ACKNOWLEDGEMENT

Firstly, I would like to express my profound sense of gratitude

towards the almighty for providing me with the authentic circumstances

which were mandatory for the completion of my project.

Secondly, I am highly indebted to Dr. Asad Malik of Faculty of

Law, Jamia Millia Islamia University, New Delhi for providing me with

constant encouragement and guidance throughout the preparation of this

project wherein I got the opportunity to explore the different schools

which showcases how and why various societies perceive law.

My cardinal thanks are also for my parents, friends and all teachers

of law department in our college who have always been the source of my

inspiration and motivation without which I would have never been able to

unabridged my project.

1

CONTENTS:

1. Acknowledgement ………………………………………….……..…1

2.Introduction…………………………………………………………....3

3. The Distribution of Legislative Powers……………………………....5

TerritorialJurisdiction……………………….……………………..5

Theory of Territorial Nexus……………………………….….……5

Delegated Legislation…………………………………...…….…...6

Subject Matter………………………………………….………......6

Principles of Interpretation of Statutes………………………….....8

Predominance of the Union List………………………….………..8

Each entry to be interpreted broadly……………….…………..…..9

Pith and Substance………………………….……………...……....9

Colourable Legislation………………………….…………..….....10

Repugnancy between Union and State Laws…………………......10

4.The Doctrine of Pith and Substance………………………………….12

Origin…………………………………………………………...…14

Validity Test for Pith and Substance Theory……………………...15

Provisions in Indian Constitution………………………………....16

Application……………………………………………………...…20

5.Conclusion ……………………....………………………………29

6.Bibliography……………………………………………………..30

2

INTRODUCTION

“The Distribution of power is an essential feature of federalism. The

object for which a federal State is formed involves a division of authority

between the National government and the separate states, the tendency of

federalism to limit on every side the action of the government and to split

up the strength of the state among co-ordinate and independent

authorities is especially noticeable, because it forms the essential

distinction between a federal system and a unitary system of

Government.”_

Part XI of the Indian Constitution describes the legislative relations

between the States and Centre. Federalism is considered efficient from

the political angle as well because of the facility it provides for a

heterogeneous population to come together under the banner of one

nation and acquire strength from unity while allowing the constituents to

retain their identity and autonomy over a wide area of public life.

Federalism in the Indian Constitution

To all appearances, the constitution that has formed the basis of

governance in India since independence; is federal. Though not formally

designated as federal — it is proclaimed as a 'Union of states' in its very

first article — the constitution has all the trappings of a federal polity,

viz., statutorily mandated two layers of government with specification of

their respective powers and functions and also the fiscal institutions that

are needed to support a federal structure including mechanisms for

intergovernmental transfers to address the vertical and horizontal

3

imbalances that all federations unavoidably face.

One entity is not subordinate to the other in its own field; the authority of

one is co-ordinate with that of the other.

The Indian political system though supposedly decentralized and federal

is too centrist. It is quasi-federal at best and does not allow enough room

for the states to function freely or decentralization to come into full play.

In particular, what lends credence to characterisation of India’s

constitution as unitary or quasi-federal_ are:

A large concurrent list covering wide areas like economic and social

planning with residuary powers with the centre;

Primacy of central laws in the event of any conflict between a state

legislation and a parliamentary law;

Requirement of governor's assent for laws passed by state assemblies and

of president's assent for state enactments in certain matters_.

Power to parliament with qualifying majority to redraw the boundaries of

a state, divide it, and create new ones.

Power to the centre to take over the administration of a state in certain

circumstances and promulgate 'President's Rule’_.

4

THE DISTRIBUTION OF LEGISLATIVE

POWERS

The Constitution of India makes two fold distribution of legislative

powers-

A] With respect to territory;

B] With respect to subject matter.

A. TERRITORIAL JURISDICTION

As regards territory Article 245(1) provides that subject to the provisions

of this constitution, parliament may make laws for the whole or any part

of the territory of India. According to clause (2) of Article 245 a law

made by parliament shall not be deemed to be invalid on the ground that

it has extra-territorial operation, i.e. takes effect outside the territory of

India. In A.H. Wadia v. Income tax Commissioner, Bombay,_ the

Supreme Court Held : “In the case of a sovereign Legislature question of

extra- territoriality of an enactment can never be raised in the municipal

court as a ground for challenging its validity. The legislation may offend

the rules of international law, may not be recognized by foreign courts, or

there may be practical difficulties in enforcing them but these are

questions of policy with which the domestic tribunals are concerned.”

Theory Of Territorial Nexus: The Legislature of a state may make laws

for the whole or any part of has extra-territorial operation i.e. takes effect

outside the state._ However, there is one exception to this general rule. A

state law of extra-territorial operation will be valid if there is sufficient

5

nexus between the object and state.In Wallace v. Income tax

Commissioner, Bombay a company which was registered in England was

a partner in a firm in India. The Indian Income tax Authorities sought to

tax the entire income made by the company. The privy council applied

the doctrine of territorial nexus and held the levy tax valid. It is said that

the derivation from British India of a major part of its income for a year

gave to a company for that year sufficient territorial connection to justify

its being treated as at home in India for all purposes of tax on its income

for that year from whatever source income may be derived.In State of

Bombay v. R. M. D. C.,_ the Bombay state levied a tax on lotteries and

prize competitions. The tax was extended to a newspaper printed and

published in Banglore but had wide circulation in Bombay. The

respondent conducted the prize competitions through this paper. The

court held that there existed a sufficient territorial nexus to enable the

Bombay state to tax the newspaper. If there is sufficient nexus between

the person sought to be charged and the state seeking to tax him, the

taxing statute would be upheld. But illusory and the liability sought to be

imposed must be pertinent to that connection. Whether there is sufficient

connection is a question of fact and will be determined by courts in each

accordingly.

