Doctrine of Pith and Substance and the Concept of Colourable Legislation Explained

INTRODUCTION

The Doctrine of “Pith and Substance” and the concept of “Colourable Legislation” are two fundamental principles in constitutional law that help determine the true nature and validity of legislative actions. These doctrines are particularly relevant in federal systems where the distribution of powers between the central and state governments is delineated by a written constitution

In this piece, we have brought forth you the journey both these doctrines have traversed and thus evolved over time. Further, distinction is made between cases pre-2000 and post-2000 to elucidate the doctrines in a more succinct fashion.

DOCTRINE OF PITH AND SUBSTANCE

Origin
The Seventh Schedule of the Indian Constitution specifies the subject matters and divides the power to make laws between the Centre and the State.

The Seventh Schedule deals with the Federal List containing 3 lists. They are:

• List I or the Union List where the centre has power to make Laws
• List II or State List where the State has power to make Laws
• List III or Concurrent List where the State and Centre have powers to make laws.

When there is a conflict between the subjects assigned to the Union and State governments under the Indian Constitution, the Doctrine of “pith and substance” determine the true nature and character of a legislation. Both Union and State legislature should keep within the area assigned to it and should not interfere into the area reserved for other.

The doctrine helps in determining which level of government has the authority to make laws in cases where there is an ठapparent overlap or ambiguity” in legislative powers. The doctrine in India is firmly supported by Article 246 of the Constitution and the Seventh Schedule. It was originated in Canada in the case of Cushing vs Depoy[1].

According to the pith and substance doctrine, the court examines the purpose and substance of the legislation. It aims to identify the main purpose of the law and determine whether it falls within the legislative competence of the entity that enacted it.

The doctrine was first applied and upheld by the Supreme Court in the FN Balsara case

LANDMARK JUDGMENTS: BEGINNING

(1) In the State of Bombay And Ors. Vs F.N.Balsara[2], The definition of “liquor” under the Bombay Prohibition Act,1949 is assailed to be too wide and therefore beyond the powers of provincial legislature.

Issue:
Whether the Bombay Prohibition Act, 1949 was valid as the The Bombay Prohibition Act unintentionally interferes with a key topic: the import and export of alcohol beyond customs frontiers.

Held:
The court upheld the challenged legislation and stated that even though it accidentally infringed on a key issue, the Act was in essence and substance a state matter.

(2) In the case of Profulla Kumar Mukherjee v. Bank of Khulna,[3] the validity of Bengal Money Lenders Act, 1946 was challenged which limited the amount and the rate of interest recoverable by a money lender on any loan. It was argued that promissory notes were a Central subject and not a state subject. It was held by the Privy Council that the act was in pith and substance a law in respect of ‘money lending and money lenders, was a state subject and was valid even if it incidentally trenched upon ‘Promissory note’ i.e a central subject.

LANDMARK JUDGMENTS: POST 2000

1) In the case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors,[6] the notion of pith and substance was effectively explained. The court noted that the theory should be used whenever the legislature’s power to pass a particular bill was in doubt. After carefully examining the Act, the court would decide the law’s essence and substance if there was a challenge to the competence of the relevant legislature. Here, it was critical for the courts to consider the true character of the legislation, its goal, scope, and effects. It was also critical to determine whether the law under dispute was genuinely covered by a subject that was included in the list of issues addressed by the relevant legislature.

The Supreme Court held that, applying the idea of pith and substance to a piece of legislation is one of the tested ways to assess a legislature’s ability to pass it. When the legislative authority of the legislature with regard to a certain statute is questioned in light of the items on several lists, this concept is used. If the legislative competence is contested, the courts will examine the disputed Act in order to determine the essence and content of the contested legislation.

To determine whether the enactment in question is truly referable to a field of the law assigned to the relevant legislature under the constitutional framework, the courts must investigate and examine the true character of the enactment, its object, scope, and effect.

2) In Association of Natural Gas vs Union of India[7], the Hon’ble Supreme Court viewed that when the power to legislate on a given subject is to be taken into account in order to determine the scope of that power. Further, the Apex Court noted that it was important to understand what would be covered within that subject in legislative practice. The top court held that the doctrine of pith and substance is sometimes invoked to find out the “nature and content” of the legislation. However, when there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the conflict.

3) The Tamil Nadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997 was challenged by the petitioner and others in K.K. Baskaran v. State rep. by its Secretary, Tamil Nadu & Others [S.L.P.(Civil) No. 7285/2011]. The main argument made by the appellant in opposition to the Maharashtra Act, 1999, as well as the Tamil Nadu Act, was that the latter Act is outside the purview of the State Legislature’s legislative authority because it violates entries 43, 44, and 45 of List I of the Constitution’s Seventh Schedule. The Reserve Bank of India Act, 1934, the Banking Regulation Act, 1949, and other pieces of Parliamentary legislation were cited as reasons why the challenged Act should be struck down.

