"The federal government is the balance wheel of the federal system, and the
federal system means using counterweights."- Pierre Trudeau
Before we proceed with the crux of the topic, "The doctrine of pith and
substance", we must look at basic connected concepts and information thereto,
otherwise it may cause confusion as it is a considerably complicated topic.
A legal doctrine3 is a framework, set of rules, procedural steps, or test, often
established through precedent in the common law, through which judgments can be
determined in a given legal case. A doctrine comes about when a judge makes a
ruling where a process is outlined and applied, and allows for it to be equally
applied to like cases. When enough judges make use of the process, it may become
established as the de facto method of deciding like situations.
The terms "federalism" and "confederalism" share a root in the Latin word foedus,
meaning "treaty, pact or covenant". Federalism is a mixed or compound mode of
government that combines a general government (the central or "federal"
government) with regional governments (provincial, state, cantonal, territorial
or other sub-unit governments) in a single political system. Its distinctive
feature is a relationship of parity between the two levels of government
established. It can thus be defined as a form of government in which powers are
divided between two levels of government of equal status
Features of federalism are:
- There are two or more levels (tiers) of government.
- Each level of government has its own jurisdiction in matters of
legislation, taxation, and administration even though they govern the same
- Powers and functions of each tier of government are specified and
guaranteed by the Constitution.
- The Supreme Court has been given the power to settle disputes between
The main advantage of a federal government is that in a country where there are
many diversities like India and the establishment of a unitary government is not
possible, a political organization can be established through this form of
Government. In this type of government, local self-government, regional autonomy
and national unity are possible. In countries where there are diversities of
culture, religion, language and race and which have a large size, unitary
government is not suitable.
In such countries only federal government is
possible, because this system brings unity in diversity; the separate authority
of the provinces is recognized and they are made autonomous. Hypothetically If
unitary government is established in countries like India and the United States
of America, all powers will be concentrated in the central government and there
will be a possibility of it becoming despotic.
The Government of India, also referred to as the Central Government or Union
Government or simply the Centre, is the Union government created by the
Constitution of India as the legislative, executive and judicial authority to
govern the union of twenty-eight states and eight union territories.
The powers of the legislature in India are exercised by the Parliament1, a
bicameral legislature consisting of the Rajya Sabha and the Lok Sabha. Of the
two houses of parliament, the Rajya Sabha (or the 'Council of States') is
considered to be the upper house and consists of members appointed by the
president and elected by the state and territorial legislatures. The Lok Sabha
(or the 'House of the People') is considered the lower house.
The parliament does not have complete control and sovereignty, as its laws are
subject to judicial review by the Supreme Court. However, it does exercise some
control over the executive. The members of the Council of Ministers, including
the prime minister, are either chosen from parliament or elected thereto within
six months of assuming office. The council as a whole is responsible to the Lok
Sabha. The Lok Sabha is a temporary house and can be dissolved only when the
party in power loses the support of the majority of the house. The Rajya Sabha
is a permanent house and can never be dissolved. The members of the Rajya Sabha
are elected for a six-year term
State governments in India are the governments ruling states of India and the
chief minister heads the state government. Power is divided between union
government and state governments. State government's legislature is bicameral in
5 states and unicameral in the rest. Lower house is elected with 5 years term,
while in upper house 1/3 of the total members in the house gets elected every 2
years with 6-year term.
Federalism2 in India refers to relationship between the Central Govt and the
State governments of India. The Constitution of India establishes the structure
of the Indian government. Part XI of the Indian constitution specifies the
distribution of legislative, administrative and executive powers between the
union government and the States of India.
The legislative powers are categorized
under a Union List, a State List and a Concurrent List, representing,
respectively, the powers conferred upon the Union government, those conferred
upon the State governments and powers shared among them. States can make
agreements among themselves. When a dispute arises with other states or union
territory or the union government, the Supreme Court adjudicates per Article
However, Article 262 excludes Supreme Court jurisdiction with respect to
the adjudication of disputes in the use, distribution or control of interstate
river waters. Under Article 263 the President can establish an interstate
council to coordinate/resolve disputes between states and the Union. States have
their own jurisdiction.
The power granted to legislatures to formulate a statute under three lists of
the seventh schedule in the Constitution of India is bound to overlap at certain
points, as its natural in a democracy. However, this can't be used as a
justification to make the whole statute null and void. Otherwise, lawmaking in
our country will become of a rigid nature Therefore, incidental effects or
encroachments are permissible under Constitutional Law while determining the
competence of particular legislatures to the extent of subject matters in the
three lists is in question. This rule is known as the Doctrine of Pith and
Substance. The literal meaning of the doctrine, the "pith" in it refers to the
true nature or the essence of something and the "substance" in it means an
essential part, thusly, the doctrine means the "most significant part of
something in which its true essence lies".
