Constitutional Law: Doctrine of Repugnancy

Reading time: 8-10 minutes.

Federalism limits every action of the government and splits power between centre and the state. The basic principle of the Indian constitution is that there is a division of legislative, executive and financial authority between the centre and the state. India follows the system of federalism where centre and state which is at a periphery each of them and is endowed with power assigned by the constitution. In the Indian constitution there are three types of lists mentioned in the 7th schedule they include Union list in which the union government has an exclusive power to make law.

State list where the state government has an exclusive power to make law. In the concurrent list both state legislature and the union have the power to make law. Doctrine refers as a set of rules, established through precedents can prove useful for determining a judgement in a given case.  Doctrine of repugnancy refers as where the law is enacted by the legislation which is in conflict with a law made by the state in the concurrent list the parliamentary legislation would prevail over the state legislature. Doctrine of repugnancy occurs when both the statues have made law in the concurrent list The aim of the concurrent list was to confirm uniformity across the country where both centre and state can legislate.

Justice Fazal Ali reviewed the decision passed by the courts on the doctrine of repugnancy and held in the case of M Karunanidhi v. Union of India that the doctrine of repugnancy can be used when

1. There must be a clear and direct inconsistency between the two enactments.

2. There can be no repeal unless inconsistency appears on the face of the two statues.

 3. Two statues occupy same field without coming in collusion there can be no repugnancy results.

4. There is no inconsistency between the statues in the same field both the statues continue to operate.

Evolution of doctrine of repugnancy

The doctrine of repugnancy is not expressly mentioned in the American as well as Canadian constitution it is being adopted from American constitution. The framers in order to avoid conflicts between the state and the union introduced the doctrine in the article 254 of the Indian constitution.

Article 254: Inconsistency between laws made by Parliament and laws made by the Legislatures of States

In the clause (1) it mentions that any provision of law made by the legislature of the state which is repugnant to the law passed by the parliament in the concurrent list, whether passed before or after the law made by the legislature of such state, the law passed by the parliament shall prevail and law made by the legislature of the state shall be void to the extent of repugnancy. In the clause (2) it mentions that law made by the legislature of the state in matters enumerated in the concurrent list which is repugnant to the existing law passed by the parliament, the law made by legislature of such state has been reserved with president’s assent it shall prevail in that state.  

The second clause was interpreted in many judgements as an exception of the first clause.

Proviso: Nothing shall prevent parliament from enacting a law on the same matter which will amend, verify, and repeal the law made by the legislature of the state.

The framers understandable gave more power to the union over the state as because the state government have a jurisdiction in a particular state. Centre is the protector of the states. The main aim of introducing this doctrine was to create conflict free national system. The doctrine has evolved over the years through interpretation of courts in various cases. In M.P. Sundararamier and Co v. The state of Andhra Pradesh the court interpreted repugnancy in two situations First the central and the state on any filed mentioned in list III of the seventh schedule which are inconsistent article 254 would be applied. Second Inconsistency between the central and the state law in list 1 and list II both the laws cannot stand together it shall be at the interpretation of the court.

The law that is passed in the state legislature won’t be repugnant if the laws are in different matters this was interpreted by the court in Zaveribhai Amaidas vs. State of Bombay. In UCO Bank v. Dipak Debbarma the court interpreted that the parliamentary legislation is the dominant legislation and the act passed in the parliament would prevail over the state law. In Deep Chand v. State of UP the court interpreted as if there is a direct and irreconcilable conflict then the law passed by the state legislature can be struck down. Justice K.G. Balakrishnan in Govt of A.P v. J.B. Educational society held that any law passed by the state legislation which is in conflict with the law passed by the parliament after reserving the assent of the president can be operative in that state subject to proviso mention under Article 254(2). There have been cases where state have exceeded with their power to make laws those laws are supposed to be struck down this was interpreted in M/S Gujarat exports Ltd v. State of Uttarakhand. The interpretation of the doctrine has evolved over the times from courts to courts,  and the courts while interpreting the doctrine has considered it import in maintaining the centre-state relation.

Salient features

  • If any law passed by the legislature of the state enumerated in the concurrent list which is repugnant to the earlier law made by the parliament or an existing law the law passed by the state legislature would remain in existence in that state if the assent is given by the president.
  • After receiving the presidential assent the law can still be held void if the parliament amend, verify and repeal any law in respect to the same matter.
  • The state legislature and the parliament have equal competence to legislate in the concurrent list. It is the duty of the court to interpret the enactments and avoid conflicts.
  • No repugnancy of law passed by the state legislate would be required if the matter is different. Then Article 254(2) would have no application.
  • Under article 254 of the Indian constitution when a law passed by the legislature of the state which is inconsistent with the law parliament the whole law won’t be held void it will be held void to the extent of repugnancy.
  • To ascertain repugnancy it is necessary to check law made by the parliament is an exhaustive code if it is not then the state law won’t be held void.
  • In order to strike down a law passed by the state legislature in the court it is necessary to prove both laws are made on the same matter and both are inconsistent with each other.
  • The state law which becomes void after repugnancy till the time the union law is not repealed once it is repealed it becomes operative.

Landmark judgements

M Karunnanaidi vs. Union of India

Facts: The Tamil Nadu state passed a legislature Tamil Nadu public men (Criminal misconduct) act 1973. It was amended in the year 1974 the act was challenged claiming that it was repugnant with the act passed by the centre consisting of the Indian Penal Code and the prevention of corruption Act 1947.

Judgement: The court held that there is no direct conflict between the state and the central Acts. They are complementary acts which run pari passu to the central act. In this case court held that the question of repugnancy may arise when two enactments are irreconcilable or inconsistent and they cannot operate in the same field together.  No question of repugnancy may arise if the statues continue to operate in the same field without cornering into collusion.  

Deep Chand vs. Sate of UP

Facts: The state government introduced UP transport service Act and was added in the concurrent list. There were certain provision which were in the UP transport service Act which was not in the motor vehicles Act. So the parliament amended the Motor Vehicles Act to create a uniform law.

