The constitution of India is based on the principle of Federalism where the powers of making laws are divided between the Union Parliament and the state legislatures. This power is derived from the 7th schedule of the constitution which assigned specific subjects to the Union Parliament, state legislatures and both. These subjects are provided in three lists, namely the central list, state list, and concurrent list. The principle of Federalism provides that the Parliament cannot make laws on the subjects mentioned in the state list and vice-versa. This principle is a part of the basic structure doctrine, and all the laws must comply with the same. In this article, we will discuss thoroughly the origin, meaning, and features of the doctrine of pith and substance. Further, with the help of landmark judicial pronouncements, we will discuss its scope and relevance in the present times.
Though subjects are clearly demarcated, many times it has been observed that both the Parliament and state legislatures have crossed their limits and made laws on the subject matter outside their jurisdiction. In that situation, it becomes important to decide to which list that particular law belongs. In simple words, the moot point is whether the legislature is capable to make a law on such a subject. Thus, to understand the true nature and character of legislation, the doctrine of pith and substance came into existence.
Meaning of Pith and Substance
As per the Black Law Dictionary, the term ‘pith and substance’ means the ‘true nature or character’ of a law. This doctrine states that both the Parliament and state legislatures are supreme in their sphere, and they should not encroach upon the sphere of the other. In case of any dispute about the legitimate sphere, we need to look at the true nature or characteristics of the law to ascertain its true substance. This will help in determining the real nature of the law and the competency of the legislature.
For illustration – Health is a state subject on which only the state legislatures can make laws. However, the Parliament brought a medical bill. Now, the state legislature is opposing it on the ground that the bill is constitutionally invalid as this sphere of making law is dedicated to the state legislatures. Now, to resolve the dispute, the court will look into the true nature and substance of the bill to figure out whether the Parliament can make law on such a subject or not.
Origin of Doctrine of Pith and Substance
The doctrine of pith and substance has evolved from the Canadian Constitution, which is divided into 2 parts, namely the Dominion and the Provinces. In the Canadian Constitution, there are two different lists to decide the power of making laws. Section 69 of the Constitution divides the legislative power of the Dominion from the Provinces. In addition to that, Sections 91 and 92 define the exclusive legislative rights of both the organs of the government.
From the judicial point of view, the doctrine of pith and substance came into light from the case of Cushing vs Dupuy (1880) in Canada. In that case, it was held that the true nature of the bill shall be taken into consideration to decide any dispute relating to the power of making laws. In a nutshell, the court held that both the Dominion and the Provinces are supreme in their respective areas, but they shouldn’t cross their boundaries.
Inspired by the Canadian Constitution, our Constitution under Article 246 divided the scope of the legislative power of central and state legislatures into 3 lists. In case of any dispute, the court needs to look into the content of the law, and decide to which list the particular law belongs.
The object of Doctrine of Pith and Substance
The main objective of the doctrine of pith and substance was to prevent encroachment or intrusion of one legislative organ into the domain of another. This encroachment can be prevented by ascertaining the true content of the law to figure out which legislative organ (state legislatures or Parliament) possesses the legislative power to make law on such subject. While examining the content of the law, there will be two outcomes, which are as follows
- If the substance of the law corresponds to the subject on which the legislature has the power to make laws, the enactment of the law will be perfectly valid;
- If the substance of the law doesn’t correspond to the subject or it is outside the jurisdiction, it will result in partial or accidental encroachment in the domain of another organ. In that situation, the enacted will lose its constitutional validity.
Features of Doctrine of Pith and Substance
Some salient features of this doctrine are discussed below-
- This doctrine aims to prevent encroachment by one legislative organ into the domain of another. To ascertain the true nature of law, the content or the real substance must be given due consideration.
- This doctrine is essential as it keeps a check on the legislative powers of both the Parliament and state legislatures.
- This doctrine has a vast application, which can be applied to the power of framing regulations and other forms of delegated legislation.
- This doctrine provides flexibility in the power allocation system of our federal structure.
The doctrine of Pith and Substance in the Indian Constitution
In India, this doctrine finds its emergence in the Government of India Act, 1935, which is followed in our present constitution also. To divide the legislative power and scope between Parliament and state legislatures, there are 3 lists in the seventh schedule. As per Article 246, the power of making laws is strictly confined to the subjects given in the lists. However, if any dispute emerges, this doctrine comes into play to decide which legislative authority has the power to enact the law.
The essence of this doctrine is that both the parliament and the state legislatures should confine themselves in their respective areas as set up in the 7th schedule. If they try to encroach, the court will apply the doctrine of pith and substance to identify the real power and competency to make law.
The doctrine of Ancillary or Incidental Encroachment
As per this doctrine, the legislature has the power to make laws on the ancillary or supplementary subjects. This doctrine has broadened the scope of legislative power as they can make laws on the supplementary subjects in addition to the primary laws. Under this doctrine, all the three lists of the constitution shall be given a liberal interpretation to extend the power of the legislature.
- Kartar Singh v. the State of Punjab (1961)
In this landmark case, the Hon’ble Supreme court of India explained how the doctrine of pith and substance should be applied. This doctrine prevents unlawful encroachment in the law-making sphere by putting a restriction on making laws on the subjects falling outside the jurisdiction. If a dispute arises, the essence and the substance of the legislation must be determined. This doctrine plays a vital role in the adjudication of any question relating to the legislative powers.
The doctrine of pith and substance is an integral part of our constitution. As our constitution is based on the principle of federalism, the power of making laws between parliament and state legislatures is divided into 3 lists as provided under Schedule 7 of the constitution. The doctrine of pith and substance provides that both the parliament and the state legislature shall confine themselves to their respective spheres.
In case of any dispute, the court shall look into the real substance of the legislation to ascertain which organs of the government have the legislative power to make laws on such subject. Over the period of time, this doctrine has evolved and its scope has been widened through numerous judicial pronouncements. Nowadays, the doctrine of ancillary or supplementary legislation is also followed in the country.