In the history of Indian federal politics, rife with Union-State conflicts, the
Doctrine of Pith and Substance has been thought of as a key factor through which
judgments could be determined in a given legal case of national/state
importance. It is among the most essential doctrines used by the Supreme court
in determining the constitutional validity and legitimacy of an enactment made
by either the Parliament and State legislatures.
The study of the Doctrine of
Pith and Substance has received considerable critical attention in recent times,
especially with regards to intensified friction between the center and the
states. The past decades have seen increasingly rapid polarization in the field
of politics. In the next few years, the Doctrine of Pith and Substance is likely
to be used more significantly and considerably.
However, the core problem lies
in the fact that despite its prognosticated popularity, the majority of Indians
are either ignorant about the topic or are too confused by it's difficult and
vague nature. This research paper is an overview of the Doctrine of Pith and
Substance whereupon it is presented, described, analyzed and discussed with the
help of case laws in order to fulfill my aim of broadening current knowledge of
this topic among the Indian masses.
History Of The Doctrine Of Pith And Substance
The doctrine of Pith and substance is borrowed from the Canadian Constitution5.
Canada is segregated into two parts: Dominion and the Provinces. The makers of
the Canadian Constitution thereby added two different lists in the constitution,
in order to bifurcate the powers of the dominions and the provinces. Section 69
of the Canadian Constitution, initially enacted as the British North America
Act, 1857, segregated the powers designated to dominion and the provinces.
Further, Section 91 and 92 of the Constitution Act, 1867 specifies the exclusive
powers entrusted with the dominions and the provinces.
Section 91: Describes a detailed account of powers exclusively given to the
Section 92: Elucidates on powers exclusively given to the Provinces
Utmost prominence was given to the fact that neither dominion nor the province
could encroach upon each other's authority to formulate and enact laws. This
implies that the dominion has no authority to interfere with the subject matters
on which only the Provinces have the competence to make laws and vice versa.
Despite the clear segregation of powers between the dominion and the provinces,
descriptions of the legislative fields and matters mentioned in both the
sections tend to converge and overlap with each other. This embarked on the
validity of enactment to be decided on the basis of the extent of encroachment
done by one on the powers of another.
A vital question aroused during the process of scrutinizing the extent of
encroachment, regarding the basis on which legislative competence should be
validated. The Privy Council came to the rescue in 1880 in the case of Cushing
v. Dupuy. The doctrine of Pith and Substance was evolved in this case and the
Privy Council held that emphasis must be laid on the "Pith and Substance" of
enactment to decide if it is within or beyond the ambit of legislative powers
assigned to either dominion or the province.
Subsequently, in 1889, in the case of Union Colliery company of British Columbia
v. Bryden, Lord Watson, speaking for the Privy Council, captured the concept of
"true nature and character" of legislation and addressed it as a metaphor "whole
pith and substance" of an enactment.
General nature of analysis of the Doctrine of Pith and Substance as developed
from Canadian law:
The analysis must answer two questions:
The first task in the pith and substance analysis is to determine the pith and
substance or essential character of the law:
- what is the pith and substance or essential character of the law?
- does it relate to an enumerated head of power in section 91 or 92 of the
Constitution Act, 1867?
- What is the true meaning or dominant feature of the impugned legislation?
This is resolved by looking at the purpose and the legal effect of the
regulation or law. The purpose refers to what the legislature wanted to
- Purpose is relevant to determine whether, in this case, Parliament was
legislating within its jurisdiction, or venturing into an area under
- The legal effect refers to how the law will affect rights and
liabilities, and is also helpful in illuminating the core meaning of the
law: see Reference re Firearms Act. The effects can also reveal whether a
law is colourable (does
the law in form appear to address something within the legislature's
jurisdiction, but in substance deal with a matter outside that jurisdiction?.
For example, in R. v. Morgentaler (1993), the province of Nova Scotia passed a
law that prohibited certain surgical procedures from being performed outside of
hospitals under the guise of health services protection. The Supreme Court of
Canada ruled that in substance, the province was attempting to ban abortions.
The pith and substance analysis is not technical or formalistic: It is
essentially a matter of interpretation. The court looks at the words used in the
impugned legislation as well as the background and circumstances surrounding its
enactment. In conducting this analysis, the court should not be concerned with
the efficacy of the law or whether it achieves the legislature's goals.