Judgement: The court held that both the law were in a direct conflict and occupied the same field. Therefore it is void to the extent of repugnancy.  

Zaveribhai vs. state of Bombay

Facts: The parliament enacted essential supple Act 1946 regarding production and distribution of essential commodities. If the rules listed are not followed the person would be imprisoned for 3 years. The state passed an Act with the assent of the president the Act increased the punishment up to 7 years. The parliament amended the Act and enhanced the punishment.

Judgement: The court held that both the legislations made law in a same fields conflicting each other . Therefore law passed by the state is void to the extent of repugnancy.

Difference between repugnance and ultra-virus

Ultra-Virus refers as when a body exceeds his legislative power. E.g. When state makes a law in List I even though it doesn’t have the legislative power to make laws in list I. In Ultra-Virus law becomes invalid when the legislature exceeds the law. In Ultra-Virus there is no question of competition between two legislatures. In repugnancy both the legislatures are competent to make laws if they are inconsistent then the laws made by the state would be held void. In simple terms Ultra-Virus refers as incompetency and repugnancy refers as inconsistency.

Critical analysis

There is no doubt that both state and union having an absolute power but there are some subject matters where interest of both the governments collides. In this scenario doctrine of repugnancy proves to be a critical mechanism dealing with such inconsistencies. In India where centre has dominance over the state this doctrine is not surprising under article 254(1) of the Indian Constitution mentions that any law inconsistent to the law passed by the parliament would be held void. If the state has got the assent by the president the parliament can still make the law void by verifying, amending and repealing law in the same subject matter. It is of no importance whether parliamentary law is passed before or after the passing of the state law. Repugnancy arises were three essential are satisfied like direct conflict, occupied field and intended occupation if they are satisfied then the parliamentary law would prevail over the state law. This doctrine plays a critical role in order to preserve the integrity of the country and avoid two laws on the same subject matter.

Conclusion

The constitution of India consist of various doctrines out of which doctrine of repugnance is one of the most significant it help to maintain uniformity in the country and avoid disputes between the centre and the state. India being a Quasi federal country there is a distribution of power between the centre and the state so there are possibility that disputes arise between the centre or the state then this doctrine proves critical. Where any law passed by the parliament inconsistent with the law passed in the state legislature the parliamentary law would prevail. Many cases in the past Article 254(2) is considered as an exception to Article 254(1) which mentions that law passed by state legislature can be saved with the presidential assent.

There is a provision added in article 254(2) of the Indian constitution which claims that the parliament can verify, amend the same law to make the state law inconsistent. The law remains inconsistent until and unless the law passed the parliament is not repelled once it is law passed by the legislature of state comes into existence. Legislative intent plays a crucial role in the doctrine of repugnancy. Thus this doctrine plays a pertinent part in the Indian constitution in determining the roles of centre and state.

Author: Darshit Hemang Vora from NMIMS, School of Law.

Editor: Anmol Mathur from Symbiosis Law School, NOIDA.

Constitutional Law: Doctrine of Reading Down

Reading time: 8-10 minutes.

The law of contract is a body of limiting principles which draws some boundaries, along which parties are allowed to enter into enforceable understandings, which are thereby protected by law. One such ubiquitous condition is the principle of ‘consideration’, mentioned in Section 2(d) of the Indian Contract Act, 1872, and is essential for the formation of a contract under Section 10 of the Act.

But this principle of consideration is losing its importance in contemporary times of ‘judicial activism’. It is on its way to transform into a supplementary evidentiary instrument due to the emergence of a new practice which is the ‘Doctrine of Promissory Estoppel’.

This doctrine has been expressed by a two-judge bench in M.P. Sugar Mills vs State of UP (A.I.R. 1979 S.C. 621) as:

 “…where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not.”

This doctrine of ‘Promissory Estoppel’, also known as Equitable Estoppel, Quasi Estoppel and New Estoppel, is a common law doctrine and based on the principles of justice, equity, good consciousness and works as a ‘shield’ to prevent any form of injustice and inequitably.

Evolution

The doctrine had been formerly used in many forms several times, but it was only in Central London Property Trust Ltd. v. High Trees House Ltd. (1947 KB 130) that it was invoked properly as a doctrine. In this case, the appellant i.e., High tress leased a block of flats from the defendant who at the time of war, agreed to reduce the rent of the flats till the war is over. After the war, the defendant asked the plaintiff to pay the normal rent for current as well as war times. The appellant approached the court where Justice Denning put forth the extent of promissory estoppel, which originally evolved in the case of Hughes v. Metropolitan Railway Company (1877 (2) AC 439). However, on the question of whether this doctrine can function as a cause of action or not, there is an unequivocal assertion by several judges that no matter how important the doctrine of promissory estoppel is, it can never do away with a traditional doctrine of consideration.

In India, the history of the doctrine can be traced back to as early as the judgment in Ganges Mfg Co. v. Sourajmul (1880 ILR 5 Cal 669) in which the Calcutta High Court ruled out that estoppel is not only a rule of evidence but a person can also be stopped in favour of the rule of equity. It was heralded in U.O.I v. Anglo-Afghan Agencies (1968 SCR (2) 366)  but MP Sugar Mills v. State of UP (AIR 1979 SC 621) was the first case in which the Supreme Court explicitly defined the doctrine and its extent by putting forth the contention that though this new doctrine should not eclipse the traditional principle of consideration but just because of that reason, an equitable doctrine cannot be prevented from developing. Also, the court, in this case, gave prevalence to estoppel over sovereign immunity provided in Article 299 of the Indian Constitution and removed the distinction between sovereign and non-sovereign functions.

Subsequently, the 108th Report of the Law Commission of India endorsed this decision by recommending incorporating Section 25A in the Indian Contract Act, 1872 whose provisions would be as follows:

(1) Where

(a) A person, has, by words or conduct made to another person, an unequivocal promise which is intended to create legal relations or to affect a legal relationship to arise in the future; and

(b) Such a person knows or intends that the promise would be acted upon by the person whom the promise is made; and

(c) The promise, is, in fact so acted upon by the other person, by altering his position, then, notwithstanding, that the promise is without consideration, it shall be binding on the person making it, if, having regard to the dealings which have been taken place between the parties, it would be unjust not to hold him so bound.

