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.

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

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
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.
3

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 Indias
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 .
_

THE DISTRIBUTION OF LEGISLATIVE

POWERS
4

The Constitution of India makes two fold distribution of legislative

powersA] 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 extraterritoriality 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

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

B. SUBJECT MATTER
A federal system postulates a distribution of powers between the Centre
6

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
Parliament and State legislatures. This Article as follows:
246. Subject matter of laws made by Parliament and by the Legislatures
of States
7

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
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, 178

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.

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
9

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

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.

10

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

11

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
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
12

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.

THE DOCTRINE OF PITH AND

SUBSTANCE

13

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
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

14

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 Legislations 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
opposed to its mere Stated or apparent purpose .
_

Equally the courts may take into account the effects of the Legislation.
15

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 Canadas 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 that subjects
_

which in one aspect and for one purpose falls within s.92, may in another
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,
16

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
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

17

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.

Provisions in Indian Constitution:

18

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
this purpose, the Provincial law prevailed, notwithstanding such
repugnancy .
_

19

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
the territory of India and;
(ii) The Legislature of a State may make laws for the whole
or any part of the State.
20

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
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,
21

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:
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
22

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,
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

23

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
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
24

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 Kuamrs 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
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
25

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,
intoxicating 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
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
26

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 :
_

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 subject27

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 criminal 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.
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
28

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
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
29

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 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
30

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.

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

31

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 Lists I or III. If it
does, no further question need be asked and Parliaments 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.
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

32

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 One
_

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
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

33

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.

Conclusion
Thus from the scheme of distribution of legislative powers between the
34

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
to them and most often the Courts by putting a favourable interpretation
on the Legislation in question use their power to support the same.

35

BIBLIOGRAPHY

36

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 Butterworths Wadhwa, Nagpur.
Constituent Assembly Debates, VOL.VIII

37