There are two significant principles to be used in determining whether a matter
falls within a particular federal or provincial jurisdiction:
- The Constitution must be interpreted flexibly over time to meet new
social, political and historic realities
- The principle of federalism must be respected, keeping in mind:
- Power is shared by two orders of government, each autonomous in developing
policies and laws within their own jurisdiction
- Classes of subjects should be construed in relation to one another
- In cases where federal and provincial classes of subjects contemplate
overlapping concepts, meaning may be given to both through the process of
- Classes of subjects should not be construed so broadly as to expand
Once the law has been characterized it must be assigned to one of the two heads
of power. The matters in the exclusive domain of the federal government are
enumerated under section 91 of the Constitution Act, 1867 and matters in the
exclusive domain of the provincial government are enumerated under section 92.
Whether the characterization of a law fits within one of the enumerated matters
depends on the breadth given by the court to each matter.
A law found to be valid under the pith and substance analysis of the law may
also have some incidental effects upon matters outside of the government's
jurisdiction. This is tolerated, as a law is classified by its dominant
characteristic. The modern approach to Canadian Constitutional interpretation is
to allow a fair amount of interplay and overlap into the other level of
The Doctrine Of Pith And Substance In The Indian Context
The doctrine of pith and substance literally means 'true nature and substance',
and this doctrine comes into play when there is a conflict between the union and
state legislature regarding power.
To start off, for better understanding, the relevant article is:
Article 246 in The Constitution Of India 1949
246. Subject matter of laws made by Parliament and by the Legislatures of States:
The relevant schedule is:
- Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has
exclusive power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (in this Constitution referred to as the
- Notwithstanding anything in clause ( 3 ), Parliament, and, subject to
clause ( 1 ), the Legislature of any State also, have power to make laws
with respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the Concurrent List)
- Parliament has power to make laws with respect to any matter for any
part of the territory of India not included (in a State) notwithstanding
that such matter is a matter enumerated in the State List
The Seventh Schedule to the Constitution of India defines and specifies
allocation of powers and functions between Union & States. It contains three
lists; i.e. 1) Union List, 2) State List and 3) Concurrent List. To give a gist
of each list's subject matter's importance:
Union List Subjects:
Some of the important subjects are:
State List Subjects:
Some of the important subjects are:
- International Relations
Concurrent List Subjects:
- Public order
- Public health and sanitation
- Hospitals and dispensaries
- Betting and gambling
Some of the important subjects are:
- Trade unions
Article 246 of the Constitution divides the different matters in three groups
i.e. union, state and concurrent list. These lists explain the different matters
on which the union sate and both have the power to legislate on respectively.
Both Union and State legislature should stick to the domain assigned to it and
not trespass into the domain reserved for other.
The Doctrine of Pith and Substance is applied when the legislation made by one
of the legislatures encroaches or trespasses upon the field assigned to another.
The Doctrine of Pith and Substance is applied to determine the legislative
competence of a legislature with regard to a particular enactment is challenged
with reference to the entries in different legislative list because a law
dealing with a subject in one list encroaches or trespasses upon the subject in
Doctrine of Pith and Substance says that where the question arises
of determining whether a particular law relates to a particular subject the
court looks to the substance of the matter. Thus, if the substance falls within
one list, then the incidental encroachment by the law on another list does not
make it invalid.
In such a conflict between legislatures, it needs to be ascertained that if the
pith and substance of the enactment is the true character and nature of the
legislation. Pith means 'true nature' or 'essence of something' and Substance
means 'the most important or essential part of something'.
If after assessing
the statues it is found that legislation is in pith and substance, based on the
matter assigned to the legislative then such an act must be held valid in its
entirety. Even though the legislature may incidentally trench upon the matter
beyond its competence still it is held to be valid as the statutes are in pith
and substance related to the subject of the act or law.
To sum it up in easy points:
Object Of The Doctrine:
Features Of The Doctrine:
- To ensure against the malafide or fraudulent exercise of legislative power
where the legislative pretends to do one thing but doing another thing.
- To ensure that the division of legislative power under the list is not
- To ensure that the power exercised by the legislature for one purpose
may incidentally or indirectly touch another purpose.
Purpose Of The Doctrine:
- If the subject matter of the one list is in conflict with the subject
matter of another list.
- To avoid any limitation on the powers of legislatures by declaring every
other enactment invalid when it encroaches upon another law.
- To determine the true nature and character and to decide which list it
- It provides a degree of flexibility on the power of the State to make a
law that involves the subject of Union List.
Doctrine Of Ancillary Or Incidental Powers
- To know the exact nature of the law.
- To know whether the exact impact was reflected on the stature framed.
- To know whether there is consequences on implementing the statute.
Ancillary6 or incidental powers mean those powers that support the powers that
are expressly conferred. There are some express powers given to both the Central
and State Governments through the three lists specified in the Seventh Schedule.