Clause 2 of the Section provided that the section shall not apply when the doctrine if upheld would be unjust to the promisor and in case of promises by Government, would go against the law.

Though the impact of these advances was found more in concepts than in practical use, this judgment by Justice Bhagwati received major criticism in M/s Jit Ram Shiv Kumar v. State of Haryana (1980 AIR 1285) in which the principle of consideration was declared as integral to the law of contract and hence, it cannot be dealt away with and the doctrine was made inapplicable in the legislative functions of State. The final judgment regarding this came in the case of Union of India v. Godfrey Philips India Ltd  ((1985) 4 SCC 369), where the Government was allowed protection only in the legislative domain or when the promise goes against any statute, which remains valid till this date.

Salient features

The doctrine of promissory estoppel is a very contemporary development in a lugubrious, traditional, limiting system which needed to be modified. Some of its features include:

  1. The doctrine of promissory estoppel is special in the aspect that it falls neither under the category of estoppel as provided under Section 115 of Indian Evidence Act nor under the contract because it deals with future promises rather than past actions as is the case with estoppel and is an equitable remedy unlike the absolute remedial rights provided for the breach of contract respectively.
  2. There need not be any pre-existing legal relationship for the doctrine to come into effect.
  3. The doctrine can be applied only when a promise is made unequivocally to form a legal relationship between the parties, otherwise, the principle of consideration will hold sway.
  4. Additionally, the promisor must be aware, at the time of making the promise that his promise would be acted upon by the other party and the other party must have acted to its prejudice, thereby changing or altering his position, to invoke the doctrine.
  5. Government stands on the same footing as any private individual in its application, subject to the promise not being made against any statute or act or the public interest.
  6. There can be no estoppel against a minor except if he fraudulently induces the other person to believe that he is of the age.
  7. This doctrine is merely a ‘shield’ not a ‘sword’. Though it can be used as a course of action in India, provided there is no other way to obstruct injustice.

Landmark judgments

The doctrine of promissory estoppel, in its present form, is a result of distinguishing judgments in various landmark cases. Some of these are:

  1. Collector of Bombay v. Bombay Municipal Corporation (1952 SCR 43)

In this case, the appellant gave its land to the Government in consideration for some other land on lease and spent money on the construction of Crawford Land over the leased land. Seven decades later, the government asked the appellant to pay money as rent due to the appellant. The appellant approached the High Court to rule the assessment of rent as ultra vires. The Court held the promise by the government as binding as it was an inseverable part of the contract between the appellant and the Government, hence irreversible on any later date.

  1. Municipal Corporation of the City of Bombay v. Secretary of State (152 Ind Cas 947)

In this case, the Municipal Corporation, on the assurance of the Government, vacated a site having municipal stables and accepted another land from the Government for building stables, workshops etc. 24 years later, the government asked the appellant to vacate the site and pay due rent for the same. The plea by the appellant that this action goes against the principle of equity was upheld and the Government was restricted on its endeavour of acquiring the land.

  1. U.O.I v. Anglo-Afghan Agencies (1968 SCR (2) 366)

The Government of India provided for concessions in respect of import of raw materials to boost export to Afghanistan but subsequently, provided only part concession for which the Court estopped the Government and negative the government’s contention of official need, asking it to pay the full concession.

  1. Motilal Padampat Sugar Mills v. State of U.P (1979 SCR (2) 641)

 Government of UP announced for tax exemption to new industrial units but later on went back on its words when the appellant moved forward with setting up a hydrogenation plant by taking up a heavy loan, relying on the promise. Supreme Court, in this case, stated that allowing promissory estoppel would generate a cause of action but disregarding it would lead to unjust suppression of an equitable principle. Hence, a cause of action was allowed by way of estoppel.

v.            Combe v. Combe  [1951] 2 KB 215)

In this case, the doctrine of consideration was given a firm stand and the doctrine of promissory estoppel was started as just a shield and not a sword i.e., not a means of a cause of action in England.

Critical analysis

The doctrine of promissory estoppel, a contemporary development, is based on the exclusive principle of equity to prevent any kind of hindrance in the path of justice. This very fact makes the doctrine important with regards to the law as the law has to keep pace with society and any change in the society, asks for a consequent change in the law itself to keep it from falling into the abyss. Furthermore, the view of keeping the judges on the same footing as an individual is praiseworthy, in itself, to keep a check on the powers of the sovereign. The government works for the people and hence, is not allowed to work for the detriment of the commons.

The recommendations of the Law Commission sounds fairly reasonable and lays down a clear doctrine, keeping in mind the authority and needs of the government as well, though it has not received any place in the official body of law yet. Overall, the doctrine of promissory estoppel holds a significant position as a leading concept in our legal system.

Conclusion

The doctrine of promissory estoppel, which started its journey as a handmaid of a legal jurist, has become an integral part of the Corpus Juris. It negates the principle of consideration and gives preference to justice over rigid limiting laws. The principle of consideration is traditional in nature and in contemporary times, it becomes difficult to pertain to it. The doctrine of promissory estoppel is a relief and serves as a shield from any form of injustice.

Though the doctrine is more prevalent in concepts, for now, there is a fair chance of it becoming more popular in the coming times. With the growing extent of the doctrine of estoppel, the principle of consideration might soon become redundant with only evidentiary value as justice prevails all.

Author: Manvi Raj from University School of Law and Legal Studies, GGSIPU.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

Constitutional Law: Doctrine of Pith and Substance

Reading time: 8-10 minutes.

Unfolding the meaning of the doctrine, it can be stated that Pith and Substance denotes the true nature of law. The doctrine places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’. Hence, it can be stated that the very doctrine of pith and substance relates to finding out the true nature of a statute.

Article 246 of the Indian Constitution: How is it related to the doctrine?

