Doctrine of pith and substance:

Parliament or a State Legislature should keep within the domain assigned to it, and not
trespass into the domain reserved to the other. A law made by one which trespasses or
encroaches upon the field assigned to the other is invalid. But before the legislation with
respect to a subject in one List, and touching also on a subject in another List, is declared to
be bad, the Courts apply the rule of pith and substance. The phrase “pith and substance”
means “true nature and character”. The doctrine relates to the violation of Constitutional
delimitation of legislative power in a Federal State. Under it, the court ascertains whether the
alleged encroachment is merely incidental or substantial.

To ascertain the true character of the legislation in question, one must have regard to it as a
whole, to its objects and to the scope and effect of its provisions. If according to its ‘true
nature and character’, the legislation substantially relates to a subject assigned to the
Legislature which has enacted it, then it is not invalid ‘merely because it incidentally’
trenches or encroaches on matters assigned to another Legislature. Thus incidental
encroachment is not altogether forbidden.

The SC enunciated the principle in Premchand Jain v. RK Chhabra and observed that if an
enactment substantially falls within the powers expressly conferred by the Constitution upon
the legislature enacting it, it cannot be held to be invalid merely because it incidentally
encroaches on matters assigned to another legislature.

It must be noted The validity of legislation is not determined by the degree of invasion into
the field assigned to the other legislature though it is a relevant factor to determine its ‘pith
and substance’, as the legislation in question may advance so far into the other sphere as to
show that its true nature and character is not concerned with a matter falling within the
domain of the enacting legislature, in which case it will not be valid.

Once it is found that in pith and substance a law falls within the permitted field, any
incidental encroachment by it on a forbidden field does not affect the competence of the
concerned legislature to enact the law.

The practical working of the rule can be appreciated by referring to a few decided cases:

1) Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna: The Bengal Money Lenders
Act, 1940 passed to scale down debts owed by the agriculturists, was challenged on the
ground that being a provincial (State) law, it affected promissory notes, a Central subject
(Entry 46, List I). The Privy Council found that in its true nature and character, the legislation
dealt with moneylenders and money-lending (Entry 30, List II) and not with promissory
notes. The moneylenders commonly take a promissory note as security for a loan. A
legislature would not, in any real sense be able to deal with money-lending if it cannot limit
the liability of a borrower in respect of a promissory note given by him. The court held this
act to be valid even though as an ancillary effect it affected the negotiable instrument which
is a central subject

2)State of Bombay v FN Balsara: in this case Under entry 31 of List II of the Sevent Schedule
to the Government of India Act, 1935, the Provincial Legislatures had the power to make
laws in respect of "intoxicating liquors, that is to say, the production, manufacture possession,
transport, purchase and sale of intoxicating liquors" and under entry 19 of List I, the
Dominion Legislature had the power to make laws with respect to "import and export
across customs frontiers". The constitutional validity of the Bombay Prohibition Act, 1949, in
so far as it restricted the possession and sale of foreign liquors was impugned on the ground
that it was an encroachment on the field assigned to the Dominion Legislature under entry 19
of List I. The court held that A State law enforcing prohibition is valid because it prohibits
purchase, use, possession, transport and sale of liquor and therefore its pith and substance is
an act falling within Entry 31 of List II and the law only incidentally encroaches on the
Central power on imports.

3) In D.N Banerji v. P.R Mukherjee , the Industrial Dispute Act, 1947 of the Union
Parliament, in so far as it applied to the municipalities, was challenged on the ground that it
related to a state subject- the local government. The Supreme court held that having regard to
the pith and substance of the impugned Act it dealt with the Union subject, Industrial and
Labour disputes, Entry 22 List III, and not with local government, Entry 5 List II.

4) State of Rajasthan v. G Chawla: in this case, the state legislature made a law restricting the
use of amplifiers. The State contended that the law was within the legislative competence of
the state legislature since it fell under the Entry 6, List II, “public health and sanitation”. The
respondent on the other hand, contended that the impugned law fell under entry 31, List I,
“posts and telegraphs, telephone, wireless, broadcasting and other like forms of
communication”. It was held by Supreme Court that the impugned legislation fell within
Entry 6 The authority to legislate on matters of public health includes the power to regulate
the use of amplifiers that produce loud noises, especially when such use—by ignoring the
comfort and rights of others—clearly becomes a public nuisance. Thus, the law did not fall
within the Entry 31 in the Union List, even though the amplifier is an apparatus for
broadcasting and communication
Doctrine of colourable legislation

The doctrine of colourable legislation is based on the maxim that what cannot be done
directly cannot also be done indirectly. The doctrine becomes applicable when a legislature
seeks to do something in an indirect manner what it cannot do directly. The doctrine thus
refers to the question of competency of the legislature to enact a particular law. If the
impugned legislation falls within the competence of the legislature, the question of doing
something indirectly which cannot be done directly does not arise

The doctrine of colourable legislation does not involve any question of bona fides or mala
fides on the part of the legislature. If the legislature is competent to pass a particular law, the
motives which impelled it to act are irrelevant. On the other hand, if the legislature lacks the
competency, the question of motive does not arise at all; the legislation will be invalid even if
enacted with the best of motives

The Constitution distributes legislative powers between the State Legislatures and
Parliament, and each has to act within its sphere. In respect of a particular legislation, the
question may arise whether the legislature has transgressed the limits imposed on it by the
Constitution. The SC in KC Gajapati Narayan Deo v. State of Orissa, Stated that the te
transgression may be patent, manifest or direct, but it may also be disguised, covert or
indirect, and it is to this latter class of cases that the expression colourable legislation has
been applied. The idea conveyed by the expression is that although apparently a legislature in
passing a statute purported to act within the limits of its powers, yet, in substance and in
reality it transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be mere pretence or disguise

To decide whether or not the legislature has transgressed the sphere assigned to it, what is
material is the pith and substance; the true nature and character, of the legislation in question
and not its outward or formal appearance. If the subject-matter of the legislation, in
substance, is beyond the powers of the legislature, the form in which the legislation is clothed
would not save it from condemnation.