The doctrine of ancillary or incidental powers means that these express powers
to legislate on a matter also consist of the power to legislate on an incidental
or ancillary matter.
Such a power is essential for the proper exercise of the expressly conferred
legislative powers. For better illustration, the power to legislate on an entry
dealing with forests would include the power of afforestation, deforestation,
planning and management of forest as ancillary matters.
This doctrine is in addition to the doctrine of pith and substance. The
legislative powers of the Union and the State governments have been specified
under the Constitution. Neither of them should interfere with the power of the
other. If one encroaches upon the powers of another then the doctrine of pith
and substance comes into play. It helps to determine whether the concerned
Legislature was competent to make the legislation in question. The 'pith and
substance' of law i.e., the object of the legislation must come within the scope
of the matter on which the concerned legislature has the power to legislate. If
it is so, then the legislation would be intra vires even if it might appear to
incidentally trench upon the power of the other.
The doctrine of ancillary or incidental powers is used to determine the object
and extent of the legislative powers. It helps in extending these powers through
the power to legislate on incidental and ancillary matters. This doctrine
extends the field of the legislative power. It states that the power to
legislate contains within it the power to legislate on ancillary or incidental
matters. These powers are meant to aid the main object of the concerned
enactment. This doctrine provides for a wide and liberal interpretation of the
entries in the three legislative lists.
Constitutional provisions relevant to this doctrine are:
The following provisions of the Constitution reflect the power to make law
on incidental matters:
- Article 4 provides the power to make law on matters supplemental,
incidental, and consequential to the law providing for adding of states
under Article 2 and 3
- Article 110 and 199 define money bill for both the Union and the States.
It includes "any matter incidental to any of the matters specified in
sub-clauses (a) to (f)" of the respective articles.
- Article 145 provides the power to the Supreme Court to make "rules as to
the costs of and incidental to any proceedings in the Court and as to the
fees to be charged in respect of proceedings therein"
- Article 169 provides for the abolition or creation of Legislative
Councils in States. This article includes the power to make rules "as may be
necessary to give effect to the provisions of the law and may also contain
such supplemental, incidental and consequential provisions as Parliament may
- Article 239AAB empowers the President to suspend any provision of
Article 239AA and related provisions. It also empowers him to "make such
incidental and consequential provisions as may appear necessary".
- Article 244A provides for the formation of an autonomous State
comprising certain tribal areas in Assam and the creation of local
Legislature or Council of Ministers or both. It empowers the Parliament to
make any "such supplemental, incidental and consequential provisions as may
be deemed necessary."
- Article 289 provides for the exemption of property and income of a State
from Union taxation. It empowers the Parliament to exempt trade "incidental"
to the functioning of the Government.
- Article 315 provides for the establishment of Public Service Commissions
for the Union and the States. It provides for the law to contain "any such
incidental and consequential provisions as may be necessary or desirable for
giving effect to the purposes of the law".
- Article 323A talks about Administrative Tribunals. It provides that any
law made under clause (1) of this article may include "such supplemental,
incidental and consequential provisions (including provisions as to fees) as
Parliament may deem necessary for the effective functioning of, and for the
speedy disposal of cases by, and the enforcement of the orders of, such
- Article 323B talks of Tribunals for other matters. It empowers the
appropriate Legislature to make law on "any matter incidental to any of the
matters specified in sub-clauses (a) to (i)" of this article.
- Article 339 provides for the control of the Union over the
administration of Scheduled Areas and the welfare of Scheduled Tribes. It
empowers the President to include in his order "such incidental or ancillary
provisions" as he deems necessary.
- Article 356 provides for the provisions in case of failure of
constitutional machinery in States. It empowers the President by
Proclamation to make "such incidental and consequential provisions as appear
to the President to be necessary or desirable for giving effect to the
objects of the Proclamation."
- Article 371D provides special provisions for the State of Andhra Pradesh
or Telangana. It empowers the President to make an order for the constitution of an
Administrative Tribunal for the above-mentioned states containing "such
supplemental, incidental and consequential provisions" as he may deem necessary.
The Honorable Supreme Court interprets the words "with respect to" under Article
246 to include all the incidental matters concerning the legislation thereby
Landmark Judgements Of Both Doctrines:
Conclusion And Personal Opinion
- Cushing v. Dupuy 7
On 19th of July 1877, three of the brewing companies namely, Mc Leod, Mc
Naughten and Leveille became insolvent. Dupuy was its official assignee with
regard to the writ of attachment in insolvency. On the other hand, Cushing, who
was the notary, produced the contract of sale which was executed on March 12th
1877, by way of which the firm had agreed to sell the assets to him. On the same
day another deed was executed by the way of which Cushing had agreed to lease
back the assets to the principals of the firm for a period of three years.
