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The constitution of India has split the extent of legislative powers between states and the centre through the 7th schedule.

  • The 7th schedule determines the subject matter and divided the authority to form laws between the state and the centre.

  • List I or Union list consists of matters where the centre has the authority to make laws, e.g., foreign affairs, defence, and currency.

  • List II or State List consists of the matters where the state has the authority to make laws, e.g., public order, sanitation and health.

  • List III or the concurrent list consists of subjects where both the state and the centre have authority to legislate, e.g., Forest, Education and Administration of Justice.

  • Although areas of effect are well established in the 7th schedule, they often start conflicts as to whether the centre or the state, as the situation may be, is threatening upon the area of the other. To manage this conflict, the courts in India have used a few doctrines and the oldest doctrine of the pith and substance is one of them.

  • Doctrine of Pith and Substance Origin

It is broadly believed that the origin of the doctrine lies in Canada and it was first introduced in the case Cushing v. Dupuy 1880. The doctrine later came to India and was strongly supported by Article 246 of the Constitution and the 7th Schedule. India has enhanced to become the most used doctrine that becomes grounds for so many landmark judgements.

  • What is the doctrine of pith and substance?

The doctrine describes that within their own areas the state and the union legislatures are made absolute, they should not interfere with the area of others.

  • However, if one among the centre and the state does interfere, the courts will establish the doctrine of pith and substance.

  • If the pith and substance i.e., the real aim of the legislation means to a subject within the capability of the legislation that enacted it, it should be considered to be intra vires despite it may be interfered on the matters, not within the capability of the legislature.

The Privy Council established this doctrine in the case Profulla Kumar Mukherjee v Bank of Khulna.

  • In this case, the Bengal Money Lenders Act of 1946 enacted by the State Legislature was questioned with the argument that parts of the legislation dealt with promissory notes; a central subject.

  • The Privy Council while sustaining the validity of the debated legislation held that the Bengal Money Lenders Act was in pith and substance a law about money lenders and money lending – a state subject even though it encroaches upon Promissory note – a central subject.

In the State of Bombay v FN Balsara, the Bombay Prohibition Act was questioned on the basis that it accidentally interferes with the import and export of liquor around the custom frontier – a central subject. The court while upholding the impugned legislation held that the Act was in pith and substance a State subject even though it incidentally encroached upon a central subject.

  • Conclusion

Despite the intense division of powers among the Centre and the states, it is quite impossible to avoid the ancillary encroachments of enactment of laws. The powers demarcated as per Section 100 of the Government of India Act, 1935 was so rigid and stringent that it gave no scope to the application of the doctrine of pith and substance. Subsequent to the forming of the Indian Constitution in 1949, when such incidental encroachment of legislative powers take place, courts with the aid of the doctrine of pith and substances determines the validity and legitimacy of an enactment.


Written by Parul Sharma


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