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Doctrine of proportionality and Doctrine of Pith and Substance

Article submitted by Shobika K, SASTRA Deemed to be University.


The idea of proportionality doctrine appears first in Nicomachean Ethics, Book 8, by Aristotle. Proportionally, Aristotle's scheme measures distributive justice. In short, Aristotle's definition can be said to be 'recta ratio,' that is, the right justification or the right relationship between the state and the individual, as defined by the rule of law. Proportionality is one of the most important justifications of judicial review. It has been a ground for many years and evolved from the notion of unreasonableness

Throughout the years, the definition of proportionality has been more established by the judges as a general principle of law. The doctrine of proportionality is well known in European administrative law, and it is a specific principle. Proportionality doctrine is a concept used commonly in cases of regulatory action as a basis for judicial review. The doctrine was developed in Europe and is a key component of European administrative legislation. The doctrine essentially means that the punishment should not be disproportionate to the offense committed, or the means used by the administration to achieve a specific goal or outcome should not be more restrictive than that is necessary to achieve it. It can be claimed that Pith and Substance denotes the true nature of law, revealing the sense of the doctrine.

The doctrine stresses the idea that it is the real matter to be questioned and not its unintended effects in another area. Pith denotes 'the essence of something' or 'the true nature,' whereas the substance says 'the most important or essential part of something.' It can also be claimed that the very doctrine of pith and substance relates to the discovery of the true essence of a law.

Doctrine of Proportionality:

We live in an era in which administrative officials have been allowed to exercise discretionary powers, position holders in the government exercise broad discretionary powers and these powers cannot be used arbitrarily, and the doctrine of proportionality is used to keep a check on them. Proportionality is a concept in which the Court deals with the procedure, system or manner in which the decision-maker has ordered, drawn an inference or reached a decision. It is a misconception that appeal is similar to judicial review based on this doctrine. During the appeal, the appeal authority is allowed to reassess the entire matter, while in the situation where an administrative decision is contested on the basis of the principle of proportionality, the appeal authority simply determines whether the procedure is right or if the punishment is the least restrictive way of achieving its objective.

In the Indian legal system, a conservative approach to this doctrine has been introduced as if a wider doctrine had been implemented, and the discretionary powers of the government have become obsolete. It will cause the judiciary to intrude on the powers of the executive. The judiciary cannot step into the shoes of the government and take action on its behalf. Hence,the doctrine implemented in India is great to maintain its status[1].

In the case of Om Kumar vs. Union of India[2], the Doctrine of Proportionality was adopted, the disciplinary authority had requested the Supreme Court to reconsider the amount of punishment given to four civil servants, the court had declined to re-consider the quantum of the punishment as no principle of law had been breached nor the penalty was "Shockingly Disproportionate" to the mischief committed by the persons concerned. This legal position has been crystallized by the Supreme Court in the subsequent cases.

In the case of P. State Road Transport Corporation vs. Subhash Chandra Sharma[3], the respondent was charged with disciplinary proceedings. Three charges were brought against him in relation to serious misconduct, repeated absence from duty and harassment of the cashier of the transport service. All three charges were brought against him and he was removed from the service. Consequently, the respondent appeals against the decision of the Disciplinary Committee in the Labour Court. The court found that in the process used or the committee's findings there was no infirmity, the court nevertheless set aside the committee's decision and reinstated him. The court has given no justification for the severe punishment. The Supreme Court ruled that the labor court's ruling was both arbitrary and whimsical. The court further noted that the sentence imposed by the disciplinary committee was in no way "shockingly disproportionate" to the accusation proven against him because the respondent's misconduct was severe and intolerable. The court also noted that the High Court had failed to exercise its authority under Art. 226 and omitted to amend the decision of labour court.

Doctrine of Pith and Substance:

Like Canada, India also has two legislative bodies i.e. Union and States which derives their power mainly from Article 246 of the Constitution. Article 246 refers to the Union, State and Concurrent lists set out in the Seventh Schedule of the Constitution. Taking into account the federal nature of the Indian Constitution, one of the main features of such a constitution is the distribution of power between the Union and the Governments of the State, as set out in the Seventh Schedule. Such three divisions were created by the framers of the constitution. The Union List consists primarily of matters of national importance, and therefore the intervention of the Union Government in such matters is necessary, giving them the right to legislate on these matters. Moreover, the State list includes issues of local or state importance and, therefore, only state governments are required to show interest in such matters. Finally, the concurrent list consists of subjects which seem to have been in the general interest of both the Union and the State Government, whereas the power to legislate on these matters is with both the State and the Union Governments[4].

In the case of State of Bombay and another vs. F.N. Balsara[5], t the doctrine of Pith and Substance was upheld in India. Sales and possession of liquor were prohibited in the state of Maharashtra by means of the then established Bombay Prohibition Act, and this Act was challenged on the ground that there was an incidental violation of the act of importing and exporting liquor across borders. This matter was dealt with by the High Court of Bombay, and the court handed down a judgment stating that the act had been in its Pith and Substance and had properly been included in the State list even though it was alleged that such an act had a bearing on the import of liquor in the State.

The Prafulla Kumar Mukherjee vs. Bank of Commerce[6] case has put the clarity on this issue by explaining that any item of the Union List may accidentally be affected by the State Legislature dealing with any matter. The Court held that, whatever the incidental effects may be caused by the statute of the State legislature, the matter must be allocated to the appropriate list on the basis of the true nature of the matter. Therefore, it depends on whether there was incidental or actual intervention of the state legislatures into the matters. Whether there is an accidental encroachment on any matter on the Union list by the state legislature, it does not affect the legislature passed by the state legislature.


The doctrine of pith and substance means that whenever law falls within the framework of the application and the competence of the State Legislature, this doctrine must apply and the act will not be struck down. Consideration and extent of the intrusion of one list into another are also well established. If the violation is trivial and does not impact the dominant portion of any other entry that is not under the jurisdiction of the State Legislature, then the law can be valid. Whenever the legislation of the central and state covers the same area, the central law would prevail over that of the state.

Our Courts have also followed the general principles drawn up in the doctrine of proportionality. Recently there have been significant changes in the field of administrative law. Although the Constitution guarantees the right of the Superior Courts to invoke judicial review, its substance, scope and influence, and the balance between different principles are not specified in anywhere in the constitution but were possibly founded on various principles enunciated on the basis of notions of justice that usually permeate common law.

[1] Piyush Tiwari, Doctrine of Proportionality: An Analysis of Supreme Court Cases, Doctrine, RECOB LEGAL (Aug 21, 2020, 3:44pm), [2] AIR 2000 SC 3689 [3] Indian Kanoon, U.P. State Road Transport vs Subhash Chandra Sharma & Ors on 15 March, 2000, ( Aug 21,2020, 3:31pm), [4] Narmata Kandankovi, Constitutional Law: Doctrine of Pith and Substance, LEXILIFE INDIA, (Aug 21, 2020, 3:37pm), [5] AIR 1951 SC 318 [6] AIR (1947) 49 BOMLR 568



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