Further, in the petition, Cushing asserted about having the possession of the
assets. But in reality no removal had taken place and the assets were still in
the possession of the firm. When this matter was taken up in the court, the main
question pondered upon was whether the transaction was a valid sale within the
meaning of Section 1027 and 1472 of the Civil Code of Lower Canada.
Crux of the judgment: The significant aspects which this judgment took into
- The working and the nature of insolvency law in Canada.
- When can the appeals as of right to the privy council be excluded by the local
- In which possible way can the royal prerogative be ousted by the state?
In considering the right to appeal, two questions had to be considered:
The first question was answered in the affirmative, as the Parliament's
jurisdiction over "Bankruptcy and Insolvency" arose from s. 91 of the British
North America Act, 1867. As the Board noted:
- did the Parliament of Canada have the power to abrogate it?
- if it had the power, did it intend to exercise it?
It would be impossible to advance a step in the construction of a scheme for the
administration of insolvent estates without interfering with and modifying some
of the ordinary rights of property, and other civil rights, nor without
providing some mode of special procedure for the vesting, realization, and
distribution of the estate, and the settlement of the liabilities of the
insolvent. Procedure must necessarily form an essential part of any law dealing
As the procedure provided under the federal Act was for its own proceedings, and
not for those under the provincial Code, such provision did not entrench on the
royal prerogative. In addition, Colonial legislatures had in several
circumstances already deemed certain judicial decisions to be final and not
subject to further appeal. Therefore, the Court of Queen's Bench was correct in
stating that it must refuse leave in this matter.
As to the ability for the Privy Council to grant special leave to appeal, it was
unnecessary to consider whether the Parliament had the power to abrogate it, as
the general principle was that the rights of the Crown may only be removed by
express words, and that the power of the Crown to allow the appeal was not
affected by the Act.
As to the second question, it was noted that s. 33(7) of the Interpretation Act
"No provision or enactment in any Act shall affect in any manner or way
whatsoever the rights of Her Majesty, her heirs, or successors, unless it is
expressly stated that Her Majesty shall be bound thereby."
As this Act governed the interpretation of the Insolvent Act, it affirmed the
general principle noted above, and therefore special leave to appeal was
- The State Of Bombay And Another vs F.N. Balsara 8
Balsara, who was a citizen of India, had presented a petition in the Bombay High
The petitioner prayed for two things:
The petitioner also requested for passing of a similar order under the specific
relief act. It was impugned that the said Act was violative of Article 19(1)(g)
of the Constitution.
- to allow him to exercise his right to possess, consume and use certain
articles, namely, whisky, brandy, wine, beer, medicated wine,
eau-de-cologne, etc, and to import and export across the Customs frontier
and to purchase, possess consume and use any stock of foreign liquor,
eau-de-cologne, lavender water, medicated wines and medicinal preparations
- to forbear from interfering with his right to possess these articles and
to take no steps or proceedings against him, penal or otherwise, under the
19 (1) (g): to practise any profession, or to carry on any occupation, trade or
In this case it has been considered as to whether under the Prohibition Act, the
keeping of alcohol mixed medicines and toilet good their selling and buying and
using can be prohibited or not. The question was whether that Act fell under
Entry 31 of List II of the Government of India Act, 1935 (corresponding Entry 8
of the Constitution), namely, "intoxicating liquors, that is to say, the
production, manufacture, possession, transport, purchase, and sale of
intoxicating liquors", or under Entry 19 of List I (corresponding Entry 41 of
the Constitution), namely, "import and export of liquors across customs
frontier", which is a Central subject.
The High Court accepted the contention of the petitioner that the definition of
"liquor" in the Act was too wide and went beyond the power vested in the
legislature to legislate with regard to intoxicating liquors under item 31 of
List II. That is when the State of Bombay went to the Supreme Court of India in
The two important questions which the Supreme Court was called upon to decide in
these appeals were:
- whether there are sufficient grounds for declaring the whole Act to be
- to what extent the judgment of the High Court can be upheld with regard
to the specific provisions of the Act which have been declared by it to be
The state legislature has the power to completely prohibit the keeping, selling
and using intoxicating wine under the Entry 31 of List II. There is hence, no
question of the dispute between the jurisdiction of the state and the centre.
If any act passed by the state legislature, prohibits or controls the export of
the things mentioned in Entry 27 and 29 of the List II, outside the boundaries
of the state, then the Act is illegal. But this Act has been passed under Entry
31 of List II, hence Section 297(1)(a) does not apply to it.
The exemption allowed to the soldiers of Army, the messes of the Land Forces and
Water Ships can therefore, not be declared illegal under Section 37.