For a better understanding of the doctrine of Pith and Substance, it becomes important to take a look at Article 246 of the Indian Constitution. Article 246 mentions the Union, State and Concurrent lists, enumerated in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the major features of such a constitution is the distribution of power between the Union and the State governments and the same has been put forth in the Seventh Schedule which comprises of:

  • List I– Union List (Parliamentary Legislation)
  • List II– State List (State Legislation)
  • List III– Concurrent List (Parliament and State Legislation)

These three divisions were made by the framers of the constitution. The Union List primarily consists of matters which are of national importance and hence the intervention of the Union government is required in such matters, empowering them with the right to legislate on these matters. Further, the State list comprises of the matters which are of local or state significance and hence, only the state governments are required to showcase interest in such matters. Lastly, the concurrent list comprises of subjects that seem to have been the common interests of both the union and state government, whereby, the power to legislate on such matters vests with both the state and the Union governments.

Historic background and evolution of doctrine of Pith and Substance

The evolution of the doctrine of Pith and Substance dates back to Canada. The inception of this doctrine was marked by the Canadian case of Cushing v. Dupuy. Subsequently, the doctrine made its way to India and is now a celebrated doctrine in the Indian context and there have been various landmark judgments with regard to the doctrine of Pith and Substance.

There are also various articles of the Indian Constitution which hold good with regard to the concept of Pith and Substance. For example, Article 246 and the Seventh Schedule have a major role to play in terms of upholding the Doctrine of Pith and Substance. The case of Cushing v. Dupuy which was seen as the first instance in terms of unfolding the doctrine of pith and Substance has been discussed below.

Cushing v. Dupuy, [1880] UKPC 22

Brief FactsOn 19th of July 1877, three of the brewing companies namely, Mc Leod, Mc Naughten and Leveille became insolvent. Dupuy was its official assignee with regard to the writ of attachment in insolvency. On the other hand, Cushing, who was the notary, produced the contract of sale which was executed on March 12th 1877, by way of which the firm had agreed to sell the assets to him. On the same day another deed was executed by the way of which Cushing had agreed to lease back the assets to the principals of the firm for a period of three years.

Further, in the petition, Cushing asserted about having the possession of the assets. But in reality no removal had taken place and the assets were still in the possession of the firm. When this matter was taken up in the court, the main question pondered upon was whether the transaction was a valid sale within the meaning of Section 1027 and 1472 of the Civil Code of Lower Canada.

Crux of the judgmentThe significant aspects which this judgment took into consideration were:

  1. The working and the nature of insolvency law in Canada.
  2. When can the appeals as of right to the privy council be excluded by the local legislature, and
  3. In which possible way can the royal prerogative be ousted by the state? 

What was held?

After thorough analysis of the case at hand, the court held that the sale under section 1027 of the Civil Code of Canada was not a genuine one. Though this judgment has been overtaken by subsequent judgments in Canada, the case of Cushing v. Dupuy remains to be one of the noteworthy cases as it laid the foundation stone for the doctrine of Ancillary or Incidental encroachment, discussed in the latter part of this article.

Salient features: Everything we need to know about Pith and Substance

  • Situations in which the doctrine is appliedIt is applied in the circumstances where subject matter of list seem to be conflicting with the subject matter of list two.
  • Reason behind adopting the doctrine– The powers of the legislature would be sternly limited if every law is declared invalid on the ground that it encroaches upon another law.
  • True nature and character The doctrine is known to examine the true nature and character of the subject in order to ascertain as to in which list it fits.
  • Provision for a degree of flexibility It takes under consideration the fact as to whether the state has the power to make a law which involves a subject mentioned in the Union list of the constitution.
  • First judgment which upheld the doctrine It was in the case of State of Bombay v. F. N Balsara that the doctrine was first applied in the case and the same was upheld.

Landmark judgments by various Indian courts

There have been a number of landmark judgments being delivered by various High courts and the Supreme Court of India. These judgments enshrine the idea of the doctrine of Pith and Substance and the same have been discussed in the following segment of the article:

  1. State of Rajasthan v. G Chawla- This case was regarding the sound amplifiers and the confusion as to whether the state or the central government has the right to legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on the usage of sound amplifiers in the state. The same was not complied with by the respondent. As a consequence of the violation of the law, the judicial magistrate impugned the respondent.  Further on an appeal the matter was taken up by the Supreme Court of India.

Significance of the doctrine in the judgmentThe primary question involved here was the power to legislate on matters of Public health. The state government argued that entry 6 of the list IIgives power to the state government to regulate the use of amplifier as it produces loud noise. On the other hand, the opposition put forth the point that entry 31 of list I, which speaks about various means of communication like that of telegraphs, telephones, wireless broadcasting, etc., gives the union government the right to make laws regarding the use of the amplifiers.

Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I. The court justified its point by stating- ‘though amplifier is an apparatus of broadcasting and communication, the legislation in its pith and substance would lie with the state government and not the central government’.

  • State of Bombay and another v. F.N Balsara- This case acquires quite a lot of importance as it was the first case which upheld the doctrine of Pith and Substance in India.

Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way of the then existing Bombay Prohibition Act and this Act was challenged on the matter that there was an incidental encroachment on the act of importing and exporting of liquor through the borders. This matter was taken up by the High Court of Bombay and the following was held.

Significance of the Doctrine in the judgment The court gave out the judgment stating that the act was in its Pith and Substance and rightfully fell under the State list even though such an act was said to have a bearing on the import of liquor in the state.

  • Prafulla Kumar Mukherjee v. Bank of Khulna

In this case, the validity of the Bombay Money Lenders Act, 1946 came to be questioned. The main argument here was that promissory notes formed a part of the central subject and not state subject. But on the contrary, the Privy Council held that interpreting the doctrine of Pith and Substance, the act is actually a law with respect to ‘money lending and money lenders’ and this was clearly a state subject, further the court went ahead and stated an important point that this act was valid even if it entrenched upon the subject of ‘Promissory note’ which is a central subject, thus upholding the principle of the doctrine of Pith and Substance.