Delegated Legislation: Delegated or subordinate Legislation may be

defined as rules of law made under the authority of an Act of parliament.

Although laws are to be made by the Legislatures, but the Legislature

may by statute delegate its power to other persons or bodies. Such a

statute is commonly known as “the enabling Act” and lays down the

broad principles and leaves the detailed rules to be provided by

regulations made by a minister or other persons. Delegated legislation

exists in the form of rules, regulations, orders and bye-laws

6

B. SUBJECT MATTER

A federal system postulates a distribution of powers between the Centre

and States. The nature of distribution varies according to the local and

political background in each country. In America, the Sovereign States

which were keen to federate, did not like complete subordination to the

Central Government hence they believed in entrusting subjects of

common interest to Central Government, while retaining the rest with

them. This American constitution only enumerates the powers of the

Central Government and leaving the residuary power to the States.

Australia followed the American pattern of only one enumeration powers

to the States because their problems were similar to the Americans. In

Canada there is a double enumeration, Federal and Provincial leaving the

residue for the Centre. The Canadian were conscious of the unfortunate

happenings in USA; culminating in Civil War of 1891. They were aware

of the shortcomings of the weak Centre. Hence, they opted out for a

strong Centre. Our Constitution-makers followed the Canadian scheme

obviously opting for a strong Centre. However, they added one more List

—the Concurent List. The Government of India Act,1935, introduced a

scheme of three-fold enumeration, viz., Federal, Provincial and

Concurrent.

The present Constitution adopts the method followed by the government

of India Act,1935, and divides the powers between the Union and the

States in three Lists— the Union List, the State List and the Concurrent

List.

Article 246 in The Constitution Of India 1949

Article 246 is related to subject matter of law making power of

7

Parliament and State legislatures. This Article as follows:

246. Subject matter of laws made by Parliament and by the Legislatures

of States

1. 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 Union List)

2. 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)

3. 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

4. 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 Union List consists of 97 subjects. The subjects mentioned in the

Union List are of national importance, i.e, defence, foreign affairs,

banking currency and coinage, union duties and taxes.

But entry 33 was deleted by the Constitution (Amendment) Act, 1956

and Entries 2-A, 92-A, 92-B, 92-C were added by various amendments.

The State Lists consists of 66 subjects. But Entries 19, 20, 29, and 36

have been deleted by constitutional amendments. There are of a local

importance, such as public order and police, local Government, public

health and sanitation, agriculture, forest, fisheries, education, State taxes

8

and duties. The States have exclusion power to make on subjects

mentioned in State List.

The Concurrent List consists of 47 subjects. New entries 11-A, 17-A, 17-

B, 20-A and 33-A have been added by constitutional amendments. Both

Centre and States can make laws on the subjects mentioned in the

Concurrent List. But in case of conflict between the Central and the State

law on Concurrent subjects, the Central law will prevail. The Concurrent

List is not found in any federal Constitutions. The framers added this list

to the Constitution with a view to secure uniformity in the main

principles of law throughout the country. The Concurrent List was to

serve as a device to avoid excessive rigidity to the two-list distribution.

The concurrent list, thus in the words of Pyle, is “a Twilight zone, as it

were, for both the Union and the States are competent to legislate in this

field, without coming into conflict.”

Residuary Powers- Article 248 vests the residuary powers in the

parliament. it says that the parliament has exclusive power to make any

law with respect to any matter not included in the Union or the

Concurrent lists. Entry 97 in the Union list also lay down that Parliament

has exclusive powers to make laws with respect to any matter not

mentioned in the State List or the Concurrent List including any tax not

mentioned in the lists. Thus the Indian Constitution makes a departure

from the practice prevalent in the USA, Switzerland and Australia where

residuary powers are vested in the States. This reflects the leanings of

Constitution-makes towards a strong Centre.

9

PRINCIPLES OF INTERPRETATION OF STATUTES

The powers of the Centre and the States are divided. They cannot make

laws outside their allotted subjects. It is true that a scientific division is

not possible and questions the constantly whether a particular subject

falls in the sphere of one or the other government. This duty in a federal

constitution is vested in the Supreme Court of India. The Supreme Court

has evolved the following principles in interpretation in order to

determine the respective powers of the Union and the States under the

three lists:

PREDOMINANCE OF THE UNION LIST- The opening of Art.246 (1)

“notwithstanding anything in clauses (2) and (3)” and the opening words

of clause (3) “subject to clause (1) and (2)’ expressly secure the

predominance of the Union List over the State List and the Concurrent

List and that of the Concurrent List over the State list. Thus in case of

overlapping between the Union list and the State list, it is the Union list

which is to prevail over the State list. In case of overlapping between the

State and the Concurrent list, it is the Concurrent list that will prevail.

And in case of a conflict between the Union and the Concurrent list, it is

again the Union list which will prevail.The principle of federal

supremacy in Article 246(1) cannot be resorted unless there is an

irreconcilable conflict between the entries in the Union and the State list._

EACH ENTRY TO BE INTERPRETED BROADLY- Subject to the

overriding predominance of the Union list, entry in the various lists

should be interpreted in a broad way. In Calcutta Gas Ltd. v. State of

West Bengal,_ the Supreme Court said that the “widest possible” and the

“most liberal” interpretation should be given to the language of each

10

entry. A general word used in an Entry……. must be construed to the

extent to all ancillary or subsidiary matters which can fairly and

reasonably be held to be included in it._ The court should try, as far as

possible, to reconcile the entries and to bring harmony between them.