The Supreme Court declared illegal those provisions of the Bombay Prohibition
Act which were regarding keeping alcohol-mixed medicines and toilet goods,
selling and buying them and also using them etc as violative of Article 19(1)(g)
of the Constitution and the rest of the provisions, legal. It was also decided
that an Act, by declaring certain provisions thereof as illegal, cannot be
wholly declared as illegal.
It was stated that under Article 277 of the Constitution, any taxes , duties,
cesses or fees which immediately before the commencement of the Constitution,
were being lawfully levied by the Govt. of any State or municipality or other
local authority or body for the purpose of the State, municipality, district or
other local area may, notwithstanding that these taxes, duties, cesses or fee
are mentioned in the Union list continue to be levied and to be applied for: the
same purpose until provisions to the contrary are made by Parliament by law.
The principle of law laid down is that if the State government has enacted an
Act on the subject on which it is constitutionally empowered to do so, the Act
- Forum for People's Collective Efforts and Ors. Vs. The State of West
Bengal and Ors  9
In the instant petition under questioning constitutional validity of the WB-HIRA/
State enactment it was contended that the State enactment and a Parliamentary
enactment-the Real Estate (Regulation and Development) Act, 2016 ("RERA"/the
"Central enactment") are relatable to the legislative subjects contained in
Entries 6 and 7 of the Concurrent List (interchangeably referred to as 'List
III') of the Seventh Schedule to the Constitution.
The State enactment, as
contended, contains certain provisions which are either directly inconsistent
with the corresponding provisions of the Central enactment; or a virtual replica
of the Central enactment; and Parliament having legislated on a field covered by
the Concurrent List, it is constitutionally impermissible for the State
Legislature to enact a law over the same subject matter by setting up a parallel
- The State legislature has encroached upon the legislative authority of
Parliament which has supremacy within the ambit of the subjects falling within
the Concurrent List of the Seventh Schedule. The exercise conducted by the State
legislature of doing so, is plainly unconstitutional.
- The statutory overlaps between WB-HIRA and the RERA cannot be overlooked,
as noted above. Several provisions of the WB-HIRA are directly in conflict and
dissonance with the RERA. Where a State enactment in the Concurrent List has
enacted or made a statutory provision which is in conflict with those which have
been enacted by Parliament, it may in a given case be possible to excise the
provision of the State statute so as to bring it into conformity with the
Parliamentary enactment. But the present case involves a situation where
valuable safeguards which are introduced by Parliament in the public interest
and certain remedies which have been created by Parliament are found to be
absent in WB-HIRA. 
- Article 254(1) postulates, the legislation enacted by the State
legislature is void "to the extent of the repugnancy". But the above analysis
clearly demonstrates that in material respects, WB-HIRA has failed to
incorporate valuable institutional safeguards and provisions intended to protect
the interest of home-buyers. The silence of the State legislature in critical
areas, as noted above, indicates that important safeguards which have been
enacted by Parliament in the public interest have been omitted in the State
enactment. There is, in other words, not only a direct conflict of certain
provisions between the RERA and WB-HIRA but there is also a failure of the State
legislature to incorporate statutory safeguards in WB-HIRA, which have been
introduced in the RERA for protecting the interest of the purchasers of real
estate. In failing to do so, the State legislature has transgressed the
limitations on its power and has enacted a law which is repugnant to
Parliamentary legislation on the same subject matter.
- WB-HIRA comes under List III (the same as RERA). Sections 88 and 89 of the
RERA did not implicitly permit the States to create their own legislation
creating a parallel regime alongside the RERA which would have not required
presidential assent. Hence, it is clear that WB-HIRA did not have presidential
assent and was repugnant to RERA under Article 254.
- WB-HIRA is repugnant to the RERA, and is hence unconstitutional. As a
consequence of the declaration by Court of the invalidity of the provisions of
WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since
it would stand impliedly repealed upon the enactment of the RERA.
- Since its enforcement in the State of West Bengal, the WB-HIRA would have
been applied to building projects and implemented by the authorities constituted
under the law in the state. In order to avoid uncertainty and disruption in
respect of actions taken in the past, recourse to the jurisdiction of this Court
under Article 142 is necessary. Hence, in exercise of the jurisdiction under
Article 142, it was directed that the striking down of WB-HIRA will not affect
the registrations, sanctions and permissions previously granted under the
legislation prior to the date of this judgment
- Writ Petition allowed.
- R v Waterfield  10
The police were investigating a reported incident of dangerous driving, where a
car had rammed into a wall. It turned out that the car was owned by Eli
Waterfield and driven by his friend, Geoffrey Lynn, but police were unable to
make any arrests without further evidence.