Critical analysis of the doctrine

  • Interpretation of the Doctrine of Pith and Substance

Recognized by various High courts and Supreme Court in India, this doctrine is an established principle of law. Whenever a law is seen to be encroaching or trespassing upon a field, the legislation of which has been assigned to another, the Doctrine of pith and Substance comes into play. The crux of the doctrine is that whenever a question arises regarding the determination of whether a particular law relates to a particular subject (which will be mentioned in one of the lists) the court while dealing with such issues looks into the substance of such matter.

Hence, from the above mentioned points it can be stated that Doctrine of pith and Substance states- “Whenever a question arises as to determination of whether a particular law relates to a particular subject (which might be mentioned either in one list or another) the courts mainly looks at the substance of the matter. Thus, for instance, if the substance falls in the union list then the incidental encroachment by the law on the State list does not make it invalid”.

  • Need for Pith and Substance in India: What effect does the doctrine have on the Indian context?

One of the main reasons behind the acceptance and applicability of the doctrine in India was to provide flexibility to an otherwise existing rigid scheme concerned with the distribution of power in a federal structure. Another important point to be interpreted here is “if it was so that every legislation was to be declared invalid on the ground that it has been encroaching on the subject of another legislature, then these powers assigned to the legislature would be enormously restrictive and this would not serve the purpose of the power being granted to the legislature”.

  • Doctrine of Ancillary or Incidental Encroachment

The doctrine of Ancillary and Incidental encroachment is actually an addition to the doctrine of Pith and Substance. The prime ideology existing behind this doctrine is that the power to legislate on a subject will automatically include the power to legislate even on the subordinate (ancillary) matters which happen to be reasonably connected to the subject of the matter.

For Instance- A power entrusted in order to impose tax would also impliedly include the power of search and seizure which should be taken up in order to prevent the evasion of tax. But at the same time, a power entrusted in relation to banking cannot be extended to that of non-banking entities.

Conclusion

Unfolding the meaning of the doctrine, it can be stated that Pith and Substance denotes the true nature of law. The doctrine places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’. Hence, it can be stated that the very doctrine of pith and substance relates to finding out the true nature of a statute.

Article 246 of the Indian Constitution: How is it related to the doctrine?

For a better understanding of the doctrine of Pith and Substance, it becomes important to take a look at Article 246 of the Indian Constitution. Article 246 mentions the Union, State and Concurrent lists, enumerated in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the major features of such a constitution is the distribution of power between the Union and the State governments and the same has been put forth in the Seventh Schedule which comprises of:

  • List I– Union List (Parliamentary Legislation)
  • List II– State List (State Legislation)
  • List III– Concurrent List (Parliament and State Legislation)

These three divisions were made by the framers of the constitution. The Union List primarily consists of matters which are of national importance and hence the intervention of the Union government is required in such matters, empowering them with the right to legislate on these matters. Further, the State list comprises of the matters which are of local or state significance and hence, only the state governments are required to showcase interest in such matters. Lastly, the concurrent list comprises of subjects that seem to have been the common interests of both the union and state government, whereby, the power to legislate on such matters vests with both the state and the Union governments.

Historic background and evolution of doctrine of Pith and Substance

The evolution of the doctrine of Pith and Substance dates back to Canada. The inception of this doctrine was marked by the Canadian case of Cushing v. Dupuy. Subsequently, the doctrine made its way to India and is now a celebrated doctrine in the Indian context and there have been various landmark judgments with regard to the doctrine of Pith and Substance.

There are also various articles of the Indian Constitution which hold good with regard to the concept of Pith and Substance. For example, Article 246 and the Seventh Schedule have a major role to play in terms of upholding the Doctrine of Pith and Substance. The case of Cushing v. Dupuy which was seen as the first instance in terms of unfolding the doctrine of pith and Substance has been discussed below.

Cushing v. Dupuy, [1880] UKPC 22

Brief FactsOn 19th of July 1877, three of the brewing companies namely, Mc Leod, Mc Naughten and Leveille became insolvent. Dupuy was its official assignee with regard to the writ of attachment in insolvency. On the other hand, Cushing, who was the notary, produced the contract of sale which was executed on March 12th 1877, by way of which the firm had agreed to sell the assets to him. On the same day another deed was executed by the way of which Cushing had agreed to lease back the assets to the principals of the firm for a period of three years.

Further, in the petition, Cushing asserted about having the possession of the assets. But in reality no removal had taken place and the assets were still in the possession of the firm. When this matter was taken up in the court, the main question pondered upon was whether the transaction was a valid sale within the meaning of Section 1027 and 1472 of the Civil Code of Lower Canada.

Crux of the judgmentThe significant aspects which this judgment took into consideration were:

  1. The working and the nature of insolvency law in Canada.
  2. When can the appeals as of right to the privy council be excluded by the local legislature, and
  3. In which possible way can the royal prerogative be ousted by the state? 

What was held?

After thorough analysis of the case at hand, the court held that the sale under section 1027 of the Civil Code of Canada was not a genuine one. Though this judgment has been overtaken by subsequent judgments in Canada, the case of Cushing v. Dupuy remains to be one of the noteworthy cases as it laid the foundation stone for the doctrine of Ancillary or Incidental encroachment, discussed in the latter part of this article.

Salient features: Everything we need to know about Pith and Substance

  • Situations in which the doctrine is appliedIt is applied in the circumstances where subject matter of list seem to be conflicting with the subject matter of list two.
  • Reason behind adopting the doctrine– The powers of the legislature would be sternly limited if every law is declared invalid on the ground that it encroaches upon another law.
  • True nature and character The doctrine is known to examine the true nature and character of the subject in order to ascertain as to in which list it fits.
  • Provision for a degree of flexibility It takes under consideration the fact as to whether the state has the power to make a law which involves a subject mentioned in the Union list of the constitution.
  • First judgment which upheld the doctrine It was in the case of State of Bombay v. F. N Balsara that the doctrine was first applied in the case and the same was upheld.