When this is not possible, only then the overriding power of the Union

Legislature—the non obstante clause applies and the federal power

prevails._

PITH AND SUBSTANCE- Within their respective spheres the Union and

the State Legislatures are made supreme and they should not encroach

into the sphere reserved to the other. If a law passed by one encroaches

upon the field assigned to the other, then the Court will apply the doctrine

of pith and substance determine the whether the Legislature concerned

was competent to make it. If the ‘pith and substance’ of law, i.e., the true

object of the Legislative which enacted it, it should be held to be intra

vires even thought might incidentally trench on matters not within the

competence of Legislature. In order to ascertain the true character of the

Legislation one must have regard to the enactment as a whole, to its

objects and to the scope and effect of its provisions._

COLOURABLE LEGISLATION- The doctrine of colourable legislation

becomes applicable when a legislature seeks to do something in an

indirect manner which it cannot do directly. The doctrine of colourable

legislation does not involve any question of malafides or bonafides. The

whole doctrine resolves into a question of competency of a particular

legislature to enact particular law. If the legislature is competent to pass a

law, the motive is irrelevant. If the legislature lacks competency then the

question does not arise at all. The fact that the deductions are unjust,

exorbitant or improper does not make the legislation invalid, unless it is

11

shown to be based on something which is unrelated to the facts.

“Colourability" is bound up with the incompetency and not tainted with

bad faith or evil motive. A thing is colourable which in appearance only

and not in reality, what it purports to be._Thus the whole doctrine of

Colourable Legislation is based upon the maxim that “you cannot do

indirectly what you cannot do directly”. In these cases the Court will look

into the true nature of the legislation and for that, its object, purpose or

design to make law on a subject is relevant and not its motive. If the

legislature has power to make law, motive behind making that law is

irrelevant._

REPUGNANCY BETWEEN UNION LAW AND STATE

LAW :

Article 254 (1) provides if any provision of a Law made by the

Legislature of a State is repugnant to any provision of a law made by

parliament which parliament is competent to enact or to any provision of

any existing law with respect to one of the matters enumerated in the

concurrent list, then, subject to the provisions of clause (2) of Article 254,

the Law made by parliament whether passed before or after the law made

by the legislature of such State, or as the case may be, the existing law

shall prevail and the law made by the legislature of the State shall, to the

extent of the repugnancy be void.

Article 254 (2) provides where a Law made by the Legislature of a State

with respect to one of the matters enumerated in the concurrent list

contains any provision repugnant to the provisions of an earlier laws

made by parliament or an law with respect to that matter then, the law so

made by the legislature of such state shall, if it has been reserved for the

12

consideration of the president and has received his assent, prevail in that

State. Providing that nothing in this clause shall prevent parliament from

enacting at any time any law with respect to the same matter including a

Law adding to amending varying or repealing the law so made by the

legislature of the State.

The question of repugnancy arises only in the context of Legislation on

subjects enumerated in the concurrent list. A State Legislature is not

barred from the concurrent list simply because the Union Legislature has

previously legislated on a particular topic there in and has occupied the

field. If is only its State Legislation conflicts with it and it repugnant to

it that the State Legislation will fall to the ground to the extent of the

repugnancy.

Both the clauses of Article 254 use the expression, repugnant, such

partition of a State Law as are repugnant to a Central Law in the

concurrent sphere become invalid. But the question is when we can say

that there is repugnancy or inconsistency between the two provisions.

Following are same of the cases in which repugnancy has been explained

by the courts and from which the technique of resolving the question of

repugnancy also may be noticed.

In National Engineering Industries Ltd. Vs. Shri Kishan the Supreme

Court observed_ :

“In order that a question of repugnancy may be arise, two conditions

must be fulfilled, namely that the State Law and the Laws of the Union

must operate the name field and one must.”

13

THE DOCTRINE OF PITH AND

SUBSTANCE

The Pith and Substance theory has been defined in case of Synthetic and

Chemicals Ltd. v/s State of U.P. and others_ that the Nature and Scope of

the concerned Act, required to be interpreted, because “A Constitution is

the mechanism under which laws are to be made and not merely an Act

which declares what the law is to be. A Constitution is living and organic

thing and must adopt itself to the changing situations and pattern in which

it has to be interpreted. Being the division of powers and jurisdiction in a

federal Constitution as a scheme, it is desirable to read the Constitution in

harmonious way. The power to legislate is given by Art.246 and other

Articles of the Constitution. The three Lists of the Seventh Schedule to

the Constitution are legislative heads or fields of legislation. These

demarcate the area over which the appropriate legislatures can operate.”

Hence, Constitution being an organic document, it should be interpreted

in the light of the experience. It has to be flexible and dynamic so that it

adopt itself to the changing conditions and accommodate itself in a

pragmatic way to the goals of national development and the

industrialisation of the Country.

This doctrine envisages that the Legislation as a whole be examined

to ascertain its ‘true nature and character’ of Legislation. Pith and

substances is a legal doctrine in Canadian Constitutional interpretation

used to determine under which head of power a given piece of Legislation

falls. Within their respective spheres, the Union and the State Legislatures

are made supreme and they should not encroach into the sphere reserved

14

to the other. 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, because a law dealing with a subject in one List within

the competence of the Legislature concerned is also touching on a subject

in another List not within the competence of that Legislature._

In that such a cases what has to be ascertained is the pith and

substances of the enactment, i.e. the true character of the Legislation. To

ascertain the true character of the Legislation in question, one must have

regard to it as a whole, to its object and to its scope and effect of its

provisions. If according to its true nature and character, the Legislation

substantially relates to a topic assigned to the Legislature which has

enacted it, then it is not invalid merely because it incidentally trenched or

encroaches on matters assigned to another Legislature. The Act of

incidental encroachment does not affect the vires of the law even as

regard the area of encroachment. To put it differently, incidental

encroachment is not altogether forbidden_. 

Briefly Stated, what the doctrine means, is this. Where the question arises

of determining whether a particular law relates to a particular subject

(mentioned in one List or another), the court looks to the substance of

the matter. Thus, if the substance falls within Union List, then

the incidental encroachment by the law on the State List does not make it

invalid_. 