One evening, while Lynn sat in the car at the local market, two police officers
approached him to ask to search it. Lynn said he would leave. One of the
officers said he would stop him if he tried. Waterfield arrived, told the police
that they had no right to seize his car and told Lynn to drive away. The
officers blocked the way, but Waterfield told Lynn to drive through the
officers. Lynn drove forward, forcing the officer to jump out of the way.
Waterfield and Lynn were charged for assaulting a constable who was in the
execution of his duty contrary to the Offences against the Person Act 1861.
Ashworth J., for the court, held that the charge of assault was invalid and
quashed the convictions. To come to this conclusion, the court made a key
analysis of the requirements needed to show that a police officer was in the
execution of his duties.
In most cases it is probably more convenient to consider what the police
constable was actually doing and in particular whether such conduct was prima
facie (on the face of it) an unlawful interference with a person's liberty or
property. If so, it is then relevant to consider whether:
Thus, while it is no doubt right to say in general terms that police constables
have a duty to prevent crime and a duty, when crime is committed, to bring the
offender to justice, it is also clear from the decided cases that when the
execution of these general duties involves interference with the person or
property of a private person, the powers of constables are not unlimited.
- such conduct falls within the general scope of any duty imposed by statute
or recognized at common law[a] and
- whether such conduct, albeit within the general scope of such a duty,
involved an unjustifiable use of powers associated with the duty.
This case produced what is known as the Waterfield test (incorporating the
common law "ancillary power doctrine") for the limit of police authority to
interfere with a person's liberty or property. This case has the power of
precedent when it comes to ancillary and incidental power in common law
- Raja Jagannath Baksh Singh vs The State Of Uttar Pradesh 11
This petition challenged the constitutional validity of a notice of assessment
served under s.7 (2) of the U. P. Large Land Holdings Tax Act, 1957.The 'High
Court had found against the petitioner. His case was that the relevant
provisions of the Act were unconstitutional as the State Legislature was
incompetent to pass the Act, that the Actviolated Arts. 14, 19 and 31 of the
constitution and that the rates fixed by the State Government under s. 5(1) of
the Act were invalid as being contrary to that section. The impugned Act has
since been repealed by the U. P. Imposition of ceiling of Land Holdings Act, 196
1, with effect from the30th June, 196 1.
Held, that the contentions were without substance and the petition must fail.
The cardinal rule of interpreting the words used by the Constitution in
conferring legislative power was that they must receive the most liberal
construction and if they are words of wide amplitude the construction must
accord with it. If a general word was used it must be so construed as to extend
to all ancillary or subsidiary matters that can be reasonably included in it.
So construed, there could be no doubt that the word land' in Entry 49, List 11,
7th Schedule includes all lands, whether agricultural or non-agricultural. Since
the impugned Act imposed tax on land holdings, it was within the competence of
the State Legislature and its validity was beyond challenge.
To sum up, my research paper focused on the doctrine of pith and substance, and
a doctrine that supports it namely the doctrine of ancillary or incidental
powers. I will attempt to sum the paper up in the paragraphs given below
The Indian Constitution envisages a number of legal doctrines to assist legal
issues. A legal doctrine can be a principle or set of principles that are widely
followed. One such doctrine is the doctrine of pith and substance. 'Pith' means
the 'essence of something', whereas 'substance' would imply 'the most important
part of something'.
Collectively, the doctrine would literally mean 'true nature and substance', and
it comes into play when there is a conflict regarding the power of a level of
government to make law on a particular matter. Unfolding the meaning of the
doctrine, it can be stated that Pith and Substance denotes the true nature of
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.
Recognized by various High courts and the Supreme Court in India, this doctrine
is an established principle of law. Whenever a law is seen to be encroaching or
trespassing upon a field, the legislation of which has been assigned to another,
the Doctrine of pith and Substance comes into play. The crux of the doctrine is
that whenever a question arises regarding the determination of whether a
particular law relates to a particular subject (which will be mentioned in one
of the lists) the court while dealing with such issues looks into the substance
of such matter.
Hence, it can be stated that Doctrine of pith and Substance states:
"Whenever a question arises as to determination of whether a particular law
relates to a particular subject (which might be mentioned either in one list or
another) the courts mainly looks at the substance of the matter. Thus, for
instance, if the substance falls in the union list then the incidental
encroachment by the law on the State list does not make it invalid".
