Sub Theme: Places of Worship Act, 1991| Doctrine of Pith and

Substance| Doctrine of Colourable Legislation | UPSC

Arguments made by the Authors related to the Places of Worship

Act, 1991

The pith and substance of the Act of 1991 is ultra vires as it bars
judicial review of Supreme Court.
This effectively negates one fundamental right to constitutional
remedy under Article 32 of the Indian Constitution.
Under Article 32 of the Constitution of India, the Supreme Court has
the power to issue writs appropriate for enforcement of all the
Fundamental rights conferred by Part III of the Constitution.
The power of judicial review conferred on Supreme Court and High
Court is part of Basic Structure of the Constitution. Hence, no Act of
Parliament can exclude or curtail the powers of the Constitutional
Courts with regard to the enforcement of fundamental rights”.
The authors have also claimed that the legislation – The Places of
Worship Act, 1991, can be appropriately called an Act of Colourable
Legislation. It is based on the maxim that “what cannot be done
directly, cannot also be done indirectly”.
Accordingly, the authors have challenged Section 3 and 4 of Places of
Worship Act, 1991 being unconstitutional, void ab initio and against
the Basic Structure of the Constitution of India.

Doctrine of Pith and Substance

Pith and Substance denotes the true nature of law. The doctrine
places emphasis on the fact that it is the real subject matter which is
to be challenged and not its incidental effects on another field. Pith
denotes the ‘essence of something’ or the ‘true nature’, while
substance states ‘the most significant or essential part of something’.
Hence, it can be stated that the very doctrine of pith and substance
relates to finding out the true nature of a statute.
It was in the case of State of Bombay v. F. N Balsara that the doctrine
was first applied in the case and the same was upheld.
Seventh Schedule – Constitution of India under Article 246
distributes law making power through Seventh Schedule under
UNION LIST, STATE LIST & CONCURRENT LIST. Now, at times the
power under various entries of SEVENTH SCHEDULE overlaps and the
Judiciary applies the principle of PITH AND SUBSTANCE to demarcate
and find out the competence or incompetence of state legislatures
to frame law on any subject matter.
Doctrine of Colourable Legislation
The doctrine is used in the cases to determine questions of
competency to enact a law when a legislature oversteps its conferred
power and legislate upon something indirectly which it can’t do in a
direct manner.
On the face of the legislation, the subject matter of the law seems to
fall within the power of the legislature but the related effect or
purpose of the matter actually falls beyond the domain and authority
of the legislature.
So in a manner, the doctrine limits the overstretching or misuse of
the granted constitutional power in a covert manner.
In C. Gajapati Narayan Deo v State of Orissa, Supreme Court held
that transgressions may be patent, manifest or direct, but it may also
be disguised, covert or indirect, or and it is to this latter class of cases
that the expression colourable legislation has been applied in judicial
pronouncements.
Evolution of Basic Structure Doctrine

1st constitutional amendment act– Right to Property

Shankari Prasad case – 1951– the power of the Parliament to amend
the Constitution under Article 368 also includes the power to amend
Fundamental Rights.
7th Constitutional Amendment
Golaknath case 1967– The Supreme Court ruled that the
Fundamental Rights are given a ‘transcendental and immutable’
position and hence, the Parliament cannot abridge or take away any
of these rights.
24th Amendment act 1971– It declared that the Parliament has the
power to abridge or take away any of the Fundamental Rights under
Article 368.
Kesavananda Bharti case 1973– It ruled that the constituent power
of Parliament under Article 368 does not enable it to alter the ‘basic
structure’ of the Constitution. This means that the Parliament cannot
abridge or take away a Fundamental Right that forms a part of the
‘basic structure’ of the Constitution.
42nd Amendment act1976 – Amended Article 368 and declared that
there is no limitation on the constituent power of Parliament and no
amendment can be questioned in any court on any ground including
that of the contravention of any of the Fundamental Rights.