To determine the pith and substance, two aspects of the law must be

examined: the purpose of enacting body and the legal effect of the law.

To assess the purpose, the courts may consider both intrinsic evidence,

such as the Legislation’s preamble or purposes clauses, and extrinsic

evidence, such as minutes of Parliamentary debates. In doing so, they

must nevertheless seek to ascertain the true purpose of the Legislation, as

15

opposed to its mere Stated or apparent purpose_.

Equally the courts may take into account the effects of the Legislation.

This doctrine is to be applied not only in case of apparent conflict

between the powers of two Legislatures but in any case where the

question arises whether a Legislation is covered by a particular legislative

power in exercise of which it is purported to be made_.

In all such cases the name given by the Legislature to the impugned

enactment is not conclusive on the question of its own competence

to make it. It is the pith and substance of the Legislation which decides

the matter_ and the pith and substance is to be determined with reference

to the provisions of the statute itself._

Origin:

The principle of “pith and substance” had come to be established by the

Privy Council, when it determined appeals from Canada or Australia

involving the question of legislative competence of the federation or the

States in those countries. Canada is the first country in which doctrine of

pith and substance got evolved. Supremacy of Privy Council over

Canadian Constitution is mainly responsible to bring into picture this

doctrine. The Judicial Committee of the Privy Council (JCPV) is a court

run by the House of Lords in London. It was the highest court in Canada

from 1867 to 1949, and heard Canada’s important division of powers

cases from that era. It could overrule the Supreme Court of Canada; many

important cases bypasses the Supreme Court altogether and went directly

to the JCPV. The decision of JCPV developed the doctrine on ‘pith and

substance’ in Hodge v. The Queen_ where the court Stated that³ subjects

which in one aspect and for one purpose falls within s.92, may in another

16

aspect and for another  purpose fall within s.91´(BNA Act).

In applying the doctrine, it should be in situations where the importance

of one matter should not be significantly larger than the other. In effect,

the doctrine removes the need for courts to split hairs to determine which

head of power should be assigned a particular law. In India, the doctrine

of pith and substance came to be adopted in the pre-independence period,

under the Government of India Act, 1935. The fine example is the Privy

Council decision in Prafulla Kumar Mukherjee v. Bank of Commerce_,

holding that a State law, dealing with money lending (a State subject), is

not invalid, merely because it incidentally affects promissory notes (now

Union List, entry 46). The doctrine is sometimes expressed in terms of

ascertaining the ‘nature and the true character of Legislation’, and it is

also emphasized, that the name given by the Legislature in short title, is

immaterial. Again, for applying the ‘pith and substance’ doctrine, regard

is to be had

to the enactment as a whole,

to its main objects, and;

the scope and effects of its provisions._

VALIDITY TEST FOR PITH AND SUBSTANCE

THEORY:

In deciding the Pith and Substance of the Legislature, “the true test is not

to find out whether the Act has encroached upon or invaded any

forbidden field but it is the true intent of the Act which will determine the

17

validity of the Act”._ While in case of Ishwari Khetan Sugar Mills v/s

State of U.P._, it was held that, in Pith and Substance U.P. Act 23 of 1971,

was for acquisition of scheduled undertakings. Hence the field of

acquisition thereunder by State Legislation falls within Entry 24, List II,

and it is not occupied by Industries Act 1951, (IDR Act) of Central

Government under entries 7 and 52 of List I, of Schedule Seventh.

The doctrine of Pith and Substance postulates for its application, that the

impugned law is substantially within the legislative competence of the

particular legislature that made it, but only incidentally encroached upon

the legislative field of another Legislature. The doctrine saves this

incidental encroachment if only the law is in Pith and Substance within

the legislative field of the particular Legislature, which made it_.

Since the entries are likely to overlap occasionally, it is usual to examine

the Pith and Substance of legislation with a view to determining to which

the entry they can be substantially related, a slight connection with

another entry in another list notwithstanding. If, however, no entry in any

of three Lists, then it belongs exclusively to parliament under entry 97 of

the Union List as a topic of legislation, read with Art.248_.

While interpreting the impugned legislation the doctrine of occupied

field, if necessary, has to be apply in conferring the validity of impugned

Statute. The Doctrine of occupied field is mainly applied to the cases of

law made with reference to entries in Concurrent List. It has been

explained with full details in case of, State of Andhra Pradesh v/s Mc

Dowell and Co._ that, once the impugned State enactment is within four

corners of entry in List II, no central law whether made with reference to

an entry in list I or with reference to an entry in List III can affect the

validity of such State enactment. The plea of occupied field is totally out

of place in such a context.

18

Provisions in Indian Constitution:

India as a Federal State like America, Australia and Canada the

legislative powers of the Central federation and the State Provinces were

given in three Lists, firstly under the Government of India Act, 1935 and

then under the 1950 Constitution, where Canada had two Lists and

America and Australia had only one List_. Though the States did not join

the federation, the Federal provisions of the Government of India Act,

1935, were in Act, applied as between the Central Government and the

Provinces. The division of powers between Centre and the State

Provinces in the Government of India Act, 1935 and the division made in

the Constitution between the Union and the State proceeds largely on

the same lines_. A threefold division was made in the Act of 1935:

Federal List for Federal Legislature,

Provincial List for Provincial Legislature and;

Concurrent List for both Federal and Provincial Legislature.

Federal Legislature had however, the power to legislate with respect to

matters enumerated in the Provincial List if proclamation of emergency

was made by the Governor General_.

The Federal Legislature could also legislate with respect to a Provincial

subject if the Legislature of two or more Provinces desired this in their

common interest_.