India has a federal system of government, meaning thereby the Centre and States
are ruled separately by different ruling bodies. In India, at the central level,
the Parliament is the governing body, and at the state level we have State
Legislatures. Both of them derive their powers from Article 246 of the Indian
The Seventh Schedule of the Constitution contains three lists - the Union List,
the State List, and the Concurrent List, which further contain certain subjects
for legislation. According to Article 246, the Centre has exclusive power to
legislate on any matter mentioned in the Union List, i.e. List I. The States, on
the other hand, have exclusive power to legislate on any matter mentioned in the
State List, or List II.
However, both the Centre and the States have the power to make laws on matters
mentioned under the Concurrent List, and in case of a conflict, the law made by
the Centre shall prevail. Generally, the Parliament and the State Legislatures
are expected to stick to their assigned fields and not encroach upon the
jurisdiction of each other, and if this happens, the Judiciary will declare the
law as invalid.
But before that, it will apply the doctrine of pith and substance so as to
ascertain the real authority under which the said piece of legislation falls. In
simple words, the doctrine of pith and substance is applied in order to
determine what list a piece of legislation falls in.
Yet the powers conferred upon each level are bound to overlap at certain points.
It is not possible to make a clean cut between the powers of various
legislatures; they are bound to overlap from time to time. A whole statute
cannot be declared null and void because of incidental overlaps or effects.
There can possibly be a situation when a subject of one list touches the subject
of another List. This doctrine is applied then. Pith and Substance means the
true nature of law.
The Supreme court applies this doctrine to decide and determine the true nature
of the concerned piece of legislation. If, on application of this doctrine on a
particular statute, it is found that the legislature that enacted the statute is
competent, then the statute will be held intra vires and valid. And if the
Legislature is not competent then the statute will be considered ultra vires and
From the aforesaid discussions, it is clear that the Doctrine of Pith and
Substance has now become an indefinitely well-established in the Indian
constitutional jurisprudence. It is a cardinal legal doctrine that aids the
judiciary to decide upon the validity and legitimacy of an enactment. Without
its applicability, the powers of the legislature are bound to become drastically
curbed. The degree of flexibility it provides to take a balanced approach is
certainly laudable and necessary.
The doctrine of Ancillary and Incidental encroachment is actually an addition to
the doctrine of Pith and Substance. The prime ideology existing behind this
doctrine is that the power to legislate on a subject will automatically include
the power to legislate even on the subordinate (ancillary) matters which happen
to be reasonably connected to the subject of the matter.
A power entrusted in order to impose tax would also impliedly include the power
of search and seizure which should be taken up in order to prevent the evasion
of tax. But at the same time, a power entrusted in relation to banking cannot be
extended to that of non-banking entities.
However, if a subject is explicitly mentioned in a State or Union list, it
cannot be said to be an ancillary matter. For example, the power to tax is
mentioned in specific entries in the lists and so the power to tax cannot be
claimed as ancillary to the power relating to any other entry of the lists.
In short, the doctrine of pith and substance has proved to be indispensable in
various situations where the Centre and the States have been in a tussle over
legislative supremacy. In India, the Centre carries more value than the States,
and that is why a lot of subjects in the Union List are of grave importance. The
States are required to legislate only on those matters that concern the States
themselves. Still, there may be overlaps simply because one law is connected
with the other, directly or indirectly. What is crucial is that the courts
perform their duty without any mistake and bias for the betterment of Indian
In my opinion, one of the main reasons behind the acceptance and applicability
of the doctrine in India was to provide flexibility to an otherwise existing
rigid scheme concerned with the distribution of power in a federal structure.
Another important point to be interpreted here is that if it was so that every
legislation was to be declared invalid on the ground that it has been
encroaching on the subject of another legislature, then these powers assigned to
the legislature would be enormously restrictive and this would not serve the
purpose of the power being granted to the legislature.
This research paper has discussed in great length the Doctrine of Pith and
Substance and it's assistant doctrine of ancillary and incidental powers, with
the help of landmark and relevant case laws. From all the aforesaid discussion
it can be concluded that the Doctrine has tried to bridge the gap when it comes
to determining whether a particular law relates to a particular subject and has
been incidental in the way it functions in the Indian context.
The doctrine has further helped in maintaining the true basis of the powers
being granted to the legislature. The findings of this paper suggest that these
doctrines have become golden tools for the protection of Indian democracy as it
does away with the rigidness associated with running governments and formulating
laws and highlight a role for both the doctrines in the future.
Considerable insight has been gained with regard to both these doctrines. My
paper provides a springboard for future researchers to delve into the other
doctrines used in our legal system. I think that my research paper has the
potential to be useful in that it could inform the laymen in our country what
happens when a conflict of law takes place between the parliament and state
Written By: Mohammed Arafat Mujib Khan
- Forum for People's Collective Efforts and Ors. vs. The State of West
Bengal and Ors. (04.05.2021 - SC) : MANU/SC/0339/2021
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