Doctrine and principles are significant concepts, they help to understand how the judicial machinery works in the nation.

Under the Constitution of India, there is a division of legislative spheres between the Union and the States. Within their respective areas of authority, the union and the state legislature are supreme and they are not supposed to encroach upon the sphere reserved for the other. If a law passed by one encroaches upon the Held assigned to the other, the court will apply the doctrine of pith and substance. If it is found that the law in substance is within the subject assigned to that legislature and the intention of the law is genuine, the law shall be valid in its entirely, even though there is some overlapping. The justification given for this is that since there cannot be water-tight division of powers between the centre and the states, a strict verbal interpretation of any provision would result in invalidation of many laws on the simple ground of overlapping.

The Supreme Court propounded this doctrine in the case of State of RAJASTHAN vs G CHAWLA in 1959.[1] In the opinion of the Court, such encroachment is only incidental and hence the extent of invasion is immaterial.

Legislative powers of the Union and the states are divided into mutually exclusive lists and they are-

1.            List 1 or the Union List contains matters where the centre has the power to make laws.

2.            List 2 or the State List contains the subjects where the State has the power to make laws.

3.            List 3 or Concurrent List contains subjects where both the Centre and the State have powers to legislate

It is widely believed that the origin of the doctrine of pith and substance lies in Canada and it was introduced in a case named Cushing v. Dupuy in the year 1880. The doctrine later made its way to India and is firmly supported by Article 246 of the Constitution and the Seventh Schedule. In India, it has evolved to become a celebrated doctrine that became the basis of many landmark Supreme Court judgements.[2] The Doctrine relates to Article 246 of the Indian Constitution. It is used when there is a question on the competence of the legislature in making a particular enactment under the three lists aforementioned.

The Court for that matter should look into the substance of the enactment. It is possible that a question may arise in practice as to whether a law purporting to be made under an entry in one list falls in fact within an entry in another list, over which such legislature is having no power to make laws.

The Privy Council evolved the doctrine of pith and substance, which is a significant feature of the Canadian Constitution. Under this doctrine, one should see the pith and substance- or the true nature and character – of the legislation. As the Supreme Court explained, if an Act falls substantially within the powers expressly conferred upon a legislature, such an Act is not invalid merely because it the way invade on matters which have been assigned to another legislature.

In Prafulla Kumar Mukherjee v The Bank of Commerce Ltd., AIR 1947 PC 60,[3] it was strongly argued that though the doctrine of pith and substance may be applicable to Canada and Australia, it cannot be applied in India, where the framers of the Constitution had foreseen the difficulties that might arise and had therefore provided three, and not two, legislative lists. The Privy Council, however, did not accept this argument. This case has been repeatedly followed by the Supreme Court, for instance, In State of Bombay v Jethabhai, AIR 1951 SC 69 and in State of Bombay v F.N. Balsara, AIR 1951 SC 318.[4][5]

Important ingredients that constitute the Doctrine of Pith and Substance

  • The Doctrine is applied when the subject matter of List I of the Seventh Schedule is in conflict with the subject matter of List II.
  • The reason behind adopting this doctrine is that otherwise every law will be declared invalid on the ground that it encroaches upon the subject matter of another sphere.
  • The doctrine examines the true nature and substance of the legislation in order to determine which List it belongs to.
  • It takes into consideration whether the State has the power to make a law that encroaches on a subject matter from another list.
  • The doctrine was first applied and upheld by the Supreme Court in the FN Balsara case.[6]

[1] Rajasthan vs G Chawla 1959.


[3] Prafulla Kumar Mukherjee v The Bank of Commerce Ltd., AIR 1947 PC 60.

[4] State of Bombay v Jethabhai, AIR 1951 SC 69.

[5] State of Bombay v F.N. Balsara, AIR 1951 SC 318.

[6] Supra at 2.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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