Landmark judgments by various Indian courts

There have been a number of landmark judgments being delivered by various High courts and the Supreme Court of India. These judgments enshrine the idea of the doctrine of Pith and Substance and the same have been discussed in the following segment of the article:

  1. State of Rajasthan v. G Chawla- This case was regarding the sound amplifiers and the confusion as to whether the state or the central government has the right to legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on the usage of sound amplifiers in the state. The same was not complied with by the respondent. As a consequence of the violation of the law, the judicial magistrate impugned the respondent.  Further on an appeal the matter was taken up by the Supreme Court of India.

Significance of the doctrine in the judgmentThe primary question involved here was the power to legislate on matters of Public health. The state government argued that entry 6 of the list IIgives power to the state government to regulate the use of amplifier as it produces loud noise. On the other hand, the opposition put forth the point that entry 31 of list I, which speaks about various means of communication like that of telegraphs, telephones, wireless broadcasting, etc., gives the union government the right to make laws regarding the use of the amplifiers.

Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I. The court justified its point by stating- ‘though amplifier is an apparatus of broadcasting and communication, the legislation in its pith and substance would lie with the state government and not the central government’.

  • State of Bombay and another v. F.N Balsara- This case acquires quite a lot of importance as it was the first case which upheld the doctrine of Pith and Substance in India.

Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way of the then existing Bombay Prohibition Act and this Act was challenged on the matter that there was an incidental encroachment on the act of importing and exporting of liquor through the borders. This matter was taken up by the High Court of Bombay and the following was held.

Significance of the Doctrine in the judgment The court gave out the judgment stating that the act was in its Pith and Substance and rightfully fell under the State list even though such an act was said to have a bearing on the import of liquor in the state.

  • Prafulla Kumar Mukherjee v. Bank of Khulna

In this case, the validity of the Bombay Money Lenders Act, 1946 came to be questioned. The main argument here was that promissory notes formed a part of the central subject and not state subject. But on the contrary, the Privy Council held that interpreting the doctrine of Pith and Substance, the act is actually a law with respect to ‘money lending and money lenders’ and this was clearly a state subject, further the court went ahead and stated an important point that this act was valid even if it entrenched upon the subject of ‘Promissory note’ which is a central subject, thus upholding the principle of the doctrine of Pith and Substance.

Critical analysis of the doctrine

  • Interpretation of the Doctrine of Pith and Substance

Recognized by various High courts and Supreme Court in India, this doctrine is an established principle of law. Whenever a law is seen to be encroaching or trespassing upon a field, the legislation of which has been assigned to another, the Doctrine of pith and Substance comes into play. The crux of the doctrine is that whenever a question arises regarding the determination of whether a particular law relates to a particular subject (which will be mentioned in one of the lists) the court while dealing with such issues looks into the substance of such matter.

Hence, from the above mentioned points it can be stated that Doctrine of pith and Substance states- “Whenever a question arises as to determination of whether a particular law relates to a particular subject (which might be mentioned either in one list or another) the courts mainly looks at the substance of the matter. Thus, for instance, if the substance falls in the union list then the incidental encroachment by the law on the State list does not make it invalid”.

  • Need for Pith and Substance in India: What effect does the doctrine have on the Indian context?

One of the main reasons behind the acceptance and applicability of the doctrine in India was to provide flexibility to an otherwise existing rigid scheme concerned with the distribution of power in a federal structure. Another important point to be interpreted here is “if it was so that every legislation was to be declared invalid on the ground that it has been encroaching on the subject of another legislature, then these powers assigned to the legislature would be enormously restrictive and this would not serve the purpose of the power being granted to the legislature”.

  • Doctrine of Ancillary or Incidental Encroachment

The doctrine of Ancillary and Incidental encroachment is actually an addition to the doctrine of Pith and Substance. The prime ideology existing behind this doctrine is that the power to legislate on a subject will automatically include the power to legislate even on the subordinate (ancillary) matters which happen to be reasonably connected to the subject of the matter.

For Instance- A power entrusted in order to impose tax would also impliedly include the power of search and seizure which should be taken up in order to prevent the evasion of tax. But at the same time, a power entrusted in relation to banking cannot be extended to that of non-banking entities.

Conclusion

This article has discussed in length the Doctrine of Pith ad Substance. From all the foresaid discussion it can be concluded that the Doctrine has tried to bridge the gap when it comes to determining whether a particular law relates to a particular subject and has been incidental in the way it functions in the Indian context. The doctrine has further helped in maintaining the true basis of the powers being granted to the legislature.

This article has discussed in length the Doctrine of Pith ad Substance. From all the foresaid discussion it can be concluded that the Doctrine has tried to bridge the gap when it comes to determining whether a particular law relates to a particular subject and has been incidental in the way it functions in the Indian context. The doctrine has further helped in maintaining the true basis of the powers being granted to the legislature.

Author: Namrata Kandankovi from Symbiosis Law School, Pune.

Editor: Avani Laad from Symbiosis Law School, Pune.

Explained: Functioning of Rajya Sabha (RS)

Reading time: 6-8 minutes.

In the year 2020, around 69 members of Rajya Sabha will be retiring, leaving these seats vacant, along with the 4 seats which were vacant already. Hence, election for a total of 73 seats would be held this year.

Due to loss in several State assembly elections in 2018 and 2019, the ruling party BJP may face difficulty in attaining majority at this upper house. According to the current situation, there are total 250 seats in Rajya Sabha out of which 83 are with BJP and 46 is with the major Opposition, i.e. the Congress.

For the majority, a party would need to win 123 seats. BJP hopes for a win in the UP elections as it would give a lead of 10 seats. Congress has a chance of coming to power in the states of Chhattisgarh, Madhya Pradesh, Rajasthan, Jharkhand and Maharashtra. As Trinamool has majority in West Bengal it is confident about its 4 seats in Rajya Sabha. Due to the shocking loss in the Maharashtra state assembly elections it will be difficult for them to acquire the 7 seats. In Haryana, one of the two seats eyed by BJP can be considered safe since Ram Kumar Kashyap of INLD has joined BJP. 52 seats vacant includes the Bihar and Odisha seats which makes BJP, JDU and BJD confident about retaining their seats in the Upper House.   

