Analyzing the Doctrine of Pith and Substance

This blog is inscribed by Shyam Ji Mishra.

Since the Independence, India has been a quasi-federal country which means that it follows a federal system along with having a Unitary Bias. The Constitution of India provides for a federation with a strong Centre, while distributing some of the powers to state legislature.

Article 246 of the Constitution distributes the law-making power on various subjects to State and Union by classifying the powers into three lists mentioned in the Seventh Schedule of the Constitution. Those three lists are:

  1. Union List
  2. State List
  3. Concurrent List

The First two lists grant exclusive power to both Centre and State respectively and allots them topic to make legislation on, and the third list is a list on which both Centre and State can make laws. However, sometimes law made by one authority infringes the subject of the other list due to which there is a conflict between two law making authorities, and to resolve this dispute the doctrine of Pith and Substance is used.[1]

The Doctrine of Pith and Substance is detrimental in determining under which list, a legislation will fall. To determine, whether an enactment falls under the entry or the other, it is the Pith and Substance which is considered of and not the legislative label. If the Legislation falls in the entry, then the Incidental encroachment it is having of the other list will not invalidate the law.  In other words, it decides which authority can make laws regarding a subject and whether the laws made by it are within its powers as mentioned in the Seventh Schedule.


The importance of this doctrine was realized by Canadian Lawmakers which is also said to be originator of this doctrine where it was enshrined in the Canadian Constitution Act, 1867. However, this concept was first used in the case of Cushing v. Dupey[2] where the Judicial Committee of the Privy Council held that, for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.

In India, one of the first cases of this doctrine was State of Bombay v. F. N Balsara[3], where this doctrine was applied to determine whether state was authorized to implement Bombay Prohibition act or not. Since then this doctrine has been used in various cases.


The salient features of this doctrine are as follows:

  • Focuses on Conflict of Power: This doctrine comes into play when there is a conflict between two law making authorities that is Center and State Legislatures on two different subject matters of two different lists that is when there is a clash between the subject matter or the law made by Center/State interferes with the subject on which law is supposed to be made by the other authority.
  • True nature of Legislation: Pith and Substance in its literal terms mean “True essence of a Subject” which is what the motive of this doctrine is to determine what the true motive of a legislation and to decide whether the legislation is encroaching the other list’s powers or not.
  • Provides a Degree of Flexibility: There is a strict division of powers among both Center and State as per the Article 246, however if the rules are strictly followed and every law started to be held invalid on the grounds that it infringes the power of other list, then there would be severe liability in the law making power of any legislature. Hence, to make the law-making authority more flexible and reduce the conflict between authorities this doctrine comes into play.

Landmark Judgments

·       State of Bombay v. F N Balsara

 This is one of the first cases relating to Doctrine. In this case, Sale of Liquor in Bombay was prohibited under the Bombay Prohibition Act which was challenged on the grounds that this decision was encroaching upon the import and export of Liquor across borders through Bombay Port and that was a Central subject. The Court upheld the doctrine of Pith and Substance and held the act to be valid and said that it is important to ascertain the true nature and character of a legislation for the purpose of determining the List under which it falls.[4]

·       Prafulla Kumar Mukherjee v. The Bank of Commerce[5]

In this case the situation where a State Legislature dealing with any subject may incidentally trespass any given topic of the Union List. The court said that whatever be the ancillary effects of the Statute enacted, attribution must be done in the appropriate list according to the true nature and character of the matter.

This means that if the enactment of the State Legislation is only incidental in nature, it will not withheld the power of the state to enact the law and will not make the Enactment invalid on the ground that it encroaches the matter of Union List.

·       Kartar Singh v. State of Punjab[6]

The Court in this case held that if after proper looking at the Act, it is found that that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid and no incidental trespassing to the entries of other list would make it invalid.

Critical Analysis

Despite the distribution of powers, it still looks like the Central Government enjoys a lot of freedom while commending a law for example in the concurrent list if there is a dispute between Centre and State, the law made by Centre prevails, hence this doctrine acts as a relief and makes sure that the country does not become a unitary authority but still show features of a Federal Country. Whereas Article 246 certainly enumerates the list of subject on which Centre and State should make laws, there are a number of things or subjects in the list which are so closely related that while making a legislation another subject does get encroached knowingly or unknowingly which is where this doctrine plays its role.

Sometimes what happens is that when there is a conflict among the two law making authorities regarding a legislation there is a delay in the enactment of legislation and it is the public who suffers the most, hence this doctrine ensures that public should not suffer from the ‘technicalities’  of the Law.

This doctrine tells that label of a legislation should not stop an authority to make laws for the public which is somewhat in the beneficiary for the country. It provides the State legislature with a feeling of confidence and autonomy that they can make laws regarding the subject without getting overruled by the Centre even though it incidentally trespasses an entry of the Union list.

However, the interpretation of the list which is mentioned in Article 246 should be wider and more clearly mentioned and described as compared to what it is and the extent to which an enactment is infringing upon the other enactment should also be looked upon more clearly.


This Doctrine plays an essential part in determining whether a law made by an authority is constitutionally valid or not, whether the enactment is infringing the subject of the other list or not. The doctrine establishes the level of encroachment to be done by the act on the other list and determines what the true nature of the enactment is.

This Doctrine somehow provides a degree of flexibility to the otherwise rigid working model of the Legislatures. It protects the Legislature from getting the enactment struck down on the basis that it is encroaching upon the entry of the other list.

It is said that The law making bodies are the ones which should work together towards the betterment of the Country and protection of Citizen and this doctrine surely ensures that by making the legislatures to comply with each other to make laws for the citizen.


[1] Jishnu Adhikari, Explain the Rule of ‘Pith and Substance’ With Case Laws, Law Corner,

[2]  1880 UKPC 22.

[3]  1951 AIR 358.

[4] State of Bombay and Ors. v. F.N. Balsara, Law Times Journal,

[5]  (1947) 49 BOMLR 568.

[6] (1994) 3 SCC 569.

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