOLLOWING WORDS

Moreover, no unfailing formulae for identifying matters of exclusive 'national' or

'local' concern or of 'concurrent' interest is available. These concepts are neither
absolute nor constant. While in some matters overlap between the Lists is
inevitable, in certain others it is part of a deliberate design to ensure the
adaptability of the system to changing times and circumstances. If it is not possible
to eliminate such overlapping absolutely, how is the resultant conflict resolved?
The non-obstante clause in Article 246 supplies the answer. However, this non-
obstante clause "ought to be regarded as a last resource, a witness to the
imperfections of human expression and the fallibility of legal draftsmanship".
Therefore when a question of an apparent conflict between mutually exclusive
Lists, e.g., List I and List II, arises, the first attempt should be to reconcile them.
This is done by applying the test of 'pith and substance'. The impugned legislations
examined as a whole to ascertain its true nature and character for the purpose of
determining whether it falls in List I or List II. If by this test it is found that in pith
and substance it falls under one of these lists, but in regard to incidental or
ancillary matters it encroaches on an Entry in the other List, the conflict would
stand resolved in favour of the former List. If the overlapping or conflict between
the two Lists cannot be fairly reconciled in this manner, the power of the State
Legislature with respect to the overlapping field in List II, must give way to List I.
In short, when a matter, in substance, falls within the Union List, Parliament has
exclusive legislative power with respect to it, notwithstanding that it may be
covered also by either or both the other two Lists.

15
 POSITION OF PITH AND SUBSTANCE IN CANADA

The constitution of Canada, initially enacted as the British North America Act,
1867, had two lists; a list in S. 91 of powers exclusively assigned to the Dominion
Parliament and a list in S. 92 of powers exclusively assigned to the provinces. The
Dominion cannot legislate in a field assigned to the provinces and vice - versa. If a
legislation has been passed by a province, but it really belongs to the dominion
list, it will be invalid & vice versa.26

As far as concurrency is concerned there are 3 provisions that explicitly confer

concurrent powers:-

(a) S. 92 (2) added in 1982, it confers power on provincial legislature to make

laws on the export of natural resources. S. 92A (3) is explicit in the sense that
the power is concurrent and the federal parliament's is trade & commerce
power.

(b) S. 94 A(added in 1951 & Revised in 1964): It confers on the federal parliament
the power to make laws in relation to the old age pension & supplementary
benefits and the section acknowledges the existence of concurrent provincial
power.

(c) C. 95 confers on both legislatures the concurrent power over Agriculture and
immigration.

One more aspect of the Canadian Constitution in the POGG clause which is
enumerated in S. 91 itself. According to this clause, federal parliament will have
general power to make laws for Peace, Order and Good Government, in relation to
all matters, not coming within the subject assigned to provincial legislatures.
Through this clause, federal parliament has potential to completely overwhelm all

26
Supra Note 17

16
the items reserved for provincial jurisdiction in S. 92, even on substantial heads of
power such as "all matter of merely local or Private Nature" and "Property and
Civil Rights"27.

Indeed the judicial Committee of the Privy Council Concluded in 1896 (Local
Prohibition case) that Federal Parliament has the authority to make laws for the
whole of Dominion in relation to matters which in each province are substantially
of level or private interest. It was upon the assumption that these matters also
concern the peace, order and good govt. It was this idea that Lord Watson
captured in a metaphor when he said in 1899, again speaking for the P.C. that the
object was to identify the whole Pith and Substance of the enactment.
UNION COLLIERY COMPANY OF BRITISH COLUMBIA V. BOYDEN (1899)
AC 580

Thus the constitution of Canada defines the laws that maybe enacted by the federal
parliament and kind of laws that maybe enacted by the Provincial legislature.
When the question arises to determine whether any law is valid or invalid, the
statute must be analyzed to identify the true nature and character of the legislation
in order to ascertain the class of subject to which it really belongs. (RUSSEL V.
THE QUEEN (1882) 7 APP. CAS 829, AT 839-840).

The phrase is still used in Canada today. In one case28 in 1990 for instance, the
S.C. of Canada noted that there is "no magic in the phrase" and offered a list of
Paraphases like

a) True meaning of the challenged legislation.

b) True nature and character.

c) Dominant or most important characteristics

27
Peter Hogg, Constitutional Law of Canada, p. 372
28
White Board v. Walley (1990) 3 SCR 1273.

17
 d) leading feature

e) An Abstract of the statute's content.

f) The constitutional value represented by the challenged legislation etc.29

S. 91 & 92 use a distinctive terminology, giving legislative authority ' in relation

to' matters coming within "classes of subject". The phrase "in relation to" comes
from the constitution itself, it describes the federal and provincial governments as
being the authority to make laws in relation to list of subject matters. This
terminology helps to describe the two steps involved in the process of Judicial
Review. The first step is to identity the "Matter" or (Pith & Substance) of the
impugned law, the Second Step in to assign the matter to one of the classes of
subjects (or heads of legislative power) i.e., to determine which list will
accommodate the matter of a particular statute.