In State of Bihar v. Kameshwar, A State law dealing with the abolition of the landlord system,
provided for payment of compensation on the basis of income accruing to the landlord by
way of rent. Arrears of the rent due to the landlord prior to the date of acquisition were to vest
in the State, and half of these arrears were to be given to the landlord as compensation. The
provision was held to be a piece of colourable legislation and hence void under entry 42, List
III as the taking of the whole and returning a half means nothing more or less than taking half
without any return and this is naked confiscation, no matter in whatever specious form it may
be clothed or disguised. The impugned provision, therefore, in reality does not lay down any
principle for determining the compensation to be paid for acquiring the arrears of rent. It must
be noted that at the time when the case was decided, entry 42 List III spoke of principles on
which compensation for property acquired or requisitioned for the purpose of the Union or of
a State or any other public purpose is to be determined, and the form and the manner in which
such compensation is to be given.
Doctrine of repugnancy:

The term repugnancy means inconsistencies. And it may be defined as “an inconsistency,
opposition, or contrariety between two or 4 more clauses of the same deed, contract or
statute, or between two or more material allegations of the same pleading or any two
writings.

Article 254 of the Constitution which is modelled on Section 107 of the Government of India
Act, 1935 is hailed as the article incorporating the doctrine of repugnancy under the
Constitution. Article 254(1) lays down the general rule that in the event of a conflict between
a Union law and a State law enacted under the Concurrent List, the former shall prevail and
the State law shall be void to the extent of repugnancy. This is irrespective of whether the
Union law is enacted prior to or later than the State law

However, Article 254(2) provides for an exceptional situation where in a law made by the
State Legislature, though repugnant to the parliamentary law enacted under List III shall
continue to prevail in the State concerned. This is when the law made by the State Legislature
has been reserved for the consideration of the President and has received his assent. But the
grant of presidential assent under clause (2) of Article 254 will not preclude Parliament from
enacting a law on the subject-matter, as stipulated in the proviso to clause (2)

Repugnancy between a Union law and a State law within the meaning of Article 254 may
arise in the following ways:

A) Direct conflict: It means that there is a tangible and real inconsistency in both the Acts i.e.,
one Act says “do” and the other says “don’t” in the same set of facts. In other words, when it
is unmanageable to follow the one without defying the other. This is known as direct conflict
test. In ITC case the Apex Court found direct conflict between the Union law i.e. ,the
Tobacco Board Act and a State law i.e., the Agricultural Produce Markets Act and ruled that
the “question of allowing both to operate would not arise.” In such a condition, the Union law
would prevail over the State Law

B) Occupied Field: There may be repugnancy because both Union and State law cover the
same field regardless of the fact that, there is no apparent conflict between two provisions of
Union and State Law. As a general rule, when a Union law and State law can exist together
because their operational area are different, there would not be any repugnancy. The
Legislature of Uttar Pradesh enacted a law in 1955 empowering the State Government to
frame nationalization scheme for motor transport. Later, in the year 1956, the Parliament in
order to bring uniformity in law, amended the Motor Vehicles Act. The Supreme Court in
Deep Chand v. State of U.P., found that both State law and Union law are made on same
subject and have same operational field. They diverge on many vital particulars, e.g., power
to initiate the scheme, method of doing it, power to hear objections, principles concerning
payment of compensation etc., and therefore, the State law would have to clear the way for
the Union law to the extent of repugnancy.

C) Intended Occupation: If a competent legislature, in this case the Parliament, explicitly or

D) relevance of pith and substance: The Supreme Court in Vijay Kumar Sharma v. State of
Karnataka held that the test rule of pith and substance can be applied to determine whether
the State law has substantially transgressed on the field occupied by the law of Parliament.
Thus, the doctrine of pith and substance can be invoked at the threshold stage for the limited
purpose of finding out whether Article 254 is relevant to resolve the dispute.

Where a State law is repugnant to a Central law within the meaning of Article 254(1), what
becomes void is not the entire Act but only insofar as it is repugnant to the Central law
subject to the doctrine of severability. Thus those parts of impugned Act which can be
severed from the repugnant parts will remain valid and enforceable. Only the repugnant part
of the impugned legislation will be held void.

It must be noted that article 254(1) lays down a general rule whereas article 254(2) is the
exception. What is laid down in article 254(2) is that if there be a repugnancy between the
State legislation with a law enacted by Parliament within the ambit of List and the state
legislation has been reserved for the consideration of the president and has received his
assent, the State legislation shall prevail in that state. However, 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 Legislature
of the State.