NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL,M.P.

A Project Of Constitutional Law-III On

The Topic
Analysing Doctrine Of Pith And Substance

Submitted to, Submitted by,

Prof. Kuldeep Kaur Ajita Nadkarni
2012 BA LLB 101
Acknowledgement

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With my highest gratitude and respect I would like to acknowledge the role
played by various people in guiding me and mentoring me for the successful
completion of this project work.

Firstly,I would like to thank the role played by my parents,who have always
motivated me and inspired me to have an optimistic outlook and who have
always stood beside me in all the trying times.

Secondly I would like to highlight the role played by Kuldeep Kaur M`am,who
as my constitutional law teacher has inspired me to study the subject with keen
interest and who has inspired me to dream big always by acting as a pillar of
strength.

Table Of Contents

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Topic Page
No:
1.Introduction 4

2.Nature of Pith And Substance Analysis 5

3.Essential character 5-6

4.Assignment 6-7

5.Ancillory Effects Doctrine 7

6.Conclusion 8

7.Bibliography 8

Introduction:
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Within their respective spheres. Parliament and the State Legislature should
keep within the domain assigned to it and not trespass into domain reserved to
the other, and a law made by one which trespasses or encroaches upon the field
assigned to the other, is not valid.

But before the Legislature purporting to deal with a subject in one list and
touching also on a subject in another list is declared to be bad, the courts apply
what is known as, the doctrine of pith and substance.

According to this doctrine, the legislation as a whole is examined to ascertain its

“true nature and character” in order to determine in what list it falls. If
according to its “true nature and character” the legislation substantially falls
within the powers conferred on the legislature which has enacted it, then it is
not deemed to be Invalid “merely because it incidentally trenches or encroaches
on matters which have been assigned to another legislature.

The doctrine of “pith and substance” postulates for its application, that the law
in question is substantially within legislative competence of the particular
legislature which has made it but only incidentally encroaches upon the
legislative field of another legislature. The doctrine saves the incidental
encroachment, if only the law is in pith and substance within the legislative field
of the particular legislature which has made it.

The Privy Council applied this doctrine in Prafulla Kumar Mukherjee vs.
Bank of Kolkata, AIR 1947 P.C. 60. In this case the validity of Bengal Money
Lender’s Act, 1946, which limited the amount and rate of interest recoverable
by a money-lender on any loan was challenged on the ground that it was ultra
vires the Bengal legislature in so far as it related to “Promissory Notes”, a
Central subject.

The Privy Council held that Bengal Money Lender’s Act was in pith and
substance a law in respect of money lending and money lenders—a State
subject, and was valid even though it trenches incidentally on “Promissory
Notes”— a Central subject.

In State of Bombay v. F.N. Balsara, AIR 1951 S.C. 318, the Bombay
Prohibition Act which prohibited sale and possession of liquors in the State, was
challenged on the ground that it incidentally encroached upon Import and export
of liquor across custom frontier—a Central subject.

It was contended that the prohibition, purchase, use, possession and sale of
liquor will affect its import. The Supreme Court held the Act valid because the
pith and substance of the Act fill under the State List and not under Union List

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even though the Act incidentally encroached upon the legislative powers of the
Union.

In Ishwari Khetan Sugar Mills v. State of U.P., A.I.R. 1980 S.C. 1955, the
validity of the U.P. Sugar Undertakings (Acquisitions) Act, 1971, was
challenged on the ground that the State Legislature had no competence to enact
the impugned law on the ground that it fell within Parliament’s legislative
power under Entry 52 of List I.

It was contended that in view of the declaration, the Parliament had made under
Entry 52 of List I to take the sugar industry, State Legislature was divested of
all legislative powers in respect of Sugar Industry under Entry 24 of List II.

The Supreme Court rejected these contentions and held that there was no
conflict F14 between the State Act and the Central Act under Industries Act,
1951. The power of acquisition or requisition of property in Entry 42 List III is
an independent power of the State Legislature which is referrable to Entry 42 of
List III and its control was taken over by the Central Government.

Nature Of Pith And Substance Analysis:

The analysis must answer two questions:

1. what is the pith and substance or essential character of the law?

2. does it relate to an enumerated head of power in section 91 or 92 of
the Constitution Act, 1867?

Essential Character:
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 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 accomplish.
 Purpose is relevant to determine whether, in this case, Parliament was
legislating within its jurisdiction, or venturing into an area under
provincial jurisdiction.

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  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.

Assignment:
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 “mutual modification”
 Classes of subjects should not be construed so broadly as to expand
jurisdiction indefinitely
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 theConstitution 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.

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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
government’s jurisdiction.

Ancillary Effects Doctrine:

This principle is an addition to the doctrine of Pith and Substance. What it
means is that the power to legislate on a subject also includes power to legislate
on ancillary matters that are reasonably connected to that subject. It is not
always sufficient to determine the constitutionality of  an act by just looking at
the pith and substance of the act. In such cases, it has to be seen whether the
matter referred in the act is essential to give effect to the main subject of the act.
For example, power to impose tax would include the power to search and
seizure to prevent the evasion of that tax. Similarly, the power to legislate on
Land reforms includes the power to legislate on mortgage of the land. However,
power relating to banking cannot be extended to include power relating to 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, 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.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power
to legislate on a topic includes the power to legislate on an ancillary matter
which can be said to be reasonably included in the topic.

The underlying idea behind this principle is that the grant of power includes
everything necessary to exercise that power. However, this does not mean that
the scope of the power can be extended to any unreasonable extent. Supreme
Court has consistently cautioned against such extended construction. For
example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held
that betting and gambling is a state subject as mentioned in Entry 34 of State list
but it does not include power to impose taxes on betting and gambling because
it exists as a separate item as Entry 62 in the same lis

Conclusion:
The letters of the constitution are fairly static and not very easy to change but
the laws enacted by the legislature reflect the current state of people and are
very dynamic. To ensure that the new laws are consistent with the basic

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structure of the constitution, the constitution must be interpreted in broad and
liberal manner giving effect to all its parts and the presumption must be that no
conflict or repugnancy was intended by its framers. Applying the same logic,
the provisions relating to fundamental rights have been interpreted broadly and
liberally in favour of the subject. Similarly, various legislative entries
mentioned in the Union, State, and Concurrent list have been construed liberally
and widely by using and applying some of the key principles in interpreting the
provisions of the constitution with Doctrine of pith and substance being one of
the most instrumental principles in the constitutional interpretation apart from
following other principles like the doctrine of harmonious construction ,doctrine
of colourable legislation etc.

Bibliography:
1.V.N.Shukla
2.www.hanumant.com
3.www.shareyouressays.com