In case of repugnancy in the Concurrent field, a Federal law prevailed

over Provincial law to the extent of the repugnancy but if the Provincial

law received the assent of the Governor  

General or of his majesty, having been reserved for their consideration for

19

this purpose, the Provincial law prevailed, notwithstanding such

repugnancy_.

The allocation of residuary power of Legislation in the Act was unique. It

was not vested in either of the Central or Provincial Legislatures, but the

Governor General was empowered to authorize either the Federal

or Provincial Legislature to enact a law with respect to any matter which

was not enumerated in the legislative Lists_. Moreover by section 100 of

the Government of India Act the three Lists are carefully arranged in a

rigid hierarchy of super and subordination: the power in the Federal List

are exclusive notwithstanding anything in the other two Lists; the

Concurrent powers can be exercised at either level subject to the Federal

List and notwithstanding anything in the State List; and the State power

are given only subject to the other two Lists_.

Under the Government of India Act there were several attempts to argue

that this hierarchical arrangement left no room for a test of ‘pith and

substance’. The rigid definition of exclusive fields and the absolute

supremacy of the Federal List meant that the Provinces could not trespass

upon the areas of exclusive Federal power at all, not even by laws which

in ‘pith and substance’ were clearly within Provincial power. The

provisions under the Constitution of India, 1950 related to the doctrine

are: Scheme of distribution under the Constitution.

A) The Constitutional provisions in India on the subject of

distribution of legislative powers between the Union and the States are

spread out several articles. However, the most important of those i.e. the

basic one is that contained in articles 245-246. Article 245 provides, inter

alia, that :

(i) Parliament may make laws for the whole or any part of

20

the territory of India and;

(ii) The Legislature of a State may make laws for the whole

or any part of the State.

B) Thus, article 245 sets out the limits of the legislative powers of

the Union and the State from the geographical angle from the point of

view subject matter of Legislation; it is article 246 which is important.

Article 246 reads as under:

“246(1) notwithstanding anything in clauses (2) and (3), Parliament

has exclusive power to make laws in respect to any of the matters

enumerated in List I of the Seventh Schedule (Union List).

(2) Notwithstanding anything in clause (3), Parliament, and subject

to clause (1), the Legislature of any State also, shall have power to

make laws with respect to any of the matters enumerated in List III

in the Seventh Schedule (Concurrent List)  

(3) Subject to clauses (1) and (2), the Legislature of any State has

exclusive power to make law for such State or any part thereof

with respect to any of the matters enumerated in List II in the

Seventh Schedule (State List).

(4) Parliament has power to make laws with respect to any matter

for any part of the territory of India not included in State,

notwithstanding that such matters is a matter enumerated in the

State List”.

By this article 246 the Constitution authorizes the Parliament and the

State Legislatures to legislate Concurrently with respect to the subjects

enumerated in the Concurrent List. According to the joint Parliamentary

committee report, there is a justification for the insertion of Concurrent

21

List which in not present in any of the Federal Constitution. Both in India

and elsewhere, thought here are certain matters which cannot be allocated

exclusively either to the Central or to the State Legislature, and for which,

though it is often desirable that the State Legislature should make

provisions, it is equally necessary that the Central Legislature should also

have legislative jurisdiction, to enable it in some cases to secure

uniformity in the main principles of law throughout the country_.

Article 246(2) gives power to two Legislatures, conflict can arise between

laws passes on the same subject by the two Legislatures. Article 254 of

the Constitution mainly deals in solving repugnancy between State and

Union Concurrent List. It states:

“ 254(1) If any provision of law made by the Legislature of a

State is repugnant to any provision of law made by Parliament

which Parliament is competent to enact, or to any provision of an

existing law with respect to one of the matters enumerated in the

Concurrent List, then, subject to the provisions of clause(2), the

law made by Parliament, whether passed before or after the law

made by the Legislature of such State, or as the case may be, the

existing law, shall prevail and the law made by the Legislature of

State shall, to the extent of repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to

one of the matters enumerated in the Concurrent List contains any

provisions in repugnant to the provisions of an earlier law made by

the Parliament or an existing law with respect to that matter, then,

the law so made by the Legislature of such State shall, if it

has been reserved for the consideration of the President and has

received his/her assent, prevail in the State:

22

Provided that nothing in this clause shall prevent Parliament from

enacting at any time any law with respect to the same matter,

including a law adding to, amending, varying or repealing the law

so made by the Legislature of the State”.

The various entries in the three Lists are not ‘powers’ of Legislation but

the ‘fields’ of Legislation_. The doctrine of pith and substance is to be

applied and if the impugned Legislation substantially falls within the

power expressly conferred upon the Legislature which enacted it, an

incidental encroaching in the field assigned to another Legislature is to be

ignored. The justification for the doctrine is that in Federal Constitution,

it is not possible to make a clear-cut distinction between the powers of the

Union and the State Legislatures. There is bound to be overlapping and in

all such cases, it is but reasonable to ask what in whole is the true

nature and character of the law. A strictly verbal interpretation would

result in a large number of statutes being declared invalid on the ground

of overlapping. If the Legislature is to have the full scope to exercise the

power granted to it, it is necessary to assume that the Constitution does

not prevent a Legislature from dealing with a matter which may

incidentally affect any matter in the other List_.

Application:

The application of the doctrine is well illustrated in Prafulla Kumar v.

Bank of Commerce_, (a case interpreting section 100 of the Government

of India Act, 1935, the provisions of which were substantially similar to

the present article 246).