"MATTER" here means true meaning of the challenged law or content or subject
matter or an abstract of the Statute's content. etc.

The difficulty in identifying the "Matter" of a statute is that many statute may have
one feature which comes within a provincial head of power and another coming
within a Federal head of power.30

Let us see the case law over it from which we will have a clear picture.

Bank of Toronto v. Lambe (1887) 12 APP 575 : In this case, the provincial
legislature imposes a direct tax on banks. One feature of this law is 'Direct
Taxation' which comes within provincial class of subjects i.e., u/s 92 (2) but
another feature of the law is Banking Coming within Federal List U/s 91 (15). So
the issue was, in relation to which class of subject the law actually relates.

29
Rekha Saxena, "Mapping Canadian Federalism for India, p. 58.
30
Supra Note 13

18
The Court in this case looked, what is the most important feature of the law and
that feature is the Pith & Substance or matter of the law or not?

The Privy Council in this case upheld the provincial law which imposed a tax on
banks. The Court said that the dominant feature of the law was to raise revenue
and so 'accordingly' the matter of the law was taxation, not banking.

2. ALBERTA BANK TAXATION REFERENCE CASE [(1938) AC 117 ]

A different result follows if the Pith & Substance of the challenged law is
adjudged to be a matter outside the jurisdiction. In this case, court struck down an
Alberta Law which imposed a Special Tax Solely on banks. The Court concluded
that the Pith & Substance of this particular law was to discourage operation of
banks its Alberta. It's 'Matter' therefore came within 'Banking' and the taxing
quality of the law was merely incidental.

3. ATTORNEY GENERAL OF CANADA V. ALL. GEN. OF ONTARIO

(1937 AC 326) [LABOUR CONVENTIONS CASE (1937)]

In this particular case, the issue was whether the statute relating to the condition of
employment in industry which was enacted by the Dominion was valid or not?
The Privy Council held that this matter was within the class of subject "Property
and Civil Rights in the Province" which was allocated by S. 92 (13) to the
provincial legislature. The result was therefore that, it was Provincial Legislature and
not the Federal Parliament which has power to enact legislation of the kind necessary
which to implement the Labour convention. The federal legislation was accordingly
held unconstitutional.

19
DOUBLE ASPECT THEORY31

It means "Subject which in one aspect and for the purpose fall within S. 91 may in
another aspect for another purpose fall within S. 9232 This doctrine is known as
double aspect doctrine because some kind of laws have both a Federal and a
Provincial 'MATTER' and are therefore competent to both the dominion and the
province. Lederman has explained that this doctrine is applicable when contrast
between the relative importance of the two is not so sharp. When the court - finds
that the Federal and provincial characteristics of a law are roughly equal in
importance then the conclusion is that law of that kind may be enacted by either
the parliament or state legislature.

Eg:- Laws prescribing rules of conduct on the roads have a 'double aspect' in the
sense that 'Conduct on the roads' may came within Property & Civil Rights, a
matter within Provincial List u/s S. 92 (13) and it may sometimes lead to punishment
of crime, a matter coming within criminal law, a federal subject u/s 91 (27). So, both
the legislature can make laws.

Though each list of classes of subjects in S.91 & S. 92 is exclusive to the

parliament or legislature to which it is subject, however, the exclusiveness of the
two lists does not means that similar or even identical laws may not be enacted by
both levels of government. The Pith & Substance doctrine enables a law that is
classified as in relation to matter within the competence of an enacting body to
have an incidental or ancillary effects on matters outside the competence of the
enacting body. With respect to their incidental or ancillary effects, legislative
power is of course, 'Concurrent' rather than "Exclusive". One corollary of
exclusiveness that I would like to add here is that if either the parliament or a

31
Supra Note II.
32
Hodge v. Queen (1883) 9 App.. Cas. 117, 130.

20
provincial legislature fails to legislate to the full limit of its power, this does not
have the effect of increasing the powers of the other level of Government.

UNION COLLIERY CO. V. BRYDEN [(1899) AC 580 588]

In this case, it was held that the powers of one level of govt. can't expand or
contract depending upon the presence or absence of laws enacted by the other
level of govt.