Constitutional provisions regarding Rajya Sabha:

Article 86 – It lays down about the maximum strength of the Rajya Sabha as 250, out of which 12 are nominated by the President and 238 are representatives from the states and Union Territories. At present the strength is around 245, out of which 233 are representatives of states and Union Territories and 12 are nominated. The 12 persons nominated by the president have special knowledge and experience in the matters of literature, art, science and social service.

The Fourth schedule – It addresses the allocation of seats to the States and the Union Territories in the Rajya Sabha. The allocation is made based on the population of each state. If a new state is formed or an existing state is reorganized, the number of seats changes. The representatives of each state in the Rajya Sabha shall be elected by the elected members of the legislative assembly of the state with the system of proportional representation through a single transferable vote.

How are members elected?

The process of election is as follows:

  1. By Electoral college:

Members of the Rajya Sabha are elected by the method of indirect election. They are elected by the elected members of legislative assembly of the state and by Electoral College of that union territory with proportional representation system using single transferable votes. The Electoral College for union territory consists of elected members of the legislative assembly of that union territory.

  • Bye-election:

Rajya Sabha is a permanent house and is not subject to dissolution. 1/3rd of its members retire after every second year. The election held to fill the vacancy caused by death, resignation or disqualification is called a “Bye-election” (for remaining term only).

  • Election of presiding officers:

Presiding officers have the responsibility to conduct the proceedings of the House. The Vice President of India is the ex-officio chairman of Rajya Sabha. It chooses its vice-chairmen from amongst its members. A panel is also present which is elected by the chairman of the Rajya Sabha, to preside over the proceeding of the house in the absence of chairman and vice-chairman.

  • Appointment of the Secretary General:

The Secretary General holds the rank equivalent to highest civil servant of the union and is appointed chairman of Rajya Sabha. He advises on the matter of parliamentary matters. He is also the administrative head of the Rajya Sabha secretariat and custodian of records of the house.

Functions of the Rajya Sabha

The functions of the Rajya Sabha can be classified in the following categories

  1. Legislative

The Constitution has classified subjects for legislation into Union, State and Concurrent lists. A Bill can be introduced in either house of the parliament, i.e. the Lok Sabha or the Rajya Sabha. A Bill introduced by a minister is known as Government Bill and a bill introduced by a private member is known as Private Members Bill.

A Bill passes through three stages: Lok Sabha and Rajya Sabha, and then receives presidential assent. When there is deadlock between the two houses then it is resolved in a joint sitting.

  • Financial functions

Under the constitution financial legislation has been divided into two categories, namely money bills and finance bills. Neither can be introduced in Rajya Sabha. Only when a bill involves expenditure from Consolidated Fund of India then it can be introduced in Rajya Sabha. This bill also comes under the heading of financial bills. The Rajya Sabha can only make recommendations for the money Bill.

  • Deliberative functions

It is one of the most important functions. The Rajya Sabha focuses public attention on major problems affecting policies of the govt. this is done by deliberation on five-year plans, budgets, etc.

Powers of Rajya Sabha  

  • Legislative powers:

Rajya Sabha enjoys equal powers with Lok Sabha in ordinary law-making process.

  • Financial powers:

In the matters of financial powers, the Rajya Sabha becomes does not possess much power. A money bill can only be introduced in Lok Sabha, it goes to the Rajya Sabha only for consideration and recommendations. If under 14 days Rajya Sabha fails to pass the bill, it will be deemed to be passed, whether or not it is passed by the Rajya Sabha. Any amendments proposed by Rajya Sabha are not mandatory. It is to the discretion of the Lok Sabha to accept or reject the amendments.

  • Executive powers:

The council of ministers are responsible before the Lok Sabha and not the Rajya Sabha. Rajya Sabha can not remove ministers from their office, but can control some exercise over the ministers by criticizing their policies, by asking questions and my moving adjournment motions.

  • Amendment powers:

The Rajya Sabha and Lok Sabha can together amend the constitution by passing an amendment bill with a two-thirds majority in each house.

  • Electoral powers:

Elected members of Rajya Sabha along with elected members of Lok Sabha and state legislative assemblies collectively elect the president of India. Members of Rajya Sabha and Lok Sabha together elect vice president. Rajya Sabha members also elect Deputy Chairman from among themselves.

  • Judicial powers:

The Rajya Sabha along with Lok Sabha can impeach the president. It can also pass a resolution to impeach a judge of the Supreme Court and any High court. The charges against the vice president can only be brought by Rajya Sabha. Rajya Sabha can pass resolution for removal of officers like Attorney General of India, comptroller and Auditor General and Chief Election Commission.

  • Miscellaneous powers:

Rajya Sabha, along with Lok Sabha, can:

a) Approve ordinances issued by president

b) Ratify emergency proclamation

c) Make changes in the jurisdiction of the Supreme Court and any High court             

d) Make changes in the qualifications for membership in Lok Sabha and Rajya Sabha.

  • Special powers:

a) Rajya Sabha can declare a sate subject as a topic of national importance by passing a resolution with two-third majority.

b) Rajya Sabha can create new All India Services or can terminate an existing All India Services.

Major contribution by the Rajya Sabha since independence

The Rajya Sabha held its first proceeding on May 13, 1952, after which it had contributed a lot in the socio-economic growth of the country. From its first session in May 1952 to its latest 49th session Rajya Sabha has held a total of 5466 sittings. It has been around 67 years from the date of its first sitting and it has already passed around 3817 bills, including 108 constitutional amendment bills.

There are 2282 members of the Rajya Sabha, amongst which 208 were women. The contribution of the Rajya Sabha can be seen through the legislation passed by it. When it comes to education, Rajya Sabha has empowered students with the right to free and compulsory education in 2009. When the women of the society were facing problems due to the men or due to the societal norms it helped the women by passing legislation like Hindu Marriage and Divorce Bill in 1952 as well as Muslim Women (Protection on Rights of Marriage) Bill in 2019. No matter what the issue was Rajya Sabha has always performed its duties by making legislations without getting influenced by the situations present at that time or societal pressures.

