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The Gujarat University, ... vs Krishna Ranganath Mudholkar And ... on 21 February, 1962
Showing the contexts in which doctrine of pith and substance appears in the document
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The State has the power to prescribe ;he syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the' one hand, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and, of course, to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure co-ordination and determination of standards, that is to ensure maintenance or improvement of standards. The fact that the Union has not legislated, or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1) ; even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. Counsel for the University submitted that the power conferred by item No. 66 of List I is merely a power to co- ordinate and to determine standards i. e. it is a power merely to evaluate and fix standards of education, because, the expression "co-ordination" merely means evaluation, and "determination" means fixation. Parliament has therefore power to legislate only for the purpose of evaluation and fixation of standards in institutions referred to in item

would affect the import. The argument was advanced as a part of the doctrine of pith and substance and was rejected on the ground that the said encroachment did not affect the true nature and character of the legislation. This Court again had to deal with the vires of the provisions of the Madras Prohibition Act in A. S. Krishna v. The State of Madras(1). There, the argument was that the said provisions were repugnant to the provisions of the existing Indian laws with respect to the same matter, to wit, Indian Evidence Act I of 1872 and Criminal Procedure Code Act No. V of 1898. In that context the argument based upon impact of the former legislation on the latter was advanced. This Court rejecting the contention observed:

It will, therefore, be seen that the judicial Committee did not lay down any new principle of "direct impact" dehors the doctrine of pith and substance. The heavy impact and crippling effect of an impugned legislation on a Dominion subject was taken as an important indication of its colourable nature. The foregoing discussion does not countenance the suggestion that apart from the doctrine of pith and substance, the courts have recognized an independent principle of "direct impact". Nor can I agree with the argument of learned counsel that the doctrine of pith and substance has no application in a case where one entry in a list is expressly made subject to another entry in a different list. In such a case it only means that out of the scope of the former entry a field of legislation has been carved out and put in the latter entry. That in itself has no bearing on the applicability or other- wise of the doctrine. The position is exactly the same as in the matter of construing two entries in different lists. Whether two entries are carved out of one subject or deal with two different subjects, the principle of construction must be the same : in either case the Court is called upon to ascertain under what entry the impugned law falls. The doctrine of pith and substance only means that if on an examination of a statute it is found that the legislation is in substance one on a matter assigned to the Legislature, then it must be held to be valid in its entirety, even though it may trench upon matters which are beyond its comprehension:see The State of Bombay v. F. N. Balsara (1) and A. S. Krishna v. The State of Madrass (2). The true character of the legislation is the criterion and its incidental encroachment on other items is not material. If that be so, once we come to the conclusion that the impugned legislation squarely falls within one entry, its incidental encroachment on another entry whether carved out of the former entry or has an independent existence althrough, will not make it any the less one made within the limits of the former entry.

To summarize: When a question arises under what entry an impugned legislation falls, the court directs its mind to ascertain the scope and effect of the legislation and its pith and substance. Decided cases afford many criteria to ascertain its scope, namely, comparison of conflicting entries, effect of the impugned legislation, its object and purpose, its legislative history, its colourable nature and similar others all or some of them would be useful guides to get at the core of the legislation. But no authority has gone so far as to hold that even if the pith and substance of an Act falls squarely within the ambit of a particular entry, it should be struck down on the speculative and anticipatory ground that it may come into conflict with a law made by a co-ordinate Legislature by virtue of another entry. If the impact of a State law on a Central subject is so heavy and devastating as to wipe out or appreciably abridge the Central field, then it may be a ground for holding that the State law is a colourable exercise of power and that in pith and substance it falls not under the State entry but under the Union entry. The case-law, therefore, does not warrant the acceptance of a new doctrine dehors that of pith and substance.