However, the Hon’ble Court stated, “It often happens that a legislation overlaps both Lists I as well as List II of the Seventh Schedule. In such circumstances, the doctrine of pith and substance is applied. We are of the opinion that in pith and substance the impugned State Act is referable to Entries 1, 30 and 31 of List II of the Seventh Schedule and not Entries 43, 44 and 45 of List I of the Seventh Schedule.”

Hence, by referring to its earlier judgements, the Hon’ble Supreme Court reiterated that according to the said doctrine, an enactment which substantially falls within the powers expressly conferred by the Constitution upon a Legislature which enacted it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature.

DOCTRINE OF COLOURABLE LEGISLATION

The Constituent Assembly established a government with constitutional standing and a distinct area of responsibility that would be founded on the ideas of unity and collaboration between the Centre and the States.

Meaning
The idea of colourable legislation, however, comes into play if a legislative body isn’t allowed to establish laws in a certain field but yet does so indirectly under the aegis of another legislation. To determine whether or not they are qualified to enact a certain law, the idea of colourable legislation is used.

The latin proverb “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” (What cannot be done directly should also not be done indirectly) is the source of the doctrine of colourable legislation.

When a law-making body abuses its authority and enacts something indirectly that it isn’t allowed to do directly, this theory has been utilised to resolve concerns of capacity or competency to enact a law.

Further elaborating on the doctrine of colourable legislation, any legislation is said to be colourable when the legislature passes legislation that is outside of their competence or the powers granted by the constitution by camouflaging it to look to be within their competency to legislate the laws. In layman’s words, the concept states that if the legislature is not expressly or implicitly granted the right to legislate, then they cannot go beyond their competent powers and indirectly pass such laws. This is associated with the doctrine of colourable legislation.

LANDMARK JUDGMENTS: BEGINNING

(1) When defining the doctrine, the Supreme Court stated in the case of K.C. Gajapti v. State of Orissa[4] that “questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the constitutional provisions if the constitutional spheres of the state are distributed by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights.” The term “colourable legislation” has been used in some court statements to refer to this type of breach, which can be distinct, covered, and direct as well as patent, apparent, and direct.

(2) An order of the Mysore Government reserving seats for admission to the State medical and engineering colleges was contested under Article 15(4) of the Constitution of India in the case of M.R. Balaji v. The State of Mysore (AIR 1963 SC 649).

Facts:
All communities, with the exception of the Brahmin community, were declared to fall under the categories of scheduled castes and scheduled tribes, as well as educationally and socially disadvantaged classes, and 75% of seats were set aside for them.

The State of Mysore approved another order on July 31, 1962, overriding all earlier orders and leaving only 32% of seats for the merit pool.

The petitioner claimed that the state’s classification was illogical and that the 68% reserve violated Article 15(4) of the Constitution. The issue was whether or not Article 15(4) gave the States the constitutional authority to enact such a reserve power. According to the court, the reservation was infringing the State’s constitutionally granted authority under Article 15(4).

(3) State of M.P. vs. Mahalaxmi Fabric Mills Ltd.[5]

In this particular case, the argument was made that the Parliament’s decision to raise the royalty rates from 400% to 2000% in the Cess and other Taxes on Minerals Validating Ordinance, 1992, was questionable. As the federal government has the authority to raise royalty rates, many coal-producing states imposed and received cess on coal production in 1982. These actions were ruled to be illegal and outside the purview of state law. In this instance, the Supreme Court supported the notification’s legality and ruled that it could not be characterised as a colourable law because the states owned the minerals and should therefore receive compensation for the harm they suffered.

LANDMARK JUDGMENTS: POST 2000

S. Bagavathy v. State of T.N.,[8] in this case the avenues of this doctrine were further widened.While reiterating, the Hon’ble Supreme Court noted that wherever “colourable legislation” so appears, a different viewpoint is adopted. What that would mean will be:
– Firstly, where even though it appears that the legislature has acted within the bounds of its authority when it passes the statute, it has actually exceeded those bounds in violation of the constitution
– Also, the transgression shall be so concealed by what, upon careful examination, was only a pretence and a disguise.

Both these doctrines were hence set to a clear tussle between the various agencies of the governments and the Courts at some point. Hence, the rate of disagreement has sky rocketed over the past few decades making their interpretation even harder.

CONCLUSION

In summary, the Doctrine of Pith and Substance focuses on determining the true character or essential nature of legislation, while the Doctrine of Colourable Legislation prevents the abuse of power by striking down laws that disguise their true purpose. These doctrines serve as safeguards to protect the constitutional distribution of powers between different levels of government. Through the application of these principles, courts can ensure that legislation is enacted within the proper constitutional boundaries and preserve the integrity of the federal system.

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[1] [1880] UKPC 22

[2] AIR 1951 SC 318

[3] (1947) 49 BOMLR 568

[4] AIR 1953 Ori 185

[5] AIR 1995 SC 2213

[6] AIR 2010 SC 2633

[7] 2004 (6) ALD 99 SC

[8] 2007 SCC Online Mad 218