Conclusion

It can be seen that attaining majority in Rajya Sabha is indeed difficult. It has equal legislative power equals to Lok Sabha, except in the case of Money Bills. Functions mentioned states about the jurisdiction of the Rajya Sabha. The number of RS seats is proportionate to the population of the state so that there can be justified representation of each state.

The structure of the electoral process have been made deliberately, to keep necessary checks and balances on the powers of central government. Keeping all these points in mind, it can be concluded that the Rajya Sabha serves an important role in preserving the federal structure as mandated by the Constitution.

Author: Shefali Singh from Department of Law, PIMR, Indore .

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Explained: UAPA

Reading time: 6-8 minutes.

The government of Jammu and Kashmir, on 14 February 2020, issued an order banning all social media sites, to curb the propagation of “false information/rumours” that would lead to a negative effect on the “social stability”. The police authorities of the state of Jammu and Kashmir invoked the rigid Unlawful Activities (Prevention) Act in order to register a case against those various people who were consistently using the social media sites through proxy servers by getting past Internet firewalls, which was against the government orders. Virtual Private Networks (VPN), allow the users to hide their location while accessing the internet and leads to a more secured browsing.

Significance of this development:

This step was undertaken by the government in order to ensure avoidance of the misuse of social media. The formal statement issued by the Cyber Police Station Kashmir Zone Srinagar reported that there was a constant misuse of social media for the propagation of secessionist ideologies and unlawful activities by miscreants.

They even claimed that some alleged incriminating material was found in the course of the investigation. An appeal to avoid the usage of social media via VPN was made by the IGP Kashmir Shri Vijay Kumar to the general public. The major significance of this step taken by the Jammu and Kashmir authorities was the prevention of any unlawful activity that might challenge the integrity, unity and security of India.

What is UAPA?

UAPA or Unlawful Activities (Prevention) Act is an Indian legislative act which has the aim of effectively preventing the unlawful activities associations in India. Any activity which stands in contradiction with the security, integrity, sovereignty and unity of India can fall under the purview of this act.

As per the 2004 amendment, Section 2(o) defines unlawful activity as “any action taken by an individual or association (whether by committing an act or by words, either spoken or written, or by visible representation or otherwise), (i) which is intended, or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is in- tended to cause disaffection against India.”

A committee was appointed by the National Integration Council in order to look into the provision of reasonable restrictions in the same. The UAPA can be traced back to the times of colonial era. The Criminal Law Amendment Act, in the year 1908, first used the term “unlawful association” to criminalize the Indian national movement. However, the same kind of law got carried forward to the present.

Why was the act introduced?

The stringent provisions of UAPA are made with an underlying purpose. If the investigating agency comes across any material which shows commission of offence dealt with by these provisions, it is apparent that the course prescribed therein must be allowed. This Act was introduced to secure and preserve the security, sovereignty, unity and integrity of India by preventing any kind of unlawful activities. It penalizes any such activity which might pose a threat to the peace and harmony in India. The aim of this Act is to prevent the commission of any such activities which can create any kind of problem in the stable existence and well-being of the citizens.  

Salient features:

  1. The UAPA or the Unlawful Activities (Prevention) Act aims to effectively ensure the prevention of any activities or association which can be considered unlawful in nature in India and might pose as a threat to the national welfare.
  2. The primary objective of this Act is to ensure the availability of powers to the government for dealing with activities which are directed against the unity, integrity and sovereignty of India.
  3. The Act also provides for the penalties which can be imposed upon any person found to be involved in any unlawful activity or participation in unlawful associations.
  4. The Act considers it to be a commitment of a crime to support any secessionist movement, in any manner possible be it direct or tacit, or to support any claim/claims made by any foreign power regarding any territory to what India claims as its territory.
  5. UAPA aims to eradicate any kind of unlawful or illegal element that might exist in the society or that might affect the stability of any region. It is based upon the principle of creating a state filled with unity and integrity. 
  6. The Act also is an attempt to prevent the infiltration of any violent element in the society. It keeps a check on the influx of violent components and its nature in the society. 

Criticism of UAPA:

The critics of UAPA consider it a draconian law which encroaches upon an individual’s basic human rights. They opine that this law is designed to give the state limitless power to choose the group, the section, and the political opinion that it wishes to describe as criminal and to attack it with legislated violence. They find it a grave violation of the fundamental rights of citizens of Indian enshrined in the Constitution. Moreover, it infringes the provisions in the criminal justice system which means to safeguard the innocent citizens.

They consider this law as a tool that can be used by the government to label any organization as unlawful and terrorist in nature on its own terms. As a matter of fact, many critics have often described this Act as an instrument to legalize their brutality. It has been referred to as a means to fulfill the government’s extremist form of action. This law can be very easily misused by the government as well. This Act provides a very vague definition of “terrorist acts” and “unlawful activities” and hence makes it application a subject to the government’s discretion.

Conclusion:

The UAPA or the Unlawful Activities (Prevention) Act was introduced to combat the issues of unlawful activities and terrorist activities. This Act is based on the lines of prevention of any such act/acts which might prove to be detrimental to the stability of India as a nation. This Act not only criminalizes the fundamental right to association but also dilutes the distinction between political dissent and criminal activity by criminalizing dissident voices and acts.

The UAPA is an Act that has been propounded to secure and preserve the security, sovereignty, unity and integrity of India by preventing any kind of unlawful activities. However, this law is often criticized for being against the principles of democracy and equality. It is considered to be a law based upon the discretion of the government. It can be fettered by the whims and fancies of the government.

Therefore, the law must be revisited; the Centre must establish a secure regulatory mechanism, by implementing checks and balances at every stage of function of the UAPA. This would significantly reduce the misuse and arbitrary implementation of the Act.

Author: Archie Anant from Rajiv Gandhi National University of Law, Punjab.

Editor: Anna Jose Kallivayalil from NLU, Delhi.