So some laws are available to the same subject matter when both federal and
provincial laws maybe validity enacted in relation to the same thing, it is possible
to have law that conflict with one another. Conflict is due to applicability in the same
field and by virtue of 'Double Aspect and 'Pith & Substance' (Incidental Effect),
doctrines may be applicable to the same facts. A conflict arises where compliance
with one law results in violation of other. This is described as 'Actual Operational
Conflict'.

In traditional constitutional division of powers jurisprudence, when federal and

provincial laws meet and conflict, doctrine of "Federal Paramountacy" applied and
hence federal law applied.

21
COMPARISON BETWEEN INDIA & CANADA33

Earlier is Canada, the metaphor of Pith & Substance, was used to resolve the
competition between two heads of legislative power, each advanced as the most
appropriate touchstone by which to determine the characterization of a contested
statute. In Indian Context also, the reasoning for judicial resort to the doctrine of Pith
& Substance has essentially been similar as in case of Canada. But the Indian use of
the Metaphor has emphasized not only that the Pith & Substance of a statute is
sufficient to assign it to one or the other of the competing entries, but also (in a
Striking departure from the corresponding Canadian, doctrine) that once the validity
of the statute has thus been determined, the statute will be valid in its entirety
notwithstanding even substantial encroachment on the area of the other entry, and
notwithstanding that, ex-hypothesis, the enacting legislature is rigidly excluded from
the legislative power in that other area. It is largely because of this corollary, attached
by the Supreme Court of India to the concept of Pith & Substance that this doctrine
has served to introduce an element of flexibility into
the apparent rigid scheme of the constitutional provision.

33
Blackshield Tony, working the metaphor Article on Pith & Substance, P. 543

22
 CASE - LAWS

A. DOCTRINE APPLIED BY COURT ON STATE LEGISLATION

1. STATE OF RAJASTHAN V. G. CHAWLA34

Ajmer (Sound Amplifiers control) Act 1952 was challenged on the ground that the
legislation fell under Entry 31 of List I which refers to wireless, broadcasting &
communication etc and not under Entry 6 of State List i.e, Public Health &
Sanitation.

Hidayatullah J., explained that the Pith & Substance of the impugned act is the
control of the use of amplifiers in the interest of health and also tranquility and it
substantially if not wholly falls within powers conferred to preserve, regulate and
promote them and does not fall within Entry in Union List.

2. GUJARAT UNIVERSITY, AHMEDABAD V. KRISHNA RANGANATH

MUDHULKAR35:

The Gujarat University was enforcing a scheme for the gradual phasing out of
English as a language of instruction. The question was whether the University was
empowered to do so? The majority held the view in negative but it was the
minority Judgement of Subba Rao J. which seems more acceptable and in later
cases followed:

Subba Rao J. invoked the doctrine of 'Pith & Substance' while interpreting E 66
List I (Co-ordination & determination of Standards) and E11 list II (State's
General responsibility for Education including Universities). He insisted that a
state law prescribing a language of instruction would be valid in Pith & Substance
even if it incidentally affects co-ordination of standards. He added that 'If the pith
34
(AIR 1959 SC 455)
35
(AIR 1963 SC 703)

23
& S of the act falls squarely within the ambit of a particular entry, it can't be struck
down on the speculative and anticipating ground that it might come into conflict
with a law made by a coordinate legislature by virtue of another entry.

In a series of cases involving 'Alcohol' the pith & substance' test has usually been
applied and has thus enacted the court to support the states in exercise of this
responsibility.

3. A.S. KRISHNA V. STATE OF MADRAS36

Madras Prohibition Act, 1937 was held valid regarding the State's right to legislate
w.r.t intoxicating liquors (by interpreting E(9) List II and Art. 47 Directive
Principles of the State Policy of the Constitution)

4. STATE OF BOMBAY V. F.N. BALSARA37

Held that not only Bombay prohibition act 1949, was valid, but it could also
validity apply to sales of importers as well as local liquors.

The only notable exception is the FIRST SYNTHETIC & CHEMICAL LTD. V
STAT OF U.P.38 whose effect was again watered down in SECOND
SYNTHETIC & CHEMICAL'S CASE39.

(5) AGAIN IN STATE OF A.P. V. MCDOWELL & CO40 case the S.C.
applied the doctrine of Pith & Substance and held that Andhra Pradesh
Prohibition Act 1955 which imposed prohibition an sale, consumption of
intoxicating liquors and which was extended to prohibition to manufacturer
as well as sale and consumption was held valid and held that the act fell
within E8 of List II.