In that case the constitutional validity of the Bengal Money Lenders Act,

23

1940, which had provided for limiting the amount and the rate of interest

recoverable by a lender on any loan, was challenged on the ground that it

was ultra vires the Bengal Legislature. The High Court of Calcutta held

that the Act was intra vires the Provincial Legislature, but on appeal to

the Federal court the decision of the High Court was reversed and the Act

was held to be ultra vires the law making powers of the Bengal

Legislature. On appeal to the Privy Council, it was contended on behalf

of the Bengal Legislature that the Act was valid as it dealt with ‘money

lending’ and ‘money lenders’ in the Province ± a matter within the

exclusive competence of the Provincial Legislature under List II, Entry

27. On behalf of the respondent creditor, it was contended that the Act

was wholly ultra vires the Provincial Legislature, or at least that much of

the Act as affected the right of promissory note-holders to recover the full

amount due on their promissory notes. The respondent relied upon entry

28 of List I, which assigned to the Federal Legislature exclusive authority

to make laws with respect to ‘cheque, bills of exchange, promissory

notes, and other like instruments’.

The Privy Council held that the Act was not void in whole or as part

as being ultra vires the Provincial Legislature. The pith and substance of

the Act being money lending, it came within List II, entry 27,

Government of India Act, 1935, and therefore was within the competence

of the Provincial Legislature, and was not rendered invalid, because it

incidentally affected matters reserved for Federal Legislature, namely,

‘promissory notes’ in schedule VII, List I, entry 28.

The following leading principles are deducible from the Privy Council

decision:

It is not possible to make a clear-cut distinction between the powers of

24

the Union and the State Legislatures. They are bound to overlap, and

where they do so, the questions to be considered are: what is the pith and

substance of the impugned enactment, and in what List are its true nature

and character to be found? 

The extent of invasion by the Provinces into the subjects in the Federal

List in an important matter, not because the validity of a Provincial Act

can be determined by discriminating between degrees of invasion, but for

determining the pith and substance of the impugned Act.

Where the three List come in conflict, List I has priority over List II and

III and List III has priority over List II.

Subramaniam Chettiyar v. Muthuswami Goundan_ was cited with

approval by the Privy Council in Prafulla Kuamr’s case. In this case

Gwyer, C.J. in explaining the doctrine of pith and substance said:

“It must inevitably happen from time to time that Legislation

though purporting to deal with a subject in one List touches also

upon a subject in another List, and the different provisions of the

enactment may be so closely intertwined that blind adherence to a

strictly verbal interpretation would result in large number of

statutes being declared invalid because the Legislature enacting

them may appear to have legislated in a forbidden sphere. Hence

the rule has been evolved whereby the impugned statutes is

examined to ascertain its ‘pith and substance’ of its ‘true nature and

character’ for the purpose of determining whether I is Legislation

with respect to matter in the lost or that”.

In State of Bombay v. Vatan Medical and General Store _, the Supreme

Court held that ‘once it is found that in pith and substance a law falls

25

within the permitted field, any accidental encroachment by it on a

forbidden field does not affect the competence of the concerned

Legislature to enact the law. Effect is not the same thing and

subject matter. If a State Act, otherwise valid, has effect on a matter in

List I do not cease to be Legislation with respect to an entry in List II or

III.

In State of Bombay v. F.N.Balsara_, constitutional validity of the Bombay

Prohibition Act, 1949 was in issue. The question was whether that Act

fell under entry 31 of List II of the Government of India Act, 1935,

namely, ³intoxicating liquors, that is to say, the production, manufacture,

possession, transport, purchase, and sales of intoxicating liquors´,

or ‘import and export of liquors across customs frontier’, which is a

Central subject. It was argued that the prohibition on purchase, use,

transport and sale of liquor would affect the import.

The Supreme Court rejected the argument, held the Act valid because the

pith and substance of the Act fell under entry 31 of List II, and not under

entry 19 of List I, even though the Act incidentally encroached upon the

Central power of Legislation.

The court has enunciated the rule of pith and substance in this case as

‘It is well settled that the validity of an Act is not affected if it

incidentally trenched on matters outside the authorized field and,

therefore, it is necessary to enquire in each case what is the pith and

substance of the Act impugned. If the Act when so viewed, substantially

falls within the powers expressly conferred upon the Legislature which

enacted it and it cannot be held to be invalid merely because it

incidentally encroached on matters which have been assigned to another

Legislature’. The above seen are the cases which came up before the

26

courts in our country before the commencement of the constitution of

India. After the constitution came into force many principles were

evolved from various cases relating to the clash between Central and

State Legislations on a same subject. The following cases are some

important cases of them:

In State of Rajasthan v. G.Chawla_, the State Legislature made a law

restricting the use of sound amplifiers. The respondent who had violated

the provisions of the impugned Act was prosecuted. The judicial

commissioner held the Act invalid and quashed the conviction. On appeal

to the Supreme Court, the State contended that the law was within the

legislative competence of the State Legislature since it fell under entry 6

of the List II, ‘Public health and sanitation’. The respondent, on the other

hand, contended that the impugned law fell under entry 31 of the List I,

‘Posts and Telegraphs, Telephones, Wireless, Broadcasting and other like

forms of communication’.

It was held by the Supreme Court that the impugned Legislation in its

pith and substance fell within entry 6 of List II. The power to legislate in

relation to public health includes the power to regulate the use of

amplifiers as producers of loud noises when the right of such user, by the

disregard of the comfort and obligation to others, emerged as a manifest

nuisance to them. It did not fall within entry 31 in the Union List, even

though the amplifier is an apparatus for broadcasting or communication.

The Legislation in pith and substance being on a State manner, it was not

invalid even if it incidentally encroached upon the subject of

the broadcasting and communication. The Supreme Court further quoted

the following Statement of Latham, C.J. in Bank of New South Wales v.

Commonwealth_:

27

“The power to make laws ‘with respect to a subject-matter’ is power to

make laws which in reality and substance are laws upon the subject-

matter. It is not enough that a law should refer to the subject-matter or

apply to the subject-matter: for example, income tax laws apply to

clergymen and hotel-keepers as members of the public; but no one would

describe an income tax law as being, for that reason, a law with respect to

clergymen or hotel-keepers, Building regulations apply to building

erected for or by banks; but such regulations could not properly be

described as laws with respect to banks or banking.

In Krishna v. State of Madras_, applying the rule of pith and substance,

the Supreme Court upheld the Madras Prohibition Act, even though it

laid down procedure and principles of evidence for trial of offences under

the law in question very different from those contained in the Criminal

Procedure Code and the Indian Evidence Act, both Central Acts in the

Concurrent field. In this case, the court appears to be have gone rather too

far in upholding the State law.

In Ukha Kolhe v. State of Maharastra_, Justice Shah with him B.P. Sinha,

C.J., K.N. Wanchoo and P.B. Gajendragadkar JJ, observed that, it is true

that power to legislate on matters relating to Criminal procedure and

Evidence falls within the Third List of the Seventh Schedule to the Union

Parliament and the State Legislature have Concurrent authority in respect

of these matters. The expression ³criminal procedures´ in the legislative

entry includes investigation of offences, and s. 129A and 129B must be

regard as enacted in exercise of the power conferred by entries 2 and 12

in the List III.

28

The Code of Criminal Procedure was a law in force immediately before

the commencement of the constitution, and by virtue of Art.254 (2)

Legislation by a State Legislature with respect to any of the matters

enumerated in the List III repugnant to an earlier law made by Parliament

or an existing law with respect to that matter if it has been reserved for

the consideration of President and has received his/her assent, prevails in

the State. The only difference in the situations in the two cases appears to

be that, while in Ukha the State law had received the President assent, the

law involved in Krishna had not been so reserved, and this perhaps

explains the dichotomy in the judicial attitudes, for to take the same view

in Krishna, as was done in Ukha, would have been to hold the law bad on

the ground of repugnancy with the Central law_.

In Ishwari Kehtan Sugar Mills case_, it was held, when validity of a

Legislation is challenged on the ground of want of legislative competence

and it becomes necessary to ascertain to which entry in the three Lists the

Legislation is referable to, the court has evolved the theory of pith and

substance. If in pit and substance Legislation falls within one entry or the

other but some portion of the subject matter of the Legislation

incidentally trenches upon and might enter a field under another List, the

Act as a whole would be valid notwithstanding such incidental trenching.

In D.C. & G.M. Co. Ltd. v. Union of India_, it has been held:

“When a law is impugned on the ground that it is ultra vires the

powers of the Legislature which enacted it, what has to be

ascertained is the true character of the Legislation. To do that

one must have regard to the enactment as a whole, to its objects

and to the scope and effect of its provisions. To resolve the

controversy if it becomes necessary to ascertain to which entry in

29

the three Lists, the Legislation is referable, the court has evolved

the doctrine of pith and substance. If in pith and substance, the

Legislation falls within one entry or the other but some portion of

the subject-matter of the Legislation incidentally trenches upon and

might enter a field under Another List, then it must be held to be

valid in its entirety, even though it might incidentally trench

on matters which are beyond its competence.”

In a latest judgment passed by the constitutional bench of 5 judges in

State of WestBengal v. Kesoram Industries Ltd_, it was observed

that Article 245 of the Constitution is the fountain source of legislative

power. It provides - subject to the provisions of this Constitution.

Parliament may make laws for the whole or any part of the territory of

India, and the Legislature of a State may make Saws for the whole or any

part of the State. The legislative field between the Parliament and the

Legislature of any State is divided by Article 246 of the Constitution.

Parliament has exclusive power to make laws with respect to any of

the matters enumerated in List I in Seventh Schedule, called the ‘Union

List’. Subject to the said power of the Parliament, the Legislature of any

State has power to make laws with respect to any of the matters

enumerated in List III, called the ‘Concurrent List’. Subject to the above

said two, the Legislature of any State has exclusive power to make laws

with respect to any of the matters enumerated in List II, called the

‘State List’.

Under Article 248 the exclusive power of Parliament to make laws

extends to any matter not enumerated in the Concurrent List or State List.

The power of making any law imposing a tax not mentioned in the

Concurrent List or Stats List vests in Parliament. This is what is called

30

the residuary power vesting in Parliament. The Supreme Court further

explained the doctrine by citing the observation of a Bench of three

learned Judges of the Supreme Court on a review of the available

decisions in Hoechst Pharmaceuticals Ltd. and Ors. v.State of Bihar and

Ors_, relating to the legislative powers of the Legislations. They are-

The various entries in the three Lists are not ‘powers’ of Legislation but

‘fields’ of Legislation. The Constitution effects a complete separation of

the taxing power of the Union and of the States under Article 246. There

is no overlapping anywhere in the taxing power and the Constitution

gives independent sources of taxation to the Union and the States.

In spite of the fields of Legislation having been demarcated, the question

of repugnancy between law made by Parliament and a law made by the

State Legislature may arise only in cases when both the Legislations

occupy the same field with respect to one of the matters enumerated in

the Concurrent List and a direct conflict is seen. If there is a repugnancy

due to overlapping found between List II on the one hand and List I and

List III on the other, the Stats law will be ultra vires and shall have to give

way to the Union law.

Taxation is considered to be a distinct matter for purposes of legislative

competence. There is a distinction made between general subjects of

Legislation and taxation. The general subjects of Legislation are dealt

with in one group of entries and power of taxation in a separate group.

The power to tax cannot be deduced from a general legislative entry as an

ancillary power.

31

The entries in the List being merely topics or fields of Legislation, they

must receive a liberal construction inspired by a broad and generous spirit

and not in a narrow pedantic sense. The words and expressions employed

in drafting the entries must be given the widest possible interpretation.

This is because, to quote V. Ramaswami, J., the allocation of the subjects

to the Lists is not by way of scientific or logical definition but by way of

a mere simplex enumeration of broad categories. A power to legislate as

to the principal matter specifically mentioned in the entry shall also

include within its expanse the Legislations touching incidental and an

cillary matters.