36
AIR 1957 SC 297
37
AIR 1951 SC 318
38
AIR 1990 SC 1927)
39
(1991 SCR (3) 64)
40
(AIR 1996 SC 1627)

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(6) Finally in SOUTHERN PHARMACEUTICALS CASE41, the Kolkata
State law relating to control over manufacture of any product containing
alcohol / intoxicating liquors was saved on the ground that both central and
state law operate on two different and district fields. Similar view was
expressed in the case of State of Bihar v. Shre Baidyanath Ayurved Bhawan
(Pvt.) (Ltd 42

B. DOCTRINE APPLIED BY COURT ON CENTRAL LEGISLATION

(1) Chaturbhai M. Patel v. Union of India43

Validity of the order made under the Central Excises and Salt Act, 1944 was
challenged on the ground that once the excise provision were used for the purpose
of imposing punishment by fines and confiscation of stock, it no longer remained
within central legislative power to levy excise duties (E 45 List I) but fell within
27 List II. It was held that in 'Pith & Substance' the act was clearly a fiscal
measure to levy and realize duty on tobacco and object and purpose of the act was
to imposition, collection & realization of duty of excise.

2. Delhi Cloth & General Mills Co. Ltd. v U.O.I44

In this case, limits on the deposit of money imposed by S. 58 A of the companies

Act 1956 were held to be valid even though they trenched on the field of money -
lending and money lenders. Held that, enactment viewed as a whole was clearly
referable to E. 43 List I and not on money lenders and money lenders.

41
(AIR 1981 SC 1863)
42
AIR 2005 SC 932
43
AIR 1960 - SC 424
44
AIR 1983 SC 937

25
3. Kartar Singh v. State of Punjab45

Where with minor modification, the court upheld the validity of TADA Act, 1985.
Issue was whether the Terrorist Related offences falls under E(1) State List
relating to 'Public Order' or E(1) concurrent list relating to 'Criminal Law' or
whether such offences falls within Entry- (I) on Union List relating to the Defence
of India.

Applying the test of Pith & Substance Court adopted the view that to ascertain the
Pith & Substance of the impugned act, preamble, statements of objects and reason,
legal significance, scope and nexus with the object that these acts seeks to observe
must be objectively examined. Hence held that TADA act in Pith & Substance
falls under 1 List I relating to Defence of India.

45
1994 SCC (3) 569

26
 CONCLUSION

I would like to conclude by saying that the doctrine of 'Pith & Substance' very
strongly preserves and protects the constitutional properties of parliament &
legislation. Experience has shown, both in India and elsewhere, that there are
certain matters which can't be allotted exclusively either to a central or provincial
legislature, though it is often desirable that provincial legislation should make
provision to fulfill its purpose. At the same time it is equally necessary that the
central legislation should also have a legislative jurisdiction to enable. It in some
cases to secure uniformity in main principles of law throughout the country.

The 'Pith & Substance' doctrine as applied in the jurisprudence of Judicial Committee
of the Privy Council, has been effectively carried to other commonwealth countries.
It is used in India under the present constitution. It was also used in Northern Ireland
under Government of Ireland Act, 1920. The substance of the doctrine has been
carted in legislative form sin the Soctland Act,
1998.

In the end, we can state that this doctrine is not only for general understanding, in
fact it goes on to help judiciary in finding out what actually the law was objected
for. In other words, if a law passed ostensibly to give effect to the policy of the
state while 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. Hence, the doctrine of Pith & Substance is
used both as a 'Safety Valve' and a 'Sword'.46 It has been used by the Indian and
others courts as a dynamic tool.

46
Supra Note 1

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 BIBLIOGRAPHY

Basu Das Durga, 'Shorter Constitution of India' Fourteenth Edition 2009,

'Lexis Nixes' Butterworths Wadhwa Nagpur.

Jain M.P.¸ 'Indian Constitutional Law' 6th Edition 2010, Lexis Nexis
Butterworths Wadhwa, Nagpur.

Hogg W Peter, 'Constitutional Law of Canada', Carswell Thomson

Professional Publication.

Laskin Bora, 'Canadian Constitutional Law', 2nd Edition, 1960.

Saxena Rekha, 'Mapping Canadian Federation for India', Kanark Publishers

Pvt. Ltd., 2002.

Sarkaria Commission Report, 1988.

Sankaran Kamala, Case Material of Federalism for LL.M/MCL, 2011-2012.

Blackshield Tony, 'working the Metaphor: The Contrasting use of "Pith and
Substance" in Indian and Australian Law.

Misra Saumya; The doctrine of Pith & Substance preserves and Protects the
constitutional Properties of Parliament and legislatures, AIR Feb 2009 Journal
2.

Websites
www.wikipedia.com
www.indiankanoon.com
www.lexisnexis.com
www.legalblog.in

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