Where the legislative competence of a Legislature of any State is

questioned on the ground that it encroaches upon the legislative

competence of Parliament to enact a law, the question one has to ask is

whether the Legislation relates to any of the entries in List’s I or III. If it

does, no further question need be asked and Parliament’s legislative

competence must be upheld. Where there are three Lists containing a

large number of entries, there is bound to be some overlapping among

them. In such a situation the doctrine of pith and substance has to be

applied to determine as to which entry does a given piece of Legislation

relates. Once it is so determined, any incidental trenching on the field

reserved to the other Legislature is of no consequence. The Court has to

look at the substance of the matter. The doctrine of pith and substance is

sometimes expressed in terms of ascertaining the true character of

Legislation. The name given by the Legislature to the Legislation is

immaterial. Regard must be had to the enactment as a whole, to its main

objects and to the scope and effect of its provisions. Incidental and

superficial encroachments are to be disregarded.

32

The doctrine of occupied field applies only when there is a clash between

the Union and the State Lists within an area common to both. There the

doctrine of pith and substance is to be applied and if the impugned

Legislation substantially falls within the power expressly conferred upon

the Legislature which enacted it, an incidental encroaching in the field

assigned to another Legislature is to be ignored. While reading the three

Lists, List I has priority over Lists III and II, and List III has priority over

List II. However, still, the predominance of the Union List would

not prevent the State Legislature from dealing with any matter with in

List II though it may incidentally affect any item in List I.

In a recent civil appeal_ decided by the Supreme Court, it was held ³One

of the proven methods of examining the legislative competence of a

Legislature with regard to an enactment is by the application of the

doctrine of pith and substance. This doctrine is applied when the

legislative competence of the Legislature with regard to a particular

enactment is challenged with reference to the entries in various Lists. If

there is a challenge to the legislative competence, the courts will try to

ascertain the pith and substance of such enactment on a scrutiny of the

Actin question. In this process, it is necessary for the courts to go into and

examine the true character of the enactment, its object, its scope and

effect to find out whether the enactment in question is genuinely referable

to a field of the Legislation allotted to the respective Legislature under the

constitutional scheme. This doctrine is an established principle of law in

India recognized not only by this Court, but also by various High Courts.

Where a challenge is made to the constitutional validity of a particular

State Act with reference to a subject mentioned in any entry in List I, the

33

Court has to look to the substance of the State Act and on such analysis

and examination, if it is found that in the pith and substance, it falls

under an entry in the State List but there is only an incidental

encroachment on any of the matters enumerated in the Union List, the

State Act would not become invalid merely because there is incidental

encroachment on any of the matters in the Union List. And it is clear

that anything that affects public peace or tranquility within the State or

the Province would also affect public order and the State Legislature is

empowered to enact laws aimed at containing or preventing Acts which

tend to or actually affect public order. Even if the said part of the

MCOCA incidentally encroaches upon a field under Entry 1 of the Union

List, the same cannot be held to be ultra vires in view of the doctrine of

pith and substance as in essence the said part relates to maintenance of

Public Order which is essentially a State subject and only incidentally

trenches upon a matter falling under the Union List.

The doctrine was there from pre-independence era, under Government of

India Act, 1935. Then after was inculcated under Constitution of India.

Eventually the doctrine has been pronounced in many judgments

as discussed earlier. The doctrine proved very significant as it saved

incidental encroachment of two pieces of Legislature on each other.

Therefore we can infer from the above mentioned cases, in the Indian

scenario, that the judiciary had applied three basic principles under the

doctrine of pith and substance while deciding the matters; the enactment

as a whole, its main object, and scope and effect of its provisions has to

be regarded.

34

Conclusion

Thus from the scheme of distribution of legislative powers between the

Union and the States it is quite evident that the framers have given more

powers to the Union Parliament as against the States. The States are not

vested with exclusive jurisdiction even over the subjects assigned to the

States by the Constitution and thus it makes the states to some extent

subordinate to the Centre. Indeed this is a clear departure from the strict

application of federal principle followed in America and Australia.

The doctrine of pith and substance has been evolved in all constitutions

where the legislative subjects are enumerated in more than one List

falling within the competence of different Legislatures. This rule

introduces a degree of flexibility into the otherwise rigid scheme of

distribution of powers. It gives an additional dimension to the powers of

Centre as well as the States. The reason behind the rule is that if every

Legislation were to be declared invalid, howsoever, slight or incidental

the encroachment of the other filed by it, then the power of each

Legislature will drastically circumscribed to deal effectively with the

subjects entrusted to it for Legislation. Thus doctrine of pith and

substance is not only for general understanding, in fact it goes on to help

the judiciary in finding out what actually the law is trying to object for. In

other words, if a law passed ostensibly to give effect to the policy of the

State is, in truth and substance, one for accomplishing an unauthorised

object, the court would be entitled to tear the veil created by the

declaration and decide according to the real nature of the law. The

doctrine gives quite a good deal of manoeuvrability to the courts. It

furnishes them tool to uphold Legislation, for it for them to decide its true

nature and character and, thus, they have a number of choices open

35

to them and most often the Courts by putting a favourable interpretation

on the Legislation in question use their power to support the same.

36

BIBLIOGRAPHY

KASHYAP SUBHASH C., Constitutional Law of India, Vol. 1,

Universal law Publishing Co. Pvt. Ltd.

BASU D.D., Commentary on Constitution of India, 8th Ed., Vol. 4,

Wadhwa, Nagpur

JAIN M.P., Outlines of Indian Legal and Constitutional History, 6th Ed.

Lexis Nexis Butterworth’s Wadhwa, Nagpur.

Constituent Assembly Debates, VOL.VIII

37